The LEAD1 Angle with Tom McMillen: Recent Episodes

LEAD1 Association

The LEAD1 Angle will provide informative and engaging content to the LEAD1 membership and college sports community on issues in college sports that warrant more discussion. Our audience will hear diverse perspectives on these key topics from some of the most knowledgeable professionals in our industry.

Special Guest, Jim Cavale, Founder & Chairman of Athletes.org

On Tuesday, LEAD1 Association (“LEAD1”) released its 22nd episode of the “LEAD1 Angle with Tom McMillen,” where LEAD1 President and CEO, Tom McMillen, interviewed Joe Moglia, chair of athletics at Coastal Carolina, and the former head football coach at the school, as well as former chairman of the board at TD Ameritrade.

Moglia believes that college sports should be run more “like a business,” and that the industry has lost one of its core principles of “commitment.” On that front, Moglia would modify college sports in some of the following ways.

First, Moglia believes that coaches in college football should serve out the duration of their contracts. Unlike the NFL, which has an Anti-Tampering policy, which prevents coaches from leaving their current teams, college football coaches often leave their schools for other opportunities during the term of their contracts. The new school, often with more resources, will “buyout,” the coaches’ contract at his former school. “In the NFL and in the business world, you have to live up to the contract,” said Moglia. “We have buyouts.”

Moglia also believes that the NCAA’s former transfer rule should be reinstituted or at least that student-athletes should be required to stay at their institutions for a minimum of one year upon signing a letter of intent.

Second, Moglia would empower an “Executive Committee” for college sports with total autonomy to govern the enterprise. To eliminate conflicts of interest, the Committee members would not be affiliated with a school or conference and would ideally have a business background. Such Committee members could be voted in and out by the membership. In that vein, Moglia believes that FBS football splitting from the NCAA “would be a good first step,” but that such executive leadership team would still be needed.

Third, Moglia believes that the Power Five schools should band together on television contracts thereby creating “super leagues,” for more leverage in negotiations with media networks. The Power Five, for example, could be broken down into multiple groups, with the top tier group negotiating on behalf of college sports. This would “maximize [industry] potential,” and could happen after some of the upcoming grants of rights from schools to conferences expire.

On Tuesday, LEAD1 Association (“LEAD1”) released its 21st episode of the “LEAD1 Angle with Tom McMillen,” where LEAD1 President and CEO, Tom McMillen, interviewed Martin Lycka, Senior Vice President for American Regulatory Affairs & Responsible Gambling at Entain, a leading global sports betting, gaming, and interactive entertainment group, which operates in the U.S. through BetMGM, jointly owned with MGM Resorts International.

In the U.S. today, betting on college sports is legal in more than 30 states and growing rapidly. As such, the U.S. is the only country in the world with substantial legalized sports betting on college campuses. With such activity, comes increased significant potential liabilities for colleges and universities. Other recent changes in college sports such as the NCAA relaxing its NIL rules, also underscore some of the new ways that sports betting may exist on college campuses. For these reasons, McMillen wanted to chat with Lycka to discuss some of these potential risks. Here are some of the important takeaways from the podcast episode:

There are new risks associated with the intersection between NIL and legalized sports betting. While most state NIL laws and institutional policies on NIL prohibit college athlete NIL deals with sports betting entities, some states and institutions allow for this. According to Lycka, because of the communal nature of college campuses, information that may be relevant to betting could spread “like wildfire.” College students may even unwittingly share information, like seeing an injured player walk around campus, and text that information to their friends. In addition, “fringe players,” may be tempted to share inside information related to their team if they are attracting significantly fewer NIL opportunities than their star teammates.
The pervasiveness of sports betting advertisements could also lead to risks. The NCAA Division I Interpretations Committee recently provided guidance that schools and conferences can sign deals with data companies that sell that information to sportsbooks. The Mid Atlantic Conference recently announced such an agreement with Genius Sports, and athletics departments, such as LSU and Maryland, both recently agreed to partnerships with sportsbooks. More and more college sports entities will likely follow suit. Accordingly, if sports betting becomes more of an accepted normality, the possibility for a scandal(s) may increase. There are also concerns that in-play betting, or prop bets, could lead to irresponsible betting.
Lycka believes that certain safeguards can mitigate these risks, including: (1) providing education on college campuses about responsible betting and explaining how betting works (which could reduce some of the temptations to bet and/or get involved in illicit betting activities); (2) constantly monitoring games through sophisticated sports integrity teams who can red flag suspicious behavior, and (3) enforcing rules that prohibit minors from betting.

More in the podcast episode can be found on sports wagering implications for college sports, including on esports betting.

