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Kayvon Thibodeaux, Emory Jones, and the NIL Wars to Come

With athletes starting to push to the limits of current NIL rules, the NCAA has zero excuses for not being ready for potential consequences down the road.

Since the NIL era began this summer, most student-athlete deals have been pretty standard — restaurant endorsements, sponsored social media posts, autographed trading cards. Nothing so far off the beaten path.

There have also been a few truly creative deals, like Jackson State’s Antwan Owens signing a pact with hair care company 3KINGS Grooming shortly after midnight on July 1, the day the NIL floodgates officially, legally opened.

Then, there’s Florida quarterback Emory Jones and Oregon defensive end Kayvon Thibodeaux.

These two of them have signed non-conventional NIL deals of their own — so unique, in fact, that they may force the NCAA to define its own policies and guidance far more clearly than they currently are.

The Letter of the Law

While the NCAA has largely left it up to individual states to define their own NIL laws, most include the same two restrictions:

  • Schools can prevent student-athletes from signing deals in vice industries. This includes alcohol, gambling, cannabis,
  • NIL agreements cannot be in conflict with existing team contracts. For instance, an athlete who plays for an Adidas-sponsored school could not engage in a deal with Under Armour.

The first component relates to Jones. He signed a deal with non-alcoholic beer company, Athletic Brewing Co., in the same state that FAU quarterback N’Kosi Perry signed the first NIL partnership in the alcoholic space. Jones chose to come as close to a vice industry as possible without technically crossing that line. Attorney Darren Heitner, who represents Florida’s other quarterback, Anthony Richardson, on NIL deals (and is an investor with Athletic Brewing) told Boardroom that there is no restriction on alcohol-related deals at the University of Florida to his knowledge.

But what remains to be seen is how a school or a state that bans such associations would react if an athlete signed up with a brand like Athletic Brewing — legally, “non-alcoholic” beer can still contain up to 0.5% alcohol by volume, a small distinction that could constitute a major difference in some places.

The second open question pertains to the Ducks’ Thibodeaux. Since he’s the best-known, highest-touted football player at the University of Oregon, it made sense for Nike founder and UO alum Phil Knight to look for a way to set him up with a special deal with the Swoosh. However, remember that apparel and sneaker companies cannot sign athletes who play for teams already sponsored by a competitor — what happens when a high school athlete like Mike Williams signs a Puma deal while being actively recruited by college programs linked to Nike, Jordan Brand, and Adidas?

And Knight and Thibodeaux didn’t just forge a sneaker pact, either; they collaborated on an original NFT designed by none other than Tinker Hatfield. This potential six-figure NIL deal is as on-brand as it gets for a school like Oregon, but not every subsequent, evolutionary version of this type of deal will work out so neatly.

All told, this is a legal question worth potentially millions of dollars. And whether the issue ends up in court is surely a matter of when, not if, to say nothing of the massive impact it could have on recruiting.

What Lies Ahead for NIL

Oversights generally and a failure to protect student-athletes specifically, whether intentional or unintentional, happen because we all have different backgrounds, values, and biases. And anyone involved in the NIL ecosystem— student-athletes and their personal representatives, school officials, the NCAA, state and federal lawmakers —finding ways to either exploit or expose the legal gray areas within the language of the college athletics rulebook is instructive in this early stage.

One day, a school could occupy this undefined, ambiguous space to prohibit a deal, right or wrong. The next day, a student-athlete and a potential corporate partner could occupy it to form a partnership. And as long as this continues to happen, it’s even more critical that the NCAA prioritize the protection of student-athletes above that of any other entity — a near-impossible task, as with the case of Richard Washington, the first NCAA athlete suspended over an improper NIL deal.

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Unfortunately, since the NCAA has not issued a set of uniform, national rules, this is where lawmakers come in. The law must act as a buffer to support and protect athletes rather than as a trap-laden apparatus built on heavy punishment. It may not be a reasonable expectation, but lacking clear and responsible action by the NCAA, it’s what we’re left with.

A uniform national policy would eliminate all possible confusion; for now, individual states and even individual institutions are able to set their own NIL restrictions. This disjointed, decentralized setup effectively sets up some students to fail, and creates nearly an unlimited string of significant problems if and when NIL athletes transfer from one school or one state to another.

And even in states where the NIL getting is good, not all institutions are created equal. The state of Oregon is not currently allowing community college athletes to profit from NIL, while California and Florida have no such restrictions. This requires athletes all over the country to consult with legal experts in their respective states, a serve that’s prohibitively expensive if not provided in-house by the institution.

Instead of placing full burden of knowledge and application of the laws on the student-athletes — they have enough to worry about as it is — the NCAA (and the rest of the college athletics regulatory landscape, for that matter) must seek to install not just a universal policy regime, but one that ensures that knowledgeable, helpful officials are in place to help every last athlete navigate the NIL waters.

Anything less dooms an untold number of student-athletes to suspension at best, and legal troubles at worst. For every Emory Jones and Kayvon Thibodeaux, there could be an infinite number of Richard Washingtons. The NCAA cannot allow that to happen — and government cannot allow the NCAA to allow it.