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.

About brewonsouthu

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