Why Most of the Proposed State NIL Laws Are a Big Step Backward, Part III

Amateurism-is-Whatever-We-Say-It-Is” and “The Local Student Benefit

In the first post on this topic, I said that most of the recent proposed (or passed) statutes affecting college player NIL were deeply flawed, because they allow the player to utilize his Category 3 “Lone Wolf” NIL, but bar him from using or benefiting from his much more valuable Category 1 (Shoe and Apparel) and Category 2 (Broadcast/video) NIL.

In the second post, I described how no other adult citizen in American commerce is singled out, as many of these statutes do, to arbitrarily bar him from using and profiting from his NIL, and effectively give it to another party (here, the school and NCAA).

In this third post, I contend that these many state NIL statutes are unnecessary. To explain why requires a peak behind the sham which is the NCAA’s supposedly clear line between the amateur and the employee.

The NCAA ‘No-Pay’ Sham: The Supposedly ‘Clear’ Line Between Amateur and Employee

Most fans believe that NCAA athletes are not paid. And Article 1.3.1 appears to support this notion, declaring that one of the NCAA’s “basic purposes,” is to “retain a clear line of demarcation [LOD] between intercollegiate athletics and professional sports” – a line which, the NCAA would have the public believe, is ‘No-Pay.’

But other bylaws actually carve two gaping holes in this NCAA ‘No-Pay’ facade.

The AIWWSII Carve-Out: “Amateurism-is-Whatever-We-Say-It-Is

Any Pay or Benefit is Fine, if Approved by NCAA Legislation

First, any pay or benefit is allowed, if approved by NCAA legislation. Bylaw 12.02.10 declares that “pay is the receipt of funds, awards or benefits not permitted by the governing legislation,” and bylaw 12.02.9 defines the “professional athlete” as “one who receives any kind of payment, directly or indirectly, for athletics participation except as permitted by the governing legislation of the Association.” Finally, bylaw 16.02.3 declares that an ‘extra benefit,’ is “any special arrangement by an institutional employee or representative of the institution’s athletics interests to provide a student-athlete or the student-athlete family member or friend a benefit not expressly authorized by NCAA legislation.i The key phrases here — “except as permitted by the governing legislation of the Association,” and “not expressly authorized by NCAA legislation,” together reflect the de facto LOD: any player pay or benefit approved by NCAA legislation is perfectly fine. Here the NCAA pronounces its first rule concerning player pay or benefits: Amateurism-is-Whatever-We-Say-It-Is.

And, starting with the NCAA’s 1956 vote to allow Athletic-Pay, the list of payments or benefits permitted by this provision is long. Tennis players are permitted up to $10,000 in annual prize earnings, and can receive additional money, as long as it does not exceed their expenses for the event. Olympic medal-winners can receive USOC payment-awards, and the USOC can pay for an athlete’s training, equipment, apparel, travel and even health insurance costs. Like Kyler Murray, whose receipt of a $4.7 million signing bonus from baseball’s Oakland Athletics did not bar him from playing quarterback for Oklahoma, two-sport athletes have long been allowed to be paid professionals in one sport, while competing in another. Football bowl game participants are allowed to receive ‘swag’ gifts from bowl sponsors, valued at no more than $550, and most schools now maintain Student Assistance Funds or Academic Enhancement Funds, to reimburse players for unique expenses, which can even include new suits worn by players or, sometimes, travel costs associated with family-member attendance at Final-Four and College Football Playoff events.ii In Alston, in fact, the District Court’s Judge Wilken cited seventeen examples of such NCAA-sanctioned player pay.iii Player benefits and pay are, according to this rule, limited only by the imaginations of NCAA members who, unencumbered by logic or, even, any tradition of amateurism, can vote to allow any pay, fund, benefit, or arrangement. The latitude which the NCAA seizes with this rule is not just ample: it is unfettered.iv

The “Local-Student-Benefit” Carve-Out: Amateurism is Whatever Happens to Some Group of Local Students

This completely ignored carve-out suggests that any benefit is fine, if some student group on campus also gets the same or similar kind of benefit.

Bylaw 16.02.3 says that “the receipt of a benefit by student-athletes or their family members or friends is not a violation, “if it is demonstrated that the same benefit is generally available to the institution’s students or their family members or friends or to a particular segment of the student body (e.g., international students, minority students) determined on a basis unrelated to athletics ability.”

This is a ‘Home Rule’ bylaw, meaning that the NCAA tells each school that, in these specific circumstances, the school has its own ‘ample latitude’ to govern on the issue.

