By Sammy Cohen, Ryan Colon, Amanda Tuzzo, and Amanda Padden
What is NIL?
NIL stands for “Name, Image and Likeness.” In the most basic terms, NIL refers to college athletes being allowed to receive financial compensation by profiting from their own personal “brand.” NIL gives college athletes the right to monetize their “name” and “image” and receive profits through doing so. Examples of this include being able to sign sponsorship deals with corporate brands and companies, creating one's own brand “logo” or brand merchandise for profit, as well as being able to charge money for things like pictures, cameo videos, and even autographs. In short, “Name, Image and Likeness” truly just means that college athletes can leverage their own personal brand for profit.
While this policy seems standard, the ability to profit off one’s own brand was not always possible. Since the formation of the NCAA, it has been prohibited for student-athletes to earn anything other than the means of their school scholarship: this means they couldn't sign any brand deals or sponsorships, and couldn't even have any other jobs or ways to receive compensation in any form. Breaking such rules resulted in a loss of eligibility to compete for the athletes' respective school. For context, the NCAA, more formally known as the National Collegiate Athletic Association, is a nonprofit organization that regulates college athletes: as of 2021, the NCAA consists of almost half a million college athletes who compose 19,886 sports teams across 24 sports.
The NCAA approved NIL policy on June 30th, 2021 under an interim “name, image, and likeness” policy. While the policy varies depending on the state, from this date on, it has been legal for student-athletes to receive compensation for their brand. Despite there still being many rules and rights under NIL, which also vary based on the state in which you are a college athlete, NIL policy is a huge step forward in the process of fairly and justly compensating student-athletes. Student-athletes now rightfully hold an increasing level of power over their own agency and brand.
Things to Consider
While the basis of NIL is fairly simple, there are some things to consider when learning and understanding “Name, Image and Likeness.” While college athletes can profit from a wide range of deals under NIL, there are specific rules of the NCAA and the athlete’s respective states as to the types of activities one can partake in under NIL rights. Athletes may only profit from their own personal “Name, Image and Likeness”, and the school that they attend cannot be affiliated in any way: this means they can’t even wear the school logo in a brand advertisement or photo where they are receiving compensation. Schools may only act as a “resource” for compliance or legal questions about NIL –they may not boost profit or be used for profit in any way. However, athletes are able to use “professional service providers” to find and help with NIL activities. This includes companies that find NIL deals for athletes and help them with legal and safety questions. These companies also can often act as “marketplaces” for student-athletes to find deals and activities. Different school and athletic conferences, however, can impose certain requirements on schools and athletes: for example, the ACC could impose their own requirements on Duke student-athletes if they wanted to.
Pros of NIL
One of the main pros to NIL is that student athletes no longer need to choose between the need to make money and their athletic endeavors and dreams. For example, they can now attend college and play four years of sport while still earning some compensation. Before the passing of NIL, college athletes have long been under appreciated and undercompensated: the NCAA, colleges, and universities reap the ultimate profits from the work of student-athletes. Thus, NIL is helping student-athletes gain at least a bit of power and respect back to their work and likeness. NIL gives student-athletes an increasing amount of power and ability to build their own brand: this is helpful beyond athletics as well. College athletes risk their bodies, and their future athletic careers, playing for a college sports team, and before NIL, they received no compensation or incentive to do such beyond an education. NIL gives student-athletes agency over their brand and their likeness, and allows them to receive an education and valuable college athletic experience while still possessing power over their ability to receive compensation for their work. Many college athletes and their families live below the poverty line. Four years of risking physical harm playing in college to receive no compensation beyond an education is a difficult and important decision for many. It is a decision that often puts the athlete’s and their families’ financial situation in an increasingly dire situation, as they are spending four years at an institution where they could instead be earning money in a professional setting. The passing of the NIL policy will help change this, as college athletes can now receive monetary compensation that will help alleviate some financial strains while simultaneously gaining an education and valuable athletic experience. NIL can be used for pursuits beyond monetary income as well. Student athletes are able to use NIL activities to support and help social movements, like social justice and mental health awareness.
