Memos obtained from 19 DI conferences shed light on name, image and likeness views

The conferences shared the memos with the Collegiate Commissioners Association in August 2019 and they were passed on to an NCAA working group

In August 2019, the NCAA Board of Governors Federal and State Legislation Working Group received a memo from Beth DeBauche, the president of the Collegiate Commissioners Association (CCA) and the commissioner of the Ohio Valley Conference, after the working group had requested feedback regarding the name, image and likeness (NIL) rights of athletes, prior to the signing of California Senate Bill 206, otherwise known as the Fair Pay to Play Act.

Out of Bounds obtained the memo from DeBauche via public records request.

“The CCA certainly wants to provide the working group with meaningful and substantive feedback that accurately represents the perspectives of the CCA member conferences,” DeBauche wrote. “Therefore, rather than submitting a general statement on behalf of the CCA, we asked each of the multisport conferences to review the working group’s questions and submit a conference-specific response to the CCA.”

The CCA asked each conference:

  • What are the challenges and opportunities in creating a system in which student‐athletes may be compensated for the use of their name, image and likeness?

  • Are there viable models for the compensation of a student‐athlete’s name, image and likeness that reinforce educational goals, provide a clear demarcation between professional and college sports and that further align student‐athletes with the general student body? If so, please address how these models would be:

    a. Enforceable to prevent improper recruiting and transfer inducements or substitution of payment for athletics ability;
    b. Narrowly tailored to support the values and principles of NCAA athletics;
    c. Adaptable to future technological, societal and industry changes.

  • How might fair competition among schools be impacted by compensating student‐athletes for their name, image and likeness? In what ways could this impact be mitigated?

  • Are there existing structures to fairly and accurately determine the market value of a student‐ athlete’s name, image and likeness? What are they?

  • What measures would you recommend that would mitigate against a student‐athlete prioritizing NIL compensation over academic success and commitment to the team?

The CCA received responses from 19 of the 32 member conferences, whose memos were obtained by Out of Bounds.

“Given though that not all 32 conferences responded,” DeBauche wrote in her memo to the working group, “we did not feel it was appropriate at this time to assert any consensus positions on behalf of the CCA.”

Here’s how various Division I commissioners and conferences felt about the name, image and likeness rights of athletes in August 2019, organized by topic.

Many said the time has come for athletes to take advantage of their NIL rights

While some conference commissioners strongly expressed that their conferences were against athletes being compensated for their NIL rights, several of their peers took the opposite approach.

The Southern Conference, whose memo wasn’t signed by one individual and which may have been the transcription of multiple perspectives from throughout the conference, proved to be an unexpected messenger of some of the most liberal NIL viewpoints of any conference.

In regards to a question about the demarcation between collegiate and professional sports, the Southern Conference’s memo stated, “Everything outside of paying student-athletes is already professional at the Power 5 level.”

Another line in the memo read, “By paying student-athletes we will finally admit that we are pro sports.”

When asked how NIL rights meshed with the values and principles of college athletics, the Southern Conference’s response noted how schools and their coaches have already profited off the NIL of athletes.

“Given how institutions and coaches have profited from the NIL of student-athletes,” the memo stated, “there is conflict with values and principles already. It’s why we are in this conundrum.”

Another bullet point from the Southern Conference went one step further, when asked about the values and principles of college athletics.

“What values and principles?” the memo stated. “They are ever-changing. The organization would probably change their principles to accommodate NIL legislation.”

Here are other conferences that expressed pro-NIL viewpoints, although some of which were tethered to some level of regulation:

  • America East Commissioner Amy Huchthausen: “We believe student-athletes should be afforded the same opportunities as their peers with respect to pursuing interests and paths that position them for post- college success. This is especially relevant in today’s environment that creates numerous opportunities for entrepreneurial ventures, both within the academy and beyond. We do not believe student-athletes should be constrained in these endeavors solely because they participate in intercollege athletics.”

  • MAC Senior Woman Administrator Kristin Williams: “It seems that the time has come that the NCAA legislation does open up opportunities for the student-athletes to earn something from their name, image and likeness, beyond the educational benefits that are currently being awarded. If we are to open opportunities for the student-athlete to use his/her/their name, image and likeness, it should still be controlled to maintain the amateurism model and not an opportunity for commercial entities to create a professional market, not allowing a pay for play scenario … Ultimately, the modernization of the name, image and likeness legislation is necessary.”

  • Patriot League Commissioner Jennifer Heppel: “An athlete must be allowed the same academic experiences and opportunities as his or her peers; therefore, the receipt of compensation by an athlete for the use of his or her name, image and likeness should be permitted provided there is an academic nexus to the endeavor. Concerns surrounding improper recruiting, inducements, fair competition, etc. in the name, image likeness conversation legitimately recognize pressures on the current system. However, these same concerns arise in a multitude of other ‘topics’ within college athletics and certainly are not unique to the name, image and likeness conversation. While not expressing a desire to increase the pressures, we would caution against inaction simply due to these concerns. Limiting an athlete’s academic experiences and opportunities due to concerns about fair competition is not a viable outcome.”

