The game just changed.
And at Washington, administrators have prepared for a year to change with it.
On Wednesday, the NCAA’s Division I Board of Directors adopted an interim policy to suspend amateurism rules related to name, image and likeness nationwide. Intended as a stopgap measure until Congress passes a bill, this placeholder policy — which goes into effect on Thursday — allows college athletes to profit off autograph sales, sponsored social media posts or ads, personal YouTube/Twitch streaming channels, training lessons and camps, speaking engagements, personal merchandising, endorsement deals and more.
The policy also comes with a “commitment to avoid pay-for-play and improper inducements tied to choosing to attend a particular school,” according to an NCAA Division Council release on Monday.
Beyond that caveat, the policy comprises the following guidelines:
- In the 11 (and counting) states with NIL laws going into effect on Wednesday or Thursday, athletes are required to follow the laws of the state where their school resides. And in states without an impending NIL law — like, say, Washington — each school is responsible for crafting and enforcing its own policy. (To date, 25 states have passed NIL laws, with 15 of them taking effect in 2021.)
- Athletes can utilize a “professional services provider” — an attorney or an agent — to assist with NIL activities.
- Athletes should disclose NIL activities to their school, “consistent with state law or school and conference requirements.” (UW will require athletes to report all NIL activities.)
Ultimately, the NCAA punted on the opportunity to enact rigid NIL legislation — opting instead to push the responsibility to the states and individual schools. At UW, the process of crafting the policy began in earnest in April, when it became increasingly evident a federal bill might not be forthcoming.
“We’d been hopeful there would be a federal bill, we had heard, maybe around the Final Four,” UW senior associate AD for compliance Kiley Strong said in a phone interview Wednesday. “But that didn’t end up happening. So we started crafting a policy based on, at that point, what were the NCAA proposals. That just gave us the ability to start getting something on paper and having conversations around some of the restrictions.
“Then we moved into May and it became pretty apparent that, with the Alston case and that decision, we were going to have to maybe go out on our own and get something in place.”
Which is what they did, with help from NIL consulting firm Altius Sports Partners and its CEO, Casey Schwab, who previously served in a similar role with the NFL Players Association.
“We don’t have a crystal ball, but he’s added a lot of perspective to be able to help guide us and make us think differently,” said Jason Butikofer, UW Athletics’ chief operating officer. “They didn’t set the policy with us, but they made us think about how we were setting it or what we need to be doing to best support our student-athletes, and what other challenges and opportunities we have.”
The lack of uniform national NIL policy will yield challenges and opportunities of its own. In some cases, stricter, more inflexible state NIL laws may leave some schools at a competitive disadvantage.
“Oklahoma’s NIL law specifically bars college athletes in Oklahoma from entering into NIL deals where they would be using any of the university’s trademarks,” Mit Winter, an attorney for Kennyhertz Perry LLC, said on Tuesday. “So if you have an Oklahoma player who wants to do an NIL deal — maybe be in a commercial or some type of ad wearing their uniform — they wouldn’t be able to do that in Oklahoma.
“Whereas, if you’re in a state that doesn’t have an NIL law, it’s just going to be up to the school to determine whether they’re going to allow their athletes to use university trademarks in NIL-related deals.”
At Washington, students will be permitted to use university trademarks in NIL activities through an approval process with UW’s marketing and communications office.
But inevitably, the stickiest issue surrounds enforcement — with the NCAA relying heavily on individual athletic departments to determine whether an NIL deal signifies “improper inducement.”
For example: how do you gauge if a car dealership entered into a sponsorship deal with an athlete with the genuine intention of selling more cars, or because the dealership’s owner sought to ensure the athlete stayed in school for an extra season?
“It’s very difficult, in my opinion, [to enforce that policy],” Winter said. “I don’t see how anyone’s going to be able to police that, unless you go to boosters or businesses and say, ‘Hey, let me see your texts between you and the athlete, or your owners, about why you wanted to enter into this NIL deal with this specific athlete.’
“Otherwise I don’t see how you can determine whether a business wants to enter into a deal with an athlete because they want to keep that athlete at the school they’re at now, or get the athlete to come to the school they’re a fan of, or they entered into the deal because they think it’s going to be a great business decision to be affiliated with that athlete.”
As for UW’s enforcement plan, Strong said: “We’re just going to be really looking at, who is the student-athlete working with, and what was the genesis of that relationship, and trying to make our best analysis as to whether there’s an NCAA violation triggered or not, without also hampering opportunities for our student-athletes — because that’s what we’re really most excited about here.”
The emphasis, as always, remains on education — squashing potential violations before they arise.
“We have an intake form so a student-athlete can sign up for a meeting with compliance and student development, just to get the baseline policy communicated to them one-on-one, and we can more understand what specific area they might be interested in,” Strong explained. “For some of our students it might be (hosting and participating in) camps, which is a whole different set of stuff versus social media influencing activities. So we’re trying to tailor the education for what the student wants to do, just because there’s so much out there.”
And, to be clear, that educational process was already underway. In February, following eight months of planning, UW unveiled its “Boundless Futures” program — “a comprehensive personal, professional and leadership development program” designed to help Husky athletes benefit from NIL legislation. That program includes curriculum through the Foster School of Business and a partnership with brand-building platform Opendorse.
Meanwhile, Washington State announced its own NIL program — “The Cougar Pursuit” — on Thursday, describing itself as “the most recognizable and influential collegiate athletic brand in the Evergreen State.”
Rivalries aside, rules and regulations in the NIL Era are sure to evolve. And while a federal bill would certainly help maintain a more even playing field, it’s currently delayed by predictable partisan disputes.
“Maybe the end of the year would be the soonest we would see a federal law,” Winter said. “The issue there is, there’s not a big push right now to do an NIL-specific federal law.
“Everyone’s trying to add additional items into the bill — things that would address college athlete health and safety, scholarship-related things like how long the scholarship needs to be, health care. The more things you try to get added into a bill, the harder it’s going to be to reach consensus on a bill that can then be passed. That’s kind of where things are at now.”
Regardless, the landscape of college athletics will be eternally altered on Thursday.
The Huskies are ready.
“Especially from a compliance side, we’d always love to have an answer for every situation ahead of time, and that’s just not going to be the case as this develops over the summer,” Strong said on Wednesday. “So it’ll be interesting to see, for sure. But we’re ready to go for tomorrow.”
Added Butikofer: “As we see everything kind of come to fruition, there’s probably some things that we’ll further analyze. But we’re not in a space to say, as some other schools have, ‘We’re just not ready.’ I think we’re ready.”