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:
- 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.
- 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.
- 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.
- 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.
- 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.)
- 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.
- 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
- 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.
- 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.)