Advocacy/College Students/IECA's Blog/student-athletes

The NCAA & Intellectual Property: The State of Play on NIL Reform

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What is NIL, and how did we get here?

Defining NIL

NIL (Name/Image/Likeness) is shorthand for a student-athlete’s intellectual property rights (their name, image, and likeness).

A Brief History of How We Got Here

It is important to put the current conversation about NIL reform in context. The NCAA was founded after a White House meeting in which Teddy Roosevelt met Ivy League football coaches and administrators to push them into adopting rules to make football safer. (There had been a rash of student deaths and injuries playing the unregulated new game.) The newly minted organization, which became the NCAA in 1910, was founded on three major principles: mandatory football helmets, adopting Harvard’s rules rather than Yale’s (including the invention of the forward pass), and a strict ban on recruiting or offering any financial compensation to student-athletes. It is important to note the NCAA did not develop enforcement mechanisms until the 1950s. These enforcement mechanisms were adopted alongside the recognition that schools COULD provide “athletically related financial aid” known as athletic scholarships.

Fast forward to 2009 when a former UCLA basketball player, Ed O’Bannon, sued the NCAA (along with EA Sports and the Collegiate Licensing Company) for using his likeness in a video game without credit or permission. It was clear that the NCAA’s legal position in this case was exceptionally weak and that continuing to monetize student-athlete’s intellectual property without compensation was becoming untenable. In fact, EA Sports and CLC settled the lawsuit and paid out $40 million to be distributed to the student-athletes whose likenesses had been used without permission, but the NCAA took the case to trial and lost; this established a legal precedent that it could not monetize student-athlete’s intellectual property without consent, providing a roadmap for more class action lawsuits based on antitrust law. The NCAA has lost several subsequent challenges and is currently enjoined from enforcing bylaws limiting NIL payments and on transfer limitations.

NIL reform has also been adopted by individual states. Many states passed legislation to mandate students at the college (and in many states the high school level) be able to freely profit from their intellectual property (see Figures 1 and 2).

The State of Play Today

What has developed is a three-tiered NIL system. The top tier impacts students who develop significant commercial value and can monetize that value individually.

The most broadly influential tier on the college side is made up of NIL “collectives.” These collectives are independent entities that come together to support athletics at a specific college. They offer prospective students compensation as an inducement to attend and/or to remain at the school and are responsible for the majority of NIL value right now.

There is also a low-value/exploitative tier of NIL. This tier includes companies that purchase intellectual property for minimal payments, barter, or just the promise of possible payment. Their business model involves small-scale investment, inducing students to give up their intellectual property without understanding its value.

Advising Students

In this environment, it is very important for students who DO monetize their NIL rights in high school to make sure their contracts sunset prior to their enrollment in college so they have maximum ability to negotiate with the college collectives. Once the collective deal (and athletic scholarship) is secured, THEN the student can monetize their rights with additional deals. It is also critical to have all contracts reviewed by a competent and knowledgeable intellectual property attorney. Most schools with significant NIL collectives can make these experts available to their students at minimal/no cost.

For students who are NOT looking at NIL deals based on their athletic profile or social media influence, there is a significant space for entrepreneurship and creativity to build value. Advisors should be encouraging students to explore this space even for athletes who are not attracting elite offers!

I believe that IECs should advocate for colleges to support and enhance the value of their student’s intellectual property. This would push more students into top-tier business agreements and generate more value for everyone. It is critical that colleges develop workable rules for the second tier “collectives.” An unregulated arms race is inevitably going to exploit some students; making sure that the benefits are spread more widely and in a way that is congruent with the college’s educational mission is broadly good policy that could gain support across stakeholders. Finally, it is in everyone’s interest to protect student-athletes from exploitation by the lowest tier of actors in the NIL space. All these issues require legislative action and lobbying at both the state and federal levels. While I personally feel this is the right approach, there is no shortage of opinions about the best path forward.

Policy Possibilities

The current patchwork of state laws, temporary restraining orders, and legal opinions makes action via the NCAA legislative process problematic. Coming to grips with this new legal and commercial landscape will require all the stakeholders involved in intercollegiate athletics to collaborate in developing a new framework that can be adopted as federal legislation and executive branch regulation. From the NCAA’s perspective, the best-case scenario is legislation that provides the NCAA an exemption from antitrust law. But it could also mean federal legislation setting a framework for the compensation of student-athletes and/or empowering the NCAA to enforce member adopted legislation within certain defined parameters. NCAA member schools and executive leadership, especially among the College Football Playoff schools has an outsized influence to set the tone of this debate and needs to engage with this process in a strategic way with a unified agenda. This agenda has not been communicated either by college presidents or the NCAA executive staff, and we have not seen a clear process involving all stakeholders yet outlined.