On Tuesday, LEAD1 Association (“LEAD1”) released its 20th episode of the “LEAD1 Angle with Tom McMillen,” where LEAD1 President and CEO, Tom McMillen, interviewed Mike Schabel, CEO at Kiswe, a global technology company that empowers new digital at-home experiences for fans. McMillen wanted to share with his athletics departments a novel and modern approach to reach all fans more effectively. As such, here are some of the important takeaways from the interview:

While the linear/traditional cable television world is here to stay, cable subscribers have decreased year by year so there exists a significant population of “cord cutters” not currently engaged with content. These cord cutters are not addressed in the traditional cable model, and as such, do not have access to cable or sports packages. While the pie is growing for cable packages in college sports, an opportunity exists to connect with this cord cutting population, a typically younger audience, and get them engaged with content.
To get more cord cutters viewing content, Kiswe has adopted a “pay-per-view” model that offers consumers an opportunity to purchase content when they want. This web-based digital viewing experience, which can be viewed on any electronic device, allows consumers to buy their viewing experiences, but also provides an opportunity for them to engage with the content. Think of it like “what we do in boxing,” or “buying tickets for a game,” said Schabel. Plus, the pay-per-view experiences allows fans to contribute and interact from home.
Accordingly, Schabel offers the following advice for athletics departments:
1. “If they [fan(s)] have an interest in your content, they should have an ability to watch it from any device or platform,” said Schabel.
2. “Lean into alternative monetization opportunities,” such as selling tickets, experiences, and merchandise while consumers are engaged with your content.
3. “Lean into data,” so that you can “understand how deeply involved consumers are,” [with your content]. This provides a “rich story” about the consumer.
4. Consider creating “pay-per-view” experiences at your institution by understanding where “unsold rights are sitting.”

In short, linear distribution of content will continue, but institutions can consider adding a mixture of personalized experiences and more choices for fans, particularly to capture the cord cutters still cheering from home.

On Tuesday, LEAD1 Association (LEAD1) released its 19th episode of the “LEAD1 Angle with Tom McMillen,” where LEAD1 President and CEO, Tom McMillen, interviewed Congressman David Kustoff (R-TN), who recently introduced the “NCAA Accountability Act of 2021” in the House of Representatives in late 2021. Kustoff’s bill would make the NCAA enforcement process more closely resemble the U.S. legal system, while providing Department of Justice (DOJ) oversight into college sports. The timing of the episode is relevant as just prior to Kustoff releasing his bill, LEAD1 submitted its recommendations, endorsed by 75 LEAD1 athletics directors, to the NCAA to improve the NCAA infractions system. Here are some of the important takeaways from the interview:

Kustoff’s bill includes explicit due process requirements that would more closely align NCAA enforcement proceedings with the traditional U.S. legal system. NCAA v. Tarkanian, a 1988 U.S. Supreme Court decision, ruled that the NCAA is not a “state actor” subject to federal due process requirements. Because of this decision, the NCAA is not required to implement such due process standards as a governmental entity. Accordingly, Kustoff’s bill would implement certain due process standards on the NCAA including a two-year statute of limitations for bringing about allegations of infractions on institutions (including notice requirements), time limits on adjudicating cases, mandatory arbitration in certain circumstances, and DOJ supervisory authority over the NCAA.
NCAA member institutions could compel entry into arbitration. The NCAA currently plays the role of “investigator, prosecutor, judge, jury, and executioner,” said Kustoff. Under Kustoff’s bill, if there were a dispute regarding the NCAA’s punishment of a member institution, the member institution could compel entry into arbitration. Such arbitration would help make the current system more “independent” (away from the NCAA) and resolve disputes in a timely manner. The arbitration would be conducted by a three-person panel with the NCAA and member institution each appointing one arbitrator of their respective choosing and the third arbitrator would be appointed in agreement by the two arbitrators appointed by each party. Institutions, athletes, fans, and legislatures would all have “more faith” in such system, said Kustoff.
Kustoff views improving the NCAA infractions system as a bipartisan issue. Although there are difficulties in passing anything in the Congress, Kustoff views his bill as one where Republicans and Democrats align. The Congressman anticipates that the bill may pass the House Committee on Education and Labor by the end of the year, with a companion bill coming soon in the Senate. Questions, however, remain about what role outside entities should play in securing fair and effective “law” enforcement by a private organization. In fact, the issue of outside entities providing oversight over the NCAA is not a new one. In the early 1990s, McMillen introduced legislation in the Congress that would have required the NCAA to provide “more” due process in all enforcement proceedings. But perhaps the NCAA infractions system has reached a tipping point with stakeholders more and more frustrated about some of the issues addressed in Kustoff’s bill.

More in the recording can be found on the intersection between the NCAA, the Congress and due process considerations.

On Tuesday, LEAD1 Association (LEAD1) released its 18th episode of the “LEAD1 Angle with Tom McMillen,” where LEAD1 President and CEO, Tom McMillen, interviewed former West Virginia University (WVU) Director of Athletics, and NCAA Executive, Oliver Luck, about some of the latest name, image, and likeness (NIL) trends and other relevant college sports regulatory issues. The interview is particularly timely as Luck recently announced the creation of “Country Roads Trust,” an independent company set up to obtain contributions to create NIL opportunities for WVU college athletes. Here are some of the important takeaways from the episode:

