Where NIL started and where it’s going

Depending on who you speak with, there is no bigger issue facing college sports today than name, image, and likeness, and I would say that it is a very large one.

I don't think it's the biggest one. I think out-and-out greed is the biggest issue facing college sports today, but NIL plays a little bit of a role in that as well. Darren Hytner, from Hytner Legal on Twitter, a law professor at the University of Florida who teaches sports law at the University of Florida, also teaches an NIL course at Miami's Law School. And if I'm not mistaken, Mr. Hytner, you are basically the co-author of the original, the first state law to deal with name, image, and likeness in the state of Florida.

Is that correct? I don't want to take too much credit for that. First of all, thank you so much for having me. The sponsor is Chip LaMarka, who is in the House of Representatives in the state of Florida, just got re-elected, but I did offer assistance and I was very happy to be part of the process.

All right, let's get to this. Based on where it was now, what, three years ago, and where it is today, how different is it? In terms of the law in the state of Florida, or just the landscape in general? The landscape in general, because I know the law had to be amended a little bit, but the intent when you guys drew up the law and how it is being actually implemented. Yeah, look, implementation from a national standpoint was something that the state of Florida, Chip LaMarka, and myself, none of us could control, right? So going back to 2019, when California actually was the very first state in the country to pass legislation to circumvent the NCAA's rules and say that athletes would have to be able to benefit from their NIL and that the NCAA couldn't restrict that, but not until 2023, we in the state of Florida said, let's sort of mimic that, but let's make it earlier, an earlier effective date, ultimately resting on July 1, 2021, which is why other states followed and the NCAA ultimately followed suit. But the premise for it, the reason why we were interested in doing this was to actually provide these rights that every other individual in the country can benefit from to college athletes. And because we believed in a free market where there would not be these types of restrictions that the NCAA had put in place without foundation.

So we expected this type of ecosystem to result from it to an extent. What I don't think anyone expected, and I can only speak from personal experience or from my personal opinion, is that I did not expect the NCAA to craft certain regulations related to NIL and then do absolutely nothing to enforce those regulations over 19 months. And I think that's why there are a lot of people who will say it's the wild, wild west or that it's pay-per-play, it's not really NIL because in many circumstances that is true, but the NCAA has done nothing about it. And if you're not going to do anything about it, of course you're going to have boosters and collectives offering money to athletes and not necessarily having true quid pro quo in the form of endorsements or utilizing name image and likeness in their own promotional activity.

Darren Hytner is joining us here on the Adam Gold show. So when this first came into being, first of all, the NCAA tried to ban events from going to the state of California. That's what they first threatened. You're not going to be able to get, people misinterpreted that to say that they wouldn't allow California schools to participate.

No, they just didn't want California cities to benefit from NCAA events. But they, they came out right away and said, we do not want this to be used as a recruiting inducements. I mean, there was no way really to prevent that because they hadn't been able to prevent dark money from getting to the kids anyway. They hadn't done a good enough job of, of making that, making that a problem. I mean, they, they tried to police it, they just couldn't.

They don't have the ability to, to police that. I think that's what's getting largely lost in the narrative, which is, you know, there's a lot of people who are up in arms about the fact that college athletes are being paid. The only distinction is they're getting paid transparently as opposed to under the table where the real change that occurred that has allowed for what I would, I guess, call disruption in the space is that NIL came about from the NCAA's perspective in concert with the transfer, the transfer portal opening. So now we're not only talking about money being offered to high school athletes to induce them, as you said, to go to specific universities, which again has been happening for decades, just under the table. Now it's also, you're able to provide money to athletes who have the capacity to transfer from one school to another. And how many players have entered the transfer portal this year? I think is it close to 2000? That's wild.

And how many of those players have received an NIL offer or multiple NIL offers either while they were in the portal or prior to that? I think you'd be I think you'd be hard-pressed to find many who did not. So that's where there's been a lot of disruption that changed the status quo. I have a couple more questions about this with Darren Hytner and you and I have to have a much longer conversation because I think it goes beyond what we can accomplish in like eight or nine minutes. Would it be beneficial to know what the monies are, to really know what the monies are? Would that not solve the problem? Because I think that there's a perception that there are millions of dollars being thrown around. And I think maybe in some cases there are.

But if we just knew what the monies were, like this guy's getting $25,000 to play at X school, would that help? With one of the best savings rates in America, banking with Capital One is the easiest decision in the history of decisions. Even easier than choosing Slash to be in your band. Next up for lead guitar. You're in. Cool.

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And for bigger jobs, try the superior strength of hefty large black bags. Well, I think first you have to ask, what is the problem? If the problem is that you're actually inducing players to go to schools? No, I don't think transparency as to the amounts that players are receiving changes that in any way.

And then you have to ask, okay, well, is it a solution, but a solution for whom? I think you as a media member absolutely would love having access to that information. I think the NCAA would love having access to that information as would universities, but is it truly in the best interests of the players necessarily to have that information that is traditionally confidential? I mean, we do contracts all the time for athletes, mainly professional, but now college as well.

It's hard to find a single document where the agreement itself isn't confidential. So you have an issue where if you're requiring transparency, you have to wonder, is that in the best interest of the athletes? Do they really want that information out there? I guess the retort to that would be, well, a lot of the stuff is getting leaked anyway, but at least give the athletes the opportunity to keep it confidential. I don't, I don't see releasing this information really being beneficial for the athletes. I'm not even quite sure that it's beneficial for the schools. I don't think it solves any pay for play issues or inducement issues, which seem to be the main gripes of the general public. Darren Hytner is joining us here at Hytner Legal on Twitter.

