More Allegations from College Football Players of Unfulfilled Pledges of NIL Deals

Last year, we reported on a college football quarterback who left his team after three games, preserving his eligibility, after alleged oral promises of name, image, and likeness (NIL) payments went unfulfilled. Last month, my former student Chad Smith (right) sent me this article by Margaret Fleming in Front Office Sports alleging a similar bait and switch involving multiple players on the University of Tulsa football team.

It is hard to know what to make of Ms. Fleming’s report. Two Tulsa football players have come forward alleging an oral promise that they would receive NIL money. But there are problems with the allegations as reported. They claim that the alleged promises came from “their coaches,” but the (newly-fired) head coach is quoted in the story as having been very open, very public, and very clear that the only money available to student athletes would be capped at $8000 annually based on academic achievement.

On the subject of NIL money, the coach said in a February news conference, “Typical first question says, ‘What’ll you get?’ I go, ‘You’ll get nothing and like it.’” So who were these coaches and did they have actual or apparent authority to bind the university (or the “Collective,” on which more below) to a promise to provide the players with NIL payments?

And then there is a vagueness problem. The players allege that they were promised “tens of thousands of dollars in NIL money.” Well, how many tens of thousands? Was this for a season? Over the course of their careers as Tulsa athletes?

Finally, as discussed in our previous post on NILs referenced above, it seems that universities do not pay NIL contracts; “collectives' do. A collective is an independent non-profit entity. If this is widely known among recruits, they should know that a coach can’t make a promise on behalf of an independent entity. We are dealing with teenagers, but we are and we aren’t. These young athletes have parents who are very involved in the decision-making process. It is hard to believe that they did not educate themselves about how NILs work, but who knows?

In any case, Tulsa’s Collective does not impress. It is called "Hurricane Impact,” and the university’s athletic department announced its partnership with Hurricane Impact on October 1st.  The collective has subsequently said that “Hurricane Impact has had no contact with any TU football student-athlete, coach Wilson, or any members of his staff regarding partnering with our organization. We will have no further comment.”  The collective has been true to its word.

The story references other NIL contracts that have not been honored. It links to a story about Michigan State NIL agreements that were “voided,” and says that even written NIL agreements are not enforceable. I don’t know the basis for that conclusion. I don’t know if the Michigan State collective had a legal justification for voiding the agreements. Perhaps they contained a condition precedent that was not met. 

In any case, I hope that these broken NIL promises are outliers. If not, there is a great need out there for attorneys to advise young athletes. Agents should know basic things, should insist on reducing NIL offers to writing and should refer those contracts to attorneys if they do not understand all of the terms.

Since drafting this post, I attended a session at the AALS meeting on Law and Sports, entitled “Intercollegiate Athletics: The Only Constant is Change.” Whenever  I write about college sports my fuel is preconceptions and prejudices. It is comforting to have the experts acknowledge that the field is in flux. Most of the panelists were concerned with protecting the interests of student athletes. One, very compelling panelist is the director of a sports program who could address the costs to athletic programs, including the cutting of entire teams, in this new environment in which the scholarship money and resources chase the college-sports revenues. It is no knock on the panelists to point out that the educational mission of colleges and universities played no role in the discussion.