  • Summit League: “The present opportunities to benefit institutions and student-athletes, both financially and educationally, far outweigh the efforts that will be needed to overcome the challenges. Allowing student-athletes to be compensated for non-game name, image and likeness (NIL) uses allows them to be fairly compensated for a property right which every individual holds. Further, it allows student-athletes the opportunity to be more aligned with the general student body regarding the financial and educational opportunities that are available.”

The Southern Conference’s memo stated that current rules try to legislate morality, but that it’s not possible to do so.

While the Southern Conference shares 18 of the 22 letters that are in “Southeastern Conference,” the two conferences’ memos didn’t share the same views on NIL.

“The SEC strongly requests, however, the Working Group proceed carefully and avoid wholesale revisions to NCAA Rules, for reasons as explained below,” SEC Commissioner Greg Sankey wrote, later adding, “permitting third parties to pay student-athletes for licenses of publicity rights would presumably result in a transfer of control over collegiate athletic programs to third parties and might well adversely impact the popularity of the collegiate model.”

He predicted potential scenarios in which athletes would experience “exploitation by unscrupulous third parties,” who would get “lifetime control over their publicity rights to third party for a wholly inadequate payment.”

Sankey urged that any modifications to NIL rules considered by the working group be “fully analyzed and approved by antitrust counsel before being shared with the membership, or publicly.”

In an even more outspoken memo, Sun Belt Commissioner Keith Gill wrote, “The Sun Belt Conference does not believe that allowing student-athletes to be compensated for NIL is consistent with the principles and values of the NCAA. We also do not think that there are viable models that provide a clear demarcation between professional and college sports and further align student-athletes with students generally. The Sun Belt Conference believes that the NCAA has a responsibility to ensure that student-athlete benefits are tied to education or are incidental to participation.”

The Sun Belt actually took things one step further, calling for the NCAA’s attention to instead be focused on “examining all of the benefits that may seem inconsistent with the Association’s mission of education and amateurism (e.g., parent travel to CFP and Final Four, Bowl gift suites) rather than move us in a direction that cannot be justified based on the Association’s mission.”

It’s a galaxy brain take to argue – in the midst of an evaluation on potential NIL models – that athletes’ parents shouldn’t be able to receive financial support to help them afford to travel across the country to watch their sons and daughters compete for a national championship.

“The Sun Belt Conference does not support moving to the liberalization of a student-athlete’s name, image and likeness,” Gill wrote.

Gill wrote that the Sun Belt had concerns there was a “predetermined outcome” regarding NIL rights, which he said would create “a culture where competing for your institution and receiving an education is no longer valued.”

Atlantic 10 Commissioner Bernadette McGlade wrote that one challenge of granting athletes their NIL rights is that “optics and public narrative of the current system that (some believe) is fundamentally unfair to student-athletes, particularly in revenue generating sports.”

Two “opportunities” from a system that allows NIL rights, in McGlade’s eyes, “would be viewed as fair to treat students and student-athletes in a more consistent manner” and the “opportunity to improve the optics and public narrative of where the wealth is distributed.”

The memos from the A-10 and Summit League noted that adopting liberalized NIL legislation would minimize the potential “legal challenges” of the current system.

Then there’s this bullet point from the Southern Conference: “Member institutions would be pulled out of the equation of ‘paying’ athletes should the courts ever decide that was appropriate. Scholarships would be sufficient, and the free market would take care of the rest. Would alleviate Title IX concerns of paying football players but not softball players.”

The Summit League expressed that there are viable NIL models, namely one presented by Tulane Law School Professor Gabe Feldman.

“In general, a deregulated model is far more adaptable to changes than a regulated model is,” the Summit League’s memo read, later continuing, “Standard NIL Agreements can be reviewed, revised and released on a yearly basis to address changes in technology, society and industry. The real need is a willingness of the NCAA and its members to reevaluate its definition and model of amateurism, and its willingness to adapt.”

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An overwhelming admittance that there isn’t competitive balance in college athletics

One of the biggest and most frequent arguments against allowing college athletes to capitalize upon their NIL rights is that it will drive a wedge between the “haves” and “have nots,” creating an environment where the rich get richer and the rest of the schools get left in the dust.

Privately, in the memos sent to the Collegiate Commissioners Association, many conferences and conference commissioners admitted that there isn’t much, if any, competitive balance right now.

