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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About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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