About a month ago, the NCAA reiterated its focus on the standard of review and infractions process for NIL violations through a memo circulated to all Division I Member Schools (Conduct Detrimental’s Ryan Whepley broke it down here). We have since seen that process play out in the first high-profile recruiting violation of the NIL era. The January memo stemmed from the original clarifying guidance the NCAA published in October, which set forth updates to the NCAA’s Interim NIL Policy (Ryan Whepley broke that down here). Included in that guidance were updates to the services that schools could offer to support student-athletes in their NIL endeavors. Specifically, the NCAA stated that schools could not offer certain services to student-athletes “unless the same benefit[s] [are] generally available to the institution’s students.”
Among the services listed are tax preparation and, most relevant to the audience of Conduct Detrimental, contract review services. While this shouldn’t be a problem for larger universities (most have general legal services offered for their students, presumably including contract review for any student attempting to monetize their original work) it may become an issue for smaller universities with tighter budgets.
If schools can find a workaround to conform to NCAA rules, there have been some additional hurdles to generating participation in these types of pro bono services. It’s not a question of athlete desire. Nearly half of the student-athletes surveyed by the NCAA last year stated they wanted more information on financial literacy and over thirty percent wanted more resources on NIL opportunities. Amanda Cristovich, who writes for Front Office Sports and has appeared on the Conduct Detrimental podcast, has repeatedly called for schools to offer more services to athletes entering the NIL market. Most recently in her article on Stanford Basketball’s Haley Jones, Jones identified it as one of the biggest ways that schools can improve their student athletes’ NIL experience. Some schools (UNC, Campbell, and the New York Law School for example) have established NIL Pro Bono Clinics to work with athletes who are engaging in NIL contracts with mixed success. Despite the desire of athletes to be more informed on these topics, participation in these programs has not been widespread (For instance, ADU found that none of the student-athletes surveyed knew about free financial literacy video modules published by the NCAA). If there’s a clear need yet a lack of turnout the question becomes . . . why?
I believe the fundamental problem is that the bedrock of the relationship between athletes and their institutions has been poisoned by years of conflicting priorities. Schools (principally through the NCAA) have worked for decades to avoid the possibility of athletes being compensated until the wave of state legislation and Alston v. NCAA broke the dam in 2021. So, after years of working to prevent direct athlete compensation, some schools are now turning around and offering to help athletes negotiate contracts that will provide them with that very same income.
I ask you then: If you were fighting against a company that was attempting to deprive you of money you felt you earned, and you finally won, would you then quickly turn around and use the free services that the company was offering you?
. . . Yea, me neither.
On top of preventing athlete compensation, the recent history of schools putting the blame for infractions at the feet of the student-athlete doesn’t help. Prior to 2021, if you were a high-profile athlete who engaged in prohibited activity (think Reggie Bush), schools were much more likely to treat you like a pariah than a hero (James Wiseman at Memphis is another recent example). This wasn’t just a problem in revenue-generating sports but across the NCAA. Prior to the authorization of NIL, if you were a non-revenue athlete who received an impermissible benefit, your coach may have been much more likely to let you take the penalty than to attempt to accept responsibility for the program as a whole.
So, are the athletes now to blame for not trusting the school to hold their best interest at heart when it’s time to be on the same team? Of course not. But there are distinct advantages to athlete participation in these programs. These programs provide both the athlete and the service provider (law students in NIL clinics) with a meaningful experience that makes them more educated market participants. Obviously, it’s at no cost to the athlete, but more importantly, the athlete won’t have to fear being taken advantage of by an unlicensed agent or other “NIL” professional who has an interest in the athlete outside of that athlete’s well-being.
How do we change this dynamic? First, schools must obviously bear the brunt of creating awareness of these resources and not rely on the athlete to seek them out. Schools must also understand (and, by and large, do) that the “big fish” (their marquee athletes) are going to work with large agencies, and that’s ok. Those athletes have much more at stake than a sponsorship with a mom-and-pop shop and will seek management and representation companies with the proper resources to further their careers. Finally, the schools have to be prepared to both demonstrate and amplify success where these programs work and encourage the athletes that work with the school (and their coaches) to steer other athletes to these opportunities.
Pro-bono programs offered by academic institutions have the potential to drastically increase the know-how and confidence of their athletes in navigating the NIL marketplace. It will just take a concerted effort to erode the remaining foundations of mistrust from the bygone era before NIL.
Michael DiLiello is a 1L at the University of North Carolina School of Law, with a background in organizational management and leadership from a seven-and-a-half-year active-duty career with the United States Army.
Twitter: @Mike_DiLiello