“Other than the legal risks, perhaps the other biggest concern of the membership with NIL is the ‘fairness’ issue,” wrote Big South Commissioner Kyle Kallander. “What if ‘his’ quarterback can make more on autographs than ‘mine’? Frankly, intercollegiate athletics isn’t ‘fair’ now, at least when using that type of test.

“Institutions have different levels of support, resources, and following. We shouldn’t let the fact that student-athletes at some institutions may command a higher monetization than others get in the way of a common sense solution.”

America East Commissioner Huchthausen wrote that the “usual” concerns about NIL, such as recruiting, illegal inducements and competitive balance are real, but relative.

“These already exist in a number of areas both within the scope of NCAA regulations and beyond,” she wrote. “There simply are inherent resource differences across the membership that will never be bridged. Thus, while we believe these should not be ignored, we also do not believe they should be the determining factors in any model. We encourage the Working Group to not be deterred in a full examination based solely or primarily on recruiting concerns.”

The Southern Conference, which didn’t hold back in its memo, submitted, “This would negatively impact competitive equity. However, it is already clear that as an organization, the NCAA no longer focuses on a level playing field.”

Here’s more from the Southern Conference on the issue of competitive balance and how such a balance doesn’t really exist currently:

  • “It would certainly go against competitive equity, the already growing gap in competitiveness throughout the NCAA will continue to expand.”

  • “To some degree the competitive equity gap would become wider. However, within the membership, this gap already exists. This gap could be mitigated provided there is a genuine effort by all member institutions to collaborate on this topic to operate in the best interests of current and future student-athletes.”

  • “The rich will get richer; this would kill the NCAA Basketball tournament as the divide between the Power 5 and others would only grow; transfers will become free agents because deals will be worked into recruiting on the front end.”

Bigger conferences acknowledged the imbalanced playing field, too.

AAC Commissioner Mike Aresco wrote, “While there will never be a truly ‘even’ playing field, the rules do attempt to create some fairness to all in the process.”

His conference could witness how uneven the playing field can be this football season if No. 6 Cincinnati goes undefeated and misses the four-team College Football Playoff.

“In the sport of football there is already a significant separation,” the memo from the WAC stated.

Commissioner McGlade of the A-10, which last season produced the men’s basketball version – potential No. 1 seed Dayton – of what Cincinnati is attempting to pull off in football, wrote in a memo to the CCA Executive Committee, “Fair competition among schools will certainly be impacted and this impact cannot be mitigated any more than coach’s salaries, lavish facilities or other benefits that highly resourced schools are able to utilize to attract elite athletes.”

The memo from the Colonial Athletic Association (CAA) noted a “growing divide between larger budget institutions,” even prior to the the allowance of NIL rights.

“If institutions are permitted to pay student-athletes for using their name, image, and likeness, then the institutions with more resources, bigger budgets, and better sponsorship deals will all create a landscape that further separates the ‘haves’ from the ‘have nots,’” the CAA’s memo stated. “Disparity will be created within conferences, let alone on a national level.”

OVC Commissioner DeBauche relayed that members of her conference were worried that some schools would benefit more than others from NIL legislation due to more media exposure. However, she wrote, “it should be noted, the Directors of Athletics acknowledged that some of the issues referenced above currently exist to some extent but there is a conviction that the situation would be compounded by a change in approach.”

Then there’s the Summit League, which is perennially a one-bid conference in regards to the men’s basketball NCAA tournament and the league’s one representative often receives a No. 15 or No. 16 seed, which is a status that’s almost guaranteed to come with a loss in the first round.

“While the idea of fair competition within conferences and even among like conferences can be conceded,” the Summit League’s memo stated, “the idea that it exists across Division I institutions and conferences is tenuous, at best.”

How would NIL rights affect the recruiting and roster-building process?

NIL rights and recruiting go hand-in-hand when the former is discussed and many conferences suggested in their memos ways for the former to not impact the latter.

The Big Ten’s memo, which it should be noted was sent during the reign of former commissioner Jim Delany, offered one idea that institutions and boosters should be “excluded from the equation altogether, at least during the recruiting process.” The suggestion stated that while colleges and universities could still offer a scholarship during the recruitment process, they couldn’t offer or provide any representation of what a prospective athlete could earn from his or her NIL rights at the school.

“Once an individual became a student, boosters could either remain off‐limits in the context of N/I/L compensation,” the Big Ten’s memo stated, “or if they were permitted to be involved, compensation for use of N/I/L could occur only if it could be demonstrated that the student was being paid a defensible and appropriate market rate commensurate with the specific set of circumstances. In terms of enforceability, it seems such restrictions would be no more or less enforceable than current restrictions on offers and inducements provided by boosters and/or institutions.”

OVC Commissioner DeBauche wrote to Big East Commissioner Val Ackerman and Ohio State Athletic Director Gene Smith, who are the co-chairs of the NCAA Board of Governors Federal and State Legislation Working Group, that the OVC’s athletic directors expressed concern that without limits on NIL rights or tying NIL compensation to financial aid structures, certain schools and athletic programs will start “stockpiling” players by offering them minimum scholarship amounts but making up the balance through NIL.