“Outside” NIL collectives are dominating the NIL headlines, but questions remain as to whether NIL facilitation should fall under direct institutional control. Because of various state laws and institutional policies prohibiting athletics departments from arranging or facilitating NIL agreements, NIL collectives have surfaced, whereby resources from businesses, boosters, fans, and donors are pooled together to create NIL opportunities for college athletes. According to Luck, on collectives, the essential regulatory consideration is whether outside third parties, such as collectives, should control NIL opportunities for college athletes or whether these collectives should fall under the jurisdiction of athletics departments, so that they can have more oversight of NIL. Under the latter scenario, however, legal questions remain as to whether any institutional affiliation with a collective would trigger Title IX scrutiny, given potential involvement of the institution.
As the NCAA transforms itself, “pay for play” will be harder to define and enforce in the future. The NCAA’s Interim NIL Policy prohibits pay for play and improper recruiting inducements. According to Luck, while “pay for performance” and “recruiting inducements” can be policed to some extent, “pay for play” is much harder to regulate given that the term is ill-defined, and all athletes can now monetize their NIL. “It’s going to be hard for the NCAA to get the horse back into the barn in any meaningful way,” said Luck. While the new NCAA Constitution states that institutions may not compensate athletes for “participating in a sport,” according to McMillen, as the Constitution is currently written, a third party or even a conference could decide to be more “open” to pay for play. According to McMillen, the more disconnected that intercollegiate athletics is from higher education, the more interest that it may create for the Congress to get involved in regulating college sports.
NIL and the transfer portal are “perfectly synced.” Because athletes in all sports can transfer immediately, there are now three “moments” of athlete retention that institutions must focus on including (1) the recruitment of athletes from high school; (2) keeping athletes on campus; and (3) monitoring the transfer portal. The new transfer environment has essentially created “free agency” in college sports with very limited restrictions. According to Luck, this environment “perfectly syncs” with the new NIL universe as college athletes can base their transfer decisions, at least to some degree, on NIL opportunities.
Given the devolution of the NCAA, Luck is “not optimistic” that a national college sports enterprise can be effectively run at the conference level. According to Luck, the lack of consensus on College Football Playoff (CFP) expansion may be emblematic of the ability for various conferences to effectively work together. It is worth noting that Luck is open to the concept of a separate governing structure for Football Bowl Subdivision (FBS) football.

More in the recording can be found regarding McMillen and Luck’s discussion on the current college sports regulatory landscape.

Employment status of college athletes. Name, image, and likeness (NIL). The Supreme Court’s Alston decision. National Labor Relations Board (NLRB). And more. If you’re a college sports stakeholder, by now, you’re very aware of all the legal issues that are changing the landscape of the enterprise. That is why LEAD1 President and CEO, Tom McMillen, former Congressman, booked Gabe Feldman, Director of the Tulane University Sports Law program, as the 17th guest on the “LEAD1 Angle with Tom McMillen.” The pair recently presented before the Knight Commission on Intercollegiate Athletics; McMillen bringing the political angle, and Feldman the legal viewpoint. They continued their discussion on the LEAD1 Angle. Here are some of the main takeaways from their conversation:

On NIL, according to Feldman:

How the NCAA enforces NIL will impact their ability to defend the principle of “amateurism” in the courts. Given the NCAA’s permissive Interim NIL policy, if the NCAA continues to allow for huge NIL deals, it will undermine their ability to defend amateurism or prohibitions on “pay for play” in the courts under antitrust law. In this vein, the Supreme Court Alston decision, Justice Kavanaugh’s concurrence specifically, makes the point that college sports should be treated more like other enterprises, and not given differential treatment based upon amateurism. For college sports to protect the collegiate model, the enterprise must focus on the academic mission as the differentiating feature from other enterprises.
NCAA investigations on NIL deals, like BYU and Miami, are fact determinative, but may be more of an exploratory exercise at this point.The NCAA’s Interim NIL policy does not permit compensation for work not performed by college athletes (e.g., legitimate NIL deals must be quid pro quo). The NCAA enforcement issue, therefore, is whether these “collective” NIL deals, like Miami and BYU, are legitimate and not just an “end-around” for boosters to funnel cash to athletes. Because the NCAA’s Interim NIL policy is very deregulated and generally defers to state laws where applicable, recent reports of the NCAA investigating various institutional NIL agreements may be more of an exploratory exercise to learn more about the nature of the deals, than a true investigation.
A “crisis” may need to occur for the Congress to get involved in college sports. As McMillen has stated, a crisis, like a college athlete suffering significant harm because of an NIL agreement, due to lack of regulatory oversight, may create the type of impetus for the Congress to get involved in college sports. Unlike the current NIL landscape, according to Feldman, professional sports are heavily regulated, including with respect to agent involvement, so the NIL landscape may be unfortunately “ripe” for some significant negative event to occur to a college athlete.

On the employment status of college athletes, according to Feldman:

It is plausible that the new NCAA Division I, being charged with implementing transformative change, could factor in collective bargaining for college athletes into their rules-making considerations. DeMaurice Smith, Executive Director of the NFLPA, recently made comments that there needs to be a new model in college sports with college athletes having bargaining power but not defined as employees. He believes a conference could lead the charge by creating a College Athlete Corporation where college athletes would share in revenue and have other bargaining rights. According to Feldman, new NCAA Division I could consider modifying pay for play rules considering this possibility, particularly if athletes were to bargain for a portion of television revenue.
Albeit unlikely, College Basketball Players Association recent unfair labor practice charg

On Wednesday, LEAD1 Association (“LEAD1”) released its 16th episode of the “LEAD1 Angle with Tom McMillen,” where LEAD1 CEO and President, Tom McMillen, interviewed Playfly Sports CEO and Founder, Michael Schreiber, on the topic of multimedia rights (MMR) and related opportunities in college sports. Playfly Sports is one of the big new players in MMR in our enterprise and helps collegiate athletics departments, and other sports enterprises, develop sophisticated strategies to monetize and better promote their media content.

