THE TIME ALABAMA’S NICK This year, Saban and Texas A&M’s Jimbo Fisher sparred over the issue of college football players being paid through name, image, and likeness arrangements, with Saban calling for openness and Fisher saying his team was transparent.
“Nothing to conceal, here. There is nothing to fear from me. Not only is there nothing to hide in our program, “Fisher declared during a press conference on May 19. How intriguing it would be if everyone could make that claim.
On May 31, Saban pushed for openness after accusing Texas A&M of having “purchased every player” during recruitment. He then elaborated, saying, “I’m all for athletes making as much as they can make.” I also believe there needs to be a standardized, open approach.
ESPN wanted to show support for the coaches and other colleges by asking a sample of 23 schools (20 from Power 5 conferences) to disclose any documents or data they had pertaining to NILs. Generally speaking, schools did not offer many records.
Alabama, where Saban is the head coach, has refused to comment. What about at Fisher’s A&M? The university promised to provide hundreds of records but hasn’t done so yet; the records that were released were missing financial details, athlete names, and the sports in which they participated; and while A&M eventually did release a per-sport breakdown, it was months after ESPN made a subsequent request.
Since there are no industry-wide standards for NIL transparency or agreement disclosure, we must piece together skewed and unreliable data from public remarks made by athletes, the brands they promote, and others in order to gain a sense of the condition of the industry.
However, some of that data focuses on an athlete’s market value rather than their actual earnings. NCAA officials have told ESPN that they have uncovered instances in which publicly posted numbers are inflated or erroneous, despite the fact that they have been denied access to school information on occasion.
Therefore, it is extremely difficult to detect patterns and outliers that may indicate discrimination in the way schools promote or support their athletes across sports, gender, and race; whether athletes are treated fairly when a school has a competing interest with a company or donor; and whether schools are ensuring that athlete deals adhere to state and NCAA NIL rules and are not exploitative. Athletes and recruits could benefit from knowing more about the market, even if it’s just anonymous, aggregate data that provides a snapshot of the industry as a whole.
SINCE JULY 2021
Thousands of collegiate athletes have signed deals, some worth hundreds of thousands of dollars, since July 2021, when they were allowed to profit from their name, image, and likeness. However, the industry is mostly unregulated. The NCAA requires schools to make sure deals aren’t used as recruiting incentives, but the rules don’t compel institutions to keep thorough records. The level of involvement that schools are permitted to have in enabling endorsements or obtaining data varies significantly from one state to the next.
ESPN began sending requests to 23 schools for NIL records in May, asking for compensation sums as well as any records that reflect aggregate totals. Additionally, ESPN requested NIL reports filed with the National Collegiate Athletic Association, a specific athletic conference, or a state or federal regulatory agency.
ESPN chose a wide range of universities to represent a variety of locations, leagues, and state NIL and open records policies.
The states of Alabama, Central Florida, Florida, Iowa, Iowa State, Louisiana, and Mississippi all flatly refused to comply with records requests and offered zero information. Although they have acknowledged ESPN’s request, Florida State, Oklahoma State, UCLA, and Washington State have not yet agreed or rejected to give the requested documents as of Friday.
Most schools’ denial letters cited the federal legislation protecting students’ right to privacy in educational records, the Family Educational Rights and Privacy Act. Many schools did not budge after receiving a follow-up email from ESPN noting that federal student privacy regulations permit the sharing of records with personally identifying information deleted or redacted.
Within a few days after Fisher’s announcement, his program “He scolded a local journalist who had asked him about NIL contracts for football players, saying, “you’re news. I’m assuming you work in the media. To that end, I must inquire: Did you check the facts? … Nobody is interested in hearing the truth, “The 22nd, Fisher remarked.
On May 23rd, ESPN requested records from Texas A&M that would reveal ZERO data including company names, salary amounts, or other categories, or any report with totals. ESPN requested copies of 490 contracts from Texas A&M on June 7. Texas A&M offered to send them for a processing charge of $1,470.06, with names, sports, companies, and contract values blacked out. No other 0 summaries were available from the institution.
Although ESPN forked over the cash in June, the school has only produced 47 contracts as of October 6th.
Three months after ESPN’s request, Texas A&M finally disclosed aggregate statistics at the request of another reporter from the Bryan-College Station Eagle in August. Football players received $3.4 million in NIL deals, accounting for 81% of the over $4.2 million for all athletes from July 1, 2021, to August 1, 2022, and far more than the $472,735 received by the second-place men’s basketball team. The softball squad for women brought in $35,337 in revenue.
When questioned why Texas A&M didn’t comply with ESPN’s initial request for the aggregate data, the school’s open records coordinator, Tricia Bledsoe, said that the data had been created after ESPN’s request in May but before the Eagle’s request on August 17. The document Texas A&M supplied to ESPN was dated August 31 according to its metadata. Bledsoe, when questioned about the discrepancy, stated that the “information existed before the request and was included in the given paper.”
