Photo Credit: John S. Peterson

Common Misunderstandings and Misperceptions in Name, Image and Likeness Era

July 18, 2021

Name, image and likeness (NIL) legislation went into effect in a number of states—Nebraska included—on July 1. With it, the NCAA made its own policy surrounding NIL as schools navigate what this new era looks like for student-athletes.

With how new NIL is, there have already been a number of misunderstandings and misperceptions surrounding it. From recruiting to grants and scholarships, everyone is just trying to make sense of what can and can’t be done. Unfortunately, that also means incorrect understandings will surface and often spread like wildfire.

To combat that, Hail Varsity spoke with Nebraska’s executive associate athletic director for compliance Jamie Vaughn and associate director of compliance Jonathan Bateman to work through some of these big questions and provide more clarity for coaches, parents, student-athletes, businesses and fans.

It’s important to note that these questions and answers are specific to Nebraska. At this time, states and schools are having to navigate this without federal legislation or much guidance from the NCAA. That means what one school and program says may not mirror what another school or program says.

Q: Can a program discuss NIL with recruits?

A: Yes, but there is a difference between speaking about how a program or university can help a prospect navigate NIL versus offering an opportunity to a prospect. A program cannot go anywhere near the line of inducing a commitment from a prospect by promising or guaranteeing any opportunity. That’s not a new rule and it hasn’t changed with NIL.

Here is exactly how it’s mapped out from the NCAA:

“While opening name, image and likeness opportunities to student-athletes, the policy in all three divisions preserves the commitment to avoid pay-for-play and improper inducements tied to choosing to attend a particular school. Those rules remain in effect.”

Programs have never been able to promise certain things to a student-athlete, including various benefits (like cash, special discounts, preferential treatment, etc.) or the promise of future payments for a commitment. What can be promised are scholarships and any benefits that are permissible as a student-athlete. Some things that are permissible would be things like snacks that go beyond the traditional meal plans, ticket allotment for games and more. The recent Supreme Court ruling will even expand those permissible benefits, saying “that the NCAA had violated antitrust rules and should pay student-athletes for education-related benefits.”

NIL, in its simplest explanation, is a new way for student-athletes to be employed. In fact, the NCAA hasn’t always allowed student-athletes to hold jobs and internships and there have been plenty of rules created once they were. That has evolved in time and NIL is evolving that further. That is something coaches and recruiters will want to discuss with prospects.

A coach cannot say, “If you come to Nebraska, we’re going to make sure you have $10,000 in your pocket for spending money every year.” However, they can discuss how Nebraska’s #NILbraska program will benefit them as a student-athlete. Coaches and recruiters can discuss how the university will help educate and provide necessary tools to a student-athlete to effectively navigate NIL. That spans a number of departments too, from life skills to the College of Business. Education and mentorship are more than OK for discussion with recruits, because that’s what universities are already doing for their student-athletes.

“We can educate all we want,” Vaughn said. “That’s what we’re here to do.”

Q: Is there a cap on how much a student-athlete can make before it affects their scholarship?

A: No, the amount of money a student-athlete makes has no bearing on the athletic scholarship. That means if a student-athlete makes $100,000 in endorsement deals, their scholarship is fine.

Q: What about something like a Pell Grant?

A: The amount of money a student-athlete makes could potentially impact need-based aid that is provided through different grant programs in the federal government. That means compliance departments are going to encourage student-athletes to work closely with the university’s financial aid office to understand what could potentially affect qualifications for specific grants.

Q: Will the university’s compliance department weigh in on potential deals?

A: Ideally, no. Nebraska, for example, has a wide range of resources available for student-athletes. They can work with Opendorse, an agent, parents, coaches and life skills staff to walk through the potential upsides and downsides of any deal. As for compliance, they do not want to act as the decision maker nor do they want to act as an agent. If a student-athlete is concerned about their financial aid situation, the resources are available and compliance will help point them in the right direction.

That extends to international students, too, who are learning there are limitations with NIL due to their visas. Compliance, as a result, is referring those students to their international student services office to ensure they are receiving the correct guidance as they navigate NIL.

Q: Are student-athletes required to have deals approved by the university?

A: No, they do not. If a student-athlete wanted to go get a job at the mall, they wouldn’t be required to receive approval in advance. NIL deals work the same. What compliance departments are focused on is that the student-athlete is being paid an appropriate amount of money for the work they are doing. The student-athletes are asked to disclose what they are doing with NIL but without further guidance from the NCAA, most schools are not requiring any pre-approval.

Does that run the risk for violations? Of course, but the university will work through those concerns as they come. For now, there are specific areas student-athletes cannot work in (Nebraska maps its out in its NIL policy) and they’ll be addressed if something comes up that requires attention.

Q: One that recently came up was Barstool. Due to its connection to a sports-betting site, some said that would be a violation. Is Nebraska blocking Barstool deals right now?

A: No, but that doesn’t mean Nebraska isn’t monitoring the situation. The compliance department is meeting frequently to review all potential areas of concern and taking the approach that they do not want to have knee-jerk reactions to things until they’ve had time to review. And while another school may say they are not allowing something, that doesn’t mean Nebraska will take the same stance. Until there is uniform legislation at the federal level, the NCAA has left it up to the schools and programs to sort through.

It’s also not just Barstool that presents potential issues, either. Other media entities—like Yahoo! and Fox Sports—have partnerships with brands like DraftKings that could be a potential issue too. There are also discussions on nutritional supplements and companies and how those may or may not violate Nebraska’s policy, especially if a product is not regulated by the Food and Drug Administration.

There are risks to a lot of potential business opportunities and Nebraska acknowledges that. As for how the Huskers plan to handle it, they are taking it one day at a time.

Q: Is there a formal or preferred process to reporting deals before or after they have been made?

A: The primary tool being used is Opendorse Monitor™. A student-athlete is more than welcome to let a coach or university representative know what’s going on and ask questions, but Nebraska is leaning heavily on the tools Opendorse provides for all reporting. A big reason for that is the consistency of the tools so that the same information can be reported.

In the past, Nebraska has used a different approach to employment reporting for student-athletes. Could Nebraska use a similar approach for NIL reporting? Sure, but right now the Huskers are keeping those separate. Everything is new and it’s requiring all involved to adjust. That doesn’t mean it won’t change in the future. For now, student-athletes are encouraged to use Opendorse and have been educated on how to report through that.

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