In this episode of Legally Bond, Kim speaks with Bond collegiate sports attorney Michael Sheridan. Mike discusses the recent injunction against the NCAA's enforcement of NIL (Name, Image, Likeness) rules.
In this episode of Legally Bond, Kim speaks with Bond collegiate sports attorney Michael Sheridan. Mike discusses the recent injunction against the NCAA's enforcement of NIL (Name, Image, Likeness) rules.
Hello and welcome to Legally Bond, a podcast presented by the law firm Bond, chenek and King. I'm your host, kim Wolf-Price. On today's episode we're speaking with Mike Sheridan. Mike is a member of the firm and is part of our Overland Park Kansas office, and Mike practices in our collegiate sports practice. Welcome to the podcast, mike.
Speaker 2:Hi Kim, Thanks for having me.
Speaker 1:Yeah, it's great to have you back on. I've spent two years since you were last on the podcast.
Speaker 3:Has it been that long?
Speaker 1:Yeah, I think it has. It's kind of crazy Time does fly right when we're all so busy, and I know that you're in the collegiate sports practice, as I mentioned, and I'm guessing a lot has been happening in those two years.
Speaker 2:Yeah, you could say that.
Speaker 1:And so I think one of the things we've talked a little bit about this I know people are curious about it and something on people's minds our listeners probably is NIL or name image likeness. I'm just going to say you know, growing up watched a lot of sports and didn't see college athletes in car commercials or on billboards, so it's a big change for just the average fan. So would you mind talking a little bit about that today and maybe discuss sort of what's been going on. Does that work for today's conversation?
Speaker 2:Sure, I'll do my best.
Speaker 1:All right, great Thanks and again just like an overview, because many of us are just fascinated by where we are sort of in all this world. All right, I mentioned it was two years ago, since the last time you were on the podcast and you had joined Bond really not too long before that. So I think it's good, if you don't mind, if we give the listeners some background again for you talk a little bit about you, because it's kind of a nice way for people to get to know our guests. So maybe you could discuss where you went to undergrad, college, grew up, family, whatever you'd like to share.
Speaker 2:Yeah, sure I'd be happy to. So I'm originally from the Kansas City area, grew up a lifelong Chiefs fan, royals fan, ku fan, went to undergrad at Kansas and did law school at Washington University School of Law in Topeka and started out my career actually as a criminal defense attorney, working for the state and doing some retain work as well.
Speaker 2:And I did that for about three and a half years, maybe four years, and kind of in the midst of that I started to brainstorm on really what I wanted to do with my legal career, knowing that I didn't really want to be a public defender for my entire career and was able to kind of transition into athletics compliance and moved into that full-time. In the summer of 2010, I believe, Went to work at a Division I school out east.
Speaker 1:So back our way.
Speaker 2:Went to the U-Haul, moved from Lawrence to the east coast, where I'd never really been, and kind of started my journey in college athletics there and worked at that particular school for about two years and then was fortunate enough to get an opportunity with the NCAA national office in Indianapolis as an enforcement investigator and I did that work for about eight and a half years and worked several cases against the practice group of Bond, schoenig and King and got to know Mike Glazier and Rick Everard and Kyle Skillman and that group pretty well, bob Kirchner, and anyway, an opportunity presented itself. I think it was towards the end of 2020. And I scooped that up, thankfully, and have been with the firm ever since. So, yeah, it's coming up on what? Three and a half years now.
Speaker 1:I know it's crazy, right, it goes by kind of fast.
Speaker 2:It does. Yeah, when you said it's been a couple years since I was on the podcast, I couldn't believe that. So yeah, so it's been great.
Speaker 1:That's great. Well, I think it's also a good sign, right, that the collegiate sports practice world is collegial, that you know that's how you met everyone and then how you were able to join us here at Bond.
Speaker 2:Yeah, I tried to pride myself on doing a good job but also trying to maintain collegial relationships with everyone I'm working with, and was able to do that with, this particular group working with, and was able to do that with, this particular group. So you know, we fought it out in several cases. But you know, when you kind of finish those up, you shake hands and go have beers afterwards or what have you, and yeah. So when the opportunity presented itself, I felt like I had those solid relationships with the leadership of the practice group and they were, like I said, gracious enough to take me on.
Speaker 1:So that's great. Well, so you went from being the enforcement arm right to switching. How has that changed from being really in a regulatory body to being in private practice? It's been three and a half years now. Is that been a pretty smooth change, or?
