House Hang-Ups, NIL R&R & Cost-Saving Measures | NIL Blitz: Sep. 2 - Sep. 8

Welcome back -

On the heels of an eventful weekend of college football, I have an eventful week of NIL developments to report on.

The hiccups in the House settlement certainly stole the show and there's a full recap on it below. I've been asked about the likelihood of the settlement failing and I don't have a perfect answer but I can say the stakes feel much higher than they did at this point last week.

More on that below - here is a quick review of all you need to know from last week.

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1. House Hearing Hang-Ups ??
2. NIL R&R ??
3. How Many NIL FTEs Does A School Need? ??
4. 1919 Players Fund Launches at UCLA ??
5. Cost-Saving Measures & $40K Olives ??

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1. House Hearing Hang-Ups ??

Thursday of last week gave us a consequential hearing on the House settlement, which, by now, you probably know came with some fireworks. The setting for last week's presentation was one of concerted unity by the NCAA and plaintiffs' attorneys going head-to-head with determined scrutiny by objectors and Judge Wilken. The +2.5-hours of discussion had dramatic moments and left parties with arguably more questions than answers, including what appeared to be an ultimatum - find reasonable defense to the NCAA's requests in the settlement or send this thing to trial.

Here are my six important notes after tuning in:

I. COMMERCIAL NIL VS. COLLECTIVE NIL | Among the issues, the NCAA’s legal counsel maintained a hard stance on keeping language in the settlement to allow for booster/collective enforcement (e.g., “valid business purpose”, “commensurate” pay). Judge Wilken peppered the NCAA with questions about the unenforceability of the vague term of “boosters”, noting she cannot see the difference of why third-party NIL activities (e.g., Nike) are unrestricted but booster (e.g., collective) NIL activities could be. Judge Wilken even went as far as posing that revenue sharing under the settlement is the swan song for “pay-for-play” restrictions.

II. TITLE IX AND ANTITRUST CONCERNS | The NCAA and Plaintiffs doubled down that Title IX does not apply to the NCAA and that the settlement therefore does not need to consider Title IX. Objectors pushed to argue the NCAA’s historic sex discrimination (e.g., 2021 March Madness) is a prime example of how discrimination can have anticompetitive effects and, while Title IX may not apply directly, gender discrimination does. In other words, the Objectors argued that if women’s sports had received more support/exposure, then their backpay values would have been higher.

III. CAN THE HUBBARD CASE MOVE FORWARD? | Judge Wilken suggested settling first the Hubbard v. NCAA case (i.e., backpay for Alston academic achievement awards) to expedite the process. The NCAA took a hard line that Hubbard should not be settled separately. From their angle, it sounds like it will be a part of the larger settlement or they want it to go to trial. To the NCAA, this is all or nothing.

IV. IS THERE LEGALITY IN A 22% CAP? | Objectors raised concern over whether or not a “cap” is actually just another example of antitrust (i.e., restraint of trade), noting it is problematic without collective bargaining agreements (CBAs). All parties and Judge Wilken agreed the settlement outlines future potential for CBAs. This issue did not go much further.

V. REPRESENTATION OF FUTURE ATHLETES | Objectors raised concern over future athletes not being represented fairly under this settlement. Judge Wilken prompted the parties to consider an inherent conflict of attorneys settling the case also being the ones to “represent” these future athletes. Judge Wilken also expressed concern that an individual who is not a student-athlete and who is not currently “represented” is automatically opted in as part of the class, and has their hands tied to a settlement they had no say in. There is real antitrust concern here which Judge Wilken prompted parties to reconvene on.

VI. OTHER PENDING LEGAL ISSUES | With several other issues/cases floating around (e.g., Fontenot, Choh, Johnson, FLSA, NLRB, etc.) Judge Wilken encouraged the parties to acknowledge specifically which claims are released from the scope of this settlement proposal. Judge Wilken also encouraged NCAA legal counsel to work through case management with the Colorado-based Fontenot case as there were many issues discussed there.

Judge Wilken did not approve the settlement given all of the points of contention, but neither did she deny approval. Instead, she gave the parties some homework. Over the next three weeks, both parties (and possibly the objectors) will work to address key issues raised by Judge Wilken: (1) claim release clarifications; (2) “booster”/collective NIL language; and (3) future student- athlete representation/potential antitrust claims.

On September 26, the parties will appear for a hearing on proposed changes or in disagreement. If the parties cannot agree on new settlement terms, the case will continue on a trial schedule with Judge Wilken likely to provide a new trial date and calendar at the hearing.

Why does this matter?

The stakes couldn’t be higher. A middle-ground that leans in favor of athletes could pave the way for even broader compensation rights and future collective bargaining, while revised terms in favor of the NCAA could tighten the reins on collective NIL and revenue sharing. In other words, this isn’t just about the current settlement — it’s about setting the precedent for the next decade of athlete rights.

If you're looking for a deeper recap, here are a few from Sportico, ESPN, and Yahoo which I believe captured the event well. The NCAA President, Charlie Baker, sent this candid letter to the membership following the hearing.

2. NIL R&R ??

"Recruiting and retention" are the two most important words in NIL right now. (They might even make a run at passing "Wild Wild West" for the most commonly used NIL buzz-phrases.) So, when I say NIL R&R I'm not talking about rest and relaxation - in fact, a lot of people working in it see it as the exact opposite.

When I talk to partners about this I split it into two separate discussions.

