Agents and NIL: Navigating the Uncertainty of the Professionalization of Collegiate Athletics

Aug 27, 2021

By Michael A. Ross, MS

With the recent passing of legislation and increased support of collegiate athletes winning the rights to profit from their name, image, and likeness (NIL), there are many controversial issues warranting careful attention. One such area is the involvement of sports agents, who are now allowed to partner with student athletes. Among the many questions are what guidelines are set in place for agents to reference and abide by and will such athletes protects athletic departments and their student athletes?

On July 1, 2021, the National Football League Player’s Association (NFLPA) released a memo for agents and contract advisors (CA) to reference as the age of collegiate NIL begins to take form and develop at an accelerated rate. Within this memo, the NFLPA states that agents “are permitted to enter into NIL marketing agreements with a college player, which agreements are not generally the subject of the NFLPA’s Regulations.” The memo continues by stating,

Under the Regulations, it is the agent’s responsibility to monitor and ensure that they are in full compliance with all applicable state and federal laws, as well as NCAA rules that impact the player’s eligibility. Further, any NIL contracts entered into with college players by a Contract Advisor should be wholly separate from any future Contract Advisor services involving the negotiation of player contracts with NFL teams; for example, a NIL contract should not include any terms that require or condition any NIL terms on the player later hiring that Contract Advisor for NFL contract services.

In other words, agents may be retained and help collegiate student-athletes with NIL specific deals and opportunities that abide by state, federal, and organizational guidelines, but that agent’s term must end before transitionary deals can be made for the same athletes at the professional level.

Points of Interest

When asked about how the NIL legislation may progress, Ellen Zavian, a law professor at George Washington School of Law and former agent, told me that because of the current status and NIL legislation being in its infancy, a closer look into the guidelines and potential pitfalls needs to be addressed for a more educational benefit of all stakeholders. As the memo states, and the current guidelines lay out, agents and CAs should defer to state, federal and organizational rules and regulations when navigating NIL marketing and sponsorship opportunities for their perspective clients. The state laws, in theory, are established to help protect the constituents within their jurisdiction and proximity. This protection does not differ when considering athletes within their home state or athletes who have opted to leave their home state to participate in collegiate athletics and get their education within the state being represented.

Considering that many of the current federal laws deemed applicable tend to defer to the state’s discretion, it is of the utmost importance that agents and CAs alike brush up on the state laws of which the athletes they intend to represent call home during their collegiate tenure. The aforementioned state laws should be aimed at not only protecting their own constituents, but also serve as a deterrent against agents who may not have the best interest of their prospective athletes/clients in mind.

At the time of this article’s creation, the NFLPA is the only North American professional sports organization to offer anything close to a guideline or best practices reference for agents and CAs to abide by. When asked if it is surprising that other professional sports organizations have not come forth with anything and the lack of detailed information within the only memo that has addressed this topic thus far, one agent stated that because this is an area of questionable and uncertain jurisdiction, more detailed information may come as this area of sport continues to develop.

Historically the NFLPA agents have had jurisdiction over NFL players and other eligible stakeholders, but this new realm insists that the NFLPA is attempting to gain jurisdiction over National Collegiate Athletic Association (NCAA) athletes which is an area they have never had and still do not have full jurisdiction. Having questionable, or no jurisdiction, creates numerous potential pitfalls and room for possible unethical and operational control conducted by agents and CAs who do not have the best interests of the student-athletes in mind. When asked about how to navigate this issue efficiently and effectively, Zavian stated that certified NFLPA agents will continually seek out increased education on both the state and federal legislation currently in play while becoming a source of education themselves for others to better navigate the currently evolving landscape that exists between collegiate athletes and agents. Because this relationship has been forbidden and essentially outlawed until now, there is a need for increased education as a whole to address the intricacies of these new and complex relationships to ensure positive outcomes are achieved.

