College Sports and NIL: A Whole New Ball Game
Tom Mars is one of the most powerful men in collegiate sports, but he’s never caught a screen pass, coached a Final Four squad or sat at the head of a super conference. Still, journalists have dubbed the hard-charging Northwest Arkansas attorney, “the most impactful man in a suit in college football” and “the de facto commissioner of the new [college football] culture.”
Mars never met a marketing opportunity he didn’t like and while he admits the quotes are somewhat over the top, he isn’t exactly demanding retractions, either. In college sports, where the landscape has been turned on its head over the past couple of seasons, fortune favors the bold. Mars, whose entire career has been in trial law, is just that, suing conferences, representing high-profile coaches and advancing the cause of student-athletes he sees as being bullied by college athletics.
All this despite, by his own admission, a prior understanding of college sports that was rudimentary at best.
“I guess I’ve made a little bit of a name for myself,” he said in mammoth understatement. “I’ve learned a lot. I used to say that you can take everything I know about college football and put it on a 3×5 card. Now you can say I can fill out the back, too.”
Mars is one of a growing list of legal superstars who are finding ample opportunity in the field of college sports these days. It’s been a scant seven years since a group of Northwestern University football players scored a landmark court victory that wobbled the status quo of players competing solely for the glory of the school, receiving in return a free, first-class education (some of them) and the chance at a career in the pros (even fewer of them). All the while college athletics programs, conferences and coaches got obscenely wealthy off their efforts.
The Northwestern court decision greased the slope for other changes to help athletes gain more say in their college careers, as well as cash-in on their accomplishments while still in school. The transfer portal, which came along in 2019, and 2020’s NIL (for name, image and likeness, which athletes can now market), cut wide swaths down the middle of the college sports landscape.
Of the two, Mars became notable in the area of athletes’ right to transfer in the pre-portal era. In 2017, Hugh Freeze resigned in disgrace from Ole Miss, a career derailment that began with a defamation lawsuit brought by former Arkansas and Ole Miss coach Houston Nutt, represented by Mars, against Freeze, the school and the athletic director. Collateral damage were the players that Freeze recruited and who, per NCAA regulations, couldn’t transfer without sitting out a year or gaining a waiver to that rule, which was hard to get.
“They lied to all of these players,” Mars said. “Those kids were the real victims. About two months after the Houston Nutt case, I get a call from one of the parents of players who was lied to and signed up there. At the time, I didn’t even know there was the rule where if you transferred you had to sit out a year. I didn’t know what a waiver was. But I had a lot of information [from the lawsuit] and I thought if it could help these kids, why not?”
After successfully gaining the Ole Miss athletes their waivers, Mars scored another high-profile win, gaining Justin Fields an exit from the University of Georgia to join Ohio State University’s program. There, Fields would become a Heisman finalist, play in the 2020 national championship game and is now the starting quarterback for the Chicago Bears.
Mars’ skillful use of trial lawyer tactics — including liberal use of the Freedom of Information Act, healthy relationships with the press and heavily leveraging social media — are likely to become more common in sports law.
“When the Big Ten announced it was cancelling college football in 2020, I got calls from Big Ten players and parents, and I became their player-parent-lawyer spokesperson to get the Big Ten to reverse its decision,” he said. “I FOI’d the hell out of the school and that was also the first time I became really active on Twitter. I’ve realized this is another weapon of lawyers in this space and like every dangerous weapon, if it’s not used carefully it can backfire on you.”
Outside of direct legal action, challenges to the NCAA’s authority and the drive for athlete’s pay and career autonomy were effectively quashed for decades leading up to the Northwestern decision finally kicking down the door. With NIL, college athletes can market their name, image and likeness to companies for pay and still retain their eligibility to compete. After so many years in the making, the change came suddenly, causing schools and legal firms wishing to compete in the wild blue yonder of college athletics to scramble.
“We’ve only been living under new NIL rules and regulations for about two and a half months, so it’s a little difficult to assess the new norm for being able to work with student athletes.” said Judy Henry of Little Rock’s Wright Lindsey Jennings. “In Arkansas, we have a law that was enacted by the legislature that does not go into effect until Jan. 1, 2022. When Arkansas’ law goes into effect, attorneys like me will have to work under three sets of regulations — the NCAA, schools and state law.”
Henry, whose firm represents among others Arkansas coach Sam Pittman, has lost no time signing up notable Arkansas athletes including Hogs hoopster Davonte “Devo” Davis and UA quarterback K.J. Jefferson. She admits it can sometimes feel strange to be negotiating NIL deals with players who would have been kicked out of the collegiate game for doing the exact same thing just six months ago.
