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NCAA to Allow Players to be Compensated for their Names, Likenesses, and Images


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6 minutes ago, Randolph Duke said:

Pantone is for color identification.

Pantene is for conditioning one’s hair. 

If the school fails to protect its trademark, it risks losing property rights to that trademark. 

Thanks for the info Randolph. I let autocorrect come up with Pantene but now I know better, appreciate that.

I took IP in law school so I realize the risk. It is virtually zero. I’m willing to listen to anyone’s argument about how IP use during a NIL “job” will threaten UTs IP but I can’t promise I won’t giggle the entire time.  

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14 minutes ago, TwiceHorn said:

It was the earlier speculation that once some of these kids get money, there should or will be guardianships (Protected Persons apparently under Alabama law) to protect them from themselves.

That’s ridiculous. Even for Alabama.

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1 minute ago, UtBlaw said:

That’s ridiculous. Even for Alabama. Is that a real phenomenon going on there? I mean just sign a trust with a spendthrift provision if we’re ready to take an adult’s rights away. 

 

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10 minutes ago, UtBlaw said:

Thanks for the info Randolph. I let autocorrect come up with Pantene but now I know better, appreciate that.

I took IP in law school so I realize the risk. It is virtually zero. I’m willing to listen to anyone’s argument about how IP use during a NIL “job” will threaten UTs IP but I can’t promise I won’t giggle the entire time.  

The university isn’t going to take the chance. It is equally absurd that licensing “Bevo” for a website called “ShaggyBevo” would have been anything other that beneficial as the group wanting to use the name was seeking an opportunity to connect more closely with the product the university is selling in the market.

IP holders will always allow less free use than the cutting edge between retaining and losing their IP rights. 

There is no benefit to continuously being in litigation to defend IP when a perfunctory “no” from the start is far less expensive, far less troublesome, and far more efficient. 

There’s will be a recruit who will be sought after enough for the university to grant trademark use rights in exchange for signing to play sports at UT. 

 

Edited by Randolph Duke
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19 minutes ago, Randolph Duke said:

More precisely, it all depends on how the courts care to rule on different aspects. 

The law is always what the judge says it is. 

Yeah, that kinda goes without saying but you get a couple layers of protection if a judge forgets how to read the law. Once u get to SCOTUS though all bets are off.

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2 minutes ago, slorch said:

How many shades of burnt orange will need to be trademarked/ protected?

One. 

The argument past that is the use of any closely associated color will cause confusion in the marketplace. 

Read up on how Bucc-ees is going “full draconian” on their fucking Beaver trademark.

How much of an idiot does one have to be to not understand an alligator and a beaver or two different animals? 

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2 minutes ago, Randolph Duke said:

One. 

The argument past that is the use of any closely associated color will cause confusion in the marketplace. 

Read up on how Bucc-ees is going “full draconian” on their fucking Beaver trademark.

How much of an idiot does one have to be to not understand an alligator and a beaver or two different animals? 

My comment was more rhetorical question related to the evolution of the colors on the UT unis and the consternation among UT faithful on getting the endzones painted right.

 

Laugh a little, bro.

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1 minute ago, Randolph Duke said:

The university isn’t going to take the chance. It is equally absurd that licensing “Bevo” for a website called “ShaggyBevo” would have been anything other that beneficial as the group wanting to use the name was seeking an opportunity to connect more closely with the product the university is selling in the market.

IP holders will always allow less free use that the cutting edge between retaining and losing their IP rights. 

There is no benefit to continuously being in litigation to defend IP when a perfunctory “no” from the start is far less expensive, far less troublesome, and far more efficient. 

There’s will be a recruit who will be sought after enough for the university to grant trademark use rights in exchange for signing to play sports at UT. 

 

Your last example would be an illegal contract. I get the shaggy bevo thing. If I were the university I would be compelled to sue in that instance. UT wouldn’t continuously be in litigation. Worse case scenario is filing motions to dismiss. Who would the plaintiffs be? We’re talking about student athletes the school trots out in front of the tv cameras wearing what they can wear in every situation except NIL opportunities. 
 