To summarize, then, this carve-out:

1) does not require passage of NCAA legislation; and

2) permits any player benefit which is also “generally available” to students — or some sub-segment of students — on the local campus.

The expansiveness of this ‘local’ standard is, for the casual observer, startling.

It does not require, for example, comparison to a benefit received by some hypothetical average group, or sub-group, of students across the U.S. Instead, it gives each school remarkable leeway to define its own benchmark, based upon a comparison with the experience of students on its own campus.

The provision could also have narrowed its benchmark, by limiting the comparison to some sub-set of solely undergraduate students, or only full-time students, or even just students whose payments or benefits have no possible connection to any employment.

Instead — devoid of any such limitations — this often-ignored provision pronounces a remarkably permissive test, which embraces the full diversity of all student experience, and produces two unexpected results:

1) it clearly expects that the nature and extent of permissible player benefits will vary from campus to campus;

2) because so many D-1 schools now have 30,000 or more students, each with a cornucopia of undergraduate and graduate experiences, each school can likely make a very long list of such sub-groups of students, who receive almost any imaginable variety of pay or benefit: students on scholarship, who are paid to work for the school library or cafeteria, or to usher at football games. Paid interns. Teaching assistants. Work-study students. Students on music scholarships, who play for-pay gigs, on or off campus – and sell their recordings online. Those on fellowships. Students paid to participate in ROTC. Those who work part-time or full-time, on or off-campus, as waiters or bartenders. Inventor-students, who receive income from their inventions.v At Stanford,” David Drummond, a Google Vice President said in 2012, “the policy for licensed inventions calls for one third of the royalties to go to the inventor [often a student], one third to the inventors’ department, and one-third to the inventors’ school. Medical residents who, 75 years ago, received $10 per month, but now are often annually paid $60,000.

Each of such sub-groups of students can be used as a benchmark, to show that some pay or other benefit the player has received, beyond his ‘scholarship’ and COA stipend, does not violate NCAA rules.

More to the point: by showing that some sub-set of students on campus receives NIL-related income, whether from an online or other presence, the player can show that NCAA bylaws permit him to continue to own and profit from, without limitation, his NIL rights.

As a result, the application of this “sub-set of students” benchmark renders completely unnecessary:

1) any new NCAA pronouncement about NIL policy (beyond, perhaps, articulating that this benchmark is the one which will be applied to those issues); and

2) any of these new proposed (or passed) state NIL-related statutes.

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A Related Side Note, about The NCAA’s ‘Current Understanding’ of ‘Tethered to Education’:

Perhaps more clearly than any other bylaw provisions, the two alternative AIWWSII and Local Student standards can be seen as having given precise definition to the NCAA’s “current understanding of amateurism” which, according to Judge Bybee in O’Bannon, so efficiently “preserves the popularity” of the NCAA’s product, as to warrant protection from antitrust scrutiny.

The two standards are the most accurate expression of the NCAA’s ‘current understanding’ of the ‘tethered to education’ benchmark which Judge Bybee defined in his 2014 O’Bannon decision (and which was applied by Judge Wilken in the recent Alston decision) for measuring permissible player payments or benefits: a player benefit, according to this bylaw’s definition, is ‘tethered to education,’ if: 1) NCAA vote has permitted it; or 2) some sub-set of students on the local campus gets something like it.

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Why Most of the Proposed State NIL Laws Are a Big Step Backward, Part II

Yesterday I said that most of the proposed (or passed) statutes affecting college player NIL were deeply flawed, because they allow the player to utilize his Category 3 “Lone Wolf” NIL, but bar him from using or benefiting from his much more valuable Category 1 (Shoe and Apparel) and Category 2 (Broadcast/video) NIL.

Many Irrationally Throw In a Bar Against Player Employee Status

Many of these proposed statutes are also flawed because they gratuitously bar the player from employee status. This is what-the-hell, choose-with-blindfolds-on legislating. (As just one example, had deceased Maryland football player Jordan McNair’s attorneys only chosen to pursue a workers’ compensation claim, based upon a claim that he was a school employee at the time, he had a reasonable chance of prevailing.) A bar against player employee status is Draconian, to say the least, and there is no reason to include such a bar in a bill which relates to player NIL usage.

Give the Player a Trinket, To Make Up For Taking His Car

It is as if these proposed statutes give the player a trinket, while simultaneously taking from him the car he brought with him to college — in order to give that car to the school to use, in perpetuity.

New Deeply Irrational Business Models

The overall business model which would result from most of these statutes is deeply irrational. It is nonsensical, but also brutal in in its long-term impact upon the player.