There are a couple new trends in college sports including name, image, and likeness (NIL), and increased over-the-top (OTT) digital streaming, that according to Schreiber, will help create more MMR opportunities for collegiate athletics departments. On NIL, many new advertisers are coming into college athletics using college athletes as influencers to promote their brands. This new trend could indicate that many new companies may be willing to spend money in college sports perhaps more broadly in the future.

In that regard, some NIL critics have stated that one unintended consequence of NIL is that funds that would otherwise be directed to an entire athletics department may now only be directed solely towards individual college athletes. In fact, some of the NCAA’s earliest proposed NIL legislation precluded third parties from contracting with both an institution and an institution’s college athletes. While there may be some examples of displacement, Schreiber, however, believes that third parties, institutions, and college athletes all working together can create even greater opportunities for these stakeholders.

In addition, the trend of athletics departments creating OTT digital streaming, content distributed directly to their fans, as opposed to just traditional linear cable television, according to Schreiber, will also help collegiate athletics departments bring in more broadcast and advertising monies than before. “Direct communication with fans [such as direct to consumer subscriptions] and building media business models [based upon that] is the new focus,” [in terms of consumption] said Schreiber.

In that vein, because the consumption of college sports can be fragmented among interested fans, whether due to geographical, age, or other differences among fans, collegiate athletics departments should consider novel approaches in their MMR efforts to create more “membership” and “community” around their fans, said Schreiber. “We want our partners to “think more like a media company.”

So as college sports evolves with NIL and digital trends like OTT, more revenue streams and other opportunities can be maximized for those athletics departments that choose to embrace it.

More in the recording can be found on the intersection between college sports and the latest MMR trends.

On Tuesday, LEAD1 Association (“LEAD1”) released its 15th episode of the “LEAD1 Angle with Tom McMillen,” where LEAD1 CEO and President, Tom McMillen, interviewed Rep. Lori Trahan (MA-03) to discuss her proposed College Right to Organize Act, which would amend the National Labor Relations Act (NLRA) to define college athletes as employees.

Trahan’s interest in college sports stems from her being a former Division-I volleyball player, which helped her become the first person in her family to graduate college. Because of her background, Trahan fully understands the sacrifices that college athletes make in terms of balancing athletics and academics. In addition to her collective bargaining legislation, Trahan has sponsored a name, image, and likeness (NIL) bill and is a member of the House Energy and Commerce Committee, which is scheduled to hold a hearing on college athletes NIL legislation this Thursday.

On the employment issue, many critics of collective bargaining and possibly revenue sharing point out that all non-revenue and low revenue sports, not subject to Title IX, would be cut because of budget pressures, which would irreparably harm our Olympic effort that depends on college athletes for its pipeline of Olympic participants. Employment rights would also possibly subject college athletes to social security and Medicare taxes, federal and state unemployment taxes, worker’s compensation insurance, as well as at will employment status, which could lead to termination for non-performance on the playing field. Employment rights could also further complicate universities balancing academic and athletic priorities.

Trahan’s core response to these possible consequences of employment rights is the following—defining and organizing college athletes as employees would provide them with the necessary tools and voice to best advocate for their futures, and further close gender equity issues within college sports.

More can be found in the interview on the intersection between collective bargaining and Title IX, as well as other possible employment status considerations.

There is a saying that history often repeats itself. During its infant stages, the NCAA adopted a principle of institutional autonomy called the “Home Rule” principle. In other words, college sports agreed to act individually on regulating the enterprise and generally no national rules were implemented until the NCAA’s 1948 “Sanity Code,” which resulted in more centralization of rulemaking and a more powerful NCAA. In terms of present day, after NIL, and the Supreme Court Alston decision, the answer for college sports may very well look like a variation of Home Rule.

This was the genesis of LEAD1’s 14th episode of the “LEAD1 Angle with Tom McMillen,” released today, where LEAD1 CEO and President, McMillen, chatted with Andrew McGregor, college sports historian and professor of history at Dallas College. McGregor recently published an Op-ed in the Washington Post (link) about the parallels between Oklahoma and Texas moving to the SEC, relative to the history of Oklahoma’s long-standing fight against the NCAA’s role as the central authority in college athletics. In fact, Oklahoma was one of the first institutions to be put on probation when the NCAA first established regulatory authority over the enterprise in the mid twentieth century, and, Oklahoma challenged the NCAA’s former television monopoly, which eventually empowered the conferences to negotiate their own television contracts, leading to our current landscape today. In other words, the recent expansion of the SEC, and conferences taking more authority, is emblematic of the NCAA’s former Home Rule principle, or further deregulation of the NCAA.

During the episode, McMillen and McGregor further discuss that if the current version of Home Rule failed in the years ahead, it may be up to the Congress to restore the powers to a national organization to create the more even playing field, which has been so fundamental to college sports. Today’s version of Home Rule, for example, could create even further stratification between the resource rich and lesser resource schools, creating greater impetus for the Congress to possibly intervene. McMillen and McGregor also reimagine the intersection between athletics and academics, questioning whether college sports has become more of an entertainment enterprise, than an educational one. More on how history is repeating itself in college sports, including the possible status of student-athletes as employees, can be found in the episode.

