What legal issues is NIL dealing with?

I think it was early last month, the NCAA convention, and the committee came up with some bullet points about, this is the board of governors and the chair Linda Livingstone is I believe from Baylor, came up with some bullet points asking Congress for three things. They wanna prohibit athletes from being deemed employees. Please don't let some court tell us that we have to do this. They want to be, they basically wanna be protected from antitrust scrutiny and they want a federal law that supersedes state laws.

There's a lot of different state laws as it pertains to name, image, and likeness. Let's dig into some of those things with Amanda Kristovich from Front Office Sports. She is a sports business reporter.

She focuses on this. And I wanna get to the NCAA convention. So let's start there.

Are they asking the NCAA, rather is the NCAA asking Congress to essentially codify, which is a big word on Capitol Hill these days, to codify the collegiate model here? Well first of all, thank you so much for having me and also love the walk up song. That's all Victoria. I had nothing to do with that.

Loved it. But yes, the answer to that question is yes. The NCAA hears the footsteps. They hear, I mean they have lawyers fighting in court, two major federal court cases right now about the amateurism model. They saw what happened when they lost nine nothing to the Supreme, in the Supreme Court. There is not a lot of bipartisan support on anything these days with the exception of everyone hates the NCAA. So that's exactly what they're doing with Congress.

It's just a question of whether or not they're gonna be able to get every, A, get enough lawmakers' attention, and B, if lawmakers are gonna go for this. Because I'm not sure that they are, even the most conservative ones. You know, it's funny, in the state of North Carolina, one of the most conservative congressmen was one of the ones leading the charge to have athletes being able to realize their value in the marketplace. I am curious, did they read Justice Kavanaugh's concurring opinion when he basically said, how the heck have they been getting away with this for 60 years? Yeah, I mean, they absolutely are concerned about that opinion. Now, the NCAA is taking the position of, you know, so I'm not a lawyer, right? But one of the things that I've learned as a sports business reporter is that a concurring opinion is not like a doctrine, right? Kavanaugh's really strong opinion is not the law of the land.

However, it was an invitation for other litigation to potentially move its way through the courts. Kavanaugh is basically begging athletes to bring him this issue so he can rule on it more directly, right? And the NCAA is saying, well, what Kavanaugh said doesn't really matter, right? Like his quote about how the NCAA's business model would be flatly illegal in any other industry.

That's a direct quote. They're saying that doesn't matter, right? And technically, legally, like, yeah, it doesn't matter. But the next time a case like this gets to the Supreme Court, you know, it's important to note that one of the most conservative justices sounded like a very liberal college athlete advocate in his concurring opinion. Not a good sign for the NCAA.

Amanda Kristovich from FrontOfficeSports.com is joining us here on the Adam Gold Show. How does Title IX play a role in all of this? Because everything I read says this to me, that if we're going to fully delve into name, image and likeness, there are going to be Title IX issues.

Where are we with that? Well, the place that we're at is that we actually don't know where we are, where we are, because so the way that Title IX works is that every educational institution, right, like that receives federal funding. So every school is prohibited from discriminating on the basis of sex. So that means that what schools do is regulated by Title IX. It does not mean that what the NCAA does as a separate nonprofit entity or what third party brands, advertisers, whoever do, you know, engage in NIL deals, Title IX does not apply to them. So what everyone's trying to figure out now is if and when Title IX could cross over into the NIL realm.

There's one place where we for sure know that this is the case, and that's campus NIL resources. You cannot hire a you know, an NIL coach or a brand coach. You cannot offer a class to just the men's basketball team.

You got to give it to the women, right? You got to offer it to the women's basketball team, too. But the question that's being asked of the Department of Education right now, actually, is whether or not NIL entities, aka NIL collectives that are technically not, you know, part of a university but that are closely tied to a university and that often could be working with the athletic department, whether their actions could be subject to Title IX.

Amanda Kristovich is joining us here from Front Office Sports. My read on this, I didn't want to even call it a controversy, but why the schools have been against name, image and likeness and they're only here because they don't really have another choice. My read has been they're just afraid of losing money. And I understand that because theoretically if I'm a company and I can just go to the athlete and it doesn't cost me as much, I can just pay him or her as opposed to paying the school above and beyond that.

