January 28, 2025

EPISODE 12: TAMPERING

EPISODE 12: TAMPERING

EPISODE 12: THE CONCEPT OF“TAMPERING” IN THE NIL WORLD.

 

What exactly is “tampering”; All the Fuss. The dictionary definition of this verb is:1. interfere with(something) in order to cause damage or make unauthorized alterations and/or 2.exert a secret or corrupt influence upon (someone). In terms of NIL, “tampering” is alleged to occur, and public outrage ensues, when a representative of a team (direct or indirect), other than an athlete’s current team, reaches out with an offer of NIL compensation intended to lure that athlete away. Does this meet the textbook definition, perhaps; but… not so fast!

 

Reality Check. We all seem to agree that athletes have a fundamental right to monetize their name, image, and likeness. This is how we got to where we are today, dating back to 2021with court opinions and litigation, state legislation, NCAA rules, and institutional rules all supporting this concept. Apparently, however, some people want to place limitations on how/when and under what circumstances athletes can learn of their NIL market value when it comes to transfer. Isn’t that somehow contrary to the notion of an athlete monetizing and maximizing NIL!

An athlete arguably (or per NCAA rule) must first enter the transfer portal (unless a graduate). Otherwise, some call it “interference”, “secretive” or “corruption”, hence the definition. In my view, however, this attitude and position ignores the reality that the portal decision is difficult for the athlete, it causes fear and anxiety, even a sense of being shunned as an outcast; a “traitor” if you will. The athlete can only balance this negativity and pressure against a reasonable likelihood that their respective value on the market justifies the act of entering the portal. But, if strictly applied, how would he/she know?  It’s a chicken-and-egg problem.  I’d prefer to err in this case on the side of the athlete. If you Mr. Institution, as the incumbent team, value and treat your athlete properly you should have nothing to worry about. Otherwise, let them learn and earn.  Frankly, the bigger concern for me is just the opposite, with teams and collectives treating athletes unfairly, with pressure, undervaluation, and discouraging or avoiding athlete representation.  

ABOUTTHE AUTHORS:

 NILegally Speaking™ is written by PowerNIL/Ken Feinberg, attorney, in collaboration with other expert attorneys focused on employment, labor, contract, and intellectual property law.

 ken@powernil.com                                                                                                                       www.powernil.com

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