Conference shuffles and NIL shaping the future of collegiate play

College athletics is experiencing a historic transition. The games and players are compelling, but now, off-the-field developments are just as riveting. Fans enjoy having more say in the careers of their favorite players (or classmates), while others might be engaged in the legal, business and employment challenges and changes.

Teams and players are exercising their newfound autonomy. With so many colleges leaving their long-time conferences for new and better opportunities, the 2023-24 football season may mark a reckoning of sorts for college athletics in general.

Let's discuss how this evolving landscape will shape the future of collegiate conference play and how it may influence compensation and endorsements for players' name, image and likeness (NIL).

Strategic moves and realignments

There are 125 NCAA Division 1 Football Championship Subdivision (FCS) teams and 129 Football Bowl Subdivision (FBS) teams.

Within the 11 conferences of the FBS, the Power Five are the most prominent and value-generating teams in the U.S. The Power Five conferences are the Atlantic Coast Conference (ACC), Big Ten, Big 12, Pac-12, and Southeastern Conference (SEC). In 2022, the Power 5 reached a record $3.3 billion in combined revenues, according to tax filings and various media reports. That number is not a typo and doesn't include the other six conferences of the FBS.

Some say the structural integrity of the Power Five is in jeopardy, as several schools are vacating one longtime conference in particular. Five schools finalized moves out of the Pac-12 in early August 2023 for the Big Ten and the Big 12. This mass exodus is attributed largely to the Pac-12's inability to secure a substantive long-term media rights deal. The most recent departures leave the Pac-12 with just four members beyond the 2023-24 season; those four - while formidable - are not marquee teams and it is very reasonable to expect their front offices may be seeking a better revenue distribution deal elsewhere. Further, their players will surely be seeking greater NIL opportunities by lining up for the very busy transfer portal. In May 2023, American Athletic Conference Commissioner Michael L. Aresco warned of the harm he felt the Power Five were causing to the rest of FBS.

"The use of P5 has created a divide in FBS football that is not healthy and that is often not supported by competitive results on the field and court," Aresco stated in an open letter. "The recent realignment in college athletics has further eroded the P5 concept. One could argue that if the 'power' conference moniker were still deemed to exist, it is now P2 and everyone else."

The impact - a future with the NCAA?

Many realists and fans agree with Aresco. Some of the realignments have been done for practical purposes, like reducing travel times. Shorter distance travel helps the players who must attend class and remain eligible no matter their athletic schedule. The shuffling among the conferences, however, has broader implications and could lead to major changes, including secession from the NCAA entirely.

Should realignments continue trending in this direction, college football conferences will more strongly resemble the NFL. Furthermore, if these conferences negotiate strategic broadcast deals with the networks and streaming services - why cut the NCAA in at all? Even if these potential deals gross slightly less, the net profits for each conference would increase without the National Collegiate Athletic Association (NCAA) getting its cut.

Developments are arising in the legal arena as well. Since September 2021, National Labor Relations Board (NLRB) has maintained that certain "Players at Academic Institutions" (which NLRB Chairman Lauren McFerran noted are "sometimes referred to as student-athletes"), are employees under the National Labor Relations Act (NLRA), and, are thereby afforded all statutory protections. This has clarified employment matters in some respects and the NLRB is currently carrying out this policy; in May 2023 the Board's Los Angeles Regional Office filed a key unfair labor practice complaint against three respondents - the University of Southern California (USC), the Pac-12 Conference, and the NCAA. The Board is arguing that specific USC athletes are statutory employees of the respective school, conference and the association. Should the Office win, it will have secured the players full rights under the NLRA.

Players' employment rights is a key NLRB initiative, and it signals the chance for larger conferences to demonstrate how they could protect their players' interests better than other entities.

Connecting to NIL

The recent moves within the Power 5 will impact the players on and off the field. A hypothetical Power Four will have fewer teams, which could raise the stakes for competition. They may employ fewer players, but the crème de la crème of prospects will have more opportunity to dominate the field and various screens. This brighter and wider spotlight will make them more attractive for NIL-based sponsorships and endorsements.

The interconnectedness of NIL and the transfer of players and teams is now undeniable. One can look to the UCLA Bruins for proof. The team is beginning their final season in the Pac-12 before joining the Big Ten in 2024. Head Coach Chip Kelly spelled out to reporters in August what's driving moves within FBS conferences:

"You want to know what's going on in recruiting right now? It's all NIL. So whoever has the most money is getting the most players."

For years, critics have argued that college football players - particularly teenagers - are not well informed or savvy enough to make major financial decisions or complex, far-reaching business decisions. Frankly, there is some validity to this argument, since a multi-year, six- or seven-figure NIL endorsement could change a player's life. Oppressive examples of college athletes signing away lifetime rights for deals now may not provide the long-term benefits they could expect. This is especially so if the player shows potential for an NFL career. Navigating tax laws and compliance with NCAA interim guidance can be more intricate than executing a Wing T 69 Bootleg Right.

Since penalties and outright bans have faded, pragmatic regulation can help the players prevent mistakes. If NIL is driving the off-the-field momentum, lawyers should be consulted to review these contracts. Lawyers can secure and protect our high school and college athletes, their financial interests, and their insurance benefits in the same way the NLRB is trying to protect their employment status.

Moving the NIL goalposts

The 2023-24 season could mark the end of the line for the Power 5, despite a record-breaking year in terms of revenue. One less prestigious conference will force the others to adapt and learn. More importantly, it will provide new opportunities for players on the field, which will impact their NIL earnings potential - a concept that does not yet have stable footing.

Lawyers have an opportunity to demonstrate their reliability to firm up this changing landscape. There is a long history of financial and legal exploitation in sports. It has taken 100 years to lift the financial chains of the NCAA off the backs of our young athletes; let's all help them safely secure the fruits of their hard-earned labor.