I've always thought it would be added value as much as anything else. But what about, I'll just use, and I know you've written about this, I'll just use Adidas versus Nike. North Carolina is a jumpman school, but if I'm Adidas and I want to pay a baseball player X amount of dollars to wear Adidas stuff, how does that work in terms of even being allowed, I mean a kid probably can't do it on campus, certainly not during a game, but how does that work? Yeah, so in the beginning, there are some states that have state NIL laws that say that a school can prohibit its athletes from signing NIL deals with companies that directly compete with the company, with athletic department sponsors, right? But what we've seen in practice is that it is totally kosher in the majority of cases for, particularly an apparel sponsor, to sign an athlete at a competing school.

The question is whether or not they see that as a return on investment, right? Because as you said, if an athlete signs with Adidas but they're at a Nike school, they can't wear Adidas in any like sport or school sponsored ones, right? But interestingly enough, some companies, you know, Nike, Adidas and Under Armor are in their own category, they're direct competitors because they're competing for athletic department sponsorships, right? There are other companies like Reebok or there's this new women's basketball shoe brand called Moolah Kicks, for example, that are signing athletes knowing that at least in division one, the athletes cannot wear their products during games, but with like the CEO of Moolah Kicks told me, she was like, that's actually a good thing because we believe that to say that the athlete, when they have a choice, their choice is our company rather than the one that they're forced to wear for what school they go to is actually a really powerful marketing ploy.

Yeah, I was going to say that's really, that's a way around it, but smart marketing at the same time. Before we let Amanda Kristovich go from FrontOfficeSports.com, where do you think we are with this based on where we're headed? Like how, the more you dig into this, do you keep on, you know, like overturning more rocks and realize, oh my gosh, there's a giant hole here that we need to dig down?

Like how, where, how far did the tentacles reach here? Yeah, I mean, I think that NIL is really, obviously it's the big story of today. It's not the big story of tomorrow and here's why. The question of whether or not college athletes can be deemed employees, which means that they can have all the employment rights afforded to the average employee in the United States, right? And also whether or not they can get salaries is going to be the story of tomorrow. And that's going to directly affect NIL and the power that NIL has because right now, NIL collectives and you know, NIL is being used as a recruiting tool, right? Because it's the only way athletes can get paid. But if athletes are given some sort of salary or collective bargaining opportunities, then NIL is going to be less powerful because they're going to get paid by their schools. So to me, that's the biggest question. And it may be settled sometime this year, or at least we'll get a better indication before, you know, the NCA is going to take this all the way to the Supreme Court, as high as it can go, because they have such a great record there.

So that would be interesting, because it actually might. What I've always wondered is if the schools are in a position right now to have everybody else pay the athletes where they don't have to, why wouldn't they just sign off on that? Because they clearly don't want to. Part of the reason why we haven't had NIL is because the schools have wanted to keep all this money for themselves. That's my view of it. I mean, maybe that's too cynical.

I don't think so. But now they have everybody else paying them and they don't have to. Man, I'd be like, all right, cool, we get to keep all this money for ourselves.

But is this just, what's driving that? Well, I mean, the schools, they're on the hook for way more than just paying athletes salaries if athletes are deemed employees, which is why NIL is, you know, actually, like you said, a good situation for them. They are going to have to provide, like literally the phrase student athlete was created as a legal term to keep NCA schools from being liable for paying workers compensation.

Right. So so they're I mean, yeah, like they're probably looking at their budgets and going, yeah, we're not going to be able to pay our football coach nine million dollars a year if we also got to pay the football players and provide them more health care than we're already providing them. So ironically enough, they fought tooth and nail for no NIL.

Now they're maybe realizing NIL is potentially the best of both worlds for them. But, you know, this is the United States. We have laws and people don't always follow the laws.

But it doesn't really matter what the schools want to do, because the courts are probably going to decide for them, especially if the NCAA keeps bringing them business. Amanda Kristovich. But you can follow her on Twitter at a Kristovich with an extra H on the end of it.

Front office sports dot com. Thank you so much. We'll do it again. Thanks for having me.