Schools brokering name, image and likeness deals adds layer to college conundrum

Jaren Wilkey/BYU Athletics

Talmage Gunther wasn't expecting an ordinary Thursday in August, amid the often painful monotony of preseason camp, to become the most emotional day of his college football career.

The BYU walk-on wide receiver knew something strange was afoot when he walked into the Cougars' team facility after practice to find boxes of protein bars stacked above eye level throughout the room. A few minutes later, Nick Greer, CEO of Built protein bars and a BYU alum, was offering to change Gunther's life with an endorsement deal. In exchange for promoting the company at two in-person events and on social media, Greer was offering to pay each of the team's walk-on players enough money to cover tuition.

"It was a dream come true," Gunther said. "It was, it still is, amazing."

Gunther, who has a wife and a 1-year-old son at home, said he previously had to work from January to July to save up enough money to pay tuition and chip in on the rest of the family's bills. The endorsement money eases enough stress for him to focus more of his time on school and football this offseason.

"I called my wife [Brooke] as soon as the meeting was over and told her, and I could just hear the joy in her voice," he said. "I was in tears for a while after the announcement, and then talking to her again kind of brought it back."

Less than six weeks after the NCAA changed its rules to allow college athletes to profit from their names, images and likenesses, BYU became the first school to broker a teamwide deal on behalf of its athletes. Greer worked directly with Gary Veron, an associate athletic director who oversees the department's NIL program, to set up the details of the endorsement. Veron and his colleagues have since helped find NIL opportunities totaling more than $1 million for at least 450 athletes on campus playing a wide range of sports. The full football team recently received a renewed offer from Built for the spring semester.

Veron says BYU's first announcement back in August remains the "greatest professional day of my life." He and Gunther both compared the reaction among players that day to a locker room celebration after a major victory. A video of the announcement, which quickly went viral, was widely greeted with the usual unbridled joy for a very college sports-specific genre of social media post: the surprise awarding of a scholarship to a former walk-on player.

In quieter circles around the NCAA, though, the announcement also set off alarm bells. If BYU can facilitate a deal to help Gunther and his young family by covering his cost of attending college, what's to stop another school from lining up sponsorship deals worth hundreds of thousands of dollars for its athletes? And if a school starts asking its boosters to sponsor athletes, at what point does the sponsorship cross the line into a payment that is no different from a salary with some creative accounting?

These kinds of vast gray areas and unsettled questions in the new NIL era in college sports are making the path forward more complicated for NCAA members trying to thread a thin needle. They are currently tasked with making sure athletes receive more of a fair share of the giant profits they help generate while also convincing politicians, federal judges and the general public that college sports are primarily an education-based enterprise.

Veron says he understands the concerns about schools facilitating deals, but he believes that any school with its athletes' best interests in mind is in an ideal position to help them maximize their opportunities while providing an added layer of protection from "sharks and charlatans" trying to take advantage of the new marketplace.

Shortly after announcing BYU's deal with Built, Veron says he heard from more than a dozen administrators and coaches from around the country who wanted to know more about what the Cougars were doing.

"We got a bunch of schools saying, 'Hey, what's going on at BYU? We're hearing about this. How is this legal?'" Veron said. "A coach in the SEC reached out to me and asked how we did this."

BYU hasn't violated any laws or NCAA rules with any of the deals Veron's team has brokered since July. However, not every school would legally be able to do the same things.

The landmark shift in NCAA amateurism rules that opened the door to NIL opportunities was catalyzed by new state laws. Roughly half of the states in the U.S. created some form of legislation in the lead-up to this past July that guaranteed a college athlete's right to make endorsement money. To address concerns about a pay-for-play system evolving in the NCAA, many of those laws included regulations prohibiting a school from being directly involved in facilitating deals for students.

The NCAA initially planned to create similar restrictions when changing its rule to align with the wave of state laws that started going into effect last summer. The organization backed away from any specific nationwide regulations, though, out of a fear that those limits could be seen as thwarting competition in violation of federal antitrust law. The lack of a detailed NCAA policy means that states that didn't push for NIL laws -- such as Utah -- now actually have fewer restrictions than states that were proactively pressuring the association to change.