If they can, willy-nilly, single out the player, to impose significant controls upon his NIL, and his ability to participate in all commerce arising out of that NIL, why did the statutes stop there?

Why, for example, not also require that the coach similarly also surrender all of his Category 1 & 2 NIL? — and cap all coach annual income at, say, $750G per year? There is no rational reason to leave the coach out of these externally-imposed statutory constraints.

Alternatively, why not include a statutory provision which imposes new controls upon the other two major players in the college sports market: the Shoe/Apparel Suppler, and the Broadcast Third-Parties? Require, for example, that any Shoe/Apparel Suppler which provides more than $2 million per year in benefit for a school also set aside an annual amount in trust for the player, calculated on some rational per capita basis?

No Other Citizen Has His NIL Seized From Him, By Statute

The point is that these proposed statutes cherry-pick almost randomly-chosen market-controls, to be arbitrarily imposed solely upon the college player. And to fully comprehend the irrationality and unfairness of these statutes, it needs to be understood that it is not just the coach (or AD) who escapes similar new economic controls: EVERY other citizen escapes any such controls.

These arbitrary controls, which significantly restrict the player’s ownership and use of the NIL he owns, are unique in all of American commerce.

Just More Toying With Adult Black Players, Under the Guise of ‘Helping a Kid’

It is as if the state legislators somehow see the college sports business model as just as socially vital and necessary as the business of common carriers, or of nuclear power generation, to justify imposing these zany, highly specialized and highly-controlling player NIL provisions. The difference though? Common carrier, nuclear power, and even public utility regulatory statutes constrain owners — not laborers.

These statutes will create some of the weirdest business models, anywhere — all to the detriment of the laborer at their center.

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Why Most of the Proposed State NIL Laws Are A Big Backward Step

The natural state of college athletics, when the player arrives on campus for his freshman year, is this: the player owns his Name, Image, and Likeness (NIL) rights.

But the school quickly demands that he waive — hand-over — all those rights. Player NIL, in fact, is The Golden Nugget for the schools and the NCAA, because it has, collectively, such staggering value. And the NIL Waiver is the gun which allows the school and NCAA to hold-up each player, to take that Golden Nugget from him.

(This extraordinary waiver, on its own, is strong prima facie evidence of an employment relation.)

Right now, Player NIL is potentially sold in roughly three different markets:

1) Shoe and Apparel (to Nike, Adidas, etc.);

2) Broadcast: this category includes networks, digital, and video. (These sales actually allow or trigger NIL re-sale, through conferences or other media packages); and

3) Lone-Wolf (my term): these are the remainder uses, usually involving direct, player-specific deals with smaller advertisers, or direct-to-consumer deals.

The Category 3 deal, as of today, is essentially dormant and of little value, since NCAA rules purport to bar player overt appearance in ads for third parties. In contrast, Categories 1 & 2 deals are what distinguish today’s NCAA from that of the mid-20th century. (The NCAA basketball finals, for example, were not even nationally televised until the mid-1960s; now they generate $1 billion annually for the NCAA.)

The primary, glaring defect in most of the new proposed state NIL statutes is that they not only ignore Category 1 and 2 Player NIL uses: they affirmatively bar the player from any participation in such deals.

In effect, as regards the Category 1 & 2 NIL, the statutes eliminate any school need to even get a Player Waiver: the statutes codify it.

(And that player — whether or not Mark Emmert, or Tom Izzo call them “kids” — is NOT a kid. They are all adults. 18-year old entrepreneurs, just like every other 18-year old.)

The result? the statutes generally bar the player from economically participating in the vast majority of NCAA commerce — most of which is built directly atop that player’s NIL.

This result is the principal reason that these proposed (or just-passed) state NIL laws (to steal what was I think Justice Brandeis’ legal term) ‘just plain suck.’

Upon passage of most of these proposed NIL statutes, players are stuck with solely cast-off Category 3 Lone-Wolf NIL rights — for no good reason, other than, most likely, that the schools and NCAA have already sold Category 1 & 2 Player NIL rights, using long-term shoe and broadcast contracts. (Much of this already-sold Player NIL pertains to NIL rights held, right now, by Middle School children, who will, 5 or 6 years from now, play football or basketball at a P5 school.)

The effect of most of these new statutes is to tell the basketball and football players with staggering NIL value that they can have their Lone Wolf NIL — but that the schools and NCAA need to retain the players’ Category 1 &2 NIL rights, in order to fund alot of other things the schools and NCAA think are really good.

It’s a part of a familiar message to black laborers (which is what the P5 basketball and football players are): “You can have a little bit more cash derived from what is your own asset, but we really need to keep most of that cash, because we do so many good things with it — and we are much better than you at deciding what is good.

