For Halloween lovers, spooky season started in October. But for college athletes trying to monetize their name, image and likeness, spooky season started about three years ago.
If you’ve been following the headlines around college sports, you know the cauldron of horror stories related to college athletes’ name, image and likeness rights is boiling over. One quarterback quit his team in the middle of an undefeated season over unfulfilled name, image and likeness promises. There are lawsuits over high school recruits never getting their promised deals. Recent questions have surfaced over what amounts to “payday loan”-type deals offered to star student-athletes.
And a cottage industry has popped up of ghouls haunting these talented but inexperienced young stars. Rather than helping them make good choices about education, the timing of turning pro or which deals to accept or turn down, opportunists are simply focused on ways of separating student-athletes from their money. And it’s far too easy, thanks to the complete lack of rules around name, image and likeness deals.
Congress could fix it, but I don’t have confidence it will prioritize this issue.
Sure, the NCAA could propose more meaningful consumer protections, but so far, it has been focused more on its own survival.
And sure, the legal settlement in House v. NCAA — if approved — may create the first real rules around athletes’ rights deals. But it won’t do enough to address the murkiness surrounding what constitutes a contract, or exactly what NIL “collectives” are allowed to negotiate with players.
So who can help prevent further Halloween horror stories? We’ll find our heroes where we’d least expect it: attorneys.
Namely, states’ attorneys general — from both sides of the political aisle — who have been some of the only leaders to push the NCAA out of its comfort zone. They helped eliminate athletic restrictions on second-time transfer students. They established that an athlete has an economic right to name, image and likeness deals in Ohio v. NCAA. They also protected schools’ rights to support such deals in Tennessee v. NCAA.
For the sake of the players, this pressure has to continue. We wouldn’t stand for what amounts to loosely organized fraud against high school athletes, and we shouldn’t stand for it of college athletes either.
Attorneys general, as the charged guardians of consumer protections, have the power to force institutions, collectives and coaches to make good on their promises. They force contracts to be more fair and clearer. And, they can drive the creators of these student-athlete horror stories back into the shadows.
Athletes dedicate dozens of hours of week to their schools’ athletic programs, and in return, they deserve treats, not tricks.
Robert Boland (rboland@shumaker.com) is a professor in the Gaming, Hospitality, Entertainment & Sports Law program at Seton Hall Law, and represents institutions, collectives, brands and athletes as an attorney at the Shumaker Law Firm. He previously served as the Athletics Integrity Officer at Penn State University.
