Some college athletes are being asked to sign away the rights to their own tattoos. At least one college wants to sell the rights to its players' dance moves.
NCAA schools are going to contractual extremes when it comes to the name, image and likeness deals that they are now signing in the expected new era of direct college payments to athletes. The deals, which could become effective this summer, are designed to be generous enough so athletes will commit to a school but also stringent enough to stop the constant churn of transfers that has introduced upheaval in college sports.
Along the way, school lawyers are constructing NIL contracts to exert control over athletes without making them official college employees. But experts who reviewed a sampling of more than a dozen NIL contracts obtained by ESPN said the deals bear the hallmarks of employment contracts.
A federal judge is nearing a decision on the NCAA's $2.8 billion antitrust settlement -- a deal that was supposed to dampen a frenzy of litigation surrounding athletes' demands to share in the profits generated by college sports. Instead, experts say, the contracts now being signed by athletes might actually strengthen a line of attack in court: that these are de facto employment contracts, and if college athletes are employees, they should have collective bargaining rights.
The NCAA and its member schools insist that college athletes should not be considered employees because they are students. Schools are so adamant about establishing a red line on employment status that the NCAA is lobbying Congress for legislation to permanently shut down athletes' collective bargaining efforts.
The contracts "cross those red lines very clearly," said Michael LeRoy, a law professor at the University of Illinois who has researched employment law in the context of college sports for more than a decade. "It's employment on its face. There's no masking it."
The documents ESPN obtained include full contracts, memorandums of understanding and templates that the Big Ten and SEC, the country's two most powerful and wealthy leagues, provided to their members as suggestions for how to craft deals with their players.
The major conferences and schools identified in the contracts declined to comment. An NCAA spokesperson said the association has no influence over how deals are structured but added that the "additional benefits schools are seeking to offer are in line with the terms in the settlement proposal."
On the schools' side, people familiar with the contract-drafting process agreed to discuss, without attribution, how they arrived at their contractual terms. They said they are aware of the potential legal challenges but believe the deals do not assert enough control over athletes to meet the definition of employment.
Amid mounting legal pressure in recent years, the NCAA and its schools have ceded considerable ground on their long-held amateurism rules. A pending settlement of three major antitrust lawsuits, including House v. NCAA, is on track to let schools pay their players directly starting this summer.
LeRoy, who reviewed several contracts obtained by ESPN, said the deals meet several key standards in a legal test that federal courts have established to determine if someone is an employee. As they roughly defined, an employee is someone performing services for another party's benefit in exchange for compensation while under that party's control.
The contracts viewed by ESPN are structured, in part, as licensing deals where the school is buying the rights to use the athlete's NIL in promotions. Payments for those rights are separate from the tuition and other academic-related funding athletes receive from their schools.
Many of the contracts explicitly state that athletes are not employees and are not being paid for playing on the team. However, experts say, the fine print might be deemed in a court challenge to contradict those assertions.
Part of the argument, they say, focuses on the amount of control that the schools impose on athletes in this exchange. The transfer portal has emerged as one of the principal ways athletes can leverage their talents to get a better deal, but contractual language seems designed to limit players' maneuverability.
Several of the contracts and templates require players (or their future teams) to pay a buyout fee if athletes decide to transfer schools before the end of the contract. Most let the school stop paying athletes immediately if they enter the transfer portal -- or if they or their agent even express interest in a transfer.
The contract template for SEC schools says athletes and their representatives cannot "initiate, solicit, entertain, negotiate, accept or discuss" any competing offers. Players must immediately tell their school if another team reaches out to express interest in a transfer. If the school discovers that a player failed to report the contact, the school can stop payments. The athlete might not only lose earnings but also might be forced to cover the school's legal fees.
SEC officials declined to answer questions about the template.
THEN COMES THE QUESTION of whether the athlete's performance is part of the deal. The Big Ten's template states that the athlete is not being paid in exchange for his or her "commitment to attend the Institution or participate in the Institution's Program." But a footnote to the 10-page document states that, in order to receive their money, players must remain enrolled at the institution and be listed on the team's active roster.
In bold letters, the contract states the arrangement is not "pay for play," but it also states that the school may reduce or increase an athlete's payment depending on the athlete's playing time or performance.
The schools argue that the value of athletes' NIL -- that is, the product sold in this transaction -- is impacted by their performance on the field, according to people familiar with the schools' contract-drafting process. In other words, the athletes must be playing -- and in some cases playing at a certain standard -- for their NIL rights to be worth the school's payment offer.
The sources told ESPN the schools are using that logic to write deals that they believe are only a purchase of NIL rights -- not a direct payment for performance, even if the contract requires certain standards of on-field participation.