In August, ESPN submitted a public records request to the state of Alabama for information relating to athlete NIL deals. These could have been summary reports or documents that did not reveal any specific students’ names. Athletes at the University of Alabama are obligated to report any NIL agreements to the school. The state of Alabama did not produce any records, stating that they could find “no responsive public papers.”
The University of Maryland gave the most detailed reply, attaching a spreadsheet detailing numerous transactions with details such as the name of the company, the activity purchased (such as a social media post or video rights), the price paid, the date, and the sport.
Data from Maryland between July 2021 and 2022 indicated 81 trades involving football players totaling $199,709, followed by 18 transactions involving field hockey players totaling $17,853. The University of Maryland’s athletes made the most money from social media posts ($139,422), while the three autograph agreements recorded for football players averaged $5,933 each. Typically, sales made through social media brought in $684.
The Ncaa Initially
initially intended to regulate the business in a significantly more restrictive fashion but scrapped those plans to prevent antitrust litigation. Association leaders scrapped plans to hire a neutral party to collect NIL data and serve as a clearinghouse after the Supreme Court raised worries about NCAA antitrust law violations.
Jonathan Duncan, the NCAA’s vice president of enforcement, noted that the numbers supplied by athletes or firms can’t always be believed and that the NCAA needs access to the underlying contracts for college athletes (which schools will only provide if they voluntarily provide them).
“In more than a few instances,” he added, “the numbers that are published are not the numbers,” or the parameters of the contract were misrepresented, and this is after a thorough inquiry in which we have received the cooperation of parties and reliable testimony from individuals with firsthand knowledge. “I can’t state with certainty that every single figure has been fabricated. However, our investigation has revealed that not all claims made are accurate.”
According to an On3 article from July, even the NCAA has been refused access to NIL documents. The National Collegiate Athletic Association recently requested information from Oregon regarding endorsement and service contracts signed by student-athletes with companies affiliated with the Division Street collective. According to On3, Oregon’s denial was based on federal provisions protecting the privacy of students and the confidentiality of corporate information.
The national headquarters of the NCAA, which has struggled in recent years to maintain credibility with fans, lawmakers, and its own stakeholders, do not write the regulations it enforces. Instead, member institutions must propose and vote on any rule changes that might boost openness.
To punish “some other school,” “many schools desire fast justice, full openness, and punitive consequences,” as Duncan put it. When it’s them, they may not have the same desires.
David Schnase, the NCAA’s vice president of academic and membership relations, has stated that increasing transparency in the NIL market is important for fostering trust in the collegiate sports sector. He said that the NCAA has a task force looking into transparency and other concerns surrounding NILs.
He argued that greater openness would benefit both the industry and the public at large because of the widespread fascination with collegiate athletics.
Athletes Who Spoke
to ESPN indicated a need for more openness about NIL statistics.
“Simply put, I enjoy the freedom to determine for myself whether or not an endeavor is worthwhile. This is why I believe there needs to be greater openness in the NIL sector “Leah Clapper, a gymnast at the University of Florida who created a website to aid her fellow collegiate athletes in dealing with NIL concerns, put it this way.
“Sharing one’s own experiences working with companies, as well as one’s own platform size and the amount of money earned, maybe a major help in determining one’s own worth. That individual has the same kind of platform as me, but they’re getting paid more.”
Clapper is obligated by Florida’s compliance office to report all endorsement deals through the INFLCR app. INFLCR is a company that helps schools and athletes keep track of and make use of NIL data.
(Per the terms of the agreement between the two parties, the INFLCR app will have ESPN-branded Landscape and espnW pages, which will “help inform [college players] about upcoming news and ongoing events/promotions accessible for them to partake in.”
During the first year of NIL rules, companies like INFLCR and competitor Opendorse disclosed aggregate data regarding the agreements struck on their platforms. While this data has done more to illuminate the market value of collegiate athlete endorsements than any other, it has not been independently confirmed and so only paints a partial picture.
Clapper said she didn’t want her real contract specifics made public, “but I would absolutely want my data to be utilized in aggregate against all the other athletes and I believe there are so many ways that would be extremely useful.” She suggested that it may be instructive to compare the sizes of other platforms and different sports, such as the number of people who follow an athlete on social media.
Indiana University football player Dylan Powell tweeted last year that he was open to business proposals as soon as NIL partnerships became available for college athletes. A local dog kennel offered Powell, a recent graduate of Indiana University with an MBA, free boarding for his yellow Labrador retriever, Hoosier, on game days. Powell said he wasn’t expecting much because of his lack of fame, but he was grateful for the gesture.
“For the most part, I agree that it’s fine for schools to publicize the full extent of the potential benefits to the team. Without express permission, I’m not sure it’s right to make public sensitive contact information. The concept that “Oh, this man is getting more” could cause discord on the team is unacceptable to me “said Powell, who added that he approved of schools using the data for recruitment purposes.
When it comes to marketing dollars from apparel companies, corporate partners, and boosters, athletes and schools often find themselves in direct competition with one another. Transparency should assist athletic departments to handle some inherent conflicts of interest and reassure athletes that they are being treated fairly as more colleges become involved in negotiating deals for their athletes.
