NIL Plays Role in NCAA Football Early Signing Period

In the days following the close of the Early Signing Period for NCAA football, there have been a number of reports of the impact of Name, Image, Likeness (NIL).  The Early Signing Period—open for three days beginning on December 21, 2022—was the period in which high school and junior college football recruits could officially sign their letters of intent committing to attend a certain school and play for that school’s football program.

While there is a history of players “flipping” from a verbal commitment with one school to officially sign a letter of intent with a different school, this year’s Early Signing Period included a handful of recruitment flips that felt different than those of past signing periods.  In fact, one recruit ended up flipping commitments twice during the Early Signing Period, including once after he had announced in a press conference his intention to flip from the school that was his known first choice.

In the wake of the three-day flurry of social media announcements and press conferences broadcasted from high school gyms, a number of reports have been published about NIL’s role in the process.  Many recruits have anonymously recounted interactions with parties in which they were promised varying amounts of money, vehicles, apartments or the like in NIL deals if the recruit committed to a certain school—usually with the amounts increasing as the recruit’s scheduled announcement approached and a number of recruits noting offers in the seven-figure range.  Some recruits even admitted coaches or school representatives being involved in those discussions while others stated that they were contacted by NIL representatives outside of the recruitment channel of communication.

Regardless of who was making promises of NIL deals, the crucial point to remember for student-athletes, parents, schools, coaches and anyone interested in engaging in NIL agreements: NIL cannot be used as an inducement or recruitment tool to entice a recruit to play for a program.  Any discussion or offer of NIL deals must be made after the recruit makes his commitment to a certain institution.  Alternatively, the NIL deal can be made independent of any certain institution (in other words, the NIL offer would be respected regardless of which school the recruit commits to).  During recruitment, however, coaches can answer questions about current players’ NIL activities, but there should not be any discussions or promises made about NIL deals for recruits if they commit to the program. 

Furthermore, it is important to consider the laws of the state in which the recruit resides during the recruitment process.  If the recruit is in a state that has an NIL statute prohibiting high school students from receiving NIL compensation, then any NIL payment received while the recruit is in high school will violate the state’s NIL statute.  In addition, the timing of any promises or offers is important under general contract law as it pertains to the law of minority/majority in that state.  The recruit may not be able to legally enter into a binding NIL agreement if still a minor; however, that may not necessarily void the NIL offer and the recruit may still be able to accept such an offer upon reaching the age of majority.

In the event that there are discussions or promises with respect to NIL deals as an inducement to attend a certain school or before the recruit’s official commitment, it is important to seek advice and guidance from an experienced legal counsel to ensure that the recruit’s amateur status is not compromised. 

As we have turned the calendar to 2023 and we look forward to the National Signing Day on February 1, 2023, it will be interesting to see if behind-the-scenes NIL discussions will have a further impact on the upcoming signing period for NCAA football by creating more uncertainty with recruits flipping last minute to different programs.