On Tuesday, LEAD1 Association (“LEAD1”) released its latest episode of the “LEAD1 Angle with Tom McMillen.” LEAD1 President and CEO, McMillen, sat down with Lyle Adams, CEO at Spry, a comprehensive platform that helps athletic departments adapt to the NIL landscape, particularly with regard to how student-athletes can disclose their prospective NIL opportunities, while helping institutions identify potential conflicts. Spry's main priorities are to keep student-athletes eligible (compliant), while increasing the efficiency of athletic departments and prioritizing student-athlete education.

If Adams’ name sounds familiar – it should. Adams and Spry have been a big LEAD1 supporter during this pandemic, most notably as the presenting partner for LEAD1’s virtual spring meeting. His team is also helping LEAD1 athletic departments better prepare for NIL changes coming soon. Adams’ story is admirable – he’s a former LEAD1 student-athlete, professional soccer player, and following his playing career, was one of the first employees at Uber. Those experiences, Adams describes, led to the creation of Spry. As an early Uber employee, Adams learned supply chain management , product and engineering tactics, which serve as a major influence for Spry’s platform and infrastructure.

In the interview, Adams discusses the intersection between NIL and technology. With thousands of potential student-athlete NIL deals among Division I college sports, and compliance departments limited to a couple of staff people, technology, according to Adams, can be used to effectively track disclosure of NIL deals and build intelligence in monitoring deals over time. Adams’ philosophy is aligned with LEAD1’s NIL Working Group’s principles, which has advocated for disclosure of all NIL deals, and using technology to help ensure regulatory compliance, including monitoring agent and booster activity. Spry’s platform, for example, can alert student-athletes whether agents are registered with the school and has similar software to identify conflict areas with boosters. Spry’s platform has extensive reporting functionality, which can identify opportunities that could be potentially harmful or malicious in nature.

McMillen asked Adams “what keeps you up at night?” Adams responded by bringing up a fairly buried point in the NIL conversation –some of the unintended consequences of NIL, particularly Pell Grant eligibility. In general, students whose total family income is $50,000 a year or less qualify for Pell Grants. Pell Grant calculations are based upon a number of factors including cost of attendance (which varies by institution), status as a full-time student, and other considerations. Accordingly, student-athletes need to consider whether NIL endorsements are lucrative enough to potentially sacrifice their financial aid.

While Adams believes that NIL will be a tremendous opportunity [for at least half of all student-athletes to earn some additional cash], in addition to being a real-life apprenticeship opportunity, with opportunity comes some risk. Adams’ platform, Spry, can help LEAD1 athletic departments mitigate such risks.

On Tuesday, LEAD1 Association (“LEAD1”) released its 12th episode of the “LEAD1 Angle with Tom McMillen.” In this latest episode, McMillen is joined by Richard Giller, Partner at Pillsbury, a familiar guest for the LEAD1 audience who appeared on a LEAD1 panel last year providing expertise on the impact of event cancellation and business interruption insurance for college sports. This time, the focus of McMillen and Giller’s conversation centered on possible name, image, and likeness (NIL) insurance issues as well as other insurance topics that athletic departments should be thinking about.
With regard to NIL, the recent Tiger Woods car crash got Giller thinking about endorsement insurance issues for college sports. Giller, a Los Angeles resident who was on the road that day, actually saw Woods’ recently flipped car right after the crash. From an NIL standpoint, Giller talks about how it is common for endorsement deals to have a “pay for play clause” where an athlete could be required to actively play his or her sport (as opposed to, for example, being permanently sidelined from injury) to receive endorsement payment pursuant to the contract. Giller thinks this situation would only apply towards big national NIL contracts at the college level, given that the threshold for professional athlete endorsement contracts is typically at least $500,000.
Giller also described other insurance policies that all college athletes should consider. While the NCAA provides permanent total disability (PTD) coverage (i.e., lump sum for not being able to play sports again), the NCAA does not offer loss of value (LOV) insurance (i.e., injured, but not permanently) because the coverage has not shown to consistently benefit athletes who file a claim. According to Giller, “the bigger the claim, the more likely to be denied by an insurance company.”
In addition, McMillen and Giller discussed the trend of NCAA Student Assistance Fund (SAF) monies being more and more directed towards paying insurance premiums as opposed to other intended areas for student-athletes such as educational, health, safety, and personal or family expenses.
More can be found in the interview on coverage for COVID-19 insurance claims.

On Tuesday, LEAD1 Association (“LEAD1”) released its 11th episode of the “LEAD1 Angle with Tom McMillen,” where CEO & President McMillen chatted with Altius Sports Partners (“Altius”) CEO & Founding Partner, Casey Schwab, the former Vice President of Business and Legal Affairs at the National Football League Players Association (“NFLPA”). Altius is one of the leading companies in the NIL marketplace focused on providing expertise to institutions with regard to the proposed NIL rule changes.

The interview focuses on three big NIL institutional issues – (1) Use of institutional marks; (2) Professional representation; and (3) Broader concerns among athletic directors such as recruiting, culture, and time management.

Schwab believes that depending upon the proposed rule changes, student-athletes should be allowed to use institutional marks, if granted permission from institutions, given that there will be synergy to enhance both institutional and student-athlete brands. In that regard, the value that institutions provide in terms of offering their brand to student-athletes should not be overlooked. The enterprise of college athletics could also benefit from targeting the thousands of student-athlete followers on social media, who are not necessarily college sports fans, but who currently follow student-athletes for other reasons.