Speaker 2:My day to day has been pretty smooth and in many ways it's very similar in terms of the investigative work doing interviews, reviewing documents, writing reports, that kind of thing. I'll be honest, it was a little awkward at first.
Speaker 1:Yeah.
Speaker 2:When you shared office space and you built friendships with the NCA for the better part of nine years and then you're going on the other side of the table. It was awkward at first. It took me a while to kind of get comfortable with that, if I'm being honest, but it's been a good transition. I feel like I've hit my stride with the group and been able to work through that awkwardness to maintain positive relationships. We do good work, I think, by our clients, while maintaining good relationship with the NCAA. So yeah, all in all, pretty well, I would say.
Speaker 1:That's very good, and when you were with the NCAA, you were dealing with matters all over the country, and now you're working for our clients all over the country, right?
Speaker 2:Yeah, the travel part hasn't changed much. That's still fast and furious, and connecting through Hartsfield-Jackson seems like I've been doing weird. So yeah, that's the same for sure.
Speaker 1:You're like, I'm definitely used to that airport. You probably know it.
Speaker 2:If anyone's stuck there, now please let.
Speaker 1:Mike know and he can tell you where to get food. All the good spots. Yeah, exactly. So I guess we keep talking about collegiate sports practice. But the type of work you do, the variety of clients, maybe some listeners don't really know about it. So would you talk a little bit like briefly, give an overview of what that means?
Speaker 2:Sure. So the collegiate sports practice group I would say, is kind of a one-stop shop for all things on the regulatory side of college athletics. So the NCAA manual, the operating bylaws, pick your bylaw. We deal in that space. Our main client base is college and universities, so across the country we're fortunate enough to represent several of the colleges and universities across the country when they run into compliance issues, not necessarily just an NCAA infractions matter, but it could be something like an interpretation on a rule or student athlete eligibility issue, or you know, they just need some guidance on an NIL question, need some guidance on an NIL question. So it kind of runs the gamut, but it's all rule-centric.
Speaker 2:We also do other members of the firm and the practice group do work on behalf of schools and individuals, like in the contract space, counseling business entities, things like that In the NIL space. Really it all kind of boils down to the rules side of college sports. I would say so that's the behind the scenes stuff that goes on. We know a lot of people their relationship with college sports is what they see on TV or what they see when they go to a game. You know tailgates, that sort of thing, and that's great. There is a lot that goes on behind the scenes to run those events and to administer the industry, and that's kind of where we work is kind of more behind the scenes work. That's not not so visible.
Speaker 1:That's fair, right, but it's. But it's very much client counseling and consulting.
Speaker 2:No question, yes.
Speaker 1:Yeah, I have to say, when I was working at a law school and running an externship program, I had law students who were externs with an athletic department and they were just shocked, like I have to like make sure all the tickets are accounted for. I have to make sure that only certain people get the tickets set aside. And I was like, yeah, that's a big deal. Like you have to be on top of that.
Speaker 2:These ethics programs, particularly at the high division one level, are major organizations. I mean you talk hundreds of staff, several departments, hundreds of student athletes, right dozens of coaches. I mean they are. They're big organizations with a lot of moving parts and a lot of things to keep track of and monitor and educate people on. So yeah, we kind of help them with that when the need arises.
Speaker 1:Right, it's everything from. They also have like camps for perspectives and high school kids and it just it's its own part of higher ed and we have this huge higher ed practice at the firm, but the collegiate sports practice, that's its own beast in itself.
Speaker 2:Yeah, no question, absolutely.
Speaker 1:All right, so I guess we should get to our topic, and that's NIL, which I think actually people now all know what that means, right Name image likeness. It's been talked about so much, but if you wouldn't mind just give a little overview of what does it mean?
Speaker 2:Sure, nil is an acronym for name, image and likeness. If you know anything about the NCAA rulebook, you know that they love their acronyms. There's an acronym for everything and really what it means is traditionally, historically, the NCAA rules prohibited student athletes from using their notoriety as athletes to earn money on the side and market themselves, to do endorsements, advertisements, that sort of thing. Those rules were deregulated back in July of 2021 in response to an onslaught of lawsuits brought by state governments, and what it's created is the opportunity for athletes to go out and do endorsements, to market to companies, to sell products and the like, and be paid for that. So I think it's been, overall, a great thing for the athletes. It's created value for the athletes. It has, I think, exposed them to more of the business operation side of athletics. They can gain exposure into those areas. Some of them can earn really really good money Not all, but some can. So all in all, it's been really good.
