 playbook where we discuss solutions to issues that impact sports. I'm your host, Angela Hazelot. Today's guest is Brian Fox, Corporate Counsel Attorney and Board Chair of the NIL Collective since he reigns. Today, we're going to discuss name, image, and likeness collectives, NIL challenges, and opportunities. Let's get to it. Welcome, Brian. Thank you for joining us today on the sports playbook. Thank you for having me. Lovely to connect again with an old classmate. Yes, absolutely. We've known each other for several years now and you have done a lot of things in sports and most recently working with an NIL Collective. Now, I'm going to give our audience a little bit of a background so they understand the context of how NIL collectives came to be. Starting in 2021, the NCAA versus Alston case, the Supreme Court ruled that NCAA restrictions on educated related benefits for college athletes restrained trade or commerce and violation of the antitrust law. And following that decision, the NCAA decided to allow student athletes to receive compensation in exchange for their name, image, and likeness, which is commonly referred to as NIL. With this change, college athletes can now profit off their right to publicity. So, Brian, with your background and experience, how are athletes able to capitalize off of their name, image, and likeness? Yes, so they can work with brands and companies to engage in marketing, advertising, promotional activities. That's what folks have always been able to do, but there have been pretty profound restrictions imposed by the NCAA over the years until 2021, which completely changed the environment and collegiate athletics. Absolutely. And there's been many collectives popping up since then. So, describe to me what exactly is an NIL collective and how do they work with student athletes in this capacity? Yeah, so NIL collectives, crowdsourced fundraising from the fan base, alumni, and customary donor communities. We then work with student athletes and coaches and other intermediaries to determine what sorts of opportunities student athletes are interested in. And then we try to partner with other charitable and philanthropic entities and organizations throughout the greater Cincinnati area. And so we try to tee up opportunities for them to go serve, which is great, gives back. We also try to tee up opportunities for them to use their platforms, which are unique and big often because of, you know, if somebody ends up playing Division I sport at the University of Cincinnati, they were probably the best in their hometown. And so there were a lot of eyeballs and a lot of attention. And so then they land in our, you know, environment, the University of Cincinnati, and they can connect people that root for them to some of these organizations as well. So you're doing a lot of development fundraising type of activities, ways to kind of funnel compensation to athletes and then in turn, their name, image, and likeness is used to help promote these local philanthropic causes. Is that correct? Yeah, that's right. I mean, it's it's it's also so since it rains is structured like most of the larger collectives are structured at the power five institutions. I mean, the power five conference members were the first to hop on this model. And so that we have a nonprofit entity, as well as an LLC. And so with our LLC, we try to source deals. We serve as a clearinghouse for local brands, regional brands, national brands to connect with our student athletes. And we try to, you know, collaborate with student athletes to curate among their interests and pre elections, what sorts of businesses and companies they might work well with. And then we, you know, help them structure the deal and and give the athlete an opportunity to to get some return additional return on their investment of time. That sounds like a little bit too full, a little bit of commercial activity and a little bit of philanthropic type of activity. And I'm sure you've probably heard some concerns from universities or maybe even coaches. What kind of concerns might be they might be expressed about student athletes taking advantage of NIL opportunities or maybe being taken advantage of through this process? You hear a lot of concerns expressed and I think it takes a while for the world to adjust to any new change. And, you know, if you've been a coach, a football, basketball, whatever, you know, sport tennis coach, you have in your mind what that looks like at the collegiate level. The NCAA has prioritized amateurism from their perspective. And so it has looked a certain way for decades and decades and decades. And now all of a sudden the Supreme Court changes the state of play effectively for everyone. And so I think it's hard to adjust to that. So you have, you know, you have the question of parity. I hear that a lot, you know, will smaller schools that may have traditionally had a better opportunity to compete with the bigger institutions now have no chance because the amount of resources that the University of Texas can put together to support their NIL ecosystem is obviously going to scale different than the resources available, you know, to James Madison University, for instance. And so that concern is always expressed. There's also this, there's a traditional leverage play that's been ongoing, which is in the past you had, while they introduced the transfer portal, you know, they're now student athletes who have transferred to a number of different institutions. There's a quarterback for Rice, for instance, is now playing at his fourth institution. So there's a concern that it's like a revolving free agency every year with no limitation. And there are no limitations. There's no limitations on the amount of money that a student athlete can make off of their name, image and likeness. And so that I think is of concern to some. But also, I think a lot of those concerns are misguided, alarmist, because the marketplace does what the marketplace does, which is over time, I think things will settle and will right size. Now, a number of things that are on the horizon that could throw a wrench in