On professional representation, Schwab is concerned about the proposed restrictions on college sports NIL agents not being allowed to represent student-athletes for professional sports opportunities. Making this distinction, according to Schwab, will limit the number of qualified and experienced representatives for student-athletes, who fully understand how to maximize branding for both institutions and student-athletes.

Schwab also believes that guardrails and strict enforcement will be needed to reduce the possibility of disguised recruiting payments, and that education will be needed to mitigate potential locker room cultural issues, when some student-athletes may receive significantly more NIL money and overall exposure. While potential group licensing and social media agreements will be less time consuming than in-person appearances for endorsements and autographs, Schwab believes that most NIL deals will be in-kind (i.e., trade-offs where student-athletes receive free products and services for advertising brands).

With the nation celebrating the life and mission of Rev. Martin Luther King Jr., and a new administration preparing to take over this week in Washington, on Tuesday, LEAD1 Association released its latest episode of the “LEAD1 Angle with Tom McMillen,” to discuss the association’s white paper that it released earlier this month on rectifying racial disparities in college sports. In this episode, LEAD1 CEO Tom McMillen, is joined by Sean Frazier, the Director of Athletics at Northern Illinois University, and Dr. China Jude, the Senior Associate Athletic Director and Senior Woman Administrator at the University of Wyoming, who co-chaired LEAD1’s diversity, equity, and inclusion working group, which created the paper. This interview provides the college sports community with a more condensed version of LEAD1’s webinar that it held on Thursday January 7th, outlining the purpose of the paper and highlighting some if its recommendations.

One of the main messages for college sports is the following – Although there may be some legal hurdles that would likely preclude entities such as the NCAA, or College Football Playoff (CFP), from ever mandating a “Rooney” type rule, which requires the interviewing of diverse candidates in searches, college sports, collectively, can help create more intentionality with respect to highlighting people of color and growing the pipeline for coaching, and athletic administrator positions, thereby making diversity, equity, and inclusion a foundational element of the industry’s fabric.

LEAD1 released another episode of the “LEAD1 Angle with Tom McMillen,” with guest Will Stute, Partner at Orrick, who is the national trial counsel for the NCAA in concussion litigation. There is perhaps no one better to provide practical recommendations for LEAD1 athletic departments on the legal ramifications of student-athlete health and safety issues than Stute, who is currently representing the NCAA in several concussion-related cases.

In this regard, Stute would provide the following recommendations for LEAD1 athletic departments who now operate in a world of increased liability with respect to student-athlete health and safety issues, and other compliance issues, like legalized sports betting:

Before communicating health and safety policies on campus, athletic directors should ensure that such policies address applicable regulations, including any health and safety guidance from the NCAA;
It is not only important to build a compliant culture, but also to demonstrate and document such compliance. In other words, merely distributing athletic department written policies should be a minimum standard of due diligence. To demonstrate compliance, athletic directors should regularly meet and communicate with all their head coaches to discuss expectations and ensure accountability;
Athletic directors should ensure that medical personnel involved within athletics have the authority to exercise their professional judgment without interference;
Athletic directors should be vigilant by regularly monitoring team practices and related activities to ensure that required health and safety protocols are being followed; and
With respect to legalized betting on college sports, Stute encourages athletic directors to seek practical advice from compliance experts, even before any regulations become law within your state.

While such actions can never absolve all legal risk, following these recommendations can help athletic directors better balance the new litigious realties in college sports, while also running athletic departments in a common sense and practical manner.

In episode eight of the “LEAD1 Angle with Tom McMillen," LEAD1 CEO McMillen sat down with Counsel at Winstead, Mike Perrin, the former Athletic Director at the University of Texas (UT).

Like McMillen who began his tenure with LEAD1 in 2015, Perrin took the chair at UT the same year after spending 43 years as a trial lawyer. Perrin quickly became the face of UT athletics with an eye toward making himself available to the UT community. As Perrin alludes to in the interview, transitioning from trial lawyer to athletic director was an albeit unlikely, but natural switch, after being in the spotlight for so many years in court.

For those looking for a novel conversation on the biggest issues in college sports, this episode of the LEAD1 Angle does just that -- as it is less of an interview, but more of a conversation between McMillen and Perrin, who first met at a LEAD1 meeting in 2015, and have continued collaborating ever since.

In that regard, McMillen and Perrin discussed the economic and societal ramifications with respect to COVID-19. For college sports, ticket sales, sponsorships, concessions, parking, and other revenue streams have been cut. There may be lasting effects, even beyond a potential vaccine, such as sports fans’ heightened sensitivity to big crowds, less travel among schools, and more live streaming of sporting events. The current collegiate model may also soon change with the NCAA soon expected to vote on name, image, and likeness (NIL) rule changes, possible regionalization of sporting contests, and potential conference realignment when some of the larger television contracts expire in the next several years.

With the collegiate sports model continually heading towards full professionalization, perhaps the biggest takeaway from this LEAD1 Angle episode is that the value of a full collegiate scholarship should still not be overlooked. With the reality that very few student-athletes advance to play their sport professionally, the value of a debt-free education is still very real and can have a positive ripple effect on future generations, all while yielding immediate tangible benefits.

More in the recording can be found with respect to student-athlete NIL rule changes, Perrin’s message to young aspiring sports professionals, and his outlook on the future of college sports for the next several years.