Appreciate your viewpoint it is valid and makes legitimate points. It’s just divorced from reality. I don’t wanna waste anymore breath arguing this nonsense because I imagine we could both waste hours of each other’s time.

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16 minutes ago, slorch said:

How many shades of burnt orange will need to be trademarked/ protected?

For who the university or the player? Assuming you mean UT I imagine one would suffice but more would be better. I don’t practice IP law so u only get the most basic answer because it’s almost a philosophical question. What if all colors get trademarked? I’m just assuming another poster is correct about trademarking colors. Can you trademark a musical note? All of them? I.P. can get weird. Everybody always wanting to own everything all the time. Can’t we just share? 

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1 minute ago, UtBlaw said:

Thanks for the info Randolph. I let autocorrect come up with Pantene but now I know better, appreciate that.

I took IP in law school so I realize the risk. It is virtually zero. I’m willing to listen to anyone’s argument about how IP use during a NIL “job” will threaten UTs IP but I can’t promise I won’t giggle the entire time.  

The argument would be something like this.  Starting with the fundamental premise that a trademark exists only so long as it is capable of distinguishing the origin of goods and services from the origin of other goods and services.

So, if a trademark owner decides to license or grant permission to use its trademarks, the law says they must exercise control over that use.  This makes a certain amount of sense, because if the owner  does not, it "weakens" the mark by associating it with things not approved by the trademark owner, such as things of lesser quality than the owner's goods, or in different classes or categories of goods, etc.  The ultimate expression of that kind of weakness is "genericness," when a trademark becomes common language to describe a good or service, as in Thermos for vacuum bottles and the other famous examples.

Short of genericness, at least in theory, unrestrained third party use of trademarks can make them harder to enforce against similar users.  A crude example would be if UT permitted a Longhorn carwash to continue unabated, it would have difficulty stopping other Longhorn carwashes.

In any event, if a trademark owner licenses trademarks, the law requires that the owner exercise some control over the licensee's use of the mark, otherwise it is a "naked license" or "license in gross" and can result in the complete destruction of trademark rights in the particular trademark (called "abandonment").

 

So, at least theoretically, UT cannot grant a "blanket" permission for players to use its trademarks in their personal NIL endeavors.  That would be a naked license and jeopardize all of the marks used.

The alternative would be to monitor how they are used and write dirty letters and even sue when the use gets too "far afield."  That is a burden that the university probably doesn't want to undertake, particularly in this context.

Finally, there's an underlying notion that NIL efforts are to be done on the strength of the player's NIL and not by association with the university or team.  All of the statutes seem to forbid doing promotions or other NIL activities on "team time" or using "team facilities."  So, forbidding the use of university trademarks kind of fit in with that.

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2 minutes ago, TwiceHorn said:

The argument would be something like this.  Starting with the fundamental premise that a trademark exists only so long as it is capable of distinguishing the origin of goods and services from the origin of other goods and services.

So, if a trademark owner decides to license or grant permission to use its trademarks, the law says they must exercise control over that use.  This makes a certain amount of sense, because if the owner  does not, it "weakens" the mark by associating it with things not approved by the trademark owner, such as things of lesser quality than the owner's goods, or in different classes or categories of goods, etc.  The ultimate expression of that kind of weakness is "genericness," when a trademark becomes common language to describe a good or service, as in Thermos for vacuum bottles and the other famous examples.

Short of genericness, at least in theory, unrestrained third party use of trademarks can make them harder to enforce against similar users.  A crude example would be if UT permitted a Longhorn carwash to continue unabated, it would have difficulty stopping other Longhorn carwashes.

In any event, if a trademark owner licenses trademarks, the law requires that the owner exercise some control over the licensee's use of the mark, otherwise it is a "naked license" or "license in gross" and can result in the complete destruction of trademark rights in the particular trademark (called "abandonment").

