September 17, 2021
Name, image and likeness (NIL) for women’s basketball, explained
After decades of being told no, getting to yes
For decades, student-athletes have sat in meetings with the “rules police” (athletic department compliance staff) and given strict instructions to what you can and mostly cannot do, well beyond questions of name, image and likeness (NIL).
Some of the real-life examples on the PowerPoint slides would be: you cannot take meals or rides or money from boosters; you do not let someone pay for your gas or car wash at the local station in town; you cannot take a discount or free food at your favorite pizza place that isn’t offered to all customers; and if someone pays you to babysit, it has to be comparable to what they’d pay a non-student-athlete. The list was long, but necessary.
Being a Division I student-athlete came with restrictions set by the NCAA which has always been tasked with governing its membership, protecting amateurism and setting the standard so all programs are on equal footing, where performance on the field or the court would be the deciding factor.
In the early 2000’s, the conversation began to change, with student-athletes becoming the voice many had not heard from yet. Former UCLA men’s basketball player Ed O’Bannon and others filed a class action federal lawsuit against the NCAA over whether student-athletes should be compensated for use of their names, images and likenesses (NIL) in broadcasts and video games.
The narrative shifted when state legislators and governors across the country began taking interest, passing laws that allowed student-athletes in their states to personally benefit from the billions of dollars generated each year by college athletics. There has been strong momentum on the federal level as well, including hearings in the U.S. Senate about enacting federal NIL laws. After years of battling in the courts and state houses, the NCAA was dealt a blow in June with 9-0 decision by the United States Supreme Court in NCAA vs. Alston, ending a seven-year class action lawsuit.
This loss in the highest court, combined with the momentum of state laws now on the books brought the change that many never thought would really happen in college athletics. The NCAA announced that starting July 1, 2021, student-athletes would be able to make money off their NIL without losing their eligibility.
“When July 1 hit, we saw some big splashy announcements as people were taking advantage of the NCAA’s rule changes and state laws,” attorney Mit Winter of Kennyhertz Perry Law Firm in Kansas City told The Next. “Since then, it’s slowed down a bit because I think everyone is trying to figure school policies, which are all different, and the state laws that exist.”
One of those July 1 announcements was front and center in New York City’s Times Square, showcasing Haley and Hanna Cavinder, twin sisters who play on the Fresno State women’s basketball team. They signed a lucrative deal with Boost Mobile based on their massive social media following which includes over 500,000 combined followers on Tik-Tok and over 250,000 each on Instagram. Those numbers grow every day.
Winter, a former Division I basketball player at William & Mary leads Kennyhertz Perry’s Collegiate Sports Practice Group and says that questions come from all directions. “We get questions from student-athletes and parents about whether they need an agent or attorney now. We get questions from businesses of all sizes about product use and what can and can’t they do. And schools are working through their policies to follow state laws, if they exist in their state.”
If all of this seems a bit confusing, it is. The NCAA laid out basically two guidelines as it relates to NIL: there is to be no pay for play and NIL cannot be used as a recruiting inducement. After that, it has been left up to each institution to set their own policies in accordance with their state law, if one exists.
“For example, the state of Kansas does not have a NIL law right now,” said Winter. “For schools like Kansas State and Kansas, they are allowed to make their policies above and beyond the two basic rules from the NCAA – no pay for play and the NIL deals cannot be recruiting inducements.”
Student-athletes have been saying “no” for decades and being incredibly careful in their own college and hometowns. Now the lines are a bit blurred and opportunities exist, both in the short and long term. The consensus is that female student-athletes can do very well in the world of NIL deals because so much of it is based upon social media influence. It is their ability to leverage followers on all social platforms and capitalize on it. It can be anything from fashion to car dealerships to energy drinks to 60 second cameo appearances on a smart phone for a ten-year old’s birthday.
We have seen household names in women’s basketball such as Paige Bueckers of Connecticut and Cameron Brink of Stanford, both coming off incredibly successful freshman campaigns, sign with the Wasserman Media Group to manage their NIL opportunities. Haley Van Lith, a guard for the Louisville Cardinals signed with Octagon, a sports agency to capitalize on her huge social media presence and NIL deals. Women’s basketball players across the country took advantage in July and August to be able to have their own instructional camps, under their own name and finally keep the profits for themselves.
NIL deals are also not just limited to individual student-athletes. Businesses large and small are seeing the opportunity to sign entire teams to deals where you then have a critical mass of players engaged with your company and/or product. The University of Central Florida women’s basketball team became the first in this new era to sign a one-year, full team NIL deal with College Hunks Hauling & Moving. Each player on the roster will receive money for promoting the company on their social media and have chances to earn more through commissions. Thinking outside the box for team wide NIL opportunities is going to be a recruiting advantage for numerous sport programs going forward.
Many student-athletes that have been training and competing on college campuses for years are also Olympic athletes. Winning an Olympic medal in a highly visible sport like swimming or gymnastics can change your life immediately, but in the past has come with a choice – you must turn down endorsements to stay eligible to compete at the collegiate level. In this new world of NIL, that choice is thrown back in the deep end of the pool. Sunisa Lee, who won the all-around women’s gymnastics gold medal at the recent Toyoko Olympic Games is now a freshman in her first season at Auburn. Tigers coach Jeff Graba told reporters after her win, “Thank goodness for NIL.”
Yet in a race to capitalize, someone is always going to trip over the first hurdle or the finish line. Institutional policies stipulate that student-athletes must disclose their NIL deals and get approval before entering into them. But what if this doesn’t happen? What will schools do if a student-athlete is not following procedures? The same can be said for businesses and donors, many of whom are one in the same. If the process of crafting NIL deals is getting lost and the rules of the school are not being followed, then who is held accountable and what is the punishment?
What will prompt the NCAA to open an investigation if they think a NIL deal was a recruiting inducement? It seems too soon to know, but athletic departments all over the country must explain their policies not only to their student-athletes, but everyone associated with their programs as well.
Winter, who has an extensive background in sports and business law, sees an easier path for the world of NIL one year from now. “I think we’ll see a process on all levels that is going more smoothly, where brands and athletes will better understand the scope of deals. A federal law could be possible, but it might lose traction if things are going smoothly. What is key to this and a very big job is for schools to educate the new group of student-athletes coming in each year on the dos and don’ts. It is another layer of compliance that they have to deal with, but it is very important.”
No matter what happens in the next year or the next five years, the narrative has shifted in college athletics and for many of us, we have no choice but to get used to it. It is no longer about saying “no” but looking at that restaurant in town as a business opportunity – how can we all benefit from NIL? The opportunities are endless, and the PowerPoint slides have changed. The entrepreneurial spirit that is so often fostered in college can now open doors to immediate financial success for student-athletes.
Let’s just hope very few get tripped up trying to make it to the finish line.
Written by Missy Heidrick
I am a former shooting guard at Kansas State and spent almost 20 years working in Higher Education and Division 1 athletics. I am currently a basketball analyst for television and radio, contributing correspondent at The Next and run my own consulting business. I am a proud mother of two and wife to a patient husband who is almost as big of a sports junkie as I am!