As first appeared in NewsBreak
By Aron Solomon
Guilty until proven innocent is a pretty lousy credo when applied to college students.
But that’s where we find ourselves today with the NCAA’s new stance to combat a ridiculous Pandora’s Box of their own creation.
Unpacking that box is something Nicole Auerbach did exceedingly well in The Athletic. Auerbach points out that the “NIL Presumption” reforms place colleges and student-athletes in the guilty until proven innocent category. As long as there is an allegation and even circumstantial evidence that a violation of NCAA name, image, and likeness rules happened, the burden of proof will be on the schools and the coach and, by implication, the student-athlete to prove it didn’t happen.
Let’s step back for a second and be honest about what NIL rules are:
A way to legalize illegal activities that have existed in college sports for generations.
It was the worst-kept secret that influential “boosters” would illegally compensate high-level athletes for playing at and bringing glory to their program and school. These were informal payments, sometimes cash, sometimes a car from the booster’s dealership – anything that could be used as compensation for an athlete to choose and remain at a school.
These pay-for-pay violations were hard to catch. When the NCAA did, there were ramifications to the program and sometimes the athlete, but a remarkably small percentage of these violations were ever discovered in real-time.
The best thing that NIL rules did was make it possible for the athlete who was a good player on a good program to earn a few dollars to help them through college. It democratized the ability for a college athlete to legally get paid, at least something, while playing high-level college sports.
But from its inception, we knew it would be impossible to control NIL. It got way too big way too fast.
Here’s a sample NIL agreement of a high-end athlete ready to enter a major program:
Photo by The Athletic
This “Gator Collective” is the new, legal version of the old-school booster group. Now there are official NIL collectives in the game. The role of these donor-fueled collectives is to build the war chest necessary for schools to complete to land the best athletes.
The Jaden Rashada NIL contract is a perfect practical example of how out of control NIL has become.
The National Football League minimum salary, under the most recent collective bargaining agreement, is a very respectable $750,000 per year. That’s exactly two months of what Rashada will be paid during his junior year – a high school athlete who has yet to play a college game.
But here’s the great irony about the Jaden Rashada story:
The deal fell apart.
To further highlight the underbelly of NIL, the Gator Collective reportedly failed to honor the deal that was in place, In January, Rashada asked to be released from his commitment to Florida, walking away from the $13.8 million deal with the Gator Collective, hoping for more elsewhere.
He has recently signed his national letter of intent to Arizona State with no NIL deal in place.
To put this all in context, Jaden Rashada isn’t the best quarterback prospect of the past fifty years. Not even the past decade. In fact, he is ranked as the number seven quarterback prospect this year.
Does that guarantee that Rashada will or won’t be a successful NFL quarterback? There is nothing guaranteed in football, which is part of the argument in allowing college players to earn some money while playing.
With top college football coaches earning close to $10 million per year and programs such as Penn State generating over $100 million per year in operating revenue, the intention behind NIL was that college athletes could at least have some spending money – and not go to bed hungry, as many did. This was, at least from the perspective of Congress, a good reason to have NIL legislation.
Attorney Krenar Camili argues that we will hear a lot more about the relationship between Jaden Rashada
“The situation will likely end in a lawsuit and an NCAA investigation. It will take a very close look at whether name, image, and likeness rules are functioning as they should and whether Jaden Rashada suffered economic and reputational damages by relying upon the deal that was in place.”
In breaking the story in January, the AP shed some light on why the deal ended up falling apart
…a source with knowledge of the negotiations told the AP that not all of the financial backers were aware that the signed deal had increased from roughly $5 million over four years to more than $13 million.
Florida wasn’t alone in bidding for Rashada’s services as a student-athlete. There was a bidding war between the Universities of Florida and Miami, which Florida eventually won and backed out of.
It is absurd to believe that a student just graduating from high school and their family would be equipped to negotiate these shark-infested waters. Add NIL consultants and agents into the mix, and we have a regular recipe for disaster, which is where we are today.
Will these new NCAA guidelines protect student-athletes or prevent the next Jaden Rashada situation from happening? Absolutely not. The guidelines are ambiguous to the point that a court is going to find it very difficult to determine when a school has met its burden of proving that it did not violate NCAA rules.
More importantly, with every refinement to NIL rules comes a new opportunity for those who operated illegally for years to find new ways to do business. To believe that these massive NIL collectives won’t always be at least one step ahead of the NCAA is naive. Whether it’s equally naive to believe that NIL rules will ultimately help rather than hurt the student-athletes remains to be seen – it’s also a question that all too often gets lost in everything else NIL-related.
About Aron Solomon
A Pulitzer Prize-nominated writer, Aron Solomon, JD, is the chief legal analyst for Esquire Digital. He has taught entrepreneurship at McGill University and the University of Pennsylvania and was elected to Fastcase 50, recognizing the top 50 legal innovators in the world. Aron has been featured in Forbes, CBS News, Crunchbase, Variety, CNBC, USA Today, ESPN, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Fortune China, Yahoo!, ABA Journal, Law.com, The Boston Globe, NewsBreak, and many other leading publications.
