As Tampa’s name, image and likeness agent, Jake O’Donnell has followed the multi-million dollar feud involving former Florida Gators recruit Jaden Rashada from afar. He’s heard the rumors about how a deal between the top-string quarterback and a third party cost a power program his prized prospect.
“It looks like it’s a learning moment for collegiate athletics in general,” said O’Donnell, founder of sports marketing company EAMG.
So what are the lessons to be learned? What can be done to prevent a mess like this from happening again?
Three things, according to a handful of name, image and likeness experts who spoke generally on the subject: more compliance, more education, and more school engagement. None are perfect or guaranteed to work. But, as the Rashada situation demonstrated, the current system is also ripe for failure.
NCAA rules and Florida law say name, likeness and likeness agreements should not induce players to attend a certain school.
“If you promise them you’ll make more money than another college if they go there … it would be illegal then and it’s illegal now,” said Rep. Chip LaMarca, who led Florida’s name, image and likeness legislative push and filed a bill bill to change the law this month.
But in the 18 months since these agreements became legal, there are no known cases of schools or groups being punished for violating NCAA rules or state laws. That’s a big concern in college athletics, where coaches exploit every loophole to gain an advantage.
“The best way to reduce bad actors and the best way to reduce bad actions is for people to know that they can actually get in trouble for doing what they are doing.” Peter said Schoenthal, chief executive of the Fort Lauderdale-based NIL firm Athliance.
This is not meant to accuse anyone in Rashada’s situation of wrongdoing. But if an entire industry thinks nobody gets in trouble for breaking the rules, what incentive does anyone have to obey them?
LaMarca’s updated bill does not include anything about enforcement because he does not believe that “more teeth in the law will make someone less greedy.”
Instead, the Lighthouse Point Republican emphasized education through annual workshops on life skills, financial education and entrepreneurship, and access to free financial services. Both could protect young adults from bad guys trying to take advantage of them, a fear shared by several lawmakers at a recent meeting.
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O’Donnell sees another related theme; too many schools don’t understand things like influencer marketing. If schools don’t understand the issues themselves, how can they help their players?
“There’s a general lack of knowledge about NIL,” O’Donnell said, “which really stems from the lack of structure.”
And that lack of structure leads to a third potential solution.
More school participation
Name, image and likeness allow schools to outsource player payments. One solution, then, is to cut out the middleman. Get teams to start paying players directly through things like revenue sharing. There’s minimal risk that a school paycheck won’t cash, and players are unlikely to be left out if their contracts are legally binding.
“There would be rules about when these contracts are signed, when you can make offers,” said Mit Winters, a NIL attorney for the Missouri-based firm Kennyhertz Perry. “Everything would be completely normal and would theoretically be governed by a collective agreement between the athletes and the league, which is the governing body…”
Even if athletes don’t become employees, a complex scenario involving everything from trades to Title IX, there are other ways schools can get more involved.
Luke Fedlam, who runs the sports law practice of the firm Porter Wright, said they could start their own name, image and likeness funds. Donors could direct contributions directly to player payments instead of facilities or scholarships.
“Then the school almost takes control of the name, the image and the likeness and brings it all into the house,” said Fedlam, founder and managing partner of consulting firm AdvanceNIL.
The Fedlam option makes schools accept more responsibility if an agreement is not reached. The trade-off is that law enforcement agencies do not have to deal with third parties, and donors can work directly with people they know and trust.
Even if schools don’t want to be active participants, they can still passively change the system. Because NCAA guidance allows teams to endorse collectives, they can ditch one that isn’t working and prop up another.
“Now that schools have the power to promote and not promote certain entities,” Schoenthal said, “they need their promoters and their collectives to work for them, not the other way around.”
Another way to do that, Schoenthal said, is to put boost clubs in charge of name, image and likeness. Unlike some collectives, boost clubs are established structured organizations. And if another entity is going to be involved, it makes sense to use one that the school already knows it can work with.
“They have to be aligned,” Schoenthal said. “You have to identify the culture and then enact the alignment. That’s something we’re not seeing. We have too many collectives and promoters acting as team owners and general managers.
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