"They're really bending over backward to try to thread a needle that I don't think can be threaded," said Michael Willemin, a lawyer who is currently representing athletes in Johnson v. NCAA, a federal lawsuit that claims athletes should be employees.
Sports attorney Darren Heitner said he has been struck by how directly the school contracts assert control over athletes.
Multiple contracts from Big 12 schools prohibit the athlete from taking a redshirt year "without the consent of the coaching staff" or from sitting out any game "including postseason competition" when cleared to participate by medical and coaching staff.
The implication is that a player deemed healthy and eligible may not opt out of participating. Such provisions, Heitner said, make it clear that athletes are being paid to play or could suffer financial consequences for failure to play.
The experts consulted by ESPN questioned whether the schools' argument -- that this is not pay-for-play -- would hold up in a court challenge.
LeRoy said the contracts remind him of the arrangements between actors and producers in Hollywood -- where the actors' long-term licensing rights and labor are part of the deal. The labor part of those deals, LeRoy said, has long been considered by courts as an employment arrangement. It's the employer-employee relationship that gives Hollywood actors a right to union representation.
In NFL contracts, players also sign over the right for teams and leagues to use their name, image and likeness in any material promoting the sport. Unlike the college contracts, NFL contracts do not allow the teams to sublicense a player's NIL for use in any promotions for a commercial product. Unlike college athletes, NFL players are employees with collective bargaining rights.
HEITNER HAS HELPED both athletes and booster collectives craft NIL contracts that have provided legal means for players to receive salaries. Schools are now taking over the contract-drafting role in anticipation of the antitrust settlement being finalized later this year.
The collectives, which often work closely with the schools they support, were very careful to avoid any contract language that tied payments to where or how well an athlete played, Heitner told ESPN. But schools and conferences have steered directly into those types of requirements.
"It feels like all caution has been set aside," he said. "These are employment agreements based on payment in exchange for play."
In ESPN interviews and news conferences, many athletic directors and coaches have expressed interest in using the new contracts to slow down athlete transfers. The constant churn has made it difficult to manage their rosters, and they contend that legal challenges have made it hard for the NCAA to enforce many of its rules. If athletes were to obtain employment status, they say, many athletic departments wouldn't be able to afford the added costs.
Professional sports leagues such as the NFL limit player movement and impose other controls over players -- but they do it as employers through their union-negotiated contracts.
LAWYERS AND PLAYER ADVOCATES also say the schools are presenting athletes with one-sided offers that compel players to give up broad rights without a strong guarantee of how they will be paid.
Many of the contracts reviewed by ESPN create financial penalties if players move to break a deal early, yet they allow the schools wide discretion to change the terms of a deal or cancel it fully without penalty.
Lawyers and agents told ESPN they've had mixed success in negotiating more player-friendly changes into the initial contract offers, but they fear that many players who are not represented by an experienced agent are signing deals without understanding that they can ask for changes.
Schools construct complicated formulas to discourage transfers. Athletes who switch schools can face hefty buyout penalties on their existing contracts that require repayments of money already paid out. It's up to the athlete to negotiate with the transfer school to pay the penalty. If not, it's the athlete left holding a bill that could total many thousands of dollars.
Even if it's the school that cancels the contract, the athlete could still wind up being stiffed. The contract of one Big 12 school, whose name was redacted from the copy provided to ESPN, offers to pay 50% of the remaining money owed on the deal if the school backs out.
However, the school "shall have no further obligation to pay any buyout" if the athlete subsequently enters the transfer portal -- which the vast majority of athletes will do if they are pushed off their current roster by a coach who no longer wants them.
In others, such as a contract offer to a University of Central Florida football player worth hundreds of thousands of dollars, the player would have to repay the entire amount paid in the previous year before the player could sign a new deal with a different school. The school, though, has the right to terminate the agreement without penalty "at any time at its convenience and in its sole and absolute discretion." By signing, the athlete waives the right to seek recourse.
A UCF spokesperson declined comment, citing confidentiality terms of the contract. "We respect the privacy of our student-athletes and adhere to all contractual obligations regarding confidentiality."
UCF's contract states that the player is forbidden from disclosing the terms of the deal, but no language prevents the school from discussing the deal.
"These deals are absolutely worthless to athletes," Heitner said. "There's no reason to sign it. You're giving away rights and there's no guarantees for you in it."
Heitner and others said they fear that many athletes are eager to accept the money schools are offering without having a legal representative review the fine print of their contracts.
THE LEVELS OF CONTROL exercised by schools, as outlined in the contracts reviewed by ESPN, extend well beyond what professional contracts typically stipulate. Some contracts forbid players from signing any deal to endorse political organizations. One agreement specifies "candidates, PACs, or related entities" in its ban.