“Oh, and by the way, the legislature is going to pass a law, to insure that we can keep almost all of the cash derived from your asset. We’ll keep you posted.”

This is how the schools, NCAA, and now, legislatures, treat the adult 18-year old, primarily black sports entrepreneur. It’s not even “separate but equal” treatment: it’s “separate, and a teensy bit of equal.”

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EA Sports Coming Back? P5 College SAACs Must Elect a Conference-Wide SAAC Rep, to Sit at the Conference Table

Image

EA Sports is bringing back their college football product, in a manner which will, allegedly, not directly impinge upon any one player’s NIL rights.

That may be true. But college players need to be at the table, now — just to know what is going on. Alot of economic pieces are going to be moving, over the next few months, and years, concerning player ability to use his own Promotional Self (i.e, Name Image and Likeness)

So the Student Athlete Advisory Councils at each Big 10 need to vote, to generate one player — it has to be football, right now — to represent every SAAC from each school. To be at the table.

That table is significant, because it does not, any longer, mean a real table. It means two things: 1) attending Zoom meetings; and 2) being on the conference email distribution list. A football player elected as SAAC conference rep should be involved in both Zoom meetings, but, more importantly, email distribution.

The table is also significant because it is, in the first instance, conference-based. Not NCAA wide.

Why not NCAA-wide? Because six years ago, the NCAA did a hide-in-the-bushes: they removed the NIL waiver from the SAS which every player is required to sign. So every NIL waiver is conference-specific. Contrary to popular belief, then, it is the conference which controls the player’s Promotional Self (NIL).

But, you ask, what if the conference objects to “including” the conference-wide SAAC rep at the Zoom meetings, and in the conference email distribution chain?

Just go back to all the SAAC members at each school, with this specific instruction to each athlete:

“Send an email to your athletics director, which states this:

“I am hereby amending the NIL waiver I signed, to add the proviso that my surrender of NIL rights is contingent upon the conference and school permitting a duly-elected, conference wide representative of every school’s SAAC, be involved in, and have access to, all conference communications.”

Simple.

[The proposal has roots in the fact that if, for example, all players in a conference completely revoked their NIL waiver, the entire conference would come to a screeching halt: no TV, no videogames. Screeching halt. Players don’t get it (the NCAA does): Collective revocation of all NIL waivers is, right now, the players’ POISON PILL.]

Each conference needs a duly elected SAAC rep at the ‘table’ where the conference considers, negotiates, and makes decisions.

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Big Questions About 5 Michigan Student-Athletes with New British Covid Variant – And What Players Should Do

The State of Michigan CDC just recommended a shut down all of University of Michigan athletics for two weeks.

I’ve previously taken no position, going back as far as last summer, as to whether college sports ought to be shut down for good, because of Covid.

My thoughts are changing, based upon news that five University of Michigan athletes now have the British variant of Covid. That variant, 50-70% more infectious than other forms, was clearly and internationally identified by December 14. Some experts estimate that the British variant is also 30% more symptomatic. Based on these facts, all estimations of risk, and health protocols associated with those estimations, needed to be updated.

The move raises epidemiological questions, but also personal health questions for players. It also raises issues about UM and B10 satisfaction of their duty to aggressively protect the health of their players:

  1. Why did it take an external body – the state CDC — to shut down UM athletic operations? How long had UM AD Warde Manual known about the prevalence of the 5 new British variant cases?
  2. Why did UM AD Manual (or the B10) not shut it down before the state stepped in?
  3. What UM athletic department or B10 protocols were in place to prevent the arrival of the British variant?
  4. What UM or B10 rules were in place to mandate action, upon discovery of the British variant?
  5. What steps are now being taken, by UM and B10, to determine how the presence of the British variant will affect relations and scheduling with other B10 schools?
  6. What information and communications are now being given to other B10 schools — and players at other schools?
  7. What sport was the recently-returned-from-UK student-athlete engaged in?
  8. It is also reasonable to ask how the student-athlete, recently returned from the UK, was allowed near athletics operations.

These are simple, rational risk-analysis questions, because the British Variant significantly increases the health risk.

And, though I admit to having only bare-boned information, the disturbing first-blush conclusion is the UM and B10 “sat-on” their duty to keep the British Variant away, and then sat-on their duty to shut-down operations. (New, thorough information, concerning information suggested in the above 8 points, might prove those preliminary conclusions wrong.)