Speaker 2:I think there's been some challenges and some bumps in the road along the way. I mean you're talking about a seismic change in college athletics that's taken place and it's still pretty new. I mean, we're only a little more than three years into it. I think when something like that happens, there's often a lot of dust and kind of murkiness. I think some of that has started to settle, but there is still a fair amount of that out there because of some still gaps in guidance and rules on what is permissible, what's not, and what the future of college sports will look like that's still being debated and considered and voted on, et cetera.
Speaker 1:Well, that makes sense to me. I mean, you mentioned it's a seismic change and those don't come without some bumps in the road, especially in heavily regulated areas, something with a lot of rules. I mean, I really remember as a kid hearing stories about the coach's wife co-signed a car loan for a player, or someone gave the player something and then they were ineligible, right. So this is a whole new world, isn't it?
Speaker 2:It is. It is, I mean, a lot of those rules. The recruiting rules are still in place but NIL has bumped up against some of that and more litigation and debate et cetera. But yes, it's been a seismic change. I think it's required people who've worked in the industry to kind of shift their viewpoint and kind of recognize and understand and appreciate this new world. You know, I came up in kind of a compliance world where things that are now permissible were kind of the worst things out there in terms of the rules and how these things are permitted. So I think it's going to take some time still for people to kind of come to grips with that people who work in the industry and even people in, you know, out there, fans and public. Some people may not like it, but yeah, all in all, I think it's been really good for the athletes, probably long overdue in some ways, but still not without its challenges and still issues that need to be sorted through.
Speaker 1:But I'll say, you know, just as a total side note, but for female athletes, women and people on the women's teams, you know, this is maybe the only way they'll make money playing sports.
Speaker 2:Possibly. I mean, some of the highest earners in terms of college athletes out there are women, yeah. So, yeah, I think it's it's created real opportunities for folks. You're right. I mean, for many of them, this is going to be the end of their you know their athletic careers and you know where they're. They're earning potential in terms of athletics opportunities is at its peak and it's it's allowed them to capitalize on some of that in terms of youiety, their fame, and to make money, and I think that's good.
Speaker 1:Yeah, I think so as well, and you mentioned that it was three. I think you said three years ago 2021, with the rule, but four cases started like four or five years before that. Right, but the thing is and this happens for listeners not just in this area of the law, but when cases happen all over the country then we end up with a problem because we have to figure out what the rules are and what the law is, because different courts are deciding different things coming out in different ways. So these were multiple jurisdictions, not even in the same state, and then the decisions were coming out slightly different, weren't they? And then states were putting in laws, making it even more complicated.
Speaker 2:Yeah, again, the deregulation by the NCAA of the NIL rules which were found, I think, mainly in Bylaw 12, were driven largely by state legislatures creating laws that basically legalized and permitted this type of activity by athletes. Not all states, but a lot of were including very prominent states with high profile schools and a lot of athletes, and it kind of put the NCAA in a position where it had to do something. And that's what you saw in the summer of 2021 was a recognition by the association that this was untenable and that's when what they call the interim NIL policy was put into effect, effective July 1st 2021. And that that interim NIL policy is what is still in effect some three years later. And since then, there's been periodic guidance from the NCAA sent out to the membership to help give some more specificity and clarity to how the NIL rules and policy should work. But it's like I said, it's been an evolution since then.
Speaker 1:Yeah, absolutely. And so with that interim policy, is it particularly focused on prospective student athletes or is it also on current collegiate athletes?
Speaker 2:It's both. So the interim NIL policy permits current student athletes and prospects to take advantage of NIL opportunities. Applies to both. The interim NIL policy also recognizes that state NIL laws may have unique characteristics pertaining to each. Some states permit their high school athletes to participate in NIL. Some states prohibit that. So it's kind of one other example of the mixed bag approach that you're seeing with NIL rules, state NIL laws and the like.
Speaker 1:I think it's one of those things where we know athletics is an industry, both professional and collegiate, but somehow the larger bodies haven't quite caught on to that Like that. This is a major part of not just like culture but our economies as well, and so some that's why the NCAA is working, I think, so hard to have guidance so that this can keep running, this engine can keep going, providing the opportunities for the student athletes, but the fans and the universities as well.
