Brian Kappel of Lightfoot Talks NIL

What follows is an excerpt of a recent conversation that Sports Litigation Alert had with Brian Kappel of Lightfoot, who leads the firm’s NIL discipline.

Question: How has your firm adapted its sports law practice to address the rapid evolution of NIL regulations and enforcement at both the state and NCAA levels?

Answer: Lightfoot has long been at the forefront of massive shifts in the collegiate sports universe.  With respect to NIL, our first step was helping institutions identify likely modifications (formal and informal) to the NCAA’s regulations based on our extensive knowledge of the industry and the competing incentives among the various stakeholders, our experience with the NCAA’s historical enforcement patterns, and information from the outside actors seeking to enact transformative changes.  We then focused on assisting universities and athletics departments in quickly adjusting to those changes as they occurred (or even before).

This kind of foresight and practical, goal-oriented approach is what Lightfoot has always brought to the table as part of our practice advising athletics departments on NCAA and regulatory compliance.  So, we haven’t adapted the core of our practice to meet these new times.  That said, like everyone else, we’ve felt an increasing need to be quick, decisive, and innovative in how we counsel institutions in responding to changes.  Our advice has also adapted to the rapidly changing NIL world, first by helping institutions and other parties understand what were initially a set of unclear guardrails for what they could and could not permissibly do under the operative bylaws and authoritative NCAA guidance, and, more recently, by assisting universities and their internal and external organizations in developing creative methods to maximize revenue generation and distribution amongst their student-athletes.

The emphasis on NIL has also given us new opportunities to grow our practice.  As a litigation-first firm, we have extensive experience arbitrating claims under all sorts of circumstances.  Accordingly, we’ve been preparing to assist our clients in the event the Collegiate Sports Commission denies or reduces an NIL agreement, identifying market rate experts, social media comparators, and other helpful evidentiary benchmarks.  We have also monitored — and where necessary assisted — in eligibility cases challenging different aspects of the NCAA’s waiver regime.

Finally, NCAA enforcement itself has changed significantly in this new age of NIL.  Although our approach to infractions cases remains the same, we see far more tampering and gambling cases now in addition to the usual CARA and coaching limits cases.  Impermissible benefits and inducement cases have predictably waned as direct payments to student-athletes were legalized.  This part of our practice remains strong despite an initial reduction in enforcement efforts following NIL adoption, and we anticipate significantly more work as penalties in the tampering sphere ramp up.