What every Big Ten athlete needs to do:

  1. Keep a Daily Covid Log: keep detailed daily notes of your own, concerning everything the school tells you about the Covid risk, and any information about the presence or prevalence of Covid in any of your athletic activities.
  2. Know That the Risk is Greater Now: recognize that the arrival of the British Covid variant should significantly change your own personal risk evaluation. Assume that Covid is now, in Big Ten sports, much more communicable.
  3. Ask Questions, about everything
  4. Be Aggressive About Getting Top-Notch Health Care: Insist that the school provide you with the best, and repeated health care.
  5. Mobilize your Student-Athlete Advisory Committee: these are issues which require discussion amongst, and input from, the players whose Covid risks have just significantly increased.

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Utah State Football Player Strike: What Players Should Know and Do

Utah State football players refused to play the last scheduled game, because they believe the school president has disparaged, or cast in a bad light, a coach working there, for ethnic or religious reasons.

The school’s Board of Trustees has announced it will conduct an “independent review.”

But there are two kinds of allegedly “Independent Reviews”.

First Kind of Review: for Board’s Eyes-Only: If the review is for the board’s eyes, only, then it’s a dodge. The board will be on the phone, repeatedly, back and forth, massaging the report, to serve the purposes of the board, not the players. This is a Big Dodge, and watch out for it, because it’s meant to bamboozle the players, and the public

Second kind of Review: strictly independent. This review gives the outside counsel arm’s length independence, within which no board member or staffer is given leeway to affect the final report, and the counsel is given discretion to interview all witnesses.

What do the players need to do?:

Find out which kind of investigation it will be. Object if it’s an inside-job, for board-eyes-only investigation, and put that objection in writing.

Demand that the school pay for counsel, to generate the player’s own completely “independent” report. Try a solid, reputable person, like former North Carolina Supreme Court judge Bob Orr, who is familiar with player issues in the NCAA context. He’s been around the block.

Do a written request, pursuant to Utah’s Government Records Access and Management Act, to ask for a video copy of the zoom meeting, but also for all pertinent emails surrounding these events. This request has great heft: it’s like asking for a copy of the cards the other guy is holding. And they have to give them to you. Don’t be afraid to use it: it’s powerful.

Few players anywhere realize the big context: every Power 5 team of players is the single most powerful group on campus — bar none.

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The NCAA COI Bought Alabama Basketball’s Org-Chart Dodge

I just happened to read the NCAA COI’s November 20 Alabama decision. It’s goofy, though all press accounts suggest that Bama basketball got an appropriate 3-year probation, and $5,000 grand fine.

The decision reflects the power of the Alabama football and basketball juggernaut — and its organizational genius.

The bad guy, who arranged dinners, and payments, between a top recruit and a financial advisor, and took payments for doing it all, was an “Associate Athletic Director.” This was the specious excuse which Bama fed to the NCAA, and Gonzalez (the poor man had no idea what he was walking into), and other COI members, like former Minnesota AD Maturi.

But that ‘bad guy’ Associate AD was, in fact, no associate AD. He was the Director of Basketball Operations. Those directors have, for decades, served under the head coach. So why would Bama switch his position on the Org Chart, to suggest that head coach Avery Johnson worked under him?

Because seven years ago the NCAA rules established that the head coach would be ‘vicariously liable’ for the transgressions of those working under him.

Those guys at Bama. Just brilliant. They said to each other: hey, let’s make it so the Director of Basketball Ops looks like he does not work under head coach Avery Johnson! Nothing changed on the ground. His job was the same; only his job title changed.

Why is that important? Because Bama avoided having head coach Avery Johnson hauled in as a witness (they ditched him in 2018). And Bama also avoided having to do what any school needed to do, when accused of having an assistant, under the head coach, engaged in wrong-doing: show strict, formal procedures for record-keeping, reporting, and oversight, to show that all assistants were not in violation. Phone records, turned in every month. Expense statements, turned in every month. Affidavits, every quarter, as to spending, and bank account statements. Constant, daily monitoring of emails and other social media. These procedural and documentation factors are commonplace, in any setting where organizational vicarious liability is a threat.

By making the Director of Basketball Ops an Associate AD, Bama avoided all that. And, on the first page of its decision, in fact, the COI showed what knuckleheads they were, specifically finding that, “the violations resulted from the unethical conduct of an administrator, rather than a coach.”

The COI, and Gonzalez, bought the bullshit, hook, line, and sinker.

So did Joel Maturi, former Minnesota AD. And Jody Conradt, retired head women’s basketball coach and special assistant to athletics at Texas. Thomas Hill, senior vice president emeritus at Iowa State; Jason Leonard, executive director of athletics compliance at Oklahoma. Kay Norton, president emeritus of Northern Colorado. and Sarah Wake, associate general counsel and associate vice president for equity at Northwestern.