Speaker 2:That's right, and I think what the NCAA has been trying to do in this evolution into the NIL era is to maintain some uniformity across the country, and that's been a challenge, frankly, and I think the need for uniformity is important and I think it's a worthy cause to pursue, because you want consistency, athletes in one state not being unfairly disadvantaged because of rules in another state, one state not being unfairly disadvantaged because of rules in another state. But the like I said, the onslaught of litigation, even since July of 2021 on NIL has further complicated that and I think, if I'm being honest, some of that's likely to continue, at least in the short term, until there's some type of national solution that's arrived at, whether it's from the federal government and Congress agreeing to do something or the NCAA able to put something together that's going to, you know, appease the masses, so to speak, to bring that uniformity back into play.
Speaker 1:Yeah, it seems like the uniformity is just so important. I mean, that's why in college basketball the three-point line is this distance, that uniformity matters in all parts of this opportunity for students and this industry. So we don't want students just you want them to get an education too right. So you don't want them just switching schools to be able to make that money constantly Because, like you said, one state's rules are so much more advantageous than others. You can understand why they do it, but the uniformity provides everybody with some stable ground.
Speaker 2:I think that's right. Yeah, the transfer rules is kind of a whole separate podcast, for sure, but I think it's a good point because these things, these major changes in NCAA rules and how they work, a lot of it's happening at the same time. So you have the NIL era coinciding with the portal, the transfer rules, yes, the transfer portal, the volume of transfers now court cases have played into that as well. Transfers now, what cases have played into that as well? So yeah, it's a heavy mix of things.
Speaker 2:You know rules being changed by the NCAA, outside influences, you know outside litigation impacting how the industry is run, and created a lot of uncertainty, murkiness, tension, unease, that sort of thing, I think, for people within the industry. I don't want to oversell that, though. I think on the whole, again, it's been a positive for the athletes and that cannot be lost here. I think is important to recognize that they are doing well here. I think some of this I would hope will settle Once the newness kind of wears off. Maybe there'll be a settling of some of these things and people will kind of recognize OK, maybe that wasn't so bad, let things kind of sort themselves out. But yeah, for right now anyway, there's a lot of just uncertainty and kind of unease on what's going on.
Speaker 1:Yeah, and I think it is good for the athletes and what I believe the NCAA and others are trying to do that higher education institutions to make sure no one's taking advantage of these students in this whole process institutions to make sure no one's taking advantage of these students in this whole process.
Speaker 2:Yeah, I mean, I think the NCAA what they're trying to do you know it comes from a good place, you know so and looking out for athletes and making sure they're protected, I think is is something that should be done. So, yeah, I hope, I hope that, whatever the you know, the ultimate resolution as to all of this will certainly incorporate that as part of it.
Speaker 1:I mean, I have to say there's always those like touching stories on reels on social media of the kid paying off, you know, their siblings' college education, because they're the college athlete and had an NIL deal and they're able to do that right, so it's a great opportunity.
Speaker 2:For sure no question.
Speaker 1:So there is an NIL interim policy but then there is also litigation based on that, because we like to tinker with things in the law sometimes. So a federal judge there was a lawsuit brought in the Eastern District of Tennessee, I think, and a federal judge has sort of spoken a little bit on the policy. Can you just give us a broad overview of whatever you think might be of interest to folks on that?
Speaker 2:Sure. So the particular litigation that you're talking about was initiated by the attorneys general of the states of Tennessee and states had regarding the NCAA enforcing what I think has loosely been referred to as the NIL recruiting ban, which you were talking earlier about. You know, does NIL apply to prospects or does it apply to student athletes was focused on the NCAA enforcing rules with regard to prospects, meaning high school players or prospective transfer athletes. So student athlete wants to transfer schools. They were part of it as well, and what the litigation essentially right now where we're at is the NCAA has been preliminarily enjoined from enforcing certain rules, certain recruiting rules in the NIL space, specifically enjoined from enforcing rules that prohibit a prospect from having conversations with, like an NIL collective during their recruitment to see what their potential NIL opportunities would be, and the same for transfers. So prior to that injunction, the NCAA was enforcing rules investigating cases related to prospects having contact and communication and potentially striking deals before they set foot on campus or before they made their transfer decision. That litigation effectively enjoined, for now anyway, the NCAA's ability to enforce those rules. So what that means is high school athletes are free to negotiate NIL deals with a collective or with whomever before they make their college decision. So you can understand how that would work in the real world.
