Last Updated on September 4, 2021
I’m joined this week by Malik Jackson, an associate attorney at Smith Hulsey & Busey in Jacksonville, Florida who is a member of the firm’s sports litigation department.
A former Princeton quarterback, middle school teacher and football coach, Jackson has taken a particular interest in how NIL impacts student athletes prior to their arrival on a college campus.
Although we used Florida’s law as an example in some of this discussion, it has broad applicability based on where most states (except California) and their high school sports associations have come down on NIL thus far.
- Advice for the parents of elite high school student athletes
- How the advice might be different for high school basketball athletes versus other sports when it comes to NIL
- What questions high school student athletes and their parents should be asking relative to NIL during the recruiting process
- How the early NIL deals we’ve seen impact recruiting
- The complication of everyone not playing under the same rules right now for NIL
- What parents need to watch out for when it comes to NIL and their high school student athlete
- How parents might become the problem for some student athletes
- When student athletes should engage an attorney for NIL
Mentioned in this episode:
High school basketball student athlete Mikey Williams signing with Excel Sports Management
High school QB Quinn Ewers considering bypassing senior year of high school because of NIL
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We’ve edited the full transcript below to focus on the highlights from the podcast.
Welcome to the Business of College Sports podcast. I’m your host, Kristi Dosh, and if you’re the type of person who generally skips right past my intro into the interview, I urge you to listen to the intro because what we’re seeing is that NIL is moving so fast and changing so quickly that even though I recorded just four or five days ago, already, there are some things I want you to know that have changed or have come to my attention since we did this interview.
Today’s guest is Malik Jackson. He is a sports attorney at a Jacksonville, Florida, based law firm (Smith Hulsey & Busey). He’s also a former quarterback at Princeton, he has taught and coached at the middle school level, so he’s incredibly familiar with what high school student athletes might be facing right now when it comes to NIL.
Why NIL is confusing for high school student athletes right now
We had this great interview just a few days ago where we talked about the advice that he is giving to high school student athletes and their parents about NIL because in many states, high school student athletes cannot monetize their name, image and likeness, and it’s a little confusing because the NCAA specifically said in its interim policy that high school and younger student athletes could monetize their NIL and not sacrifice their NCAA eligibility. However, that doesn’t mean they’re not sacrificing their high school eligibility, which is done at the state level, and in fact, the National Association for those high school sports associations came out and said that NIL is not going to be permitted, student athletes at that level are not going to be allowed to monetize their name, image and likeness.
Attorneys have come out and said that right now California is the only state where it is safe for high school or younger student athletes to monetize their NIL. There is some legislation being considered in the state of New York, but that’s not being voted on for a little while here, and specifically in Texas, Mississippi and Illinois in their NIL laws that they passed to allow college student athletes to monetize their name, image and likeness, they actually specifically prohibited high school student athletes from signing those same deals.
High school student athletes already facing NIL decisions
A story came out today that the number one recruit in the country, his name is Quinn Ewers, he’s a quarterback who lives in the state of Texas, he has already given a verbal commitment to play at Ohio State. He may forego his senior season of high school and go ahead and enroll at Ohio State over NIL. (Update: Ewers did decide to forego his senior year and enroll at Ohio State this fall.)
He has had companies approaching him already offering him cash, offering him equity in their companies. He is in a position academically where all he needs to take is one core English course and he could graduate early and could go ahead and enroll at Ohio State and him and his parents are actually considering that as a course of action because as I just told you, Texas is one of only three states that specifically prohibits high school student athletes from monetizing their name, image and likeness in the law that they passed to allow college student athletes to monetize their NIL.
In most of the other states, it is something that’s happening within the state’s high school sports association. So obviously those rules could be changed a lot more quickly than these state laws that are in Texas, Mississippi and Illinois. There is also news that came out about the same time that I was recording with Malik about Mikey Williams, who is a high school basketball player. He is a native from California who is planning on attending a private Christian high school in North Carolina so that he can play for a group called Vertical Academy. I’m not somebody who follows basketball recruiting real closely, but it did make me think about the possibility that these elite student athletes can go to private schools or academies that are not part of their state’s high school association, and be able to both play and monetize their NIL.