Cons of NIL
Not all college athletes are able to profit from NIL in the same way: while high-profile athletes at well-known college and universities may find there to be substantial gains from NIL, both monetary and non-monetary, less-known athletes and smaller or lower profile institutions may not have a fair chance at receiving compensation through NIL activities. This is one of the primary issues with NIL. The passing of the NIL policy may change the recruiting process and draw more players to well-known, high profile colleges and universities as these institutions likely have more pull and influence over NIL activities and deals–even though the schools themselves cannot have any affiliation with NIL activities. These schools can, however, act as “resources,” which can still provide a big leg up for college athletes in their NIL pursuits. Some believe that a scholarship is the real compensation for being a student-athlete, and that attending a school to play sports should be just as much about the education as it is about the sports. While we know this is true for some student athletes, and less true for others, NIL may change athletes' perspectives on coming to college to play sports. This could potentially make their time as student athletes more about profit and compensation as opposed to just taking full advantage of the education they are receiving in exchange for playing a college sport.
While many emphasize the importance of allowing student-athletes to profit off of their NIL, it is crucial to recognize how this change does not alter, and arguably worsens, the working conditions of student-athletes. The NIL policy allows student-athletes to profit off their own name, image, and likeness through working with private companies. The policy does not change the fact that universities do not pay student-athletes salaries for their labor. Life as a student-athlete is incredibly demanding--balancing practice, weight-training, watching film, attending classes, completing assignments, and having time for themselves and a social life. Establishing and upholding NIL deals requires more labor from student-athletes; they have to work to create the deals, cultivate a personal brand that is appealing to companies, establish a successful social media following, and post content for the company. Some student-athletes choose to work with agencies to manage this labor, but it is clear that NIL does not cleanly resolve the question of if universities should pay student-athletes for their labor.
NIL as a Recruiting Tool
With the NCAA’s new NIL rules leaving the potential for college athletes to make substantial amounts of money in their college years, it is inevitable that it will be used as a tool in recruiting. In just the past year, many schools have begun putting mechanisms in place to attempt to lure in athletes with promises of lucrative NIL contracts. This creates a new system with potentially both positive and concerning consequences that must be analyzed. Technically, it is illegal for coaches to directly broker NIL deals for their student athletes. However, as with many NCAA rules and regulations, loopholes exist in these rules that are already being taken advantage of. While they cannot directly organize NIL deals for student athletes, coaches can promise recruits the ability for them to make such deals “on their own” at their respective schools.
In some ways, these new rules create a fairer system where under-the-table payments between coaches and recruits, that have inevitably been occurring for years, no longer have to happen. However, the prospect of NIL deals heavily favors large schools with connections, vast alumni booster communities, and television contracts. For instance, before even playing a snap for the University of Alabama, head coach Nick Saban announced that incoming quarterback Bryce Young had NIL contract offers approaching “ungodly numbers” for upwards of $1 million as a result of the amount of press coverage that the university’s football team, and therefore their quarterback, receive over the course of a season. Additionally, weeks after transferring from the University of Oklahoma to the University of Southern California, quarterback Caleb Williams signed three massive NIL contracts, one being with the famous brand, Beats by Dre. The founder of Beats by Dre, Andre “Dr. Dre” Young, has endowed over $70 million to the university in the past for educational programs. As such, it is widely believed that Williams was told he would be able to sign this deal with Beats by Dre, and that this incentive impacted his decision to transfer to the University of Southern California. This leaves smaller, less-funded schools in a tough position, as they cannot promise such profitable prospects.