He teaches a NIL law course at the University of Miami's law school. Do you think the money's overblown? The amount of money that's out there is overblown. Is it less than people might anticipate?

I do. I think there's certain instances where there has been an exceptional amount of money that's been offered to players, but by and large, I think that there's just, well, I know there's just so much speculation out there. And it goes back to the question you just asked about transparency. Without there being that transparency, people are left to speculate. The people who are saying this contract's worth this amount or that contract's worth that amount really typically haven't even seen the documents. They're just relying on hearsay. But yeah, I do think that a lot of the offers, the amounts that are being circulated are overblown. But then again, you'd be surprised. There are some deals that are just exceptional.

Oh, there's no question about that. Would it help the process if all monies, whether it's through a collective, and it was strictly pay-for-play, which is, again, I'm okay with. Just to clarify, would I like to know what all of these NIL deals are?

Sure. Do I care that much? No, I don't.

It's none of my business. I've always said these kids should get as much money as they can possibly get based on what the system is getting from them. I've never thought this was a fair deal for the athletes in general. Some, I think, get more out of the system.

The best players don't get enough out of the system. But should there be some way to register all monies that you get through NIL, whether it's collectives or straight endorsement deals, through the school? Just let them know what it is. Here are the figures that we're getting. They don't have to release them, just so they know. And maybe that goes a long way to stopping whatever the recruiting inducements everybody's worried about. Well, interestingly, the NCAA has wiped its hands of that and said, we're not going to get involved in disclosure requirements. But roughly half of the states that have passed their own NIL laws do require that type of disclosure. And then separately, almost every school, at least every school that I'm aware of, has in its own NIL policy, which it's allowed to do, has these disclosure requirements. So interestingly, if in fact those requirements are being enforced, and again, now we're dealing with an enforceability issue, but I've heard figures like only half of the actual deals are being reported to the schools, and nothing's being done about that. But even if you assume that all of the deals are reported to the schools, do we really think that the schools are going to raise the red flag and say, hey, this was a violation. Let's self-report to the NCAA about it. No, I don't think so.

I don't think so either. All right, we have to have another conversation about this. Darren Hytner, I appreciate your time always. Thanks for being available. We'll talk again soon. Thank you.

Darren Hytner. Well, we will talk to him again. We're actually, we'll have more conversations about this from different angles because there are different perspectives on this.

This is the perspective I will always come from when it comes to name, image, and likeness. The biggest problem that most people deal with, with regards to this issue, is that there is a failure to understand that monies have been provided to players. Whether it's monies or services or benefits to players that go well beyond the scholarship, what is normally traditionally considered as part of the scholarship.

Whether it's parents getting jobs, parents getting access to housing, travel, whatever it is, goods. Heck, Steve Logan sat here for years telling us stories about, oh, and a washer and dryer needed fixing. A new one just a new one just showed up. Shocking. Look, I think people would be surprised if they knew how often something like that happened. Now we know that a lot of this stuff happens because name, image, and likeness has created this. It's almost an industry, the collectives. Yeah.

Right? So look, NC State's got one, Carolina's got one. They all have them to varying degrees and some of them, much like the universities themselves, are bigger and more deep pocketed than others. So Wake is going to be at a disadvantage in the NIL game to a Notre Dame. And I just use that as an example. I'm not saying that's why Sam Hartman is the quarterback of the Irish next year and not the Demon Deacons. There are football reasons why Sam Hartman is better off at Notre Dame than at Wake Forest. The offense that Notre Dame runs is not a flat out college offense, although all of these schools are running really college offenses. But I'm sure Sam Hartman will have access to money that he wouldn't have had access to at Wake Forest. So that has something to do with it.

But I would, I'll just submit this. And again, I want to talk about these things from the school's perspective. I will always come at this from an athlete's perspective. Always. Because to me, and I know it just seems weird for people, because the athletes are the stars, but they also are the guys, for the most part, getting the raw end of the deal.

Yeah. The normal deal for a scholarship has not changed forever in college athletics. The scholarship is what the scholarship is. The universities have just recently patted themselves on the back when they've decided to make the full cost of attendance a thing.

And I remember when I found out that full cost of attendance wasn't a thing. And I'm like, wait a second. So just now we're making them whole and we're giving ourselves like, man, aren't we great? Yeah.

Like, where have you been on this? I legitimately never knew that. That's my fault for not knowing it, but I never knew that. Are there issues within naming, name, image and likeness? Yeah, there are issues.

But they're the same issues that existed for decades in college sports. Now we just know. We just know who's getting money. And the best part about this is that for schools that are fighting it, for administrators that are pushing back against it, there's a very simple solution. It's the easiest possible solution. Just make them employees. Employees. Huh? Because that's what they are. Yeah, what a concept. But they won't do that.

They will not do that. This is the smell of the leftover tuna fish sandwich you left in your lunchbox over the weekend in a wimpy trash bag. And this is the smell of that same sandwich in a hefty ultra strong trash bag. Smell the difference. Hefty ultra strong has arm and hammer with continuous odor control. So no matter what's inside your trash, you can stay one step ahead of stinky. And for bigger jobs, try the superior strength of hefty large black bags.