And I wonder how many will ultimately choose that path because there’s no doubt in my mind that it’s a matter of how many of them are at a level to be able to cut deals already. So a couple of interesting stories there, I will link to in the show notes and in the blog post with this podcast about my goal. I’m sure we’re going to be hearing a lot more about this. I think what’s happening at the high school level is going to be a really hot topic. I know I’ve got another piece I’m working on for my blog that I will be posting here shortly. So check that out as well if you’re interested in this aspect of it, but I will now give you my interview with Malik, where we talked about the advice he’s giving to high school student athletes and their parents. Without further ado, here’s my interview with Malik.
Advice for parents of high school student athletes
You have been a NCAA quarterback, you’ve been a middle school football coach, when you seem to be like the kind of person who, you know you’re outside in your driveway, and some neighbor knows your background and they want your advice about how do I get my child ready for NIL– what do you say to them?
First thing I tell them is just stay away from agents right now. The reason I say stay away from agents is because there are very particularized rules by different associations, conferences and institutions as that pertain to agents and their engagement with student athletes. So for a high school student, or a parent, I would say don’t think about engaging in NIL right now. It’s not your time. Now as a parent, If you have the financial heft, you should absolutely think about ways to get entities in place.
If you think you’re gonna have a blue chip athlete, but again, any sort of NIL setup with an agent where an agent’s like sending out inquiries or like having conversations that’s blurring the line. And so any sort of agent/athlete relationship with a high schooler is going to be very problematic.
I will tell parents, the most important piece right now with NIL is to get a gauge on the universities a kid wants to attend. Because it’s such a fragmented marketplace, sometimes the most controlling piece of this NIL puzzle are the institutional rules and then the state law. And if you have an idea of the institutional rules, you can get a gauge on the types of NIL activity you can engage in when it is permissible. But for parents, I mean, there have been parents who have asked me “Hey, what’s this NIL deal”? And I say “In Florida, you engage in NIL deals on behalf of your kid or if your kid does it, your kid’s gonna be ineligible. It’s really hard to get a college scholarship when you can’t compete.
Elite high school athletes skipping college
What do you think about the possibility of top high school student athletes taking NIL deals, foregoing college and setting their sights on pro sports?
What most folks are kind of losing and all this is the inherent value of college. When you have multimillionaires, billionaire adjacent folks that are willing to pay six figures to cheat so their kids can attend a particular institution, that’s just should send out red flags to any sort of adult that’s trying to dissuade a high schooler from going to college and telling them to engage in NIL because they’re going to go pro.
That’s crazy, right? People who have theoretically intergenerational wealth have made terrible decisions to put their kids in particular institutions. Who am I to tell a particular parent or student that they should engage in NIL right now when I know the pot of gold that’s waiting when you go to college, when you engage with people from different backgrounds. You know I talked about this often at Princeton. I have 200 teammates. From my time from being a freshman to a senior, I have 200+ men that I can call on that are in various industries. I do not feel comfortable telling the student athlete to throw away their college opportunity because of some NIL pennies now when I know that there are big dollars at the end of the road. If you want to do something, absolutely engage with an accountant or attorney just so they can tell you what’s permissible, and the last piece for parents is to be on alert for any sort of recruiter that mentions any sort of pay for play or inducement even if it sounds like you’re falling away.
You need to pay attention to folks that are going to skirt the line for NIL and pay for play is totally impermissible and unlawful. So if you see any sort of those behaviors as a parent, you should just step in. Outside of that, I think it is faulty for a parent to try to induce or spurt in NIL deals prior to a kid graduating high school and then becoming a young adult in college. Now, a very different window is that window of time between the end of your senior athletic participation in high school and your college enrollment. There’s a little gap there, and then if even before college or just graduation date, I think ultimately local school boards, school districts, and probably legislators are going to have to create a specific timeline of when athletes start participation and when they stop it.
But again, if you’re a student athlete, I think the only period of time where I will feel comfortable with an athlete exploring NIL options would be after they’re completely done with athletic participation in high school.