 

So, at least theoretically, UT cannot grant a "blanket" permission for players to use its trademarks in their personal NIL endeavors.  That would be a naked license and jeopardize all of the marks used.

The alternative would be to monitor how they are used and write dirty letters and even sue when the use gets too "far afield."  That is a burden that the university probably doesn't want to undertake, particularly in this context.

Finally, there's an underlying notion that NIL efforts are to be done on the strength of the player's NIL and not by association with the university or team.  All of the statutes seem to forbid doing promotions or other NIL activities on "team time" or using "team facilities."  So, forbidding the use of university trademarks kind of fit in with that.

Thorough refresher, thanks! I was thinking they’d be able to restrict it enough through granting permission before a student athlete uses any IP. So it would place more of the burden on the student and prevent a free for all situation.

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8 minutes ago, UtBlaw said:

For who the university or the player? Assuming you mean UT I imagine one would suffice but more would be better. I don’t practice IP law so u only get the most basic answer because it’s almost a philosophical question. What if all colors get trademarked? I’m just assuming another poster is correct about trademarking colors. Can you trademark a musical note? All of them? I.P. can get weird. Everybody always wanting to own everything all the time. Can’t we just share? 

The thing people need to understand about trademarks is that they don't grant some unlimited exclusivity in whatever is trademarked, be it a word, or a word/logo, a color, or a sound. They are less "powerful" in that respect than patents and copyrights.

Infringement of a trademark only occurs the infringing use is likely to cause confusion among consumers of the products/services of the trademark owner.

So, someone that owns a trademark in a color, say, burnt orange, can only sue or take action against those that use it in a way that creates confusion, that suggests a relationship to the trademark owner.  That's a fairly complex analysis in cases when it isn't obvious as hell.

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Just now, UtBlaw said:

Thorough refresher, thanks! I was thinking they’d be able to restrict it enough by having a student get permission before IP use. So it would place more of the burden on the student and prevent a free for all situation.

 

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1 minute ago, TwiceHorn said:

The thing people need to understand about trademarks is that they don't grant some unlimited exclusivity in whatever is trademarked, be it a word, or a word/logo, a color, or a sound. They are less "powerful" in that respect than patents and copyrights.

Infringement of a trademark only occurs the infringing use is likely to cause confusion among consumers of the products/services of the trademark owner.

So, someone that owns a trademark in a color, say, burnt orange, can only sue or take action against those that use it in a way that creates confusion, that suggests a relationship to the trademark owner.  That's a fairly complex analysis in cases when it isn't obvious as hell.

That was my other main thought—not many entities exist that would create confusion about the identity of a major university.

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1 minute ago, UtBlaw said:

Thorough refresher, thanks! I was thinking they’d be able to restrict it enough through granting permission before a student athlete uses any IP. So it would place more of the burden on the student and prevent a free for all situation.

There is a significant question in the law whether a trademark owner can impose "controls" on the use in a passive way, such as simply by specifying in a contract exactly how the mark can be used, or whether they have to actively monitor usage on an ongoing basis.

There is also a school of thought that the whole notion of "control" in trademark licenses is outdated to the extent it can affect the validity of the licensed mark.  But for now, we're probably stuck with it.

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Just now, UtBlaw said:

That was my other main thought—not many entities exist that would create confusion about the identity of a major university.

And you just reminded me why I hated IP exams. Because the factual analysis in those close cases tied me up in knots and made my essays completely disorganized because it slowed me down so much I was reduced to just throwing semi-coherent phrases about desperately trying to get points I didn’t deserve. I thought a C was spot on. My other C was federal income tax. The statutes needed hyperlinks an they weren’t contained in my text book.

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10 minutes ago, TwiceHorn said:

There is a significant question in the law whether a trademark owner can impose "controls" on the use in a passive way, such as simply by specifying in a contract exactly how the mark can be used, or whether they have to actively monitor usage on an ongoing basis.

There is also a school of thought that the whole notion of "control" in trademark licenses is outdated to the extent it can affect the validity of the licensed mark.  But for now, we're probably stuck with it.