the wheel of the marketplace being able to to settle things like that, you know, the house decision is, is out there. It's a class action case that right now being brought by an Arizona State, former Arizona State athlete and and a number of other athletes relative to the NIL rules imposed by the NCAA, which has been reached class certification in which a lot of folks in the industry think that the NCAA stands a great chance of losing that could change things. The Department of Labor is reviewing whether, you know, whether student athletes are employees of universities and should be treated as employees of universities. And so the Department of Labor makes that determination that changes things dramatically. And then you've got some legislative efforts. The NCAA has a whole host of lobbyists that are working with members of Congress to try to obtain an antitrust exemption for the NCAA like the NFL has and like Major League Baseball has. And, you know, so the reason I think a lot of people in the industry think that the NCAA is vulnerable in the house case is because, you know, if if the NCAA is seeking an antitrust exemption, doesn't that function as some sort of a tacit admission that they're engaged in antitrust? And that's that's not even that's not even to mention what the Supreme Court said the Alston decision, which really was all about antitrust. And while they didn't make that fundamental determination Brett Kavanaugh and his concurrence or Justice Kavanaugh should say it's not like he's a neighbor. Justice Kavanaugh and his concurrence said that boy it sure sounds a whole like the NCAA is engaged in antitrust while it's not necessarily something we're going to touch upon because that's not, you know, an issue for our review. It's that that seems to be a signal in the direction that the legal environment is going. Yes. And to your point, Justice Kavanaugh's language in his concurring opinion states that nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. The NCAA is not above the law. So just emphasizing that point on that these these athletes are not earning a fair market wage. And there's concern for that and how they should be recognized employment. Well, you had so many nuggets there, Brian, so many avenues that we could go down. And you talked about the different landscape and ways that that that NIL might be shaped through different agencies through different governing bodies. Let's focus in a little bit on some state law and particularly Ohio because since the rain operates in Ohio and you're trying to serve the University of Cincinnati students through your collective to talk to me a little bit about Ohio and how does that shape what you're able to do for student athletes in Cincinnati? Yeah, so Ohio responded preliminarily. So once the Alston decision was issued, the NCAA moved to create the interim guidance on name, image and likeness. And states across the country started responding. Ohio was one of the states obviously that responded. The first mover was Governor DeWine. He issued an executive order that was signed into law. And the executive order that he signed into law was basically a placeholder that until such time as the General Assembly develops, program and rules for our public institutions or not even our public public and private higher education institutions, then that that will be effective. And so then the General Assembly effectively mirrored what the executive order was like the architecture, the statutory architecture which says that the universities cannot limit they can't throttle how much a student athlete can make off of their name, image and likeness. And it said that, you know, this legislation says that if the university develops rules around a certain category of products, like if for instance, an institution say you are student athletes are not permitted to advertise or promote alcohol or tobacco or gambling, you know, various categories that are commonly no-nose and amateur athletics, then they said that that universities are able to regulate in that way. And then, you know, so Ohio is a little bit different from other states. Some other states really got active and tried to create as an aggressive and supportive name, image and likeness environment as possible. The state of Missouri, for instance, has been one of the most aggressive about supporting their student athletes at their schools. Texas has also been very active, not surprisingly, California as well. Ryan, let's talk a little bit about some of these restrictions that universities can set on categories that athletes can endorse. So let's look at an example, Livy Dunn. She's a top female NIL earner, college student athlete. She's recently promoted an artificial intelligence tool that is used to help with homework on social media. And so immediately following this, her university, Louisiana State University put out a statement that expressed concern over students using AI to help them with their schoolwork. So just because athletes now have a recognized right to publicity, doesn't mean they're able to promote any type of business. So who actually decide which types of NIL deals are allowed, what happens if an NIL is made that doesn't reflect positively on their school. You mentioned a little bit could be in the legislature, could be in the university. But what do you think? I mean, AI is kind of a new tool. And as technology and other things evolved, how is this difficult? Think about from the collective standpoint, the NIL collective, you're trying to broker these deals for athletes or bring in entities, these connections, these relationships and contracts and talk to me a little bit about those concerns with that changing regulation landscape. Yeah. So, you know, if the university, if Louisiana State University wanted to prohibit that category, then they likely should have prohibited that category by passing a university rule that requires that. They didn't. And I don't, the state of Louisiana does not obviously have a statute prohibiting that. So, they can't retroactively go back. Right. Now, you know, as the board chair for since he reigns, we