In the absence of clear leadership from the NCAA, we have a variety of efforts at influencing policy coming from different actors. There is a highly publicized effort to unionize student-athletes with the idea that the NCAA would come to a collective bargaining agreement with some kind of NCAA Players Association. But this approach has several serious problems, including serial failure in court. Just this week, a highly publicized effort to re-classify student-athletes at Dartmouth as “employees” featuring the Dartmouth basketball team was challenged by the university and is currently under review by the NLRB. There are also a variety of lobbying efforts at the state level, but no state action solves the problem of a national organization needing national policy to provide clarity to its members.

Dave Morris, MEd, IECA (WA), College Athletic Advisor, can be reached at [email protected].

College Admissions/college consulting/College Students/IECA's Blog/independent educational consulting

IECA Responds to Rick Singer’s Sentencing

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IECA responded to today’s sentencing of Rick Singer, mastermind of the “Operation Varsity Blues” college admissions scheme, which has included the conviction of more than 50 people.

While Singer’s wrongdoing has resulted in a jail sentence today, and both parents and athletic directors have been similarly found guilty, these punishments have not resulted in fixing the many problems vexing college admissions.

“The Varsity Blues scandal led colleges to review their admissions systems to make sure they were ethical and upstanding, but the broader issue of opaqueness continues to plague the college application process—and result in heightened student and parent anxiety,” said Mark Sklarow, CEO of IECA. “While we applaud the court for bringing Rick Singer to justice, we continue to advocate for greater transparency in admission criteria from college admissions offices.”

The steep decline in college acceptance rates further heightens the anxiety levels of students and families. With many colleges moving to test-optional admissions due to the pandemic, the pool of applicants has grown, and acceptance rates have fallen to record lows for many colleges and universities: most recently 3.19% for Harvard, 8.56% for Rice, and 9% for Tufts, among others.

Adding to this, access to college advising is unequal across the country and particularly strained in urban and rural public high schools, where the average student-to-counselor ratio is 455:1 and more than 700:1 in some areas. This leaves school counselors overburdened and students under-resourced.

How IECA Assures Parents the Highest Ethical Standards in College Advising

Independent college advisors who seek to join IECA go through an extensive application process designed to assure the public that unlike Singer, the advisor they are working with is knowledgeable, competent, and ethical. They must have a master’s degree (or equivalent), at least three years of admissions counseling experience, experience working with scores of students, and have visited 50 campuses before they can be considered for professional membership. In addition, all members must agree to abide by IECA’s Principles of Good Practice and submit their marketing materials for review to ensure they accurately reflect the independent educational consultant’s role.

IECA members sign an annual pledge that governs their interactions with colleges, students, and parents. They agree to avoid any action that distorts or misrepresents a student’s record or interferes with a university’s ability to accurately evaluate a student. Because IECA consultants are committed to the highest ethical standards of practice, families find that IECA members have the student’s best interest as their sole focus.

Recent years have seen tremendous growth in the independent educational consultant profession, with IECA’s membership now totaling more than 2,600 consultants in almost every state and 41 countries around the world (reflecting a 60% growth since the Varsity Blues scandal broke). Throughout its growth, however, it’s adherence to the highest standards in ethical, student-centered advising has remained unchanged.  According to Sklarow, “Our growth is a testament to the public’s reaction to the Varsity Blues scandal. Parents wanted a way to be guaranteed that their IEC was both capable and earnest in finding the best possible college or university for their child.”

Sklarow continued, “Our members are ethical, compassionate professionals who dedicate their careers to advising students and families on their individual paths to success. They focus on the unique student’s needs to help them have a successful experience wherever they choose to attend college.”

How IECA Members Help Students and Families Navigate College Admissions

Families who choose to work with an IECA member educational consultant to navigate the college admissions process benefit from the consultant’s expertise, professionalism, and unbiased viewpoint to find the best-fit college for their student.

IECA members have extensive, firsthand knowledge of colleges—gained from touring dozens of colleges, meeting with admission officers, and conducting their own research. An IECA member consultant offers individual attention, spending hours with each student and their family to learn the student’s personality, interests, qualifications, and aspirations.

Combining their vast knowledge and their understanding of the specific student, IECA member consultants then help find the best-fit colleges for the student—those that provide the best environment for the student’s academic, social, and personal growth and meet the student’s financial needs. An IECA member consultant walks the student and family through each step of the college application process, meaning reduced stress and anxiety for the student and family.