“I think some of our colleges and universities have done and are trying to do a good job educating the students,” Henry said. “Everybody got caught a little bit off-guard, at least in Arkansas. I think the schools in our state would tell you that they were looking for this to happen next year. And it happened on about a week’s notice. I think that has been problematic for students and it caught, I think, our educational institutions off guard, caught all of us off guard.
“In terms of how it’s working, I think a challenge has been that there are people working in this space of NIL that are either not lawyers or they don’t have a background in working with athletes and negotiating these kinds of contracts.”
Many decry the new normal as the death of amateurism but in truth, many big-time college sports programs have been amateur in word only for decades. Luring star prospects with under-the-table cash and gifts has been going on as long as the rules prohibiting it have been on the books. In the center of this melee sat the NCAA, with the power to levy major sanctions against the egregious (University of Oklahoma, 1989; Penn State, 2012); the greedy (SMU, 1987; college basketball coaches’ ‘Adidas Gate’ 2017); the incorrigible (University of Miami 1955, 1981, 1995, 2013); and the defiant (UNLV, 1992, 2000).
Sometimes sanctions have nothing to do with paying players — Penn State received its penalty in the wake of a sexual abuse scandal, for example, and seven schools were pinched for an infamous point-shaving scandal affecting 86 games in 1950-51. But the bulk of the NCAA compliance department’s targets involved perks for players.
Over the years, the vagaries of the NCAA’s regulations often made it a laughingstock (then-University of Utah basketball coach Rick Majerus got in hot water in 2001 for buying pizza for players during film sessions; South Carolina self-reported improper icing on cookie cakes given to recruits in 2013). Still, the governing body’s power to levy sanctions to the point of crippling programs held universities’ attention.
NIL aims to solve much of this, with restrictions: athletes still can’t take money directly from schools or agents, for instance, and all NIL deals must be reported. Even so, there’s no question the new landscape is uncharted territory.
“The NCAA hasn’t come in and set a lot of rules. They’ve set no rules, really,” said Natalie Shock, associate athletic director for compliance with the University of Central Arkansas. “It’s all based on your state. The only thing the NCAA has said is you can’t represent alcohol, tobacco or gambling because those are the three big no-nos. And that’s all they’ve said. Everything else is strictly your state law and all state laws are different.
“The Arkansas state law basically says that you cannot use [the school’s] facilities, logos, anything along those lines. You can’t be in uniform. And some states don’t have that law. ”
NIL also gives athletes, at last, a small taste of the billions college sports enjoy in combined television revenue, game-day sales, booster contributions and untold numbers of jerseys and other licensed gear. And it comes closest to defining college athletes as employees of their respective college or university. In fact, this September the National Labor Relations Board’s top lawyer threatened action against schools, conferences and the NCAA if they continue to use the term “student-athlete” to describe players. NLRB General Counsel Jennifer Abruzzo said the term student-athlete was created to disguise the employment relationship with college athletes and discourage them from pursuing rights as employees.
“The market for NIL transactions is being created; right now, it’s what a business needs and what they’re willing to pay for,” Henry said. “That’s the same thing that a head football coach or any coach would do. The difference is, the market for coaches is more established than the brand-new NIL market. I don’t fault individuals for knowing the market or not knowing the market, because there’s no precedent out there to guide them.”
For as much as the moves are celebrated as victories for athletes’ rights, there are still issues to be dealt with. The transfer portal eliminates much of what brought these situations to court, but it’s hardly a perfect system. While college coaches are not allowed to recruit players from other programs, Shock said it’s becoming more common for programs to reach players through emissaries and encourage them to enter the portal, which the incumbent school cannot impede.
“We’ve got athletes here that could probably be at the next level; they were just overlooked in the recruiting process, and now they’re here, and they’re doing great,” she said. “Who’s to say that there’s not people out there with feelers out? It’s technically not the coach, not a Nick Saban or somebody like that, but somebody backing them to put out those feelers. I mean it’s out there. It’s happening and it’s hard to prove. We’re seeing it now.”
Shock said UCA takes steps to educate athletes on both the NIL and transfer portal program guidelines to help them understand their rights and keep them in good standing. But, she said, there are bound to be many as-yet-unforeseen issues to come.
“We try to answer as many questions as possible,” she said. “We’ve had to send a lot of our international students to our international engagement program because if they’re signing an NIL, how is that going to affect their student visa because they’re making money? Could it make them where they’re not eligible for a student visa anymore? I was meeting with the men’s golf team, and I started going over NIL stuff, and they immediately piped up and said we can’t participate in that because we would no longer be eligible for the U.S. Amateur golf tournament.
“I can’t imagine what it’s been like at the Power 5 level. Some of the things you think about is, let’s say you’ve got that quarterback out there who’s made millions already and what if I’m that lineman that’s got nothing? I’m supposed to be protecting his blindside; what am I going to do? I’m not saying that’s going to happen, but who’s to say it’s not going to happen? It’s a new ball game.”