Once athletes have signed away their branding rights, schools are free to use or sell the athletes' NIL with little or no input from the players. Some of the deals require athletes to sign away rights that go beyond the usual applications of name, image and likeness. The SEC's template, for example, gives its schools the right to "use, publish, reproduce" and "make derivative works" of an athlete's "signature, initials, photograph, gifs, visible tattoo artwork, image (actual, drawn, virtual and computer-generated), hologram, avatar, caricature, voice" and "other intellectual property rights."
Most deals reviewed by ESPN limit the types of endorsements an athlete may sign with other companies, particularly if an endorsement deal could conflict with one of the school's sponsors.
The Big Ten template prohibits players from endorsing any products related to alcohol, tobacco, e-cigarettes, gambling, adult entertainment or any other product or activity the school "determines will dilute or harm its reputation." The school is also prohibited from selling the player's rights to these types of companies.
Contracts from both Big Ten and Big 12 teams also give the school control of a player's group licensing rights -- which means athletes are unlikely to receive direct payments for their likeness being used in video games or to sell jerseys and other merchandise. In professional sports, those rights are usually held by a players' union, and athletes reap additional payments when they are sold.
"There's a reason why the NFLPA gets a chance to see any deal that involves five players or more," said Brandon Copeland, a seven-season NFL veteran who is now the chief executive of Athletes.org -- a group vying to represent college athletes as a players' association. "One, that's to protect the athletes, and two, is to make sure it's maximized and the athletes aren't being taken advantage of."
THE LEGAL LANGUAGE and length of the contracts obtained by ESPN vary widely. Some exceed 20 pages.
Several agents told ESPN the complexities can make it hard for athletes and their families to understand their options. Some schools are willing to renegotiate the terms, the agents said, while others adopt more of a take-it or leave-it stance.
Several schools have changed their contract structure already based on what other competitors are offering to athletes, according to Jason Bloom, the general manager of A&P Sports Agency.
"They're changing the contracts constantly," Bloom said. "A lot of the time, they're throwing stuff against the wall. Some of it will stick. Some of it will be challenged and it won't stick."
Bloom said A&P has negotiated more than 30 contracts worth more than $12 million combined for athletes in the past few months.
If a player is talented enough, A&P co-owner Jacob Piasecki said, schools will be willing to agree to "pretty much whatever you want," including removing buyout clauses, getting rid of the school's right to change a player's payments and other requests.
"For the guys that are not in that position, you'll get a verbal promise," Bloom said. "We don't accept those, but that's what they try to do." And the terms are far less negotiable, he added.
ALTHOUGH PLAYERS ARE signing these deals now, every contract reviewed by ESPN said that the deals are contingent upon Judge Claudia Wilken approving the House v. NCAA settlement. Some of the contracts say that any appeals also would need to be finalized before the deals go into effect.
Wilken has scheduled a final hearing on April 7, and a ruling could take weeks more. Several attorneys who have objected to the settlement say they will consider appealing if Wilken approves the deal. In that case, appeals could drag on long after schools are scheduled to start paying their players in July.
Heitner, Bloom and others who have helped athletes negotiate their deals say some schools have agreed to guarantee player payments even if the settlement falls through. In some cases, the school's booster collective offers to cover the promised money. And in other cases -- especially where state laws already provide schools with the legal cover to pay their players directly -- the schools have agreed to pay the players no matter how Wilken rules.
Many contracts require players to stipulate that they are not employees of the school. In some, the players are asked to waive any rights to sue their school, its conference or the NCAA in the future on the grounds that they should be treated as employees. In one case, players are required to waive any right to object to the terms of the House settlement during its 10-year lifespan.
LeRoy, the Illinois law professor, said it's unclear whether those waivers would hold up in a court challenge.
Heitner said judges would be unlikely to uphold "scare tactics" that compel athletes to sign away their right to be recognized as employees.
If a court decides in the future that athletes are employees, multiple contracts stipulate that all of the money provided through these deals would count as the full payment the athletes deserve for their employment.
"That's talking out of both sides of your mouth," Willemin said. "It says this is not an employment relationship, but if someone determines that it is an employment relationship, then we've paid you for that work. You can't mix around what you're paying for."
Copeland, of Athletes.org, said he expects future court challenges to some of the restrictive clauses in these contracts, adding that the legal peace the NCAA hopes to achieve through its settlement and these new contracts is likely to be short-lived.
"I think next year will be a lot more chaos than there ever has been," Copeland said. "Eventually people are going to look at this whole system and say: Well, why don't we just do this thing like pros?"