IECA members believe there are many great postsecondary options for every student, and no student should be made to feel that they must become something they are not to get accepted. Being and presenting one’s authentic self and demonstrating one’s own talents and abilities is a way of ensuring the right college fit. This is central to what an ethical independent educational consultant does.

College Admissions/college consulting/College Students/IECA's Blog/Pro bono/supporting students

Introducing the AXS Companion to the Common Application

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The AXS Companion is now available for college-bound students to use!

College enrollment continues to decline while barriers for under-resourced students grow—but the AXS Companion to Common App, a new initiative by IECA, in partnership with Oregon State University, aims to reverse this trend by supporting these students as they begin their college journey.

Applying to college is already a complex and often stressful process, and first-generation, low-income, and underrepresented students of color have faced even greater hurdles to college during the pandemic: reduced or no access to college and school counselors; limited opportunities to access information and resources due to school closures; and a lack of familiarity with the US college and financial aid application processes within their families.

According to Common App, approximately one-third of their million-plus annual applicants are first-generation students. These students are more likely to create Common App accounts without submitting applications because they “often lack familial and school-based guidance on how to navigate the complex admission waters,” according to a recent article on BestColleges.com. It continues: “Just last year, about 700,000 seniors who opened Common App accounts never completed an application.”

Seeing this disparity in access to higher education, a group of IECA members set out to make a change. The result is the AXS Companion, a free online resource that aims to improve access and clarity for under-resourced students who lack college counseling support. Through detailed videos, the AXS Companion walks students through each step of Common App from beginning to end. Alternatively, students can watch an individual section’s videos to understand how to best respond to that section based on their circumstances.

View this video to see samples of the AXS Companion and to learn more about the project:

How the Project Came About

Several years ago, Maite Halley, an IECA member who has been a leader in the association in several capacities, envisioned this project as live workshops to support under-resourced communities. During COVID-19, Marilyn O’Toole, IECA member and liaison to Common App, asked Common App leadership if IECA members could pivot and develop step-by-step videos for the initiative instead.

With Common App’s approval, O’Toole then engaged Jon Boeckenstedt, vice provost at Oregon State University to discuss solutions to store and organize the video resources. This evolved into the collaborative framework of Oregon State University Ecampus building the platform, with IECA providing the content.

Left to right, clockwise: IECA members Jeffy Levy, Marilyn O'Toole, Pat Smith, Ibrahim Firat, Sylvia Jackman, Louise Franklin, and Jennie Kent.

Over the last eight months, many IECA members have worked tirelessly on this project, including: Ibrahim Firat, Louise Franklin, Carolyn Gelderman, Anne Holmdahl, Sylvia Jackman, Amy Jasper, Jennie Kent, Jeff Levy, Janae McCullough-Boyd, Marilyn O’Toole, Chantal Paiewonksy, Veena Rao, Pat Smith, and Juan Camilo Tamayo. These dedicated members produced the project content, which included writing and editing curriculum and scripts, as well as recording audio and video for 50+ modules for each section of Common App. Additionally, they called on experts in various fields to support their efforts, and created modules that provide financial aid guidance, essay suggestions, and admissions officers’ advice. The project creators chose the name The AXS Companion because of the double entendre: improving student access through the collaborative axis of higher education and IECA. The AXS Companion was introduced at the IECA 2022 Spring Conference in Philadelphia and is launching on September 1, 2022.

IECA is grateful to the members of the Oregon State University Ecampus who trained our colleagues to audio and visually record each section and then edited hours of their recordings, adding animation to make the directions and guidance clear. In addition, thank you to the engineers, graphic designers, animators, and project managers who have worked tirelessly to create this invaluable resource. 

Pictured above (left to right, clockwise): IECA members Jeffy Levy, Marilyn O’Toole, Pat Smith, Ibrahim Firat, Sylvia Jackman, Louise Franklin, and Jennie Kent.

College Students/Jobs/Technoloogy

Looking Beyond Today’s Industries and Jobs

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By Pamela Kwartler, MA, IECA (NJ)

“There is a mismatch in talent pool and market demand, both currently and in the future. Though academic research often leads business, what’s taught in business courses is generally at least five to ten years behind the business sector.” Those words from economist and business leader Tess Mateo, managing director and founder of CXCatalysts, drive home an important point for IECs: what students learn in today’s business classes will not be enough. We must understand the world our students will graduate into to help them make choices that will propel them forward. Students and families who go on autopilot and reach for a career with a seemingly high ROI today may be surprised by the outcomes. The fact is that none of the fields we know will exist as they are today in the future.