This episode features LEAD1 CEO, McMillen, interviewing Sean Frazier, the Director of Athletics at Northern Illinois, and China Jude, the Senior Associate AD and SWA at the University of Wyoming. Frazier and Jude co-chair LEAD1’s working group that is currently examining issues related to diversity, equity, and inclusion in college sports. The working group features close to 30 athletic department administrators from across the Football Bowl Subdivision (FBS) and aims to provide actionable recommendations for college sports by the end of this year. Thus, the interview centers around some of the relevant issues, and genesis behind creating the working group.

According to Frazier and Jude, while each institution has its own set of unique challenges, the working group is focused on recommendations that can be applied in a meaningful and practical manner. While there are some more common issues often focused on such as hiring practices, this group’s work goes well beyond that norm such as by considering culture and climate as well as challenges and vulnerabilities with respect to athletic departments. “We want to create a safe and successful space for athletics departments to make sure that these issues can be addressed effectively,” said Jude.

As highlighted in the interview, LEAD1’s working group is also considering the role of search firms and possible methods for incentivizing the hiring of ethnic minorities in college athletics. While a possible recommendation, like the National Football League’s (NFL) “Rooney Rule,” might seem like a simple recommendation for college sports, Frazier and Jude recognize that there are many challenges that colleges and universities face that make the application of such a policy more difficult. Every state and campus, for example, has its own policies with respect to hiring practices. Therefore, “we want to do something that can be tailored to the institution that will create a pool of opportunities and help transcend certain state rules and regulations,” said Frazier.

With 2020 being a watershed moment in both the U.S. and college sports because of the election, movement for social justice, and major changes to NCAA rules, LEAD1’s soon-to-be-released recommendations come at an extremely relevant and important time.

This episode features LEAD1 CEO, McMillen, interviewing Ryan Bamford, the Director of Athletics at the University of Massachusetts (UMass). In mid-October, the NCAA imposed penalties on UMass for overpaying 12 athletes about $9,100 in financial aid over three years. The genesis of the interview, therefore, focused on Bamford’s reaction to the penalties imposed and lessons learned with respect to the NCAA enforcement process.

According to Bamford, who took the UMass chair in 2015, the violations date back to 2014, and were discovered a few years later. Bamford and his staff self-reported the violations to the NCAA in what later led to a several year NCAA enforcement investigation. In the interview, Bamford states that the overpayment was a mere clerical and administrative error, “very accidental” in nature, and did not lead to any unfair competitive advantage.

But, the NCAA’s Committee on Infractions, at least with respect to the punishment deployed, did not see it that way. Relying on case precedent, the NCAA imposed a $5,000 fine, two-years of probation, and vacated wins in men’s basketball and women’s tennis, including UMass’s 2017 Atlantic 10 championship in women’s tennis.

While UMass is expected to appeal this decision, the imbalance between penalties imposed and the accidental and small nature of the violations, should be troubling for LEAD1 athletic departments. “We need a more common sense to approach to infractions,” said Bamford. Bamford also noted that over the course of the investigation, UMass spent thousands on attorney’s fees. According to Bamford, a better outcome would have been a negotiated settlement, such as a possible fine, through the NCAA’s negotiated resolution process (which actually rejected hearing this case).

McMillen also made a point that there are perception issues when any self-regulating organization, like the NCAA, imposes steep penalties, but that the student-athletes should not bear the brunt of such punishment, especially in violations where they are not even involved.

More on what LEAD1 athletic departments should be aware of as it relates to enforcement, the impact of COVID-19 on UMass athletics, name, image, and likeness (NIL) compliance considerations, and how UMass is dealing with legalized marijuana in its state, can be found in the interview.

In the fifth episode of the “LEAD1 Angle with Tom McMillen,” LEAD1 CEO & President, Tom McMillen, is joined by Amy Perko, the CEO of the Knight Commission on Intercollegiate Athletics, an independent group that has led reform agendas in college sports since 1989. The interview highlighted some of the pertinent points in the Knight Commission’s recently released “NCAA Division I Governance and Organizational Competitive Structure Survey.”

According to Perko, the purpose of the Commission’s recent survey was to reexamine the NCAA’s Division I governance structure, with a specific aim of ensuring that incentives (largely financial) are properly aligned in college sports. The current NCAA Division I governance structure was created in 1974, with perhaps, the only real “significant change” occurring in 2014 with the changed structure for autonomy five institutions. Of note, more than three-quarters of respondents (comprised of various college sports stakeholders including national, conference, and campus leaders) believe that the NCAA needs major and immediate reform. Historically, however, this has not always been the case as university presidents and chancellors have been hesitant for any sort of congressional involvement in college sports. But times have changed with the majority of respondents, for example, in strong support of an antitrust exemption for college sports.

The survey also engaged in the possibility of certain restructuring with respect to the current multi-sport conference structure. The survey, for example, outlined the possibility of creating a new and separate (fourth) division within the NCAA for all Football Bowl Subdivision (FBS) sports except basketball and separating FBS football into a new entity funded by the College Football Playoff (CFP), which is currently a separate entity that administers the FBS football postseason tournament. According to Perko, “surprisingly,” there was “openness” to this type of reorganization.