Someone told me a few teams were allowing it. I never checked because I thought the person was confused and it wasn’t possible but now I’m 50/50 on whether that person was right. Maybe I could check, maybe I could be lazy. Time will tell.

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11 minutes ago, UtBlaw said:

Someone told me a few teams were allowing it. I never checked because I thought the person was confused and it wasn’t possible but now I’m 50/50 on whether that person was right. Maybe I could check, maybe I could be lazy. Time will tell.

Well, I should say, in Texas, the statute itself forbids use of institution trademarks.

Almost all of the laws require that whatever NIL contract entered into must comply with the "team contract."

It could very well be that team contracts provide that players aren't to make use of institution trademarks, in any circumstances, let alone NIL things.  Of course team contracts can be revised much more easily than statutes.

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10 minutes ago, TwiceHorn said:

Well, I should say, in Texas, the statute itself forbids use of institution trademarks.

Almost all of the laws require that whatever NIL contract entered into must comply with the "team contract."

It could very well be that team contracts provide that players aren't to make use of institution trademarks, in any circumstances, let alone NIL things.

Yeah, if all teams want to be strict about this, then they can prohibit use of their marks in the team contracts, which won’t run afoul of any NIL laws. However, like we discussed, if one school starts to allow it, then we may have a race to the bottom because any big time school that allows it, is going to put a lot of pressure on all the others. 
 

I also wonder how strictly UT would enforce it. Will filming a quick sponsorship video with team gear on get them in trouble? The possibilities of minor mark infringements are endless. 

Edited by Burt Macklin
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2 minutes ago, Burt Macklin said:

Yeah, if all teams want to be strict about this, then they can all for use of their marks in the team contracts, which won’t run afoul of any NIL laws. However, like we discussed, if one school starts to allow it, then we may have a race to the bottom because any big time school that allows it, is going to put a lot of pressure on all the others. 
 

I also wonder how strictly UT would enforce it. Will filming a quick sponsorship video with team gear on get them in trouble? The possibilities of minor make infringements are endless. 

Yep, and it's already becoming clear that some of the players are kind of bristling under it and may kind of deliberately fail to understand what "use of marks" means.

It is gonna be interesting.  As in "may you live in interesting times."  Also, "we'll see."

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2 hours ago, UtBlaw said:

Someone told me a few teams were allowing it. I never checked because I thought the person was confused and it wasn’t possible but now I’m 50/50 on whether that person was right. Maybe I could check, maybe I could be lazy. Time will tell.

This is part of the non-uniformity issue. Individual states now have non-uniform statues such that an athlete in Texas will have substantively different NIL rights than athletes in another state. That in itself is disruptive to recruiting. 

Hence, the request for federal legislation. 

The real problem here is the Sup Ct. has indicated a need for clarifying legislation to help the courts avoid legislating from the bench. 

Any initial comprehensive legislation (either NCAA or Congress) will have faults and neither the NCAA or Congress wants fingers pointed at them for passing deeply flawed legislation. 

So the states are being forced at act and the patchwork or individual state laws is just going to make this new era start off in a mess. 

I cant think of two groups of self-absorbed “leaders” who are more feckless than the NCAA school presidents and Congress.

Legislators such as Cory Booker are hoping to grandstand on this issue to help bump national name recognition in anticipation of 2024, but neither anyone in Congress or any NCAA school leadership is offering any legitimate leadership to help solve the issue. 

Have fun, athletes. Go get whatever you can. 

