It's been a year and a half. What have we learned about NIL?

Good morning, and thanks for your continued support of Extra Points.

Last week, I had the chance to participate in a group seminar on NIL that was sponsored by The Drake Group, a college athletics reform organization. This discussion also included Kassandra Ramsey, who serves as the Sports Law Chair for the District of Columbia Bar's Arts, Media, Entertainment, and Sports Law Community, Len Simon, a law professor at Duke, San Diego and elsewhere who also helped write California’s groundbreaking NIL law, and Andy Wittry, an NIL reporter at ON3 and a longtime Extra Points contributor.

The point of the conversation was to dig deep into what the college sports and legal community have learned about NIL over the last year and a half, and to better understand what questions need to be answered next.

You can check out the entire discussion right here, if you’re so inclined.

It’s a long discussion, a bit too long for me to completely summarize here, but there are a few key points I want to single out:

No, NIL isn’t the worst thing to happen to college sports, c’mon lol

Several of us were asked about recent comments from outgoing Cornell AD Andy Noel, who said that NIL has been “an absolute disaster”, and that it was the “worst change I have seen in my life in athletics.” I think it’s safe to say that I’ve become more of a critic of the NIL Industrial Complex than some of my national peers, but even I would strongly disagree with that sentiment. Even with the excesses and bad behavior from some third parties, I still believe that the benefits have substantially outweighed the cons, especially when it comes to providing meaningful professional experiences for college students. College life can be lonely if you have to spend nearly all of it within the confines of the athletic department. Almost anything that better integrates athletes with their campus and local communities at large is worth the headache, in my humble opinion.

What about collectives and Title IX?

I said on this call that I am appreciative of the fact that the Drake Group has asked the DOE to clarify how collectives, or promoting collectives, may impact obligations to comply with Title IX. Based on conversations I’ve had with folks on both sides of the negotiating table, I believe there are schools that are hesitant to really get in bed with collectives that are not attempting to provide services for all athletes. I think it is broadly fair to say that the bulk of collective fundraising and dealmaking is based more on athlete roster value than marketing value, which would shift the majority of the money to support football and men’s basketball.

The important question is not “are collectives subject to Title IX”, but rather, “do schools violate Title IX if they direct fundraising activities and attention to entities that do not support men and women equally.” The sooner that question can be answered definitively, the better.

Speaking of NIL and equity, if I could give one bit of actionable advice to collective operators, schools, etc…it would be to take proactive action against racial bias in influencer marketing.

If the NIL marketplace for your school is over-indexed with products that require a certain look or kind of influencer, it doesn’t matter how smart, interesting or marketable your athletes are outside that look.

I believe schools should be prepared to talk honestly with their athletes about racial bias, and as resources allow, be prepared to take proactive attention against it. Call up the Chamber of Commerce, call up businesses that specifically serve minority communities, call up charities and non-profits, and pitch them your athletes and pitch them on NIL as a concept. Make sure your collectives know about the excellent and interesting men and women outside your football and basketball programs who could be great community and brand partners.

If you want equity in this space, I don’t believe you can ignore it, and hope everything turns out for the best. It will take some elbow grease.

And finally, collectives, and the NIL market generally, are not monoliths.

I’m often asked if I think collectives are “good’ or “bad’ for NIL or college athletics. I don’t think I can give a good answer, because there are a lot of different kinds of collectives. Verrrrrry broadly speaking, I believe we are seeing greater professionalization of the collective world. More of the smaller collectives are merging, professional services organizations are popping up to manage or support the collective’s day-to-day world, and organizations that serve as pure vanity projects for a tiny group of boosters are becoming less common.

Still, there’s a huge variance in who those collectives are serving, how they raise and spend money, how they work with athletic departments, and how sustainable they are. My answer would always have to be “it depends.”

I believe that’s true for basically all of NIL. There’s no such thing as “the NIL market”, in my opinion. There is a market for college athletes as influencers (it absolutely exists, even if I am more ‘down’ on it than most of my peers), there’s a market for college athletes as teachers, and there’s a market for athlete’s roster value…a metric that ought to be completely divorced from their marketability. Those markets react to difference forces, serve different athletes, and are of different sizes.

TL;DR, 18 months into all of this, there’s still a lot we don’t know. And by the time we figure that stuff out, this is all going to change again.

Not as interested in NIL? Here are some other stories you might have missed

• The Pac-12 needs a new media deal, and between Apple, Amazon, ESPN and Fox, it doesn’t look like they’re going to get an especially lucrative one. That might not be the end of the world, but what I keep coming back to is….what, exactly, is supposed to get better in time for their next deal? What would an ideal scenario even look like anymore?

• I did a reader mailbag earlier this week, where we discussed the actual relationship between ‘academics’ and conference realignment, my thoughts on the WAC/ASUN deal, why Ohio State really canceled that series with Washington, and more.

• Is there a way for D-II and D-III sports to continue in a post-employee model world? I wonder if a possible pathway might center around asking athletes to do less.

• And speaking of the employee world, I wrote about why the tough questions the NCAA got in Johnson underscore why athletic leaders need to talk more about what might happen if the NCAA doesn’t win this case and fails to get the help of Congress. They need a plan C.

Hoping to have a few small realignment notes to share for Friday’s newsletter, then head into what should be a fun next week.

Yyou can always help share Extra Points with friends. I’ve already given away a few subscriptions to folks who have helped refer new readers to EP, and I’m happy to give away more!

Thanks for reading aand your patience while we try to squash every migration bug and launch a few more ambitious projects.

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