NIL legislation celebrated its first birthday on Friday.
Beginning July 1, 2021, the NCAA permitted college athletes to profit from the use of their name, image and likeness. Since then, college sports have undergone a paradigm shift.
Shortly after the one-year anniversary of NIL, The Dispatch spoke with sports attorney Luke Fedlam, partner at Porter Wright Morris & Arthur LLP in Columbus, Ohio, about NIL’s impact on the college sports landscape.
Fedlam has nearly 20 years’ experience in the field, including counseling and advising athletes. He recently published the book “Sports Law: A Practical Guide to Protecting the Interests of Athletes.”
The following conversation has been edited for length and clarity.
What’s changed since NIL became legal July 1, 2021?
Fedlam: The biggest change in college sports since July 1, 2021, is name, image and likeness, generally speaking The ability for student-athletes to earn compensation from the licensing of their name, image and likeness is one of the most significant changes to college sports. What we’ve seen over the last year is student-athletes engaging in commercialization and monetization of their personal brands in ways we’ve never seen at the college sports level before. With that, we’ve also seen a lot of other stakeholder groups enter the space to want to work with student-athletes.
How has NIL impacted the dynamic between small-conference and major-conference colleges? Has it equalized things or only made the gap grow bigger?
Fedlam: Name, image and likeness itself is an equal opportunity for all student-athletes. Regardless of size of conference or even size of school, student-athletes can engage in name, image and likeness. We’ve seen some student-athletes from D-II and D-III schools — NAIA schools, even — that have made a significant impact when it comes to name, image and likeness and earned some significant compensation. At the same time, if we look at name, image and likeness as an overall asset a school has — especially from a recruiting perspective — we do see some differences. When it comes to a college coach recruiting a student-athlete, they typically will use the “assets” like the coaching staff, the roster, the geography, the tradition of the school, the ability of the school to put student-athletes in the professional ranks of their sport, the academics of the school. Name, image and likeness is now another tool that a coach or an institution can use in the recruiting process the right way.
You talked about schools doing it ‘the right way.’ What, in your mind, is the wrong way? What is there to watch out for with NIL?
Fedlam: The wrong way of engaging in name, image and likeness from an institutional perspective is by ignoring it or not believing that your student-athletes want to participate in name, image and likeness. We’ve seen schools who have wanted to stay on the sidelines and just see how things evolved and have not gotten involved in educating their student-athletes. That’s the wrong way. Name, image and likeness is here. A school just not engaging in it right now is missing the opportunity for their student-athletes but also missing the opportunity to provide a real-world, practical education for their student-athletes.
What are the consequences to these athletes if they’re not educated about NIL or prepared to enter that space?
Fedlam: We talked with student-athletes who participated in name, image and likeness last year, and they have come to us and said, ‘I haven’t paid my taxes for the last year on the money that I made, so what should I do now?’ Student-athletes can be taken advantage of by not understanding what rights they’re giving up when they sign a contract. We want to make sure student-athletes are getting that education because with these business opportunities that they’re getting because of name, image and likeness come business responsibilities. If we don’t teach those business responsibilities to student-athletes, then they are potentially subject to being taken advantage of.
You mentioned athletes who might give up their rights by signing a contract. Can you think of an example?
Fedlam: Early in name, image and likeness, there were some companies that were asking for student-athletes to give up their name, image and likeness rights “in perpetuity.” By student-athletes not understanding “in perpetuity” and what that phrase means, signing those contracts was really giving up rights to that name, image and likeness of that student-athlete forever. Even if they’re not going to play professionally, they still might become famous based on the work that they do when they leave college. Having given up your rights to someone or another entity while in school to earn some compensation and not recognizing that you’ve given up those rights forever, that is a tough situation to be in.
Besides getting that education from their schools, is there anything else athletes can do to prepare themselves for entering the NIL space?
Fedlam: When schools engage third parties that are knowledgeable, independent and objective in providing their education, it is beneficial to the student-athlete to hear the real-world aspect of engaging in name, image and likeness. But student-athletes also have to realize that there is a lot of pressure on them as well to learn the business if they want to participate in the business. Doing research and thinking about brands that they may want to work with and reaching out and having professional conversations with brands and companies in their hometown or wherever their college or university is located — these are all things that a student-athlete can do to help themselves navigate name, image and likeness.
Have there been a lot of athletes you’ve worked with or heard about for whom that NIL money was life changing?
Fedlam: I’ve worked with individual athletes who have made six and seven figures from name, image and likeness last year. Some of those athletes have gone on to the professional ranks this year — they’ve been drafted in either the NBA or the NFL draft. It wasn’t necessarily that the money wasn’t going to come, but the fact that it was able to come in college can change some lives early on. I’ve also talked to other student-athletes, including a lacrosse player who’s made well over six figures through name, image and likeness. When you think about student-athletes in Olympic sports, their ability to earn compensation from name, image and likeness — especially if they’re on a partial scholarship and not a full ride — could be a game-changer when it comes to leaving school debt free.
You mentioned Olympic sports. Specifically, what can NIL do for women’s sports that don’t enjoy the same revenue?
Fedlam: We’ve seen there are numerous women athletes who have made significant amounts of money through name, image and likeness already, and we’re going to continue to see that. A lot of times, people will think that name, image and likeness is really just for the elite of the elite — male athletes in revenue-generating sports — but that’s just not the case, and that’s not what we’ve seen. There are gymnasts, soccer players, swimmers and others who are making money through name, image and likeness. Name, image and likeness really is equal opportunity across genders and across sports.
It’s been one year. We’ve seen a lot of change. What do you think the future might hold in terms of NIL? What do you think is coming next?
Fedlam: I think we’re going to see more and more schools taking a hold of this NIL experience. When you ask a lot of athletic directors and people who are athletic administrators in this NIL space, most people don’t know where NIL is going. I think it’s going to wherever schools decide that it’s going to be. We know that the only organization that really has the ability to create a national standard is Congress, and no one believes that they’re going to act on this anytime soon. I think that over the next year or two, we’re going to see schools taking more and more of a lead on what name, image and likeness looks like.
Theo DeRosa reports on Mississippi State sports for The Dispatch. Follow him on Twitter at @Theo_DeRosa.
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