As a Tampa name, image and likeness agent, Jake O’Donnell has followed the multimillion-dollar dispute involving former Florida Gators recruit Jaden Rashada from afar. He has heard the rumblings about how a deal between the blue-chip quarterback and a third party cost a power program its prized prospect.
“It looks like it’s a learning moment for college athletics as a whole,” said O’Donnell, founder of EAMG Sports marketing company.
So what are the lessons to be learned? What can be done to prevent a mess like this from happening again?
Three things, according to a handful of name, image and likeness experts who spoke generally about the issue: more enforcement, more education and more school involvement. None is perfect or guaranteed to work. But, as the Rashada situation proved, the current system is ripe for failure, too.
NCAA rules and Florida law say name, image and likeness deals are not supposed induce players to attend a certain school.
“If you’re promising them you’ll make more money than another university if they go there … it would be illegal then, and it’s illegal now,” said Rep. Chip LaMarca, who led Florida’s name, image and likeness legislative push and filed a bill to tweak the law this month.
But in the 18 months since these deals became legal, there are no known instances of schools or collectives being punished for violating NCAA rules or state laws. That’s a major concern in college athletics, where coaches exploit every loophole to gain an edge.
“The best way to curtail bad actors and the best way to curtail wrongdoing is for people to know that they can actually get in trouble for doing what they’re doing,” said Peter Schoenthal, the CEO of the Fort Lauderdale-based NIL firm Athliance.
This isn’t meant to accuse anyone in the Rashada situation of wrongdoing. But if an entire industry thinks no one is getting in trouble for breaking the rules, what incentive does anyone have to obey them?
LaMarca’s updated bill doesn’t include anything about enforcement because he doesn’t think “more teeth in the law is going to make someone less greedy.”
Instead, the Republican from Lighthouse Point emphasized education through yearly workshops on life skills, financial literacy and entrepreneurship and access to free financial services. Both could protect young adults from bad actors trying to take advantage of them — a fear shared by several legislators at a recent meeting.
O’Donnell sees another related issue; too many schools don’t understand things like influencer marketing. If the schools don’t understand the issues themselves, how can they help their players?
“There’s a lack of general knowledge on NIL,” O’Donnell said, “which really stems from the lack of structure.”
And that lack of structure leads to a third potential fix.
More school involvement
Name, image and likeness let schools outsource player payments. One solution, then, is to eliminate the middle man. Have teams start paying players directly through things like revenue sharing. There’s minimal risk that a paycheck from a school won’t cash, and player holdouts are unlikely if their contracts are legally binding.
“There would be rules around when these contracts are signed, when offers can be made,” said Mit Winters, an NIL attorney for the Missouri-based firm Kennyhertz Perry. “Everything would be completely above board and governed theoretically by a collective bargaining agreement between athletes and the league that is the governing body…”
Even if athletes don’t become employees — a complex scenario involving everything from trades to Title IX — there are other ways for schools to get more involved.
Luke Fedlam, who leads the firm Porter Wright’s sports law practice, said they could start their own name, image and likeness funds. Donors could earmark contributions directly for player payments instead of facilities or scholarships.
“Then it’s the school almost taking over name, image and likeness and bringing it all in house,” said Fedlam, a founder and managing partner of the advisory firm AdvanceNIL.
Fedlam’s option causes schools to accept more liability if a deal falls through. The tradeoff is that enforcement agencies don’t have to deal with third parties, and donors can work directly with people they know and trust.
Even if schools don’t want to be active participants, they can still passively change the system. Because NCAA guidance allows teams to endorse collectives, they can ditch one that isn’t working and prop up another.
“Now that the schools hold the power where they can promote and not promote certain entities,” Schoenthal said, “they need to get their boosters and their collectives working for them, rather than the other way around.”
Another way to do that, Schoenthal said, is to put booster clubs in charge of name, image and likeness. Unlike some collectives, booster clubs are established, structured organizations. And if another entity is going to be involved, it makes sense to use one the school already knows it can work with.
“They must be aligned,” Schoenthal said. “You have to identify culture and then enact alignment. That’s one thing we’re not seeing. We have too many collectives and boosters acting like team owners and general managers.”