Q&A With Darren Heitner: Florida Puts Pressure On NCAA
This article was originally published on Elbow Bump — Hochberg Sports Marketing’s blog — on May 11, 2020.
In this week’s edition of Elbow Bump, we’re excited to share our conversation with Darren Heitner. Darren is the founder of HEITNER LEGAL and an influential commentator on sports business. A Florida-based law firm specializing in sports law, entertainment law, and family law, HEITNER LEGAL has helped the likes of NBA star Draymond Green (“MONEY GREEN”) and NFL Hall of Famer Terrell Owens (“GETCHA POPCORN”) acquire federally registered trademarks.
In addition to his work at HEITNER LEGAL, Darren is an adjunct professor at Levin College of Law at the University of Florida, a published author, and previous contributor at Forbes and Inc Magazine. He is also helping spearhead Florida’s bill to allow student-athletes to monetize their name, image, and likeness (NIL).
Follow him @DarrenHeitner on Twitter for his sports business musings and on Instagram for a mix of everything in his life.
We spoke with Darren earlier in the week to get his perspective on the NCAA news, the U.S. Women’s National Soccer Team’s case in their fight for equal pay, and more.
P.S. If you missed last week’s newsletter, we covered the NCAA’s new NIL recommendations. It provides context for the below conversation.
On the NCAA
Elbow Bump: What was your first reaction when you saw the NCAA news on April 29 regarding the organization’s upcoming changes to the NIL policies of its student-athletes?
Darren Heitner: My first reaction was somewhat of a yawn. I was not at all surprised. My expectations were incredibly low, knowing that the NCAA was about to release its recommendations. I will say, the biggest surprise was that it was 31 pages in length. I think it could’ve easily been narrowed to 1–2 pages and the mere fact that it was 31 pages is somewhat telling as to what it says and what it doesn’t.
You’ve got 31 pages of recommendations, yet there’s so much overbreadth and there’s still a lot of portions of it that are vague to the extent that I think the recommendations as a whole, as Donna Shalala (U.S. Representative, FL-27) on Capitol Hill pointed out, is a PR campaign, and the NCAA is great at PR campaigns. At first, everyone sees, ‘NCAA: Changing Course: Allowing for students, college athletes, to make money off their name, image, and likeness,’ but once you start digging into those 31 pages, you realize there’s a lot of issues and it’s not truly a free market which I believe these athletes deserve.
EB: How does the bill you’ve been working on in Florida, and the bill passed in California, fit into the equation now?
DH: I can only answer based on what we’re doing here in Florida. Although I can provide speculation with regard to the bill passed in California. One huge distinction between the two is that California’s effective date is 2023 whereas Florida’s bill, that has passed the House and the Senate, and is awaiting Governor DeSantis’ signature, would be effective July 2021.
So, I can tell you based on my discussions with individuals in the state of Florida who were involved in discussions with the drafting and pushing of the bill to the governor’s desk, that there’s not going to be an effort to delay further. The delay in the signature currently is due to COVID-19 concerns, which the governor is preoccupied with completely. But there’s no intention to essentially delete the bill, or to get rid of it. The policymakers, in particular Chip LaMarca (FL-93) who led this effort in the state of Florida, has come out and said he is not at all enthused by what the NCAA has proposed. There are a lot of holes and it is not the free market that the college athletes deserve. Unless or until the NCAA does change course, we’re not going to stop in Florida. We’re going to continue our own efforts.
And what’s really important is that the NCAA has just released recommendations. It has stated it will not be until October of this year until we see concrete legislation that it will propose to its members to then potentially vote on in January 2021. So this is a real slow play, which is the norm for the NCAA. In the meantime, if the NCAA’s goal is to get a state like Florida to back off, I would say it is not mission accomplished.
EB: You mention a free market. To play devil’s advocate here, shouldn’t there be concerns regarding agents and boosters operating in bad faith and influencing where the top high school athletes attend college?