 

If anyone is interested, "congress.gov" has a search feature to look at pending legislation, including that dealing with "NIL"

https://www.congress.gov/search?q={"congress"%3A["117"]%2C"source"%3A"all"%2C"search"%3A"NIL"}

 

Edited by Randolph Duke
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4 hours ago, UtBlaw said:

It’ll all depend on if he gets more exposure here vs anywhere else. More popularity more money.


he’s already bigger than any college program before stepping on campus 

+ he can’t wear his college gear for NiL’s 

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When this initial surge is over (which is going to be fucking hilarious to watch who ends up with NILs for what) I think the market is going to settle down quite a bit as I think a lot of orgs will find there isn't much value in most of these deals for them.  There are probably as many if not more PROFESSIONAL "big sport" athletes that have little to no NIL type arrangements of any significance as those that do.  Take somebody like a Zach Martin for the Cowboys, All-Pro 6 times and I'm not sure I have ever seen him do much of anything and he's a known name.   I'm sure he has some things here and there and likely commands some money to speak at a lineman camp or shit like that but he probably ain't making much off his NIL beyond that which he just walks into as an NFL player.  

That said there are some college players that will do extremely well with this and it will be damn interesting down the road how locker rooms full of 18-22 year olds who this still isn't truly a "job" for deal with one guy over in the corner making shit tons while the rest of them have little to nothing to show for it.  Zach Martin gets paid a shit ton of money by the Cowboys, some starting OG for State U....no.  

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47 minutes ago, Surly Bevo said:

When this initial surge is over (which is going to be fucking hilarious to watch who ends up with NILs for what) I think the market is going to settle down quite a bit as I think a lot of orgs will find there isn't much value in most of these deals for them.  There are probably as many if not more PROFESSIONAL "big sport" athletes that have little to no NIL type arrangements of any significance as those that do.  Take somebody like a Zach Martin for the Cowboys, All-Pro 6 times and I'm not sure I have ever seen him do much of anything and he's a known name.   I'm sure he has some things here and there and likely commands some money to speak at a lineman camp or shit like that but he probably ain't making much off his NIL beyond that which he just walks into as an NFL player.  

That said there are some college players that will do extremely well with this and it will be damn interesting down the road how locker rooms full of 18-22 year olds who this still isn't truly a "job" for deal with one guy over in the corner making shit tons while the rest of them have little to nothing to show for it.  Zach Martin gets paid a shit ton of money by the Cowboys, some starting OG for State U....no.  

It is a myth to believe there is a large collection of wealthy alumni controlling various incorporated entities and previously unable to develop an ability to direct excess funds to college athletes.

The world of those wanting to direct excess income to college athletics is well developed and those wanting to help support college athletics is extremely well developed.

That they can now convert corporate property (money) to their personal use (supporting college athletics) is also a myth. Such activity has long been unlawful on various levels.

Very few professional athletes have a public presence that justifies paying them to endorse corporate products or services.

Even fewer amateur athletes will have such a presence.

There was a time when people argued just as passionately that allowing college football games to be televised would be "the end of college football." Ditto for when individual schools were given control of their individual media rights, allowing freshman to play varsity sports and allowing female cheerleaders.

If allowing student-athletes to enter into NIL agreements will be the end of college sports, it will just be the most recent in a very long line of actions that have "ruined" college sports.

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2 hours ago, tx 3 putt said:

+ he can’t wear his college gear for NiL’s 

We don’t know that yet. It’s up to the University if they allow it. The Texas law’s only enforcement method is allowing the school or NCAA to punish him/take away his eligibility. So if the NCAA doesn’t outlaw using a school’s mark, then a player can use it as long as the university allows it. 

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2 hours ago, Randolph Duke said:

It is a myth to believe there is a large collection of wealthy alumni controlling various incorporated entities and previously unable to develop an ability to direct excess funds to college athletes.

The world of those wanting to direct excess income to college athletics is well developed and those wanting to help support college athletics is extremely well developed.

That they can now convert corporate property (money) to their personal use (supporting college athletics) is also a myth. Such activity has long been unlawful on various levels.

Very few professional athletes have a public presence that justifies paying them to endorse corporate products or services.

Even fewer amateur athletes will have such a presence.

There was a time when people argued just as passionately that allowing college football games to be televised would be "the end of college football." Ditto for when individual schools were given control of their individual media rights, allowing freshman to play varsity sports and allowing female cheerleaders.