Knuckleheads, all of them.

The clear message, if you are a Power 5 school?: just use a different job title! Make your “Operations Directors” into “Associate AD’s”! — so that they appear not to work under the head coach. And the NCAA will fall for it.

It’s the Great Bama Org-Chart Dodge.

But that’s only, as they say in Maine, “the half of it.” The other half, tomorrow.

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@Sportico’s NIL Symposium — Random Notes: Right Now, No P5 Player Should Sign a National Letter of Intent, Without First Bargaining About NIL Rights

I watched a video of most of Sportico’s excellent online November 12 NIL symposium. But I was struck by the extent to which some speakers appeared unaware of some NIL-related realities:

  1. No one ever mentioned what I call the Golden Nugget document: the NIL Waiver, which the school (and conference) requires the player to sign, when he shows up on campus. It’s the Golden Nugget, because it is the entire legal foundation for the billions of dollars in income which the NCAA and its member schools earn from two sources: 1) apparel companies; and 2) broadcasting outfits. This waiver is the foundation for an entire empire.
  2. All players could today just withdraw their NIL waivers: To illustrate, if all Power 5 football and basketball players today write a one-liner email to their school –“I hereby withdraw my waiver of NIL rights” — the NCAA apparel-marketing, and broadcasting  empires would crash. This is the simplest method for players to foment change.
  3. The player comes to school owning his NIL: As a result, it is fundamentally in error to believe that, as Blake Lawrence said, the new state NIL statutes will suddenly give the player new rights. More accurately, the new statutes will codify some portion of the current blanket waivers, while establishing what are, in most cases, relatively tiny ‘carve-outs’ for the player.
  4. NIL is an asset, like a car: these are rights which the player arriving on campus owns and controls, just like he might own a car. And, to understand the reality of the dramatic seizure of value from the player, when he signs the NIL waiver, it is not unlike the school demanding that he turn over his car, so that the school can then rent or sell it, for a fee, to third parties not associated with the school or its educational mission.
  5. Player surrender of NIL is a major employee-status factor: player surrender of his NIL assets (by signing the waiver), is so broad and burdensome as to serve as major factor in support of player employee status. (Notre Dame’s AD Jack Swarbrick asserted that he wants his student-athletes “to be treated just like the ordinary students”; if so, he needs to send a memo to his coaches and staff, instructing them to rip up all those Golden Nugget waivers.)
  6. The old in loco parentis, Nanny-U Doctrine is long-dead. The player is not a kid. At age 18, he is an adult. Ms Rempe, for example, said that the school has a “duty to make sure that the SA is not signing contracts which might hurt him.” That determination might have been LSU’s bailiwick, fifty years ago; with the death of in loco parentis, it is now none of LSU’s business.
  7.  The Golden Nugget waiver is also a broad agency contract: It is a waiver or grant-of-rights; the school also implicitly treats it as a broad agency contract, allowing it to exercise complete control over the player’s NIL assets
  8. The school has a profound conflict of interest. It purports to act as the player’s agent and Nanny, while competing with that player for NIL-based marketing  opportunities.
  9. The school has a duty to fund independent counsel for the player: Because of this fatal school conflict of interest – and the schools’ de facto treatment of the player as a minor, in need of third-party protection — the school has a duty to change the setting within which the player signs his NIL waiver, by funding separate, independent (and entirely confidential) legal counsel for him, to advise the player about the school’s proposed waiver. (In fact, no top notch player should, right now, sign a National Letter of Intent, without being provided the proposed NLI waiver, so that he can make his selection of school dependent upon what NIL rights the school will agree he can retain. (Example: player should tell the school, “Ok, I’ll give you my NIL rights, but you – school – have to give me a waiver, which allows me to use the school’s marks, in my own self-marketing.)

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An Open Letter to Michigan AD Warde Manuel and Prez Mark Schlissel: Did You Forget Your Opportunity and Duty to Lead a Longitudinal Covid Study of Big Ten athletes?

Every Power 5 AD is now fussing about what he might possibly ever do about all the messy fuss surrounding player NIL “rights.”

And a few P5 presidents fret about it.

But not one president or AD has bothered to consider the extraordinary opportunity and duty before them: to initiate, lead, and fund a longitudinal study of the effect and incidence of Covid 19 on collegiate athletes. After all, they have broad NIL waivers, which they use to peddle player services, and to feed player digital data to commercial outfits like Nike and others.

But if you are, for example, Michigan president Mark Schlissel (a scientist), why did you not get on the horn to every other Big Ten president, back in July, to suggest a cooperative Covid-19 study, conducted by every school’s medical school, in cooperation with athletic departments?