“You could come up with a number of circumstances where it’s going to benefit everybody to be able to show what you’re doing,” said Bill Squadron, former president of Bloomberg Sports and current assistant professor of sport management at Elon University. “Knowing how the market works is in everyone’s best interest in the long run. As an added bonus, it helps people spot potential anomalies.”
Some Schools Are
extremely hostile to any sort of disclosures; actively seeking legislation to ban the dissemination of NIL data. Senator Patrick Connick, a Republican from Louisiana, explained that the bill’s inspiration came from a request from Louisiana State University.
LSU used this statute in response to ESPN’s request for non-existent information, and the law took effect just three days after ESPN’s request. According to the Public Records Law, “any document” that “references the terms and conditions of a NIL contract” must be kept secret and cannot be reviewed by the public.
When asked for comment on LSU’s role in the development of the bill, university officials declined to do so.
While LSU, or any other university, can help arrange NIL contracts between athletes and companies, Connick emphasized that LSU is not a party to the contract itself. Connick was questioned if the release of the information would aid in determining whether or not a university was being fair in its dealings with athletes, and he said, “Putting one athlete over another in terms of academic opportunity is just unacceptable. I’m not sure that’s a good argument.”
Athletes who are curious about the terms of current offers need only ask their peers, who are free to choose whether or not to spill the beans.
In my opinion, this is merely people being nosy about the question, “How much do you make?” Connick had to say. We’re looking out for the pupils as a whole, and I don’t think it’s in their best interest for that to become public knowledge and be broadcast across the country.
John Calipari, the head men’s basketball coach at the University of Kentucky, testified in favor of a state statute that regulates NIL deals and has a special open records exemption that keeps information private. In the March session of the state legislature, the bill was approved with overwhelming support from both parties. Sen.
Morgan McGarvey, a Democrat and bill co-sponsor, argued that the measure’s provisions would protect student-athletes by allowing them to void contracts upon turning pro and by providing universities a role in examining contracts and introducing student-athletes to potential business partners.
Calipari told lawmakers that he has seen coaches say things like, “Well, we’d rather not have a bill, we could go do whatever we want.” “The issue with that is that there is nowhere to hide. A response from the NCAA of “You’re wrong, we’re not letting you do that” is possible.”
The former assistant attorney general and co-founder of the Kentucky Open Government Coalition Amye Bensenhaver said she believes the media attention around Calipari’s statement clouded objective consideration of the bill.
“It was almost horrible to see the legislators,” she remarked of the “rah-rah” session taking place there. “Ask yourself if you’re applying the same rules to all possible endorsements. Or are you making a case-by-case determination that this is unacceptable in this instance but not in that one because this athlete is marginally less valuable to the university? They’ve set up a wall around these documents that can’t be broken through.”
The issue of exposing documents connected to NIL “may be reconsidered in part,” according to McGarvey, who said that legislators were in a rush to get some legislation enacted before the session finished in April.
McGarvey said that the existing lack of openness would be mitigated if universities negotiated contracts on behalf of their student-athletes. In terms of fairness, he explained that the law mandates that NIL contracts be issued at the “prevailing market rate,” which is determined by comparison to the contracts offered to other athletes with similar levels of skill, experience, and notoriety.
“Our goal is to safeguard, encourage, and inspire these student-athletes. It’s important, in my opinion, to find a middle ground between what’s genuinely in the public interest and what students have a right to expect in terms of their privacy as individuals in the classroom “His words.
In an interview, Ramogi Huma, a former UCLA football player and the executive director of the National College Players Association, a non-profit organization that advocates for college athletes, stated his support for laws that do not mandate athletes to disclose their information because such laws allow athletes to enter into contracts with companies that include confidentiality clauses.
There is “certainly value” in that issue, he said when asked if more openness may help decide whether colleges are treating students fairly, adding he could see the necessity for reporting that would provide aggregate numbers, perhaps broken down by gender and ethnicity. As Huma put it, though, “typically discrimination actions are launched because something becomes clear, not necessarily because everything is transparent, by default.”
U.S DEPARTMENT OF Education
In an interview this spring with ESPN, Secretary Miguel Cardona discussed NIL agreements in the context of Title IX, the federal gender equity legislation that mandates schools provide equal access to students of both sexes.
“It worries me that male athletes will be compensated while their female counterparts, who put forth the equal effort, will not. Institutions of higher education need to change and establish structures to keep track of this, share details of the steps they are taking to proactively create equity, and evaluate the results “That’s what he had to say, he clarified.
He implied that schools may be required to report NIL deals to the federal government, but he did not elaborate on how his office or the federal government would require this.
He remarked, “I think we have a chance here to really learn from maybe the past and develop systems here, or advocate institutions at the federal level that could be visited at the state, at the college level, that assure equity, that provide access.”
This article includes the work of ESPN’s Abbey Lostrom and that of researcher John Mastroberardino.
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