• Loading stock data...
Tuesday, July 23, 2024
Join us this September for Tuned In Request to Attend

One Year of NIL: The Ongoing Battle for Legal Control

  • The first year of the NIL era was governed by several disjointed legal forces.
  • A year has gone by, and there’s still no more clarity, enforcement, or uniformity than there was last July.
Jenna Watson/IndyStar

The first year of the NIL era was governed by several disjointed forces: State laws, school policies, and loose NCAA guidance. Despite the NCAA’s best lobbying efforts, a federal law was absent. So was an enforcement mechanism for any of these rules.

Athletes got paid, and college sports didn’t collapse. 

But a year has gone by, and there’s still no more clarity, enforcement, or uniformity than there was last July. And pending litigation threatens not to just rewrite NIL rules, but kill amateurism altogether.

As a result, everyone from state legislators to NCAA officials are still advocating for alterations. 

At the Federal Level

College sports officials from NCAA President Mark Emmert to SEC Commissioner Greg Sankey have taken trips to Washington to beg Congress for a uniform NIL law. 

Thanks to the Alston case, the NCAA risks exposing itself to lawsuits without one. But it also wants an antitrust exemption, so that it can protect amateurism on its own, Kennyhertz Perry attorney Mit Winter told Front Office Sports.

In the next year, the NCAA probably won’t get what it wants. Anyone who has access to the news knows Congress has other priorities.

It’s also unclear whether a federal standard is necessary for the athletes themselves. It doesn’t matter to them whether there’s a federal law, as long as they’re free to profit.

In the NCAA

On June 30, 2021, the NCAA passed a short list of NIL guidelines. It did little more than try to prohibit pay-for-play and recruiting inducements.

When NIL collectives burst onto the scene, the NCAA published more guidelines. In May, it said boosters and collectives couldn’t talk to recruits or offer deals before an athlete committed. It also said it would investigate and punish violators of the policy — though it wouldn’t take away athletes’ eligibility.

The SEC reportedly has explored setting conference-specific NIL guidance — but that may or may not pass the antitrust sniff test. 

The Division I Transformation Committee will also consider division-specific rules as part of the NCAA’s new constitution process.

West Coast Conference Commissioner Gloria Nevarez, who sits on the committee, told FOS her major focus is “drawing the line” on pay-for-play. She also noted that the guidelines have to be “lived within, and not challenged every step of the way” from a legal or legislative perspective.

In the next year, legal experts believe the NCAA will punish at least one collective or school, but the scope of enforcement remains unclear.

At the State Level

The NCAA is trying to bar NIL from the recruitment process — while many state legislators are repealing or amending state laws to reduce restrictions.

Before the NCAA changed its rules, it behooved states to pass laws to ensure local athletes had NIL rights. But many of those laws had unnecessary prohibitions — like deals with alcohol companies — or barred school officials from helping athletes procure deals directly.

Legislators want to give schools as much latitude as possible to compete in recruiting. Alabama was the first — it killed its NIL law altogether. States from Connecticut to Illinois passed alterations removing certain provisions. South Carolina suspended its law for the 2022-23 fiscal year.

Even in states where NIL laws are strict, there doesn’t seem to be an enforcement mechanism. But it’s better to be safe than sorry.

“The cons far outweigh the pros when it comes to state NIL laws,” Geragos and Geragos attorney Dan Lust told FOS. “If there is no rule, how are you violating anything?”

Year 2 In Court

In the next year, litigation could change everything. 

  • In Johnson v. NCAA, athletes could be awarded collective bargaining rights — which would likely end the NCAA’s business model of amateurism altogether. 
  • It’s also likely a booster or collective could wage a lawsuit against the NCAA if it attempts to bar them from doing deals altogether, experts agree.
  • Athletes could file Title IX cases against schools that don’t offer equal education resources.

The House v. NCAA case could take longer, but its decision could be pivotal. 

Former athletes could claim damages against the governing body because they played in the pre-NIL era. Plus, NIL could be expanded to include the use of athletes’ NIL during televised games — meaning they could get a piece of media rights revenue. 

The most influential forces on the NCAA have been lawsuits, not state or federal laws. That trend will likely continue.

“The problems that we’re seeing now in NIL, they really pale in comparison to the legal obstacles and legal conflicts that are on the horizon,” Lust said. “So it’s certainly going to get worse before it gets better.”

Copy Link
Link Copied
Link Copied

What to Read

ACC Commissioner: FSU, Clemson Lawsuits ‘Incredibly Harmful’

Jim Phillips laid into FSU and Clemson during football media days.

Thom Brennaman Returns to Booth Years After Viral Slur

‘There’s a drive into deep left field by Castellanos.’

The Road to the Return of ‘EA Sports College Football’

This summer, the biggest development in college sports is virtual.
The Mississippi Department of Human Services on Monday sued retired NFL quarterback Brett Favre along with several other people and businesses to try to recover millions of misspent welfare dollars that were intended to help some of the poorest people in the U.S.

Judge in Mississippi Welfare Case Boots Brett Favre’s Lead Lawyer

The judge wrote he had a ‘pattern and practice of delicate deception.’
podcast thumbnail mobile
Front Office Sports Today

WNBA ASG, Paris Olympics Continue Rise of Women’s Basketball


Featured Today

The FTC Noncompete Ruling Could Change MMA As We Know It

Fighters could see their options—and earnings—grow.
July 21, 2024

O No Canada: The Next Big Sports Betting Scandal Could Erupt North of the Border

‘It’s open-season for match-fixing up there.’
Apr 15, 2024; Brooklyn, NY, USA; Caitlin Clark poses with WNBA commissioner Cathy Engelbert after being selected with the number one overall pick to the Indiana Fever during the 2024 WNBA Draft at the Brooklyn Academy of Music.
July 16, 2024

Women’s Sports Merch Is a $4 Billion Market, but Supply Isn’t Meeting Demand

Retailers can’t make women’s sports apparel fast enough.
Jan 7, 2024; Nashville, Tennessee, USA; Jacksonville Jaguars wide receiver Calvin Ridley (0) reacts after scoring a touchdown against the Tennessee Titans during the first half at Nissan Stadium.
July 14, 2024

Without Hard-Line Bans, Pro Athletes and Personnel Will Keep Betting on Sports

Penalties often aren’t stringent or consistent enough to deter banned behavior.
July 10, 2024

Pac-12 Media Days Evolve Into a Cocktail Party at the Bellagio

The two-team ‘zombie conference’ is still hosting a football media day.
July 18, 2024

College Football Playoff’s Next Era: Why Further Expansion Is on Hold

Twelve teams will make the playoff this season.

TopSpin 2K25 Brings the Legends of Tennis to Your Living Room

2K sports is reviving a classic with TopSpin 2K25.
July 9, 2024

Big 12’s New Era Kicks Off: Expansion, Private Equity, and Global Ambitions

The new 16-team conference is holding media days in Las Vegas.
July 9, 2024

Arch Manning Will Be in EA’s ‘College Football 25’ After All

The NCAA’s most famous backup had previously opted out.
July 8, 2024

Dan Hurley Finally Has New UConn Deal After Dramatic Offseason

Hurley is now the second-highest-paid coach in college basketball. 
July 7, 2024

The New College Sports Insiders Are Graphic Designers

Joe Tipton and Hayes Fawcett have become premier news-breakers on social media.