“Specifically, our membership is concerned that institutions in larger markets and/or with bigger fan-bases will have undue competitive and recruiting advantages,” DeBauche wrote. The OVC’s ADs were also worried, according to DeBauche, that “the sense of spirit de corps in the locker rooms will be eroded given the sense of celebrity that could exist.”

It’s fair to wonder how many “celebrities” would exist in the OVC, or conferences of a similar stature, due to NIL rights. Plus, former Murray State men’s basketball player Ja Morant, who was the No. 2 overall pick in the 2019 NBA Draft, should offer a counterpoint to that concern after his Racers swept the OVC regular-season and conference tournament titles two seasons ago, before beating No. 5 seed Marquette in the first round behind Morant’s triple-double.

The WAC, which ranked 24th out of 32 DI men’s basketball conferences last season, per kenpom.com, suggested in its memo, “One way to mitigate may be to penalize institutions that elect to compensate their student-athletes [is] by lessening or forfeiting their opportunity to receive certain revenue distributions from the NCAA.”

Some conferences are all about athletes monetizing their (non-athletic) skills

Some of the comparisons and examples used by conference commissioners when comparing athletes to regular students on campus, or when describing the other, non-athletic marketable skills of athletes, were flawed at best and disingenuous at worst.

AAC Commissioner Aresco mentioned how proponents of NIL rights bring up how other students can capitalize on their NIL. Areso countered that sentiment by writing that while a member of a school’s marching band can play at a nightclub, the band member’s school isn’t in a competition against opposing marching bands, therefore the band member isn’t gaining an advantage over competitors.

“The situations are not equal,” Aresco wrote. “Competitive equity is not a concern for students in those activities … The same is not true with athletics. While there will always be some inherent inequity due to location, resources or other uncontrollable items, the NCAA rules are designed to create as much competitive equity as possible so that the competition is fair to all participants. If NIL payments are permitted, it must not come at the cost of fair competition.”

Other than the fact that the last time I was at a nightclub in a college town, there was a lot of Drake and BlocBoy JB music played, and not a single brass instrument was in sight, using that marching band metaphor to suggest that there’s no competition in the music industry feels misguided.

A handful of conference commissioners cited how the ability for athletes to earn compensation from their NIL could really help athletes who are also artists, authors, painters, photographers or musicians. But the reason these students are marketable is because they’re athletes and the reason they can’t be compensated for their name, image and likeness is because … they’re athletes.

“It is important to the student-athlete to be able to use their intellectual property,” the CAA’s memo read, “especially when the student-athlete themselves are the intellectual property.”

Among the permissive concepts and models listed by A-10 Commissioner McGlade, one was to “permit student-athletes whose skills, talent and reputation garner non-athletic appearances and opportunities (Example: movie/television casting).”

Another point was to allow an athlete who “invents or develops a product to sell or monetize their invention.” Modeling would be allowed, according to McGlade, as long is the athlete doesn’t influence endorsements and limits involvement with the athlete’s school and conference.

“Modeling is an area that can be quite complicated,” the CAA’s memo stated. “However, this is another area that can at least be explored.”

Another line from the CAA stated that “general students can profit from their artistic abilities. It may be time to investigate whether there is an avenue by which student- athletes can enter this landscape.”

Surely there are athletes who are also very talented artists, musicians and entrepreneurs, and yes, it’d be great if they could fully capitalize on their platforms and impressive skill sets, but ask yourself how much time college athletes really have to publish a book, to complete a detailed oil painting, to invent a product, to pursue a role in a TV show or to launch a business, on top of being a full-time student and an athlete?

Then there’s the Ivy League, which answers that question in a way that maybe only the Ivy League can.

“In the Ivy League, there are many student-athletes (as with students generally) who may own a business, want to start a business, have a marketable talent, or who have invented a product or service, wrote Ivy League Executive Director Robin Harris. “Under the current model, these entrepreneurial student-athletes are extremely limited in their ability to pursue these educational and life goals, unlike their non-student-athlete classmates.”

At the end of the day, it appears that some of the angst inside conference offices is that their athletes often have a huge platform and following on social media, and they wonder how, exactly, NIL payments to those athletes could be justified for a reason other than athletics.

“The question of a student-athlete’s right to be compensated for his/her/their name, image and likeness, has drawn more and more attention and confusion as technology and social media abilities have continued to grow and modernize,” wrote the MAC’s Senior Woman Administrator Kristin Williams.

