SAN ANTONIO – It wasn’t coaches, referees, commentators or the biggest of school boosters who made this call.
It was a power even greater than those: the U.S. Supreme Court in NCAA vs. Alston.
In that court case, a group of current and former student athletes alleged that NCAA rules violated the Sherman Act, which prohibits anti-competitive practices by outlawing “contracts, combinations, or conspiracies in restraint of trade or commerce.”
The Supreme Court ultimately agreed with a lower court’s decision and upheld an injunction that said the NCAA cannot limit “education-related benefits” for student athletes.
“Justice Kavanaugh had a scathing concurrence in which he said that in almost any other industry what the NCAA is doing is flat out illegal, and that the NCAA is not above the law,” said Justin Jones, sports attorney with Fee, Smith & Sharp LLP.
That allowed Name, Image & Likeness (NIL) laws to take the field nationwide.
The Texas NIL Law
At the time of the Supreme Court decision in June 2021, Texas already had its own NIL law in the works.
State lawmakers passed it the very next month.
“What we have right now is a state-by-state patchwork framework,” said Jones.
Some states have their own NIL laws, others have none.
Here are some of the highlights of the Texas NIL law:
- Allows student athletes to be paid for the use of their name, image and likeness
- Requires universities to approve NIL deals for athletes
- Prohibits NIL deals for alcohol, tobacco, gambling, steroids or sexually-oriented businesses
- Prohibits “pay for play”
“Name, image and likeness is not pay to play,” Jones said. “That’s still against the rules.”
Pay to play scandals have plagued plenty of college teams in the past.
But so has this argument: college athletes devote years of their lives and their bodies to sports that make millions for universities, so why shouldn’t they be compensated for it?
“It’s been going on for a long time. This levels the playing field for all the universities, and it brings to light the obligations that have got to be done to make this legitimate for all schools,” said Bob Wills, founder of City Fans 210.
What’s a collective?
City Fans 210 is a collective.
Collectives are a marquee player in the NIL game. Think of collectives as a big pot of money set up for college athletes.
Donors make contributions to these collectives that, at least in Texas, are mostly as 501(c)(3) nonprofits.
Jones says that’s one way for collectives to show they’re not part of a university.
“So basically the booster at the university donates money to the collective, and the collective can try to use those funds to help the student athletes in promoting their name, image and likeness,” he said.
City Fans 210 collects money to pay UTSA athletes.
Right now, the collective has 29 Roadrunners under contract.
“Every month, on the first of the month, they get a they get a paycheck wired into their account from us,” Wills said.
What do athletes get paid for?
It could be a variety of things, such as appearing in a commercial, attending an event or promoting a product on social media.
“Student athletes have been able to get deals where they go and they sign autographs, for example,” said Jones.
Universities, which must approve NIL deals, have to follow NCAA rules.
As for collectives, there are no regulatory agencies that directly oversee them.
“There are rules that are in place now. You have some that are state law, state rules, and there’s also NCAA. It tells UTSA and every other university what they can and can’t do,” said Wills. “We’re not under jurisdiction by, you know — its a little bit of the Wild West that there’s no state laws that have been put into play that says what we can and what we can’t do as long as we’re doing things ethically.”
UTSA Head Football Coach weighs in
“This is all new to all of us, and we’re all trying to figure it out and also not get in trouble while we’re figuring out. We don’t want to break a rule we don’t even know we’re breaking because each state it’s different,” said Jeff Traylor, UTSA Head Football Coach.
Traylor believes the original intent of NIL is a good one. He says it means income for some players and allows them to better focus on their studies, their families, and yes, football.
“They’re the only source for many of those families,” Traylor said. “You’ve got 20 hours a week there with me. But they’re student athletes, which means they’re in class. They’ve got study hall. They got to sleep at some point. And it’s impossible to have a job and do that as well.”
Traylor also acknowledges how the rules, and their gray area, could be manipulated.
“You can’t promise the kid something. That’s against the rules. That’s not what the rule was made for,” Traylor said. “That’s pay for play. And that’s what I’m afraid of -- that the rich are going to get the best ones.”
Whatever his players are paid, Traylor says he want them to earn it.
“I want our kids to, you know, have to do something, you know, give back,” he said. “Go to an elementary school and read. Help the homeless. I mean, food banks, rake leaves, whatever it is, your birthday party, sign autographs, take pictures.”
Trickle down to high school?
The impact of NIL might not just be felt by college coaches.
A bill filed in the Texas Legislature could extend it to the high school level.
“There is a new bill that’s out there that would allow name, image and likeness to certain high school athletes over the age of 18 under a very limited circumstances,” Jones said. “That bill has not passed. It is not the law, but it is out there.”
“I don’t think it’s going to stay away too much longer for high school kids,” Traylor said. “The things that people don’t talk about are the effect on the locker room.”
Jones also questions the impact NIL has on team-building when one teammate makes significantly more on NIL than another.
Then there’s the issue of how NIL affects an athlete’s decision-making before they join a college team.
“It’s going to be a bit of a learning curve as we try to figure out how the name, image and likeness and the recruiting fit together,” Jones said. “By the letter of the law, it should not be happening. But by all indications, it absolutely is happening.”
“Who knows what each kid’s getting?” Traylor said. “Only the collective really knows.”
Collectives are set up for universities across the country.
City Fans 210 is one of several working to raise money for UTSA athletes.
Wills would not get specific when asked what payments to athletes are in exchange for or how the collective facilitates payments for services provided to third parties, saying he can’t reveal details of a contract.
But Wills believes a collective, and NIL, can have citywide benefits.
“If the level of our game is elevated to a greater point, people are going to travel here. So that’s our initial goal -- is to get more people wanting to come to San Antonio,” Wills said.
“They can be our second pro team. They really can,” he added.
As the impact of NIL moves down the field, so to speak, whether further regulation follows will be something to watch.
“Its absolutely evolving and its changing and its changing every day,” said Jones.