DH: What do we have currently? We have agents in the shadows and boosters in the shadows. What we’re intending to do — at least in the state of Florida — is allow for agents in Florida and licensed attorneys in Florida to assist college athletes with the procurement and negotiation of these types of contracts with third-parties. Essentially, what we’re doing, is taking those agents out of the shadows.
In fact, they were already working with players and I’m sure those reading this aren’t so naïve as to think that agents are not at all in communication with players when they have collegiate eligibility remaining. So we’re taking them out of the shadows. And with regard to boosters, again, I think one of the biggest issues with regard to the status quo is the lack of transparency. So I would take the other angle which is that now even if boosters are potentially going to be funneling money to players through these types of branding deals, at least there’s transparency and they can be scrutinized.
And to the extent that there’s a gatekeeper role to be played, I don’t think it’s the NCAA that should be tasked with that job. Obviously the NCAA is always power hungry and wants to control the entire process, but I think it should be the universities. Allow the universities to take a look at the different deals and determine on a case by case basis, obviously not taking it to the extreme but questioning if something smells funky.
Is the punter being given $5 million in exchange for one tweet? If so, yeah there’s a problem. But to the extent that the NCAA or any university is looking at these deals on a case by case basis, and just basically making a valuation decision, I think that’s a problem. When the NCAA talks about guardrails it’s a big concern.
EB: A lot of the attention is already and will continue to be given to the high-profile athletes in revenue-generating sports such as basketball and football. But what do you think about the opportunities that the NIL policies will allow for athletes in niche sports?
DH: When we were talking to different stakeholders, athletic directors, and athletes in the state of Florida, we looked at the mere fact that there are individuals — women soccer players, the punters at universities — players who would love this opportunity. And I think that’s the keyword. Opportunity. Will every player on every team at every university make the same amount of money? Absolutely not. But will each of them have the same opportunity to go out into the marketplace, value themselves and try to procure these deals? The answer, hopefully, is yes.
And I think that’s what is most important. So while the quarterback at the University of Florida may be able to earn a lot more than another college athlete, that doesn’t mean that the other college athlete is completely precluded to having any deal whatsoever. Having another few hundred dollars at a minimum for a month would be excellent for the lower level athletes and just providing that opportunity, I think, is a good thing.
EB: Let’s make a prediction here. It’s fall 2021, students are entering the classrooms and college sports competition is beginning. What does the landscape look like then?
DH: I think what’s important to recognize is while California has passed its legislation effective 2023 and while Florida has passed its legislation effective July 2021 waiting for the governor’s signature, there are 20+ other states that are currently looking at their own legislation.
What we may have in fall 2021 is a scenario where some states have passed NIL legislation, allowing college athletes within their borders to exploit their publicity rights for commercial gain, while other college athletes may not have those rights. At the same time, I think more likely than not, the NCAA will pass something. I think it understands there is such a push — a bipartisan push across the United States — to allow for college athletes to have these rights, and that they can’t afford to not do something at the NCAA level.
So, in fact, I think what we may have is some disparity where the NCAA essentially says to all states that the college athletes within your borders have certain rights. It won’t be a true free market — it seems like the NCAA is not on board for group licensing and it seems like the NCAA is not on board for shoe and apparel deals even though the colleges and the coaches are allowed to have those deals — so you may have some disparity. The states that haven’t passed legislation will be able to have their athletes abide by the NCAA rules while states like Florida may be more aggressive and provide further rights for their college athletes.
EB: It seems like, in the scenario you just described, states abiding by NCAA rules may have distinct disadvantages when recruiting athletes to join their programs. Do you foresee that disparity as an issue?
DH: I don’t perceive it as an issue. I do think there may be disparity initially until everyone is on board with the same type of policy. And I’d love to see the federal government take action but I recognize that this may not be the №1 concern for the federal government. We just dealt with the impeachment trial of President Trump, we’re now dealing with COVID-19. There are many other issues that the federal government has to deal with. To the extent that the federal government will take it on, that would be great. If not, and if you have the NCAA pass its legislation, you have states like Florida pass its legislation, then yes there will be some disparity. But isn’t there disparity currently in the college landscape? My answer is yes.