DeBauche, the OVC commissioner and president of the Collegiate Commissioners Association, wrote in the OVC’s memo, “The OVC Directors of Athletics noted there may be a meaningful distinction between compensation based on a name image or likeness tied to athletics at the institution and notoriety based on some other skill or talent that a student-athlete may possess, separate from athletics … the Directors of Athletics readily acknowledge there are challenges associated with making a distinction between athletic and non-athletic matters for sometimes a student-athlete’s sense of celebrity from participating in athletics can blur the line between compensation for athletics and for other activities.”

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Would conferences support a model where compensation goes in a trust fund?

The idea of athletes potentially receiving compensation from their NIL rights but having the money they earn deposited into a trust fund was a common topic in the memos.

Some conferences suggested a trust fund model, while others firmly expressed their opposition.

Horizon League Commissioner Jon LeCrone wrote, “One general thought (and hope) is that the regulatory framework include a tie back requirement to some academic performance standard before the [student-athlete] may receive the money, keeping the money in trust until the requirement is met.”

The WAC also supported a trust fund model.

“Student-athletes that earn compensation from the use of their name, image and likeness would be required put that money into a trust fund set up by the institution,” the WAC’s memo stated. “The student-athlete would not have full access to the trust fund until their athletic eligibility is exhausted. As an incentive, the student-athlete could be permitted to have access to a set percentage or dollar amount of the fund once per academic year based on meeting certain criteria (i.e. passing a financial literacy course, academic benchmarks).”

As a suggestion for what measures could prevent athletes from prioritizing NIL compensation over academic and team success, the Summit League’s memo stated in part, “stipulate that funds be held in trust until the student-athlete graduates or exhausts his/her eligibility.”

There were a few conferences and commissioners who brought up a trust fund model but noted that there are several issues that would need to be sorted out, or they acknowledged that they only suggested the model for discussion because the CCA’s questionnaire asked them to find a way for NIL rights to support the values and principles of college athletics.

AAC Commissioner Aresco wrote that a trust fund model could support the values and principles of college athletics, but he noted that there are several practical issues with the model.

“Some have suggested that an appropriate model may be to have money earned by the student-athlete from his or her NIL be placed in a trust fund until the student-athlete graduates, exhausts eligibility or permanently separates from the institution,” he wrote. “This model has several practical issues to consider:

1)  Earnings: a) would 100% of the earnings have to be kept in trust or could the student-athlete keep a portion of it; and b) would student-athletes have the option to withdraw money while in school in cases of family financial need?

2)  Trust Management: a) what process would be used to put the money into a trust; b) what entity would manage the trust (e.g., NCAA, institutions); and c) how would depositing money into the trust be enforced and are there legal issues with requiring a third party or a student-athlete to put money earned into a trust?

3)  Other practical concerns: a) what are the criteria for withdrawing the money (e.g., graduation, exhaustion of eligibility); and b) if the institution is managing the trust, what happens if the student-athlete transfers.

Big South Commissioner Kyle Kallander wrote, “Some have suggested that a student-athlete’s NIL ‘earnings’ should be held in trust until that student-athlete departs the institution. While we aren’t opposed to that concept, we are also fine with student-athletes immediately receiving these ‘earnings.’”

A-10 Commissioner McGlade, MAC Senior Woman Administrator Williams and the OVC’s DeBauche were among those who were firmly against a trust fund model.

“Any money earned by student-athletes for the NIL should be made available to them, restricted only by eligibility and/or progress towards degree standards,” McGlade wrote, “rather than placing funds into a trust.”

Williams wrote, “Another option that has been presented is one that allows a student-athlete to have a trust made in their name, but at that point it is forcing the individual to wait to earn their compensation, which is not a fair option to the individual earning the dollars.”

DeBauche added this in her memo, “The short coming with this approach is it would not be consistent with how general students are treated and would have associated compliance issues.”

As several conferences and commissioners noted, athletes would benefit from the real-world experience managing their own name, image and likeness rights, and the compensation that comes with it. “Truly exceptionally elite student-athletes will have an incentive to pursue the collegiate experience with a more permissive legislative structure, and may benefit from a real-world ‘internship’ type experience in managing their own NIL and the associated opportunities,” A-10 Commissioner McGlade wrote.

Apologies for the pun, but you may not be able to put a price on learning financial literacy in college, whether you’re going to become a professional athlete or not. ESPN’s Pablo Torre wrote the famous story “How (and why) athletes go broke” for Sports Illustrated in 2009 and it inspired “Broke,” an ESPN “30 for 30.”

For the average, marketable athlete, learning how to manage hundreds or even a couple thousand dollars at a time in college from NIL rights could be invaluable and it could potentially help prevent future athletes from going down the path of financial ruin, as described by Torre.

Defining market value

One of the most difficult questions regarding expanded NIL rights – at least for those who are opposed to the idea or for those who want NIL compensation to be heavily regulated – is how to define “market value.”