Beyond small schools being disadvantaged in the era of NIL for their lack of connections and financial prospects, some schools are disadvantaged solely for the state in which they reside. As NIL is relatively new, there exist inconsistencies in individual state laws that benefit student athletes in certain states over others. New Mexico has been ranked as the state with the most friendly NIL laws, while Mississippi has been ranked as having the most restrictive rules for athletes. To counter this and make their state schools more attractive for top recruits, Mississippi state legislators have been attempting to loosen the state laws regarding the abilities of athletes in regards to NIL contracts.
Just as schools compete in an arms race of sorts to build the best facilities to try and attract recruits, they will now do so in attempting to attract athletes on the prospect of NIL deals. Multiple schools have already been seen to create sham organizations funded by booster donations to pay athletes. For instance, alumni boosters at the University of Texas at Austin have created an organization known as “The Pancake Factory”. This organization raises money from alumni who want to support the school’s football program, and has vowed to pay every offensive lineman at the school $50,000 per year in NIL benefits. To excuse these questionable actions, the organization states that players must attend a certain number of community service events over the course of the year to earn their money. However, no such appearances by athletes have yet to be seen.
Gender and NIL
Considering the inequitable treatment of women’s and men’s collegiate athletics and the discrimination of women’s athletes, some were concerned about the impact that the NIL rule change would have for women’s athletes and the potential for gender inequities in this realm as well. Interestingly, the results for women athletes have varied. While Title IX has made powerful efforts to improve gender inequality in athletics at universities, the law is ineffective with NIL because schools are not creating the deals. This ultimately has made it difficult to implement any system which tracks the rate in which each gender can make deals.
Since the NIL policy change, male athletes have earned more in compensation and established more deals than women athletes. Opendorse, a company that helps athletes connect with companies and form NIL deals, released a report displaying data from the start of NIL deals to March 31, 2022. They report that men’s sports receive 72.6% of total compensation, as compared to only 27.4% for women’s sports for NCAA division 1 sports. Notably, men’s football is responsible for the majority of the compensation for NIL deals, consisting of 51.1% of NIL compensation according to the Opendorse report. While the same report states that baseball and men’s basketball are behind football for most NIL activity, women’s basketball is ahead of both sports for NIL compensation, coming in just behind football.
The statistics paint a complicated picture for gender equity in NIL deals. Jim Cavale, founder of INFLCR, said “if you remove football from the equation, transactions or activities disclosed by female student-athletes make up more than 50% of the total for all other sports.” Women sports, specifically track and field, volleyball, basketball, soccer and softball, are ranked in the top 10 for NIL activity. Female athletes are increasingly utilizing social media to make money on their name and identity. Women’s basketball is a standout success in NIL deals. One article highlights how women are often more successful on social media apps young people use, like TikTok and Instagram. The quoted marketing strategist argues that female athletes reach demographics that are more difficult to connect with, ones that male athletes often do not reach. From a capitalist standpoint, working with female athletes in NIL deals can offer opportunities that working with male athletes does not.
Given the newness of the NIL policy change, it is hard to know what inequities and disparities will emerge. One can use an understanding of systems of oppression and how they work in the US to speculate about what problems could emerge. While women’s sports have been top recipients of NIL compensation, it is important to consider how NIL deals could affect white women, Black women, and women of color differently. Due to racist beauty standards and long lasting white supremacist ideals in the US, white women are held as the norm and the beauty standard. As companies look to find female athletes to represent them, it is possible that white women and lighter-skinned women will be more appealing due to these white supremacist and colorist standards. Furthermore, it is crucial to understand how this can influence athletes at predominantly white institutions (PWIs) and historically-Black colleges and universities (HBCUs) differently. The aforementioned Opendorse report shows which athletic conferences have received the most NIL compensation and activities. Of the major conferences for HBCUs--the CIAA, MEAC, SIAC, and SWAC--only the SWAC appears on Opendorse’s ranking for top conferences for NIL compensation, coming in at 25th. The lack of interaction with the major conferences for HBCUs indicates a potential for inequities in the future.