If allowing student-athletes to enter into NIL agreements will be the end of college sports, it will just be the most recent in a very long line of actions that have "ruined" college sports.

You wrote a lot of words to respond to something I didn't say "it would be the end of college sports". I said I think it won't be as big a boon long term to many athletes as orgs figure out where the value really is , establish Q scores for these guys etc and then it will be "interesting" how that plays in the locker room between the haves and have nots.  I'm all for this and  it's not destroying anything. It will have to be dealt with by coaches and admins etc and I am quite certain that they will figure that out with the occasional temper tantrums etc that come along with all things team sports related.

Also the fact that you wrote a lot of words....not surprising.  

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8 hours ago, TwiceHorn said:

Well, I should say, in Texas, the statute itself forbids use of institution trademarks.

Almost all of the laws require that whatever NIL contract entered into must comply with the "team contract."

It could very well be that team contracts provide that players aren't to make use of institution trademarks, in any circumstances, let alone NIL things.  Of course team contracts can be revised much more easily than statutes.

Looks like Ohio State, at least, is going to let their players use school facilities and wear Ohio State gear for NIL purposes. I doubt they’ll be alone. This is what I was afraid of because now our statute puts us at a competitive disadvantage.

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6 hours ago, tx 3 putt said:


he’s already bigger than any college program before stepping on campus 

+ he can’t wear his college gear for NiL’s 

It appears some schools will allow him to wear it (e.g. tOSU). But thanks to the Texas Legislature UT will not be one of those schools.

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5 hours ago, Burt Macklin said:

We don’t know that yet. It’s up to the University if they allow it. The Texas law’s only enforcement method is allowing the school or NCAA to punish him/take away his eligibility. So if the NCAA doesn’t outlaw using a school’s mark, then a player can use it as long as the university allows it. 

This was confusing because most state laws appear to allow it. Unfortunately, Texas NIL statute prevents it unlike other states and schools. The NCAA is irrelevant because Texas law prohibits it. Sucks for all the Texas schools.

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8 hours ago, BurntOrange&White said:

Who gives a shit about a players specific brand and colors. Why the fuck haven’t any of our big business BMDs signed players to fat contracts. 
 

There is no excuse for McCombs to not already given Bijan 50k

Bijan endorsing his dealership is worth at least $50k (and prolly some cars too). All above board.

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On 7/1/2021 at 8:54 AM, NoName said:

i guess the question is how many tshirts you have to sell to basically make a few bucks?

not a TON. will they make it big? no. but is it nice when it come to mailbox money for a college dude who basically just has to play football and tweet links to their branded stuff? absolutely.

These clothing businesses are taking advantage of these kids, hoping fans will buy the merch no one wants to help the athletes.

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3 hours ago, Surly Bevo said:

You wrote a lot of words to respond to something I didn't say "it would be the end of college sports". I said I think it won't be as big a boon long term to many athletes as orgs figure out where the value really is , establish Q scores for these guys etc and then it will be "interesting" how that plays in the locker room between the haves and have nots.  I'm all for this and  it's not destroying anything. It will have to be dealt with by coaches and admins etc and I am quite certain that they will figure that out with the occasional temper tantrums etc that come along with all things team sports related.

Also the fact that you wrote a lot of words....not surprising.  

I meant to agree with your comment. I apologize for insulting you by valuing your comment:

“There are probably as many if not more PROFESSIONAL "big sport" athletes that have little to no NIL type arrangements of any significance as those that do. “

 

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Quick question. 

After this NIL stuff, do the colleges now have to pay players for their NIL in programs or other advertising for the programs? 

If not,  then CAN they?  I mean,  if you wanted to buy a player,  why not just give them a chunk of money for their NIL during recruiting for all the appearances, photos,  and etc used to market the program?

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48 minutes ago, CooterBrown said:

If i was a BMD, I’d just straight up announce that all 5 star signees get a $100,000/year deal for whatever company I owned. Just lay that big dick out on the table. It’s a fucking rounding error for some of them.

Why give the 9.95/ any credit for their rankings?  

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