Of course, when taken at face value, market value is simply whatever someone is willing to pay for a good or service, but that’s not going to fly for a lot of conference commissioners or athletic department administrators who are worried about competitive balance and recruiting.

Let’s go back to our friends in the Southern Conference.

“In the United States, the free market determines that,” the Southern Conference’s memo stated. “Institutions should follow the free market.”

Another bullet point from the Southern Conference said it would be “impossible” to fairly and accurately determine the market value of an athlete’s NIL.

“Would also create restriction of trade problems if we did this,” the bullet point read.

Overall, there seemed to be a thought majority that institutions should not be in charge of determining market value.

“NCAA institutions, conferences or NCAA staff should not be ‘establishing’ market value,” wrote A-10 Commissioner McGlade, who continued, “The market has to determine market value of a student-athlete’s NIL NOT an institution. Any attempt to define an alternate structure or approach would be collusion; and/or result in a legal challenge similar to that of a restricted earnings coach.”

The Colonial Athletic Association’s memo suggested that national accolades, such as the Heisman Trophy, All-America honors, and conference and national player of the year awards, could help determine market value.

“However, I do not know how you place a particular monetary value on these awards,” the memo stated.

MAC Senior Woman Administrator Williams suggested that schools calculate the “percentage of work” an athlete provides to an institution. “In this case, it would make sense that the number of Countable Athletically Related Activity hours might be the standard rate to the value of any revenue-based variable (i.e. tickets sold, jersey or gear sales),” she wrote.

Southland Conference Commissioner Thomas Burnett suggested analyzing merchandise sales from gear that had jersey numbers, which hints at the old Johnny Manziel issue, when No. 2 Texas A&M jerseys appeared on NCAA Shop when you typed the former Aggies quarterback’s name in the search bar.

The Big Ten’s memo suggested that “the market value of the individual will commonly be a function of the student’s institution (i.e., the name on the front of the jersey),” and that fans could distort a player’s value.

“Someone who in a rational environment would have little to no market value for use of N/I/L could have a significant market value in the eyes of a super‐fan who is convinced having the individual play for his team will result in that team winning at some satisfactory level,” the Big Ten’s memo stated. “Irrational spending by a super‐fan could significantly cloud any assessment of market value.”

SEC Commissioner Greg Sankey said it’s reasonable to expect that apparel companies and boosters would be the most common sources of NIL compensation.

“A member institution with a relationship with one shoe/apparel company would not likely grant a scholarship or roster spot to a student-athlete sponsored by a rival company,” Sankey wrote. “Thus, permitting third parties to pay student-athletes for licenses of publicity rights would presumably result in a transfer of control over collegiate athletic programs to third parties and might well adversely impact the popularity of the collegiate model.”

However, as noted by the MAC’s Williams, the market will likely work itself out.

“The concern that this may create a recruiting benefit to institutions that have commercial entities willing and interested in supporting the student-athlete endorsements is not unique,” Williams wrote. “For instance, there was worry that the allowance of cost of attendance would be a recruiting advantage/disadvantage and certain institutions would abuse this opportunity. This was not the case as the value managed itself, as any other recruiting opportunity has, and the commercial promotions to student-athlete’s name, image and likeness would also work itself out through the market. The market will settle itself.”

Ultimately, no viewpoint on market value may ring more true than that of the WAC.

“There is no metric for defining individual market value,” the WAC’s memo noted. “That market value may depend on the institution and/or sport. We cannot rely solely on using attendance/ticket sales, television or other revenue streams as a measurable.

“The earning power of an individual has multiple variables as well (size of the institution, school location [rural vs. urban], alumni following, corporate partners, television deals, conference affiliation, etc.). There are infinite variables that drive market value.”

Unless you’re that concerned with how strangers, who are adults, spend their disposable income, the clearest answer to determining market value is probably to let the market decide.

What’s the worst-case scenario – a student gets paid too much?

Because as it stands now, Georgia has enrolled the No. 1 recruiting class in college football in two of the last three seasons, per 247Sports, and Alabama has earned the honor in every other season since 2011, so ask yourself how much competitive balance there is in recruiting and on the field.

Or, just read a conference commissioner’s private memo and you’ll learn that competitive balance is largely a myth.

Thoughts on how NIL could affect academic and team success

One of the questions that the Collegiate Commissioners Association posed to the conference commissioners asked what measures they would recommend to prevent athletes from prioritizing their NIL compensation over their academics and team success.

While some conferences took a sky-is-falling approach – Southland Conference Commissioner Thomas Burnett wrote, “to not compensate for NIL” as his answer – many conferences and conference commissioners said that the measures are already in place to keep athletes on track.

“An individual’s commitment to a team is reflected in playing time, so if a student-athlete’s dedication falters, and so then will their craft, along with playing time,” A-10 Commissioner McGlade wrote. “In essence, academic success will continue to be an important priority. However, beyond that, establishing measures to mitigate an individual’s priorities are unnecessary.”