Speaker 2:I'm a high profile high school basketball player. I've got three dozen offers. I want to know which institution will allow me to maximize my NIL opportunities. The most I want to have that information before I choose my NIL opportunities, the most I want to have that information before I choose and I can do that without fear of the NCAA coming down and saying that's impermissible and then I have a violation of my hands. So we'll see how that is ultimately resolved, but for the time being anyway, the NCAA has been in June from enforcing those rules to permit prospects and transfers to have those discussions during their recruitment before they set foot on campus.
Speaker 1:So, and just for our listeners, being in join means it's sort of a temporary prohibition, while this keeps, until a resolution is done with this court matter.
Speaker 2:That's right.
Speaker 1:So it's going to be an interesting recruiting year for many schools.
Speaker 2:Yes, and the NCAA had, prior to this injunction going into effect, had a number of active investigations going and those have been effectively paused while this injunction is in place and pending, whatever the ultimate resolution of that litigation is.
Speaker 1:Right, because right now they can't enforce it.
Speaker 2:Right, so they're on pause. So, like I said, we'll see how it ultimately is resolved. But that is the state of things related to that Eastern District of Tennessee litigation and there, you know, pick a day, there's a new lawsuit involving the NCAA. But that was a particularly noteworthy one, particularly in our line of work where we're talking about. You know, that was a particularly noteworthy one, particularly in our line of work where we're talking about the rules and regulations.
Speaker 1:Yeah, I also heard that, or I read that there's some Sherman Act. So for any antitrust geeks out there, there might be some matters being brought under the Sherman Act as well, which is antitrust violations.
Speaker 2:Well, you know I will get in trouble real quick if I start trying to.
Speaker 1:No, we're not going to talk about them, but it's just the fact that, like you said it's something new every day, yeah.
Speaker 2:Meaning I really I wouldn't. I don't know much about antitrust law, so I'll get myself in trouble real quick if I start to opine. We'll set that aside for somebody else?
Speaker 1:Yeah for sure, but it's just kind of wild. I was, you know not something. I would have thought when I took that class in law school, I'd be talking about collegiate sports in regards to the same thing.
Speaker 2:Yeah, and you'll see there's a number of antitrust lawsuits out there involving the NCAA. It's been a hot topic over the last couple of years, for sure.
Speaker 1:Yeah, well, I mean, from everything you said, one thing that's crystal clear is that the issues on NIL are definitely far from over, aren't they?
Speaker 2:That's true. They are evolving. There's conversations happening. There's certainly an appetite within the industry to bring clarity to all of this. It hasn't happened yet, but the power brokers and the decision makers are working hard on it and we'll see how it goes. I'll be watching, like everyone else.
Speaker 1:Exactly Well. One thing also is clear colleges and universities and students, prospective athletes, student athletes need to stay on top of the rules, however complicated they may be.
Speaker 2:Yeah, we try to. Sometimes you're flying blind in some of this stuff, trying to counsel clients on very important issues with not much guidance, so you rely on your historical knowledge, your relationships in the industry. We've got a great team in the college sports practice group so yeah, that's kind of what I draw upon when those questions come my way. But yeah, it's tricky for sure.
Speaker 1:Yes, but if you're out of campus, don't forget to call your lawyers.
Speaker 2:That's right. Yeah, call your lawyer first.
Speaker 1:Yes, well, thanks so much, mike. Thanks for joining us again. Coming back to the podcast and talking a little bit about the current state of NIL, yeah, I'd love to do it, thank you. Great Well, we'll have to have you back. You can brush up on the Sherman Act if you want and come back.
Speaker 2:Call me in two years All right?
Speaker 1:Well, we know this isn't the last change or challenge to NIL, so we hope you'll come back to the podcast and update us as things develop.
Speaker 2:Thanks so much.
Speaker 1:Kim. All right, Thanks, Mike. Thank you for tuning into this episode of Legally Bond. If you're listening and have any questions for me, want to hear from someone at the firm or have a suggestion for a future topic, please email us at legallybond at bskcom. Also, don't forget to rate, review and subscribe to Legally Bond wherever podcasts are downloaded. Until our next talk, be well.
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