NIL Goes to College

A Foster School course delves into the debate over name, image and likeness rights for NCAA student-athletes

Seismic change has come to college athletics.

At the end of June, a decade-long debate involving former athletes, advocates, the NCAA, state legislatures, Congress and, indirectly, the Supreme Court—plus a whole lot of lawyers—finally reached its denouement: a landmark ruling that allows student-athletes to make money off their own name, image and likeness (NIL).

But months before this saga’s initial resolution triggered a flurry of news stories, analyses and op-eds, a group of students at the University of Washington Foster School of Business could be counted among the most informed on the issue’s endless nuances.

Tod Bergstrom’s Business, Government and Society (MGMT 320) took students on a deep dive into the unfolding debate over NIL rights, from its opening lawsuit to the forces leading to the NCAA’s ultimate capitulation.

Tod Bergstrom

This living case study served as a through line to the course curriculum, which examines the political, social and legal environment of business and observes critical management issues from historical, theoretical and ethical perspectives.

“The NIL case is really complicated from many different angles,” says Bergstrom, a teaching professor of management and organization at Foster. “There are legal issues, there are ethical issues, there are economic issues. There are issues related to member schools, conferences, teams and the student athletes themselves. This made it really useful and fascinating journey for the class.”

Living case

Bergstrom, who also serves as King County’s senior deputy prosecuting attorney, has taught Business, Government and Society at Foster for two decades. He often employs a developing real-world case to illustrate the concepts introduced throughout the course. Last year, for instance, he hitched topical lectures to the breaking debate over section 230 of the Communications Decency Act, which shields online platforms, such as Facebook, from liability based on the content posted by third-party users.

This year, Bergstrom decided to use the NIL debate, which was barreling toward some form of conclusion with the momentum of a blitzing linebacker.

“I went on a crash course,” he said of his preparation. “I read everything I could possibly find, watched a lot of documentaries and settled on this being the story arc.”

It was an arc not lacking in dramatic tension.

The push for student-athlete NIL rights was initiated in 2009 by Ed O’Bannon, a former UCLA basketball player who filed a lawsuit claiming that his alma mater and the NCAA were licensing his image and likeness without his permission. After a Federal District Court judge ruled in favor of O’Bannon, California and, eventually, 20 other states passed laws that would allow student athletes to capitalize on their own name, image and likeness. Meanwhile in DC, the Senate and House of Representatives dithered on an array of proposed federal statutes that would preempt state laws. And, in the related NCAA v. Alston case, the Supreme Court struck down NCAA regulations limiting the education-related funds a school can provide its student-athletes. With this decision establishing that the NCAA is not exempt from antitrust laws and tipping the judicial scales in favor of student-athletes—and with the first wave of state NIL laws scheduled to take effect July 1—the NCAA finally relented on its longstanding prohibition against collegiate athletes earning side money on their fame.

That’s the story in broad brush strokes. But what would it all mean—to student-athletes, to teams, to schools, to the business of collegiate sports?

A-team of experts

To delve into the potential human effects of this dogmatic change at the NCAA, Bergstrom recruited a willing partner for the class in Chris Petersen. The former head football coach of the Washington Huskies happened to be spending the year as the Foster School’s Edward V. Fritzky Visiting Chair in Leadership.

And he was more than happy to engage his sprawling network to help assemble a panel of virtual visitors to class that read like a who’s who of the NIL debate:

  • Lowell Bergman, the legendary Frontline correspondent, and Sonny Vaccaro, a resolute NCAA critic, helped lay out the big picture.
  • Robert Gammon, a policy advisor in the California legislature, discussed the first state legislation affording students the right to profit from their NIL.
  • Jared Bomberg, senior counsel to the pertinent US Senate committee, discussed potential federal laws that would preempt competing state laws.
  • Jennifer Cohen
    UW Director of Athletics Jennifer Cohen laid out the NCAA’s perspective on the issue; Kiley Strong, the senior associate athletics director for compliance, gave a primer on NCAA compliance; and Erica Cenci, the assistant athletics director for student-athlete development, introduced the planning that Husky Athletics was doing ahead of the rules change (see below).
  • Former Husky football stars Jake Browning (now a Minnesota Viking), Myles Bryant (now a New England Patriot) and Myles Gaskin (now a Miami Dolphin), discussed the potential impact on student-athletes.

To really dig into the topic with his students, Bergstrom said, “Chris opened doors that would have been difficult for me to open up on my own.”

Insider perspective

Of course, one of the headliners of this all-star panel was Coach Pete himself, who brought a unique perspective to the discussion.

In principle, Petersen supports the rights of athletes to capitalize on their athletic notoriety, which could materialize in myriad ways: sponsored social media posts, endorsement deals, autograph sales, training lessons and camps, speaking engagements, personal merchandise, even limited edition non-fungible tokens (better known as NFTs).

At the same time, he provided an important reality check about the potential for unintended consequences.

Chris Petersen

One is to team cohesion. “People want to feel like we’re all in this together,” Petersen said. “Everyone has different roles, but we all need each other to do special things. And then, all of a sudden, some are making money. That’s going to be an issue.”

