NIL, NCAA enforcement and Notre Dame: A Q&A with On3’s Eric Prisbell

For nearly nine months, college athletes have been able to profit off their name, image and likeness (NIL), and they are doing so in a variety of ways. Most business ventures are on a smaller scale, while some are much larger team-wide agreements or seven-figure deals.

Understandably, you have a multitude of questions surrounding the NIL rules, or lack thereof, in college sports. What does the future — immediate, mid-term and long-term — look like? It is cloudy, but there are a few trends developing that may show where this is headed.

BlueandGold.com recently spoke with On3’s sports business reporter Eric Prisbell to get some clarity on the “Wild West” that is NIL.

The following answers have been edited for clarity and brevity.

Q: You’ve been writing a lot about NIL collectives and the breakdown between boosters’ direct participation as opposed to the advertising and merchandising routes. How might schools respond if they start to feel too much money is going directly to the players instead of through the athletic department?

A: I look at everybody’s motivation, and I think the schools really vary. I’m not sure some of them would want to step in and create an enforcement arm or enforcement mechanism because they want their school to be as competitive as possible to get the best recruits and field winning teams.

You see some of that with Ohio State. The state laws are all over the place regarding NlL, and some explicitly say that you can’t have a school helping to facilitate deals with athletes for NIL deals. Other states don’t say that. Ohio State had created a school policy that was more restrictive than it needed to be, and they were losing out. They were at a competitive disadvantage, so they changed their school policy so they can create a team of in-house staffers to help put athletes in touch with brands, businesses and companies to facilitate the sales process.

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Ohio State should be applauded for being on the forefront of innovation but not just with its NIL Edge Team. I’m talking about its broad NIL strategy. Ohio State has been one of the most sophisticated programs when it comes to NIL strategy since July 1. That was a real departure for them. I think it’s a big deal.

We’ll see if other schools copy that. I think we’re gonna start to see that since it’s so competitive right now. However, if schools can push the limit on this for recruiting benefits they will do it, especially the blue blood programs.

Q: Are there any rules in place prohibiting a school from campaigning to change state NIL laws?

A: I don’t think there are. Alabama and Auburn were both very quick to issue statements supporting the move to repeal those restrictive laws in Alabama. That’s what I noticed. They were fully on board with those laws being repealed. I don’t know exactly how hands-on they were and how much they helped that process accelerate, but I don’t think there’s anything against them lobbying state lawmakers to try to get that done.

Q: What could the NCAA do as far as enforcement, and would they want to step in?

A: They desperately want some type of federal intervention so they don’t have to handle it. I know they’re asking questions of Oregon, Miami and BYU about their NIL deals. The people I’ve talked to believe what I believe: we don’t really buy that that’s a real enforcement attempt there. Their hands are tied to a degree because if they really limit compensation now, or in essence, try to put the toothpaste back in the tube, they make themselves vulnerable to a lot of legal challenges. They don’t want to get into that mess. They have enough to deal with right now.

Additionally, trying to enforce rules around NIL deals is even harder than trying to enforce or investigate typical old-school recruiting scandals because any type of money exchange was against the rules. Now, it’s not against the rules if it’s not pay-for-play or a recruiting inducement. You have to prove intent, and it’s so difficult to prove intent. They don’t have subpoena power, so they really have an uphill climb with this. They’re reviewing it all now over the next couple months. I don’t know, really, what they can do. They’ll try to do something, they’ll have some recommendations, but I’m not sure how much it will change the landscape right now.

The biggest concern for many now are donor-led collectives. There is a question whether booster donations of the magnitude that is being talked about ($5-$25 million annually) may not be sustainable over time. But I’d be surprised if the NCAA enforcement arm has the will or ability to seriously contain them.

Q: Are there any rules surrounding how the deals need to be structured in terms of timeline, payment plans, etc.?

A: It’s pretty much up to the parties in agreement. But what people are trying to shine a brighter spotlight on is fair market value. What is fair market value? If you make one charity appearance, or show up at a restaurant and shake hands, are you getting $500 for that? Or are you getting $100,000? It’s not out of the realm of possibility for someone to want to pay that if that’s a major recruit you need and you want to make sure you get. That would not fall into the fair market value category, so I think that’s what people are trying to take a look at. I think that plays into how payments are structured.

Q: What do the athletes have to disclose when it comes to NIL benefits?

A: The schools will know the amount of money their athletes are making. I don’t know how much of that will be public, but the schools will certainly know how much athletes are getting from each party.

Ohio State has been as transparent as any school I have seen with disclosing publicly various data regarding NIL deals their athletes have engaged in.

Q: Will it get to a point where Title IX would force revenue sharing of some sort?

Title IX will shape both the NIL world as we continue to progress, and if athletes are deemed employees, the collective bargaining because there has to be equality. You’re not going to have just the football players and men’s basketball players getting incredible revenue sharing compensation and perks and not have the female athletes get it. That’s just not going to work.

That may be what finally holds people accountable on the NIL front. Once we get a little bit further into this, people will really start asking about the Title IX implications. I don’t know how that works in terms of Title IX investigations, but people will have to be held accountable under Title IX guidelines. That’s a federal law.

Q: Players have NIL agents now, but they still aren’t allowed to sign with agents for their professional careers while they are still in college. What is the difference between those agents, and is there overlap in what they do?

A: My understanding is their agents just simply handle the NIL deals and opportunities. It is not considered a representation for anything for a professional career. However, you can be in contact with an agent concerning your professional career, as long as you are not signed with them. There may be more concrete differences, and I will look into it if there’s anything other than that.

I will say, my sense is that it is blurry. Agents have probably been dipping into both the NIL and professional sports buckets.

Q: Can the agent communicate with the school? For example, could a quarterback’s NIL agent communicate directly with Notre Dame?

A: I don’t think there are any restrictions on who the agent can communicate with. Communication with agents is above board in a general sense. When the school’s communication with player agents specifically involves helping to facilitate NIL deals, that activity will need to align with school and state regulations.

Q: Obviously, recruits have an interest in the NIL opportunities at any given school. Some Notre Dame recruits have even said publicly that they will be looking heavily at NIL packages when they visit a given program. I’ll use head coach Marcus Freeman as an example here. If a Notre Dame recruit is on campus and asks Freeman what NIL possibilities exist at Notre Dame, what is Freeman allowed to say?

A: It’s a great question. The best way to do it within bounds is for that coach to comment, broadly, on the school’s strategy for NIL. Does it have a program like Ohio State? Does it have a specific point person for NIL employed in the athletic department? What are their compliance disclosure programs or educational programs? I think he could say what collectives exist that are supporting Notre Dame. It’s very subjective, but I think he could talk about the big Chicago market and how many alums and brands are in Chicago. It’s not just about South Bend. You have the entire Midwest, and Notre Dame is a national brand.

But I think that’s where the line is drawn. If he talks about specific deals from those companies or basically anything that comes close to saying “If you come here, this company has six figures for you,” that is wrong. Now, that’s not to say it doesn’t happen, but I would be surprised if a head coach utters it. However, if they stray over that line, my thing is, who’s going to enforce it? There’s just no enforcement entity right now. It’s the Wild West right now. Guys are doing whatever they feel like doing.