NIL opportunities the summer prior to college enrollment
So like right now, we’re talking about this (NIL) in July, we’re gonna release this podcast a few days after we record it. This is a good example Florida was one of the first states to pass the law–a lot of the other state laws look a lot like Florida. So if you got a kid here in Florida, who has now graduated high school, and is headed off to play football this fall somewhere, what would you say to them about whether or not they should be paying attention to NIL opportunities right now during the summer?
I will say student athletes should absolutely pay attention to NIL opportunities If you’re an intercollegiate athlete. You’re starting summer, you’re getting on campus, you’re an adult at this point.
So I think any college student should be aware of what’s going on in their industry, and so that’s how I would approach student athletes. I do think it’s going to be very important for athletes to keep perspective and understand competition is number one participation is number one, right? Don’t let NIL detract from your responsibilities as a teammate, as a member, as a participant in the athletic program. And so that’s the only advice. The NIL opportunity’s gonna be there. Be a good teammate. If you hit the field, you’re probably going to get better NIL deals than other people on your team. It might come to a point when you’ll have an athlete who tries 100 different NIL things just to try to monetize just testing out, and then we could look back 30 years from now, and it’s that one bobblehead that really was the moneymaker for that player.
It’s like passive income at this point, and so we’re in the baby stages of it. So if you’re an athlete coming into college, I don’t think it’s prudent to come into a college program. You know, even with the upperclassmen and whatnot, and just talk about NIL, you just got to the campus. I mean, what are you talking about? You know, I mean, you should absolutely think about it again, but you haven’t even declared a major, and you come in and talk about NIL money. And I think it’s gonna be tough for team dynamics, but again, people are adults, and envy and jealousy has been a component of locker rooms since the first locker room. I’m not as worried about that, but I think for freshmen coming in college, you will have the game twisted if you’re more worried about a sponsored post, attending class, balling out, and keeping it cute,it can’t be more complicated than that. Once you get to your sophomore and junior year, then you can start exploring those opportunities.
How is the situation different for men’s basketball players?
What about top men’s basketball players? So many of whom already leave college after only one or two seasons.
Clearly, if you’re a basketball player, you’re operating under the one-and-done regime. So you’re going to look at NIL differently than another freshman for another sport. I think I have to acknowledge that it’s a different analysis based off of the sport and the gender. The NIL discussion for a football player is totally different than an NIL discussion for a softball player, and we have to acknowledge that. But if you’re a player going into college right now you need to read things and know what’s going on in your state. But I think it would be detrimental for an athlete to look overly invested in NIL as a freshman because it’s going to turn off your teammates, turn off your coaches.
And if you are somebody who’s extremely interested in NIL as a freshman, you want to make sure that you have a team or some people that you trust that can look into stuff for you. Right? And this isn’t making inquiries, this isn’t doing anything untoward, this is literally, I’m interested in name image and likeness.
The NIL questions recruits should be asking
So what about the student athletes who are getting recruited right now? What sort of questions do you think they should be asking of college football or basketball or whatever sport they’re in?
What should they be asking those coaches about NIL and the opportunities that might be available in their town or on their campus? What kind of questions do you think they should be asking these coaches?
I think the first question if your’e student athlete is to ask if the institution has an NIL branding or marketing program. You just want to know that on the front end. The next piece is to figure out if they hired somebody as an employee, or if they contracted it out. So you want to know if it’s some third party that’s going to come in and talk about it (branding/marketing programs) and leave.
The next piece you want to know is as a recruit, you don’t want to ask any question that will put a recruiter in a tough position. What do I mean by that? Don’t ask a recruiter, ”What kind of NIL deals should I expect at x institution? You’re setting that coach up for failure, you’re setting yourself up for failure, and we don’t know who’s gonna be made an example of it. I think we all are kind of waiting with bated breath to see who’s gonna get smacked down. So again, if you’re a player, and you’re getting recruited, don’t ask a question of that coach that provides an opportunity to say something that violates a state law.