have been approached by businesses that exist within categories that might be on the edge, right? And that might reflect poorly if a group of student athletes were selling their products. And so, I just as trying to remain in alignment with the university, not every collective is the same. And a lot of schools have, you know, numerous collectives that are involved, some in much more alignment with the university's desires and best interests than others. What I've tried to do and what our board has tried to do was since he reigns is to remain in alignment with the athletic department, we've tried to remain in alignment with the university. And we don't want to do anything that's going to adversely reflect upon the university Cincinnati. And we want if somebody's out, you know, in our community, and they're wearing bear cats across their chest, we want it to be something that everybody can buy in on and feel proud of. And so, for us, we've kind of passed on some of those more borderline categories. But, you know, that's a decision that every NIL program has to make. It's a decision that the stakeholders and each university's ecosystem have to weigh in on. Are there any collectives that are supporting more than one university or conferences or are they all focused at supporting one institution? It's a good question. And I would say there's not a lot of data out there on what collectives are doing and how they're doing it, because that's the, they're not public entities. So we're not bound and we're autonomous from the university's themselves. That's a requirement under Ohio law and most state laws. So we're not, so we're autonomous and so we're not public entities, we're private entities. So that's been an interesting thing in, you know, in trying to structure and be excellent and how we operate. Our collective is trying to figure out what our best practice is. And it's tough to really source some of that information because so much of it is buried, right? And I do think that there are collectives. There may not be folks that are advertising themselves as collectives, but I do think that there are collectives in NIL programs that are working with multiple institutions on their, in fact, I'm certain of it, but they're not, it's not a public information sort of thing that's available. Gotcha. Yeah, that makes a lot of sense. You mentioned something previously about parity and you were talking about different athletic programs and the size and impact that they may have, the reach that they may have and how that's impacted transfers and recruiting and things like that. I'm curious about athletes from the more non-revenue generating sports and I know you've expressed that it's really important to kind of represent athletes from all the sports and have not only gender equity, but those non-revenue generating sports. Talk to me a little bit about the philosophy that you have as a collective to support athletes from different programs. We want to engage every varsity sport at the University of Cincinnati. We want to be about all of, if you're a mom and dad or mom or dad and you send your young son or daughter to the University of Cincinnati, if it's possible. Now we're early and we're kind of in the empathy stages of NIL, but if you entrust your child to the University of Cincinnati and if you're a young athlete and you come here, we want to try to figure out a way to be a part of your life and to make a meaningful contribution to your life. We've tried to be mindful of that and to be mindful of the risk of only working with the main revenue sports. We do try to get involved with every sport. Since your reigns, we've signed a student athlete from every program and we hope to only expand the number of young men and women that are competing that we partner with. So donors and corporate entities that you're doing business with, do they support that philosophy as well or do you find that a tough sell that your portfolio may include students who, student athletes who maybe don't fit what the brands are looking for? Everybody is different. So each donor is different and there's also of course the the fan base which can run in any number of directions. So we have a pathway if you're going to contribute to Since He Rains, you can earmark your donation to a certain sport and we've seen plenty of that, which is great. If you play tennis at the University of Cincinnati, there's a good chance. Maybe you love Bearcats football and maybe you love Bearcats basketball. But if you have that personal buy-in and a connection to that program, of course you're going to want to support what you experience. You're going to look at those student athletes and see yourself in them and want to improve their lives. So we try to provide that pathway and then we also try to be active about even if we don't have stakeholders that are directly tied in and trying to zoom out and surveying, how can we be involved in helping that program and helping those young men and women? Because the reason that I got involved was because we want to help young men and women. We want to help our charitable and philanthropic partners throughout greater Cincinnati. And I believe that if the University of Cincinnati student athletes are thriving, that means that athletics are often the front porch of the university. And if folks are out there doing good in our community and making a difference in their lives are improving and they're out serving and wearing Bearcats across their chest, that's great for the University of Cincinnati. And what's great for the University of Cincinnati is great for the City of Cincinnati in our region. So there's a desire to really make a difference. That's great. Tell me about some of the interesting partnerships you've been able to create or maybe something that you're most proud of during your time involved with SINSEE Rains Collective. In what context? So you have, for example, you were able to create a partnership with a brewery and do we want to tell us a little bit about that? Yeah. So we early on in the process wanted to partner with a beer to create a SINSEE Rains using our name image