For recruiting, I play the hypothetical of "If you left your job today and started up a $10M collective at your alma mater, how would you start signing athletes?" There are a few outcomes here. You could breakdown a roster or start looking at top talent, offering them money that "feels" right. You could pay out the entire roster equally (say, $50K across the board). You could go off what you think it is going to take to get a player because of what they told you they were offered somewhere else. You could do a lot of things. You don't want to irresponsibly burn your contributors' money. But for a collective operator who is much like any other business owner, having a touch for what reasonable market pay is helps.

For retention, it's the same song but another verse. You hear rumblings of players considering the portal and you don't know what to do. Jump in and start signing them to more NIL deals? Front-load some payments? Sit down with the player and hear them out? The relationship that was built 5-months prior suddenly feels unstable at best. But if you happened to have intel on what league and conference peers were paying out, you could have confidence that (financially) you weren't going to worked by an agent for more than you think you ought to be.

If you find equilibrium in NIL R&R, you're doing well. If you're doing well in the first R, you're on the up-and-up. If you're struggling on the second R, well talk to Idaho head football coach Jason Eck. After a ten-point loss on Saturday to No. 3 Oregon, Coach Eck pointed to NIL as the culprit. “If we had those (five) guys that got paid, I think we’d probably have beaten Oregon. We got sacked four times. Our quarterback, who is now at Oregon State, can really evade pressure and extend plays.”

Coach Eck goes on to describe a paradigm shift that is taking place for upper-FCS / Group of 5 programs who are embracing the developmental-league mindset for what is perceived to be a transient generation of athletes. “We have to recruit Mountain West-caliber guys: ‘Come here, get developed and play, and then bless your family your last couple of years of college.’ You want to educate these guys as much as possible. I tell them, we develop cats here. Why go somewhere else where I might sit on the bench just because of a logo? We flip it as a positive.”

NIL R&R - know the term, know Opendorse can provide the data-backed context, and keep eyes on the programs who are doing it well.

3. How Many NIL FTEs Does A School Need? ??

A partner school asked a stimulating question this week: How many NIL full-time employees (FTEs) does a school need?

The answer depends on each school and their priorities, so the contact quickly rephrased to ask how many NIL FTEs their peers have in order to get a competitive feel.

After doing some digging, here are some quick-hitters:

• +60% of P4 schools have a dedicated FTE
• ~25% of NIL FTEs are sport-specific
• ~25% of schools have >1 NIL FTE
• Of schools with NIL FTEs, 40% have additional support (e.g., multiple NIL FTEs)
• ~20% are partially/entirely outsourced
• 100% of FBS schools have staff handling these responsibilities one way or another

Similar stats can be gathered from the influx of GM hires, but for now that pool is relatively small. There are also already two NIL directors I know of who are making the transition towards more of a GM profile, so I would imagine there will be a bit of cannibalization/evolution of these positions.

In summary, the short answer is every school should have a designee to lead NIL efforts. At this point, a splintered approach has proven ineffective. The schools who are doing it best have 2-4 NIL FTEs.

(Speaking of NIL hires - subtle plug for the new Opendorse + Texas One Fund role. Check out more on it here.)

4. 1919 Players Fund Launches at UCLA ??

Last week, UCLA QB Chase Griffin launched the 1919 Players Fund , a unique athlete-led NIL agency aimed at supporting his teammates through brand partnerships. This isn’t your typical collective; it’s spearheaded by the athletes themselves, giving them direct control over the deals they pursue and the causes they champion.

In Griffin's words, the motivation for creating the group was clear. "When we look at UCLA and how it relates to the Big Ten Conference, we are the #1 donated to institution. We are ranked among the lowest as far as athletic department support from donations." With a desire to be a mitigator in the disconnect, the Players Fund was born.

The collective’s first major initiative is a collaboration with friends-of-OD Movember, leveraging their platform to raise awareness and funds for men’s health. The LA Times also noted early partners include the investment advisory firm SteelPeak Wealth and the Westwood Village Improvement Association. The 1919 Players Fund will be using Opendorse for a best-in-class backend system, and Michael Zoerb and Daniel Pearson were out in LA to participate in the launch.

The 1919 launch is a great example of athletes taking the reins in the NIL space, combining entrepreneurship with advocacy. If you want to learn more about 1919 you can check out their website and listen in to the NIL Blitz podcast on Tuesday morning to hear Daniel's interview with Chase on-site.

5. Cost-Saving Measures & $40K Olives ??

I had a conversation last week which I think is worth sharing.

This was with an unnamed NIL director in the context of whether or not they were traveling to their team's game on Saturday. The answer for them was "no", because their senior leadership was making a serious effort to scale back on travel expenses. Barring shared flights, it would be upwards of $6K for another staffer to join the travel squad.

This prompted the individual telling me "the olive experiment".

About 40 years ago, American Airlines did a study on their expenses to see where changes could be made. They determined that eliminating one olive from each passenger’s salad plate would reduce costs by $40,000. The story made headlines because the cost of an arbitrary garnish had a surprising impact on costs. There is a Forbes article that tells more of that story, too.

That said - schools are looking to find their olives. What costs can be cut to help settlement-proof the department? What non-essential spending can we trim down?

In the world of NIL, every dollar counts — and sometimes, the smallest adjustments can lead to big savings. For collectives and athletic departments, this is a reminder to look for those small changes that can add up. Whether it’s renegotiating contracts, optimizing travel expenses, or cutting unnecessary perks, cost-saving measures can free up resources that can be redirected to athlete compensation.

With the financial landscape of college sports constantly shifting, staying lean and strategic with spending isn’t just good business — it’s essential for sustaining NIL programs in the long run.

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That's all for now - have a great week!

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Also if you missed it over the weekend, the New York Times had a full-length piece in their Saturday paper covering NIL earnings nationwide. Opendorse data was credited all throughout. Pretty neat. It would be worth the read if you haven't yet!