The next piece is just saying, “Hey, what is your understanding of the name image and likeness statute for the state”? Again, that’s open ended, but coaches should know, and they should have a blanket statement by now that “In this jurisdiction student, intercollegiate athletes are able to earn compensation for the use of the name, image and likeness.” The goal is going to be for a recruit, to ask questions in a way that are applicable to everybody, not just themselves. You don’t want to make it like you’re just doing pay for play or an inducement, right? But I think as a recruit, you don’t want to set up a coach because they remember that, and quite frankly, you just want to know, what do y’all have in store? So if you create a program in house, tell me about your program, and that’s usually a great way to kind of get a gauge on things.
You know, it seems like to me a good time to be in your line of work.
It’s just a real time to be into sports law because I can tell you even with Alabama, the way they have their law set up and Alabama’s policy. Alabama has to approve their football players contracts before they enter into them. Right now, Florida players can enter into a contract, they just need to disclose it after four days. That’s fundamentally different right? It’s like, let me go get permission first and then enter into it versus let me ask forgiveness later. Yeah. I’m not trying to make it detrimental on the Gator side, I have three gators in my immediate family. But again, the point is, when you start thinking about the opportunity to just mess it up, if you’re a recruit, why would you bring up NIL when you get recruited? It’s implied. I’m going to be able to earn X amount, at a minimum because I am one of 80 full-scholarship players. Like, I’m just starting from the assumption that every scholarship player is going to have at least one and NIL deal.
How NIL is impacting recruiting so far
Yeah, that makes me think of the deal we’ve already seen happen at Miami where we have this MMA gym that’s come out and said “Every scholarship player on the roster can opt in for this $500 a month opportunity with his gym, which involves having to do your social media promotion, and some in-person stuff.” But if I’m a recruit, and I’m looking at Miami, I’m thinking, well, you know, it’s at least somewhat likely that they will do this deal again next year, and if I go to Miami I’m getting at least $500 a month from this deal. What do you think about those sorts of deals starting to pop up and how that might impact recruiting?
Well, I’m gonna say Miami is functioning in a different NIL environment than other institutions in the state of Florida because they are a private university. Miami is not subject to the Board of Governors and the State Board of Education, and so the regulations and rules that are passed by those entities are not applicable to Miami. So Miami’s task is just to follow the law as best as they can.
Different universities offer different NIL opportunities
Now, you have a situation where a provider says, “Hey, this is a base NIL deal for everybody on the team.” That’s from an entity that is not the university. I think we’re going to kind of get into some hairy areas when we figure out: When did you enter into contract with this institution? When did you enter into your contract with this coach? When did you stop being a member of the Board of Trustees? If you’re on the board, or if you’re on a booster, how many companies do you own? Those are gonna be kind of hairy issues.
But in Miami particularly, they’re figuring out a way to say, “Hey, we’re gonna offer a baseline of NIL opportunities.” That’s fine because it’s what their quarterback tried to do came spring relationships, and his team of advisors and other folks.. But the line and Dan Mullen hinted at this is at what point does that group NIL deal bleed into pay for playing an inducement?
Yeah, because I’m not implying they’re doing anything wrong now. But it’s interesting because that deal happened like the first or second day of this new NIL era, and I think it just shows us how quickly that great area is going to grow, and because we’re dealing with all these different layers you’ve got a very broad sort of guidelines from the NCAA, you’ve got state laws in some places and executive orders in other places so we’re not playing by the same set of rules.
So again, for a place like Miami, I think they’re working in their unique context. I expect other institutions in the state to needle Miami if they feel Miami’s getting an unfair advantage. If someone can make the nexus between group NIL deals for every player on the team just because they are a member of the team, maybe that bleeds into paying for play inducement. The issue with that is going to be the degrees of affiliation in relation between the NIL provider. If I provide and I allow opportunities, but I am not affiliated with Miami that’s going to be hard to kind of prove a pay-for-play or inducement. The issue is going to be the text messages, the phone calls, the dm’s. You know, it’s gonna happen somewhere. We don’t know where but at some point some NIL provider is going to get burned, and when it happens, tea is going to get spilled, and when that tea gets spilled, secrets of how different institutions recruits and their families maneuver around NIL are going to come to the forefront. And so if you have a third party that’s willing to offer NIL deals for every member of a team, I say, kudos to you.