Here are some similar perspectives:

  • Big Ten: “A mechanism already exists that incentivizes a student to devote an appropriate level of attention to his or her academics in the interest of remaining eligible for competition. With respect to commitment to the team, that is something that cannot be legislated. Students will need to balance whatever is included in their lives against academic and athletic obligations, and they either will or will not have an appropriate or acceptable level of commitment to both. To the extent they do not, they will need to make adjustments or face consequences. In this regard, activities associated with compensation for use of N/I/L are no different than other activities such as volunteer work, part‐time jobs, partaking in social life, etc. That said, education about choices and consequences is always appropriate.”

  • CAA: “At some point the student-athlete will have to decide between spending more time on a potentially lucrative career or focusing on academics. It is already a delicate balance that will become even more difficult.”

  • Ivy League Executive Director Robin Harris: “Creating a system in which student-athletes may be compensated for the use of their name, image and likeness must be tied to the students’ overall academic pursuits and the educational mission of college athletics.”

  • MAC’s Kristin Williams: “In order to continue to the focus on education, it would be appropriate to require the student-athlete to maintain academic eligibility and good standing at the institution, just as any other benefit requires.”

  • Southern Conference: “Progress toward degree rules are still in effect, and coaches are still in control of their teams. Professional coaches deal with these issues every day and they make it work. Student-athletes will refuse to do the not for profit opportunities compared to those that are paid; only true way to prevent is to call the student-athletes employees.”

Some commissioners, such as the AAC’s Aresco, said that athletes should not be allowed to miss class or athletics-related activities in order to participate in activities related to NIL compensation, and that measures should allow the ability to punish athletes who do so.

“Fundamentally, any NIL compensation based on athletics should not take priority over a student-athlete’s academic obligations or athletics participation expectations,” wrote America East Commissioner Huchthausen. “Thus, creating an academic nexus to such opportunities is imperative to any model that contemplates athletics-based NIL compensation. For example, establishing time and travel limitations to avoid miss class time seems appropriate and necessary.”

Overall, conference commissioners were pretty realistic in that athletes have academic standards to meet, and coaches and teammates to answer to if their commitment to their sport wanes. There’s also an argument to be made that when faced with academic ineligibility, less playing time or worse athletic performance, an athlete’s marketability declines, so while some additional, explicit rules may need to be created, as Aresco suggested, the guide rails are largely in place already.

But there are also some doomsday perspectives out there, as well.

“Money talks,” the CAA’s memo stated. “If student-athletes are making enough from sponsors, etc., they are not going to care about academics. Perhaps the thrill of winning a championship will resonate with some, but for most, it will become all about a business transaction.”

One bullet point in the Southern Conference’s memo stated, “Opportunities to profit off NLI would provide an incentive to discontinue attending classes,” while another read, “the idea of making money would trump academics consistently.”

But an athlete will only receive money if his or her grades allow him or her to get accepted into school, and athletes can only be marketable in their sport to potential third-party sponsors if they remain eligible.

The Big Ten went full Big Ten

After the Big Ten was the first Power Five conference to announce a conference-only football schedule and then when it was the first among the Power Five to postpone fall sports, there was a lot of talk – right or wrong – from other conferences’s geographic footprints that the Big Ten thinks it’s better, or more noble, or [enter some other highfalutin word from synonyms.com here].

I’ll let someone else litigate how real or true that idea is or isn’t.

But, objectively, the Big Ten’s memo to the CCA read differently than any of the other 18 memos. It was one of the longest – four and a half pages – and it used words and phrases such as “philosophical underpinning,” “early bright-line approach,” “bifurcated,” “blanket prohibition,” “byzantine restrictions rooted in well-intended paternalism,” and OK, you get the point.

Even the way the conference spelled NIL – “N/I/L” – was different.

The Big Ten’s response to the CCA started at a place that was also the focal point of the conference’s “Was there ever an official vote to postpone fall sports?” issue from August, and that’s the Big Ten Handbook.

Here’s how the Big Ten’s memo to the Collegiate Commissioners Association started:

Before we get to this question, we need to first address the philosophical underpinning of the existing rule that prohibits student‐athletes from being compensated for the use of their name, image, and/or likeness (N/I/L).

At the inception of organized intercollegiate athletics in the late 19th and early 20th Centuries, there was an exceptionally bright line that determined whether a student was eligible to compete as an amateur. The following rule from the 1908 version of the Big Ten Handbook is representative of the approach:

“No student shall participate in any intercollegiate contest who has ever used, or is using, his knowledge of athletics or his athletic or gymnastic skill for gain; or who has taken part in any athletic contest in which a money prize was offered, regardless of the disposition made of the same.”