In January 2016, the World Economic Forum introduced leaders of industry, governments, and civil society to the “fourth industrial revolution,” (see www.weforum.org/centre-for-the-fourth-industrial-revolution for more information), a term that CEOs, policymakers, and industry now use to describe how emerging technologies, such as artificial intelligence, quantum computing, 3D printing, and the Internet of things, are converging with humans’ biological and physical lives. New technologies will increasingly do more, to the extent that traditionally economically rewarding positions, such as financial analysts, accountants, finance and medical professionals, and even lawyers will become “redundant, and therefore replaceable.” Many Wall Street traders have had to reinvent themselves because their jobs have also been eliminated by technology. Business is evolving more quickly than ever before: large corporations are being broken up as business units are broken into yet smaller companies. Even 50% of the world’s medical services are delivered electronically.

How do IECs help students prepare for new markets and future economic success when the rules have changed? We often observe that it is students—who they are and what they bring to the world—that matter more than where they earn their degrees. An elite education alone will not necessarily provide the answer.

Democratic presidential candidate Andrew Yang is a Brown-educated, former corporate lawyer, dot-com executive, and CEO of a GMAT test prep company: a symbol of the meritocracy. Today, he doesn’t believe it should be the job of our institutions “to train 80% of our graduates to do one of six things—financial services, management consulting, technology, law, medicine, or academia in New York, San Francisco, Boston, Chicago, Washington, DC, or Los Angeles.” Yang blames the meritocracy for blissfully ignoring the country’s economic crisis and failing to fix problems caused by manufacturing job losses in middle America. The problems that need solving are even bigger than that. Fortunately, so are the opportunities.

Although there is great focus on STEM these days, all majors will matter, and students can study at a wide range of colleges. In 2015, world leaders agreed on the world’s biggest problems, which are collectively referred to the Global Goals or the 2030 Sustainable Development Goals (SDGs). (More information is available at https://sustainabledevelopment.un.org/?menu=1300.) For example, consider that tackling the individual problems caused by climate change will create new jobs worldwide. Along with solutions developed by engineers and scientists, environmental studies majors can explore how indigenous people have farmed sustainably for centuries. The skill of diplomacy will be essential to work cross-culturally and make progress within the worldwide community. As the water table rises and the carbon footprint expands, innovation in agriculture will continue to be a priority. These 21st-century businesses, unlike those that have benefited a small sliver of the first world since the 1980s, will improve the quality of life for all. Deep, nuanced thinkers will need to parse and define the ethics of evolving business models and, hopefully, enforce ethical regulations.

What Can IECs Do?

• Learn more about the fourth industrial revolution so that you help your students explore industries with increasing opportunities. Start by reading more at www.cnbc.com/2019/01/16/fourth-industrial-revolution-explained-davos-2019.html.

• Get smart about SDGs—consider using the global goals as a roadmap, then ask your students which topics they are interested in helping solve. These are big problems that will be around for a lifetime. Discover what passions and skills might be useful—there is a demand for many skill sets. (See page two of the following link to see all the goals and share them with your students: www.undp.org/content/dam/undp/library/corporate/brochure/SDGs_Booklet_Web_En.pdf.)

• Ask students what they can do during high school to develop their interests. Can they travel to explore global problems or spearhead local programs that focus on any of the SDGs?

• Research which colleges are positioning themselves to participate in solutions. For example, developing sustainable food systems is a major global problem (SDG #12), and many college agriculture programs are well-positioned to innovate, including Cornell, Ohio State, Purdue, UMass Amherst, PSU, University of Delaware, the University of Arizona, and the University of Illinois Urbana–Champaign, offer options for many academic levels. Some other examples include Goal #16 Peace and Justice (diplomacy, political science, international relations), Goal #11 Sustainable Cities and Communities (urban planning, construction, real estate), or Goal #7 Affordable and Clean Energy (environmental or civil engineering).

We can guide our students toward fulfilling college experiences that incorporate research, productive study abroad programs, and internships that will lead to employment in fields that truly allow them to impact their world—and ours.

Pamela Kwartler, College Process Counseling, can be reached at [email protected].

college consulting/College Students/Learning Disabilities

Executive Functions for College Students: Don’t Leave Home Without Them

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By Patti Schabinger, MEd, IECA (IL)

While attending my youngest son’s freshmen summer welcome session, I sat with other eagerly attentive parents and students as the dean asked what we considered the most important skill necessary for success in college. Some listeners may have thought academic preparation would trump the list; however, when the speaker announced time management, heads subsequently nodded in silent agreement.

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