and likeness to partner with someone, one of the local breweries to create a product that would benefit our fan base and also benefit our NIL ecosystem. So we met with a number of different breweries in Cincinnati and sat down with the Rheingeis team. Rheingeis is, I think it's maybe the 20th biggest brewery in the country. So they had good size and scale and we met with their team and there was good alignment about what the vision was for this. And so we created SINSEE Lite, which when we initially sat down and launched the product, we had really no idea what kind of reception. We had some hunches that people will think it's fun and cool and it's great to feel like you're tailgating on the grid. We have this grid right by Nipper Stadium that you can drink SINSEE Rains, SINSEE Lite, Rheingeis beer, and know that you're supporting things there. So that has been, it's far exceeded our expectations. And it's, you know, Rheingeis has had the higher seven additional employees. They've had to figure out a way to manage the scale. People are constantly tweeting, hey, I found, you know, SINSEE Lite, you know, that my Kroger has SINSEE Lite, you know, take a picture of it. So it's been a lot of fun. Are they selling it in Nipper Stadium at the University of Cincinnati? They are. They are. And they're going to sell it inside Pithard Arena as well. Yeah. Fantastic. That's incredible. Let's talk a little bit about the future landscape of NIL and the NIL collectives. You mentioned some concerns or potential changes, but I'd like to hear a little bit about your predictions based on your knowledge and experience. What do you think the future landscape is going to look like for NIL? Yeah, I will say that that question is maybe the toughest question that confronts me, my board, the athletic department, student athletes, coaches every day. How long will what's in place remain in place? You know, if you just look at the progression from the summer of 2021 until now, the NCAA's issued guidance and updated guidance and updated guidance and additional updated guidance. And so there have been so many changes just from the NCAA's regulatory position toward NIL. And then, you know, you look at what's going on with Congress and is Congress going to, you know, put something together. It's been my experience that Congress hasn't been exceedingly effective in recent years. So I have my doubts that Congress will put together a solution that makes enough people happy that there's universal buy-in. I think it's probably the battleground is going to take place in the courts. And I think a lot of it's going to depend upon the litigation posture that the NCAA takes. They have historically taken a very aggressive litigation stance and it has cost them again and again and again. You know, with this House case, they're really backed into a corner. And it's not, that's not the end of it, right? I mean, the House case is one case. There have been so many other, like the NCAA just recently changed their waiver for transfer rules, right? So there's the one-time transfer, but then they've really cracked down on student athletes who are trying to transfer multiple times. So they've just changed that last year, I'm sorry, late or early this year. And so if you read that Alston decision against the backdrop of, or with that in the backdrop of the NCAA's pivot on the waiver rule, you're seeing a lot of folks who are having a real hard time with it. Like you take the University of North Carolina and Tess Walker's waiver exemption where the North Carolina Attorney General sent a letter to the NCAA President Charlie Baker to say, hey, you know, this isn't, this is not only a problem and it's unfair, but it's also probably illegal. And so there's, I think the battleground is probably going to take place either in the Department of Labor making a determination that student athletes or employees are is going to take place in the courts with this house case or any of the umpteen cases that are about to be filed properly. Ouch. And what happens to the NCAA institution and its member institutions if that happens? I don't know. And I don't think the NCAA knows. And I think it's been interesting to me, to the NCAA has not been, other than this waiver, you know, the transfer waiver exemption change, they have not been aggressive in enforcing NIL. There's been, you know, you're not hearing about any cases or any infractions, actions that are being taken by them. So the NCAA seems to understand that it may not have great legs to stand on with regard to limiting NIL. And so it's been interesting that they've taken such a hard line position on the transfer rule on a number of cases. I think the NCAA knows that it's in a battle for their ongoing viability. If, you know, when you get a hit with, you know, a Sherman Act violation and, you know, there's a finding that you engaged in the antitrust and you throttled student athletes right to compensation off of their name, image and likeness. It's both going to be a heavy financial burden for the NCAA to bear, but it's also going to be, you know, as a practical matter, an operational issue for them. Because what can the NCAA do if they're not engaged in really one of the primary functions for which they were formed, which was to try to provide a regulatory, you know. Governance. But, you know, they'll still have the March Madness tournaments in this spring and that may be all they're left with potentially. Well, Brian, thank you. Thank you so much for your time. Do you have a final thought you wanted to include? I do not, but thank you for having me on. It's lovely to see you out there thriving in this world and professing at James Madison. That's so cool. And go Bearcats and that's it. And go Dukes. So thanks for your time, Brian. Great to see you again and appreciate all your wisdom and insight into name, image and likeness collective. So thank you for your time today. Oh, thank you, Angela. Thank you to all our viewers on the sports playbook. We will see you next time with our episode with Lila Drafts Johnson, who will discuss gender-based violence. We'll see you then.