The collection of data associated with such a study is, in fact, the first, best use of player NIL. But collegiate leaders like Manuel and Schlissel are so thoroughly diverted by the loss of income caused by Covid-19, as to be blinded by their opportunity.

Every med school and athletic department in the Big 10 should combine to fund and conduct this kind of study. Their distraction may now have lost them the opportunity to conduct such a study in football, but not basketball.

Warde Manuel. Mark Schlissel. Do you have any interest in a broad, well-funded, longitudinal study of Big 10 basketball player Covid exposure and symptoms?

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Selling Stolen Player Nillies on a Black Market: Why Mizzou Must Pay Its Football and Basketball Social Influencers. Part III

After the Mamas and the Papas, and their founder-songwriter John Phillips, finished their run of 1960s hits — California Dreamin’, Monday-Monday, and so many others — they split up, and fell out of fame. Mama Cass died in London, choking on a sandwich. Denny and Michelle went off, on their own, or together. But by the late 70s and into the 80s, Phillips hit some skids.

He went so far down that he was living in squalor in a house on Long Island, with a revolving cast of others badly strung out. Desperate to fund his expensive heroin habit, he and some others turned to elaborate schemes to sell stolen prescription drugs, including Benzos, Xanax and a long list of others. These were all stolen by Phillips or others working with him, and peddled from a dive storefront in Brooklyn, or anywhere else where ready buyers showed up.

(It eventually all caught up to Phillips, though his fame, and his rapid turnaround in habits and daily life, convinced the feds to allow him to escape jail time.)

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The NCAA and the P5 schools have long been functioning as the drug-dealing 1980’s John Phillips – though their illicit schemes have brought them great fortune, not squalor.

Here’s how it works. For years, they’ve been peddling illegally-gotten, wildly-valuable Nillies – player NIL rights. These are stolen from every P5 player.

Wildly -Valuable Nillies?

Yes. Every NCAA, conference, or school TV and shoe-and-apparel contract is built atop player NIL. (There is also a very reasonable argument that, since schools began promoting themselves with football in the 1890s, or at least when teams first began putting player names on jerseys around 1915, live ticket receipts have been substantially based upon player NIL.) Player NIL is a massive asset for every P5 athletic operation.

So how valuable, really? Ask Tom McMillen, executive director of LEAD1, a trade group of 129 FBS school athletics directors, who said in 2019 that his member schools generate $8 billion in annual, direct revenue, with a “total impact” of “probably $50 billion. Or look at the NCAA’s March Madness tournament, which grosses $1 billion annually. Some substantial, if not predominant, portion of these receipts derive from player NIL.

Stolen Nillies? When and Where?

The Player’s NIL rights are taken from him as soon as he arrives on campus. Get out of your habitual thinking, and consider this: NIL is an asset, a thing, which often has whopping value. Like any other intellectual property, it can be a significant piece of a business’ valuation. So recognize: when the school tells the new freshman to hand over his NIL rights, in order to get his scholly, or to play, it’s like demanding that the player hand over his car, so the school can sell it. Or his cell phone. That’s how absurd – and craven – is this whole Player Nillie theft.

(Or look at it another way: the mandated player surrender of NIL which occurs each fall, is a transaction which mandates by pure powerful fiat – with no foundation in reason or morality – that the player pay a whopping purchase price, to get his scholarship.)

The Golden Nugget Document: the Player’s NIL Release.

The theft is accomplished with an NIL Waiver or Release, for the player to sign each year. (Look down below, I’ll reprint an example of a Univ. of Minnesota Release, 2020). This is what I call the Golden Nugget document. It’s where most NCAA and school wealth comes from.

But if the Player signs a document, isn’t it all legal?

No, because of the context. Look what’s behind that Release. Six or nine months before his arrival on campus in the fall, the high school player signs a National Letter of Intent – which isn’t a letter of intent: it’s a Lock-Down, to keep the player from talking with other schools – and to impose a whopping transfer penalty on him, if he ever tries to wiggle out.

More important, though, is that the school intentionally fails to include all details of its proposal, when it shoves the NLI in front of the player. (He should be provided with a copy of every document which might affect him while playing.) Instead, most are presented to him when he’s already moved to campus, and has no choice about signing. So he signs the NLI largely unaware of the details of the entire deal. And the school succeeds in hiding the Golden Nugget document from the player, until he arrives on campus.