A far bigger issue is around compliance and fairness.

“Chris has this really great insight into what’s going to happen when NIL becomes a thing,” Bergstrom said. “He’s justifiably concerned about compliance and whether a rule like this gets written in a way that prevents certain schools from gaming the system.”

How do you regulate the inevitable swarm of college sports agents? Who decides the fair market value for an athlete’s endorsement? What’s to stop some schools’ boosters from inflating payment as way to enhance recruiting?

“Without the proper guardrails, this could just be a way to legalize cheating,” Petersen added. “I don’t think people understand how hard it is going to be to keep a level playing field in the recruiting process. It’s already super difficult. And now certain schools and regions could be playing by different rules.”

Concepts in reality

The point of the class, of course, was not to solve every potential caveat of the NIL debate. Rather, the debate was meant to help students learn how to navigate the ethical issues around any complex organizational decision. And to understand how such a decision affects so many different stakeholders.

It was also designed to engage students in topics that could otherwise seem a tad esoteric.

“Hats off to Tod for being this creative and this kind of a teacher,” Petersen said. “His class is not about just NIL. It’s a look at the application of ethics and law and business decisions that are really complicated and affect a lot of stakeholders. And it’s based on a case that is evolving before their eyes.

“When you start figuring out all the aspects and ramifications that this NIL decision can have, I think it’s really interesting to students. It puts them at the forefront of a national debate.”

Casual to committed

One such unlikely expert was Inaayat Gill (BA 2021). A student in MGMT 320 before her graduation this spring, Gill would describe her interest in NCAA sports as casual at best. A player on the UW’s ultimate frisbee club team—about the farthest from a money sport—she came into Bergstrom’s class without any prior knowledge or particular interest in this impending rule change.

“I don’t really pay attention to college sports,” Gill admitted. “Like, I’ll know if the UW is in a bowl game, but that’s about it.”

Nevertheless, she found the debate over NIL rights to be unexpectedly fascinating.

“It’s interesting because everyone we heard from had a different point of view, but really strong opinions on this,” Gill said. “Everyone wants to make our players happy, but they all had very different ideas on how to do that.”

And she found all the more engaging this method of learning across a case playing out in real time.

“It’s just easier to follow what you’re learning because most of it is relevant to the case we studied,” added Gill. “Otherwise, a lot of the concepts can feel pretty conceptual. For instance, you can study an ethical model or a stakeholder model, but it becomes more real when you can apply it to the NIL case.

“You realize that everything is tied together.”

Expert witnesses

Through the window of the NIL debate, Gill and her classmates developed a greater sense of the broad implications of momentous organizational decisions.

Their extraordinary access to experts at the center of this particular debate extended to Bergstrom’s students an insider’s perspective on an issue that has continued to evolve in the weeks since class was dismissed.

And it will likely keep evolving. In its initial ruling, the NCAA punted on the chance to enact rigid NIL guidelines, opting instead to push the details and enforcement down to the conferences and schools.

Many believe that the fairest long-term resolution will require federal law. Chris Petersen, for one, thinks that the nation’s legislative bodies would do well to call an expert witness who constructed a unique course around a comprehensive examination of every facet of the issue.

“I think Congress needs to bring Tod Bergstrom in,” said Petersen. “I mean, really. He has an interesting perspective on the issue and knows more about it than almost anybody—including some athletics administrators—from his deep study and from talking to so many people who have been involved in the debate.”

Bergstrom would have his pick of savvy student aides to bring with him.

Images of Husky athletes in action courtesy of Red Box Pictures and UW Photography.

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Boundless Futures

As collegiate athletes are suddenly allowed to earn money on their name, image and likeness, the Foster School of Business is partnering with UW Athletics on a program that prepares Husky student-athletes for the unprecedented opportunities before them.

Boundless Futures is a comprehensive personal, professional and leadership development curriculum, designed and delivered by Foster faculty, to help UW student-athletes capitalize on NIL rules changes.

The series of for-credit courses explores the intersection of sports and business, covering key NIL topics such as personal brand development and strategy, personal finance, business, entrepreneurship and opportunity evaluation. And a certificate program called the Foster Leadership Academy engages student-athletes in experiences and reflection through the lens of authentic leadership.

“These are concepts we’re already providing to Foster students, but customized for Husky student-athletes,” says Tod Bergstrom.

And this targeted education may benefit more Huskies than you might think. With so many different ways to make a buck on NIL—from private lessons to speaking engagements to social media endorsements—the new NCAA rule may spell opportunities for not only star athletes in marquee sports, but also for those in less flashy sports and with no clear path to lucrative pro careers.

For those softball players or rowers or gymnasts who have dedicated their lives to performing in college, this may be their best opportunity to cash in on those years of blood, sweat and tears.

Foster is helping them, like all its students, learn how to seize the day.

Ed Kromer Managing Editor Foster School

Ed Kromer is the managing editor of Foster Business magazine. Over the past two decades, he has served as the school’s senior storyteller, writing about a wide array people, programs, insights and innovations that power the Foster School community.