Yeah, I think the trouble is making sure that it never bleeds into any sort of affiliation with the university. I mean literally, if you have 20-30 guys from the team coming in and out, it’s almost like it has that imprimatur of the state or of the institution. So you have to really grasp that, but I think Miami is doing what they think is right, and now we’re going to enter a space where you’re gonna have different institutions operating under different rules, and ultimately, if you just make sure you stay away from two things, pay for play and inducements, I think you’re good. But the pay for play and the inducements that’s still related to this notion of you not engaging with NIL with the wrong kind of people. Again, people aren’t making those analyses, but that’s what’s gonna have to be if you want to see somebody who’s affiliated, if they can actually enter it in a NIL deal with a particular student athlete.
Parents should not be afraid to say no
What are the sorts of things that parents of high school student athletes need to be looking out for and understand in case they do get approached by people who want to talk about NIL before their student has enrolled in college?
I think the concept of a fence is so important. You put a fence around that kid, you do everything in your power to protect that kid’s eligibility, and your future life prospects. So somebody comes and approaches you about some NIL deals, you become rude, you leave. So I’m not talking about that right now. I’m not I’m not discussing that right now.
You will not imperil my kids’ eligibility. My kid loves her teammates. My kid loves her coach, my kid will be crushed, and they couldn’t compete in their junior/senior year of high school. That’s the conversation. So you kind of got to scare people, but if you’re a parent, like, do you want to risk taking money under the table that imperils your kids’ eligibility in high school and potentially college? Is it worth it? I don’t think so. But again, these are decisions parents have to make, but I think if you tell parents, it’s totally okay to just tell them an NIL provider “Leave me alone.” Like, don’t talk to me right now. I think that’s extremely reasonable, especially if we’re talking about kids, And parents are supposed to be the filter for kids.
Parents need to be careful about their own actions
What about parents who are the problem?
That is going to be the problem. I believe there’s going to be parents who are leveraging their children’s prospects for their own pecuniary game.
Right. Parents who are registering trademarks and starting online wars before their kid has gotten to college. Look, I’m an entrepreneur, I understand having a good entrepreneurial spirit, and you’ve got this moment in time when your kid is potentially a four or five star prospect, these parents who are thinking about setting up trademarks and merchandise and online stores before their kids even started college. What’s your advice to them about how to approach that or when it’s appropriate to approach that?
The issue is any sort of income that arises attributable to the parent or on behalf of the kid, that is taxable income. And so then we’re dealing with litigation, we’re dealing with getting into some sort of court to approve a minor’s contract because they don’t have the capacity to contract. Then the other piece of that is we’re really going to get into fiduciary issues. Because if you’re a parent, and you’re getting all the money for a player’s NIL deals, you have a fiduciary relationship with that kid, and their money. A court is going to have to approve that contract. So there’s going to have to be litigation, they’re gonna have to look at the terms, they’re gonna have to look at all that, and if you’re getting paid because of your kid’s performance or their participation, or their NIL, you’re gonna have a Guardian Ad Litem appointed.
That’s where it’s heading. So if you’re a parent, and you’re starting to open up entities and sell merchandise, you better think about ways to engage an attorney to discuss the potential pitfalls to engaging in contracts on behalf of your kid. Because again, you’re going to need to get in Florida these contracts approved, especially once you get past a certain threshold of contract value.
When do prospective student athletes need an attorney?
What’s your advice in terms of what student athletes and what kind of deals they’re doing? Do you think they should go to an attorney and start getting somebody involved with that process?
You should go to an attorney with any issues pertaining to state lines, right? If you cross state lines, you need to go to an attorney. If you’re going to earn income in a different jurisdiction than you live, you need to go to an attorney. If you’re going to attend college in a jurisdiction different from where you grew up, or you play high school sports, you probably want to go to an attorney. Again, I don’t think it’s some people who try to act like it’s gonna be a ton of hours and billables. So I think tax issues, state lines issues, I think if a coach approaches a player with some sort of pay for play opportunity, I think that’s a great time to go to an attorney. And I think anything that would impugn a kid’s eligibility, that’s when you want to get attorneys involved because NIL won’t be possible. So again, state lines, tax issues, if any sort of recruiter offers you pay for play or an inducement, I think you need to talk to somebody in real time just to keep note of it, and who better than the officer of the court?