With a prohibition on using athletic skill “for gain” as a foundational principle, by 1930 the rule had been expanded to further specify that no “athlete shall lend his name to any form of commercial advertising.”

Later, the conference’s memo invoked history as one of the main challenges to allowing athletes to be compensated for their NIL rights.

The Big Ten basically said “Well, it’s always been this way, so do we really want to change?”:

So what are the challenges in creating a system in which student‐athletes may be compensated for use of N/I/L? The first is philosophical and simply entails deciding whether to abandon a policy that has been in effect for over 100 years.

In the response to one question that asked if there are viable models for NIL compensation that reinforce educational goals and separate college sports from professional sports, the Big Ten stated three different times some version of “If we stipulate that the answer is ‘yes,’” as if to engage in the discussion purely as a hypothetical, and the conference really wanted to remind readers that it was hypothetical.

Here’s one example:

Again, if we stipulate that the answer to the above question is “yes,” and we want to take a novel approach relative to past practice, we will resist the temptation to be overly paternalistic. To the extent we render it permissible for a student to be compensated for use of N/I/L but only if accompanied by a set of byzantine restrictions rooted in well‐intended paternalism is the extent to which we simultaneously a) convey a message that our collective conclusion is that the young adults within our care are incapable of making responsible decisions on their own in this context, while b) forgoing an opportunity to create an environment where young adults have latitude to make decisions, some of which may be the wrong decisions, under the educational shelter of the collegiate environment, which in turn will better position them to make such decisions after college when they are left to make such decisions on their own.

The Big Ten’s memo reads like a philosophy paper at times, but its message to the CCA largely boiled down to: if – hypothetically, of course – NIL rights were granted to athletes, how would athletes be compensated at a fair market value for their personal attributes without making the competitive balance of college sports unfair, tying compensation to recruiting or turning college athletes into professionals?

The conference also expressed that if the NCAA could create its own NIL rules, rather than having a system imposed by Congress or individual state laws, then the NCAA could set the terms and, maybe in some sense, be partners with the athletes.

How many students could monetize their likeness?

“The percentage of student-athletes who would be able to command any significant amount of money in the free market is quite small, and are probably already receiving funds through impermissible ways,” the Summit League’s memo stated. “This model would bring that compensation into the light and allow it to be more closely monitored and somewhat regulated.”

While very few conferences or conference commissioners put an exact number or percentage on the number of athletes who they project to have marketable NIL rights, the Summit League wasn’t alone in its general diagnosis.

“Of course from the perspective of students (at least for the relative few who possessed some market value in this context), there would be opportunities to capitalize financially on their N/I/L,” the Big Ten’s memo stated.

AAC Commissioner Aresco wrote that most sponsors would come locally, either around college campuses or athletes’ hometowns.

“The vast majority of student-athletes do not have the name recognition to attract national brand corporate sponsors,” he wrote. “Thus, we believe the majority of the impact of permitting a student-athlete to be compensated for the use of their name, image and likeness (“NIL”) may be at the local level (e.g., student-athletes’ hometowns, locale of institutions).”

The Colonial Athletic Association’s memo suggested that less than one percent of all college athletes will be impacted by NIL rights and asked if a rule change that would impact that few athletes would be worth it?

“We do not believe it is,” the memo stated, “because that decision would likely have an adverse effect on the national landscape.”

The Pac-12 didn’t have much to say

Pac-12 Commissioner Larry Scott submitted a two-page memo, which – compared to the memos from fellow DI conferences that answered the CCA’s questions on a bullet-point-by-bullet-point basis – didn’t offer many specifics.

The second line of the memo read, “The Pac-12 does not have a prescribed set of responses or answers at this time, as the name, image and likeness issue is incredibly nuanced and opinions relative to the very complex set of questions asked of the Pac-12 by the NIL Working Group predictably vary across our membership.”

It’s fair to point out that Scott noted how Colorado Athletic Director Rick George is the Pac-12’s representative on the Working Group and that George could “articulate the various points of views of our membership and provide context relative to the potential benefits and risks/unintended consequences of any rule changes that the NIL Working Group considers.”

Scott offered two points to the CCA – that the Working Group separate NIL issues from other rules that govern an athlete’s ability to earn income in non-athletic-related contexts, and that the Working Group “work within the legal framework and construct that currently defines amateurism.”

Scott wrote that the principles of amateurism separate college and professional sports, and college athletes from employees, so it’s probably fair to say the Pac-12 wasn’t open to liberalized NIL rights, which might explain why Scott’s memo offered as few specifics as just about any conference’s memo.

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Thank you for reading this edition of Out of Bounds with Andy Wittry. If you enjoyed it, please consider sharing it on social media or sending it to a friend or colleague. Questions, comments and feedback are welcome at andrew.wittry@gmail.com or on Twitter.