THE NAME, IMAGE, LIKENESS SCAM

The NCAA has foisted upon the public one of the biggest scams ever. That scam is the unbelievable process called “Name, Image, and Likeness,” (NIL, for short) and indeed it has been foisted—it was imposed upon the public fraudulently and surreptitiously, and is essentially a way to pay college athletes disguised as compensation for advertising, marketing, and promotional activities. Yeah, right! While there is vehement denial that NIL is an elaborate “pay-for-play” scheme, the more talented the player, the more exposure his/her NIL will receive. Only “star athletes” are going to be sought for their “endorsement.” Everyone knows the quarterback’s name and image, but can you name or recognize the left guard? Mr. star QB gets rich from NIL, but number 63 on the offensive line remains unknown.

For years, pundits, fans, and “do-gooders,” have been pushing the NCAA to permit college athletes to be paid. There was no groundswell to pay them for playing, but instead pay them for the use of their name, image (picture), or likeness (caricature) in advertising, marketing, and promotional publications. That’s innocent enough. Heck, they might be in a TV ad for the local Chevy dealer. But a commercial for Dr. Pepper of KFC? No one dreamed that could happen.

The whole scheme gained legitimacy when on June 29, 2021, the US Supreme, in a 9-0 unanimous decision, upheld a lower court’s ruling that the NCAA could not limit “education-related benefits” for college athletes. Doing so violated anti-trust laws. One justice, Brett Kavanaugh, said about the NCAA that “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying a fair market rate.” He said essentially athletes are employees/representatives of the university and should receive compensation for their efforts. Thus opened Pandora’s box!

While athletes can’t be paid for statistics, participation, or playing time (“pay-for-play”), they can be paid for “social media posts,” autograph signings, and product endorsements (eg. Heisman trophy winner, Caleb Williams, endorsing Dr. Pepper). The Supreme Court ruling included three stipulations. They are:

   1. Athletes can participate in NIL if they follow the laws pertaining to it in the state where the college is located.

   2. They can participate in NIL in states without NIL laws without breaking NCAA rules.

   3. They are permitted to use professional service providers for their NIL activities.

Number three is where everything gets murky! It means amateur athletes are allowed to hire and use licensed agents, attorneys, or advisors (in some states) to facilitate NIL activities. These “agents” can seek NIL opportunities for athletes for a percentage of the athlete’s compensation. Really? Isn’t that a clear example of hiring an agent to manage the athlete? Hasn’t hiring an agent always been the thing that deemed an athlete a professional? “So-and-so entered the draft, but he didn’t hire an agent. If he’s not drafted, he can retain his amateur status and return to college for his senior year of eligibility.” I think we have found a gaping loophole!

Some states, colleges, and conferences have attempted to control NIL by adopting their own rules and guidelines so consistency is inconsistent. The only constant is the three rules set by the Supreme Court ruling. One example is the Ivy League conference which says athletes may be paid for “actual work, business, or NIL activities.” That’s not “pay-for-play,” but it’s close. Twenty-nine states even allow NIL payments to high school athletes.

There are some drawbacks and consequences, however. Any participation in NIL requires a contract for services between the athlete and the NIL entity, and failure to comply with the laws or guidelines set by institutions may affect the athlete’s continued eligibility. I’m not holding my breath on that item because there would undoubtedly be a major lawsuit against the party denying eligibility.

This whole concept has become a gold mine for numerous athletes. Since there is no cap on NIL payments, the sky’s the limit. Initially, it was thought an athlete could earn between $1000 and $10,000 per activity. That was a figment of someone’s imagination because each of the top 20 NIL athletes has earned a million dollars or more. Topping the list is Bronny James, the son of billionaire super star LeBron James. Bronny made $6.1 million from NIL which for him is a drop in the bucket. Undoubtedly, his father has blessed Bronny with not only talent but wealth shared from the millions LeBron has made during his long career. I was not familiar with many of the remaining 20 million dollar earners, but they obviously must have an extensive local following. Of course, if you are paid $100K for a Dr. Pepper commercial, it doesn’t take long to acquire a million dollars from other appearances.

I think NIL has gotten way out of control. If it hasn’t already, the NCAA needs to establish a “governing body” to set limits on the amount athletes can earn for certain activities, and a cap on the total compensation an athlete may receive. If such a body already exists, it is ineffective since there are 20 athletes making more than $1 million. Their rules need to be tighter. How about a set hourly wage, say $100 per hour, for every activity. Or a variable hourly rate depending on what the activity is. Whatever they decide, it needs to be done ASAP. 

References: https://www.ncsasports.org/name-image-likeness

Brandt, Andrew “Business of Football:The Supreme Court Sends a Message to the NCAA” Sports Illustrated 2021 June 29.