BYU isn't alone. Georgia Tech, for example, negotiated a deal this fall with TiVo that netted its football players cash and free gear in exchange for social media promotion. But even when no state law stood in the way, many schools hesitated to get involved in helping broker deals because of the unsettled and murky nature of these new rules. Schools remain concerned that arranging deals might cross a line into the realm of pay-for-play, according to Gabe Feldman, a sports law professor at Tulane who has been involved in the NIL legislative process.

"I think part of the reason only a handful of schools are doing it so far is there's a fair amount of uncertainty and confusion in what the applicable rules are, because unlike virtually every other area of college athletics, there is no real uniformity in the NIL rules," Feldman said.

The initial hesitation is starting to fade. Ohio State and Louisville have announced plans in the last few weeks to get significantly more involved in finding NIL opportunities for their athletes. Lawmakers in Florida and Alabama have proposed ways to change their state's laws to drop restrictions that keep their schools from doing what BYU has done.

Their change of heart has been driven by a fear of being left behind in recruiting battles. Alabama Rep. Kyle South told a Patch.com reporter in January that he was rushing to change his state's law because "recruiting just opened up this week after bowl games and we need to make sure we have all the tools and our student-athletes are not put at a disadvantage."

Gunther agrees that BYU's deals could catch the eyes of future players when they are deciding where they want to attend school.

"I definitely think it's something that a recruit will, will look at and say, 'Oh yeah, that's a big deal.'" he said. "Especially maybe a guy who doesn't have a ton of offers to see like, oh, BYU takes care of its walk-ons, I'd rather walk on there than, than somewhere else."

Endorsement deals violate NCAA rules if they are explicitly used as a recruiting inducement, but as long as a school can credibly argue that its deals are crafted with its current athletes in mind rather than in hopes of luring the next class to campus, the NCAA can't stop them. NCAA officials did reach out to BYU to learn more about the deal with Built, but a school spokesman said they sufficiently answered all the association's questions.

The bigger threat, according to Feldman, lies outside the NCAA enforcement staff and instead with the federal judiciary and legislative government branches. College sports have often received unique treatment because judges and politicians have historically viewed them as more of an education-related activity than a lucrative entertainment industry. As profits have skyrocketed in the last several decades, that attitude is starting to change.

"We're seeing more and more judges, [and] the general counsel of the NLRB [National Labor Relations Board] say, 'Wait a minute, why are we giving special treatment to college sports? They're no different than professional sports,'" Feldman said. "And that's the underlying current that, I think, the NCAA has to be afraid of. The more they push towards this expansive NIL model, the more that the institutions are involved in potentially paying the athletes or facilitating that payment, the more it looks like professional sports. And the more it looks like professional sports, the less likely the courts are going to give the NCAA deference under antitrust law."

This conundrum puts the NCAA between a rock and a hard place as it enters a crucial period of remaking its own rules in the coming months. If the NCAA implements rules that limit a school's involvement in NIL, the association is likely to face an uphill legal battle in an antitrust lawsuit. NCAA leaders are hoping that Congress will help clear a path for these new regulations by providing some extra protection from antitrust laws. But with no congressional action imminent, and as more time passes without the NCAA creating any rules, competition could soon drive schools to develop programs that are akin to outsourced athletic salaries -- further eroding their argument that they are different from professional sports and thus deserving of help from Congress.

"This is a little bit like the dog drinking a cup of coffee while their room is on fire and saying, 'Everything is fine,'" Feldman said, referencing a popular online meme. "I think the crisis may be here, but we may need some more high-profile athlete getting into trouble or some school getting into trouble to make Congress have the urgency to act."

On top of its legal issues, the NCAA will also have to navigate an increasingly hostile court of public opinion that isn't likely to look kindly on the association blocking arrangements like the one that has allowed Talmage Gunther to keep up with his classwork while providing for his family. Veron said the emotional high of connecting athletes with sponsors who want to help them is "intoxicating in a good way." He has no intention of slowing down in the year to come.

"I just think that it's a win-win," Gunther said. "I guess I don't know why a school would not want to help out their athletes, especially when the athletes give every day to help the school."