The other major discussion topic addressed the financial “arms race” in college sports, which alludes to the what some have coined “outrageous” and increased spending among FBS institutions during the last several decades (obviously more exacerbated in recent years). According to the survey, the majority of FBS institutions believe they are spending too much trying to compete. Therefore, Perko believes that action is needed with respect to NCAA revenue distributions. Along these lines, Perko mentioned that there has been some confusion over the years due to the NCAA not administering a championship in FBS football. According to Perko, because of this, NCAA revenue distributions should only be based on sports in which the NCAA administers a championship, and, thus, FBS football should not count with respect to any calculations related to revenue distributed to FBS institutions.

More on these reform ideas and potential congressional involvement in college sports can be found in the interview.

Episode Four of the “LEAD1 Angle with Tom McMillen” features college sports attorney, Mit Winter, (Attorney at Kennyhertz Perry) to discuss all things Alston case.

If you missed it, in August, the NCAA adopted emergency legislation ending association-wide limits on education-related benefits that Division I men’s and women’s basketball and Football Bowl Subdivision (FBS) student-athletes can receive. The new legislation stems from a ruling upheld by the 9th U.S. Circuit Court of Appeals after the case was brought by former student-athletes, including former West Virginia football player, Shawne Alston. Here are some things you should know about the case from Winter:

In the beginning of the interview, Winter describes the procedural history of the case, which is important because although this case was filed years ago, there has been a lot of action since March 2019. In a nutshell, the District Court (trial court) stated that the NCAA cannot limit the amount of educationally-related benefits that NCAA institutions and conferences can award to student-athletes. The Ninth Circuit (appeals court) affirmed this and the NCAA appealed to the Supreme Court of the United States (SCOTUS) seeking a stay so that the Ninth Circuit ruling would not go into effect until the SCOTUS ruled. The SCOTUS denied the request so the NCAA implemented the injunction as emergency legislation.
With respect to the impact on LEAD1 schools, conferences and institutions can now provide:
- Unlimited scholarships to student-athletes to attend vocational school (in addition to full grant-in-aid);
- Unlimited post-eligibility scholarships to former student-athletes for undergraduate and/or graduate school;
- Unlimited benefits related to computers, science equipment, musical instruments, tutoring, studying abroad, paid post-eligibility internships; and
- Academic and graduation awards up to NCAA bylaw restrictions (according to Winter, this annual figure could be close to $7,000
Institutions and conferences can set their own limits on these awards. Of course, conferences cannot collude by agreeing together to set limits, but a school could, for example, guarantee a student-athlete a post-eligibility internship for meeting certain minimum academic requirements. As written, these parameters are fairly broad, so institutions could set various minimum standards and use this in recruiting. In other words, conferences could set limits for their institutions, but if they do not, institutions have the discretion to set their own limits.
It is important for LEAD1 schools to recognize that Title IX still applies (that may not be obvious). LEAD1’s policy team will continue to seek guidance on this and possible name, image, and likeness (NIL) rule changes in its continued conversations with the Office of Civil Rights (OCR), located in Washington, D.C., which administers Title IX. Until then, LEAD1 institutions should continue to seek guidance from inside and outside counsel.
LEAD1 institutions that begin to draft their own policies and guidelines should analyze not only the new NCAA legislation, which can be found on LSDBI (NCAA’s database), but also the actual injunction from the Ninth Circuit (all of these items can be sent to you upon request to a LEAD1 staff member).

More on NCAA enforcement implications as it relates to Alston, and the new Nebraska NIL law (which is different than the already passed California, Florida, and Colorado laws) can be found in the interview recording.

Episode three of “The LEAD1 Angle with Tom McMillen” is joined by Jason Setchen, who created his own law firm, Athlete Defender, geared towards representing student-athletes in NCAA matters.

Setchen’s message is the following – often times, at least in NCAA matters, athletics departments and attorneys representing student-athletes, have a tendency to act in an adversarial manner, which results in unnecessary litigation. Setchen believes that it behooves all parties to, instead, work collaboratively and cooperatively to achieve better results for student-athletes. In this regard, Setchen urges athletics departments to better educate student-athletes about the NCAA enforcement system, where being more forthcoming with potential NCAA rules violations can lead to less severe punishments. Setchen, for example, believes that, in some cases, student-athletes who are not as forthcoming may be punished for an entire season, which may have, instead, only been a few games with more honesty and transparency. For this message to better resonate with student-athletes, Setchen would advise athletics departments to more frequently recruit former student-athletes who have committed NCAA rules violations, to speak to current student-athletes, about their experiences.

Setchen also discussed other timely NCAA legislative issues including potential name, image, and likeness (NIL) enforcement rule changes, as well as possible changes to the one-time transfer exception. According to Setchen, significant education will be needed for student-athletes entering into business relationships with potential agents and third parties, and although the implementation of the one-time transfer exception for all sports may actually hurt his practice (resulting in fewer student-athlete waiver cases), Setchen believes that the proposed changes better align with the new trend in college athletics of increased student-athlete empowerment.

Our second episode of "The LEAD1 Angle" features University of Florida Athletic Director, Scott Stricklin, who recently announced that he tested positive for COVID-19 last month, becoming the first Football Bowl Subdivision (FBS) athletic director to publicly announce their diagnosis.

The first episode in the series, featuring Church Church Hittle + Antrim’s Collegiate Sports Consulting, Managing Principal, Kelleigh Fagan, discusses Title IX implications with respect to student-athlete name, image and likeness (NIL) compensation, considerations for cutting sports and scenarios for student-athletes returning to campus.