But then look what happens on campus:

1) The school doesn’t even tell the player that the Release/Waiver is a Golden Nugget. It’s just one in a big pile of documents (50-75 pages – for an ‘amateur’ to sign.) The documents are portrayed as perfunctory ‘housekeeping’ things, to ‘get out of the way.’

2) And the AD and coach wear costumes, as they slip the big pile of docs across the table to the freshman player. The AD is dressed up like Mary Poppins, the better to execute the Great Nanny Scam which has infected all of college sports, which depends upon broadcasting the fictions that the player is still a kid, in need of the care and oversight of the watchful Nanny-school. (A sample quote from Northwestern AD Jim Phillips – a good, decent fellow, adrift in the swamp of NIL commerce, several years ago: “I hope we can do more for our kids. I just do. It’s what we love about being on a college campus. It’s what we believe,” Phillips said, “what’s right about higher education.”) And the coach? – he’s dressed in Professor’s cap-and-gown. (A sample quote, from former NCAA VP Oliver Luck, another fine fellow, who was drowning in the NCAA’s raging river of commerce: “[As regards] the player’s triangle of athletics, academics and social life, if you turn that triangle into a square and add another component of promoting or marketing yourself, there’s simply no time to do that, particularly an 18 or 19 year who is not necessarily sophisticated in business and promotions.”)

The two costumes are meant to deceive the player (and public), by suggesting to them that all matters and documents addressed at the meeting could never possibly have any economic aspect — just kids and their ever-so-caring school. Thus do the Nanny and the Professor walk out of the room with a Golden Nugget Release signed by the player.

Then consider this. Under pertinent state and federal law, the newly-age-eighteen college player has, for forty years, been an adult, not a kid. And in loco parentis left campuses forty years ago.

This is how the school, conference and NCAA get – steal – Player Nillies for free, so they can then go peddle them to TV networks and shoe companies, for big bucks.

It’s theft by deception. Capture and Lock-Down the minor high school player without mentioning the Golden Nugget document – much less explaining to the recruit the basis and value of the golden nugget which he, the recruit, has in his rightful possession. Then wait until the player is on campus, still Locked-Down, but keep pretending that the player (who has turned 18 and reached adulthood) is just a helpless kid. Pretend he’s not signing away an asset of fantastic value. Give him a form document he has no choice but to sign: the Golden Nugget release. All of this thoroughly deceptive behavior is rendered illegal by most states’ unfair trade practice, interference with advantageous contractual relations, unjust enrichment, and other laws.

And that Nanny, and the Professor? Underneath it all, their behavior is that of thugs who, collectively, across all P5 schools, execute, in one fell swoop, a fantastic, annual, whooshing transfer of wealth, from one set of adults (freshman football and basketball players), to another set of adults (athletic departments, schools, conferences, and the NCAA). Just because they could. Pretty smooth move.

It’s John Phillips, New York city, 1985: stealing Nillies, at no cost — then selling them at huge market prices, to entities which could care less if the asset they buy is stolen: Nike. UnderArmour. Adidas. (Nike never makes a peep, even though it proudly brandishes about its own “Code of Conduct” for the Asian factory owners with which it contracts to produce its apparel products.) These are shadow financial forces, buying stolen Nillies from schools and an NCAA, acting like middleman John Phillips, peddling drugs on a back street. ESPN. Fox Sports. CBS. The Big Ten Network. All the conferences. All stealing player Nillies, to make billions of dollars.

And all this recent fuss – new state Player NIL statutes, the several federal Player NIL bills — they’re all just cover for this preposterous fraud: why should any state or federal system give protection to a racket, unknown to any other commercial setting, which permits the automatic theft by deception of significant assets, by one set of adults, from another set of adults?

Sellin’ stolen player Nillies, on a Promo-Tainment black market. And Mizzou won’t even pay its football and basketball players some tiny wage, like it pays to other students, for all the Social Influencing those players do with the Nillies stolen from them.

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University of Minnesota 2020 player NIL waiver

Part I: Student-Athlete Name and Likeness Release I hereby grant to the University of Minnesota and The Big Ten Conference and their assigns the right to publish, duplicate, print, broadcast or otherwise use in any manner or media, my name, voice, photograph, likeness or other image or descriptors of myself for any purpose the [University] or The Big Ten Conference determines, in its sole discretion, is in the interest of the [University] or The Big Ten Conference, including without limitation uses in promotional and marketing materials and uses by the Big Ten Network, Fox, CBS, ABC, ESPN and T3Media. All such uses shall be consistent with all applicable NCAA and Big Ten Conference rules and regulations. I agree that neither I nor my heirs shall be entitled to any compensation for the use of my name, voice, photograph, likeness or other image or descriptors of myself.

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