Another concept warranting additional consideration with the evolution of the NIL and the student-athlete dynamic is what do these changes mean for the NCAA? Historically, the NCAA has relied on their use of the term amateurism to regulate what student-athletes were and were not permitted to do. With NIL legislation being passed and experiencing increased support, one may reasonably conclude that the NCAA has reduced, if not completely given up, their strangle hold that has been used to regulate such practices and opportunities for collegiate athletes. To better understand this power dynamic, it would serve the reader best to keep a historically based perspective and awareness of the NCAA’s evolution as it pertains to their power and regulation of participation over their constituents.

In its infancy, the NCAA adopted the British model in the sense that the sports offered were conducted and enjoyed as a hobby. Once the association began experiencing injuries and other safety concerns, it transitioned into a focus on not only offering hobbies for participation but also as a means of increased knowledge and awareness aimed at health and safety. This ideal can still be seen through the current mission statement of the NCAA which also places a large emphasis on education and overall well-being of the student-athletes.

At the turn of the century, this model fell by the wayside as the association continually expanded its reach and discovered that enormous wealth could be obtained through their offerings and increased membership. As most hobbies in their early beginnings, when participation and desire to be involved increase a more business focused outcome is sure to follow. Consider the growth of Crossfit in recent years as a means of exercise and how it has developed into a global phenomenon that generates large amounts of money at the more notable stages. The NCAA has ensured power over their constituents through their use of the term amateurism and its application to student-athletes eligibility. Essentially, amateurism as a definition became increasingly restrictive with the understanding that the more restrictive this term could become, the more financially beneficial it would exist for those in power. When the focus shifted from a hobby to health and safety of student athletes the next logical step for those in power was to seek increased financial opportunities. This final transition is what many have always known the NCAA to exist as and why it has been such a controversial topic in its current state. The most recent form of this contradictory behavior can be seen through the various collegiate football conference realignment. Utilizing the Southeastern Conference (SEC) and their newly added members the University of Texas and University of Oklahoma one can easily understand that with these additions, the conference as a whole stands a valid chance of increasing the amount of revenue through future media contracts. While this move is good for the conference and potentially the NCAA at the macro level, it contradicts the priorities of health and safety found within the aforementioned NCAA mission statement by increasing travel and placing less emphasis on academics. The priorities of those in control have been displayed case after case and with the implementation of NIL legislation being improved, it will be interesting to see what guidelines or boundaries are put in place to help regulate these new opportunities and freedoms.

Additional guidance or framework would be beneficial for agents to navigate the NIL legislation more effectively. Zavian stated that additional education available to all parties is crucial. She also suggested that the NCAA could offer education opportunities and platforms aimed at addressing potential pitfalls that may not only hinder student-athlete eligibility but also harm the overall wellbeing of all stakeholders’ long term as well. Consider the current practices issued to NCAA coaches on a yearly basis surrounding compliance guidelines and the mandate that they must pass these learning modules and exams to recruit among other opportunities. A similar platform could be made accessible to all NIL affiliated parties. This may also better serve the agents who display higher levels of competency in that they, theoretically, would be more highly sought after and gain additional clients at a higher rate than those who are not as competent.                     

Conclusion

If it seems there are more questions than answers at this stage of the NIL legislation and its implementation, it is because arguably, that is the case. There will be some growing pains felt by all until some of the more intricate and grey area issues are addressed and full guidance is outlined for constituents to be able to reference. One of the most beneficial components that would offer immediate and effective assistance is increased educational resources for all stakeholders to have readily available. Having additional education and information may help all stakeholders avoid immediate and long-term dangers that accompany this continually evolving landscape within collegiate athletics. As of now, it seems the approach is a trial and error or trial by fire learning platform for many that are involved.   

Michael A. Ross is the Department Chair and an Assistant Professor of Sport Management at Shorter University and a PhD student at Troy University specializing in research related to youth sport studies, leadership, sport law, social media policies and procedures within athletics and participation motivations in sport and recreation.

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