I’ve told you some of the legal services, I mean, they’re just expensive. I mean, and, you know, right now, it’s not even just student athletes and their parents, it’s providers. But I think anything dealing with eligibility, any sort of eligibility issues, any sort of NIL offer before a kid is an adult, probably talk to an attorney. You should have somebody that you’re comfortable calling to ask questions so you don’t go down the wrong path. But I think the state lines issues, I think the minor issues are going to be huge for an attorney, and I think if you’re a parent, trying to create any sort of entity, and you’re accepting any sort of income, because of your kids athletic participation, you need to talk to an attorney. If your kid can’t enter into an NIL agreement, you have no business into an NIL agreement, and this is if the parent is signing on behalf of their student athlete. But again, that’s gonna be hard to tell parents to your earlier point, they think I’m smarter than the average bear. I can do this.
If we try to compare what Cam Newton’s father admitted to doing with taking income and payment for Cam Newton to play that was still un der the NCAA, that’s not unlawful. That is just breaking rules, right? But technically was even breaking rules because there was no rules on there were no rules on the books that were directly on point with payments being made to a parent, unbeknownst to the kid. So the story was Cam Newton didn’t know that his dad was getting paid, and who is the NCAA? They’re not a governmental agency, they don’t have force of law. So again, if you’re a parent now I’m going to tell you this isn’t Cam Newton, this isn’t, you know, like a, you get a freebie, if you accept money because of your kids athletic participation, and we’re not seeing contracts in the circuit court, and again, this is in Florida, we’re not having those contracts disclose to an institution, you’re going to start running into trouble.
It’s perilous. So as an athlete, if you just come in and just just be cool, perform as well as you can, the NIL deals are going to pop up in the most unique circumstances, and it’s going to be somewhat serendipitous, and if you go in focusing on NIL rather than being a good teammate, you’re not going to last.
Here’s your chance. We’ve got folks listening in Florida, where you get to shamelessly plug yourself, what type of clients do you want to come find you? What kind of issues do you want to solve and help advise on
The issues I was primarily attuned to were issues dealing with student athletes and their parents. My experience as a recruited athlete, I understand that parents are the last line of defense to protect student athletes. What I’ve found just through representing different clients on different matters that there are so many different entities that want to engage on NIL, but they do not know what’s permissible from a legal or regulatory standpoint, and so it’s been fun for me as a younger attorney to engage with NIL providers that are trying new ways to figure out how to compensate intercollegiate athletes. I mean, I get a lot of joy out of that because it was something that wasn’t available to folks that recruited with me when I graduated high school and went to college, so to see that evolution and to know there’s gonna be a whole batch of student athletes who won’t really know about like, you know, the NCAA not letting NIL deals happen for college athletes, and like, you know, they’re gonna not have that memory, and so that’s exciting.
But that also means we are in the midst of a multi-billion dollar industry that appeared out of thin air, and it’s about creating best practices. So when the feds do pass national legislation we know what works. That’s very important.
I mean, that’s what I’m focusing my practice on is knowing what works so I can tell that to legislators, and I can provide great services to students, parents, NIL providers and some coaches who just want to know the pitfalls. It’s a fun time in Florida right now. We have massive respect for the state jurisdictions that forced the issue with NIL. California got the first swing in and then we decided that we wanted our swing to land first.
This is America. That’s how it’s supposed to work. So we have a competitive marketplace. We have student athletes able to compare side by side where they want to attend school based off of what they can earn off the field, and the opportunities are provided through the institution. I mean, it’s a new world. So it’s exciting. But for me as an attorney, I mean, the opportunities are somewhat endless.
And clearly, as you know, my line in the sand is, you know, I’m pretty anti0NIL for high schoolers that want to go to college. That’s tough for me, I have a lot of problems with figuring out how to protect student athletes ifthey just throw away their eligibility for a couple $100 or a few $1000 when they’re like 15. So that’s where I’m at Kristi.
Thanks for joining us and chatting about this. I think it’s a There’s still so many questions out there, a lot more questions than there are answers. So I appreciate you taking a little time with us.
Until next week. I hope that everything is going wonderful in your world. I will be back with you again next week with another great guest