The 110 Society could be even more important to Clemson Football after the House settlement

I've been thinking about the House settlement and how it could impact Clemson Football's use of NIL. It is a tough subject to discuss because so much of it is still in a gray area with little formal definition.

I know what a lot of you are already thinking: Clemson is so conservative with their use of NIL that nothing is likely to change significantly, and you might be right.

Then again, Dabo Swinney has shown the ability to adapt. He might not be a fast adopter or cutting edge, but he has made changes to his standard operating procedures when he is convinced they need to be made.

If you are active on social media, particularly X, you continue to see several Clemson athletes posting about the 110 Society.

The 110 Society is the current collective for all Clemson sports. It is not managed by the university but was designed to align with the athletic department’s plans. In other words, it is ‘ALL IN’.

Following the settlement of the House vs NCAA court case, there has been some mystery surrounding how it will impact collectives like the 110 Society.

The House settlement is like many problems that politicians address. They all agree we need to find a resolution but no one really talks about the actual details of how to do it. That, of course, led to a lot of speculation about the settlement without much actual evidence to back it up.

Since there was only vague structure surrounding the settlement at first, narratives formed around it that have since been brought into question. One of those narratives was that the settlement would bring all NIL activities ‘in-house’ to be managed by the schools. That would remove the need for collectives, in theory.

What we are learning over time is that the actual structure of in-house NIL that will be put into place probably won’t be exclusive, which means 3rd parties will still be active in the NIL market.

Collectives aren't going away, but the future is still murky

Mit Winter, a lawyer well-versed in NIL and sports law (and a former DI college athlete), says the expected $22 million cap would only apply to NIL from schools, not 3rd parties. This would suggest NIL contracts with the schools would not be exclusive contracts. 3rd party contracts would still exist above and beyond what the schools are allowed to distribute.

Collectives are, by definition, 3rd parties. Their funds come from a different resource than the $22 million the schools can direct to NIL. The House settlement will allow schools to be much more involved with how the collectives distribute the funds they have, but they will still technically be considered 3rd parties.

How 3rd parties will be active is another area still undefined for the most part. One detail about the House settlement that has been made public is that in-house NIL from the schools would have to be based on a player’s actual net worth in the NIL market.

That rule would prevent a school from simply throwing millions of dollars at a player to win a bidding war. There are companies already volunteering to provide these NIL assessments to create a fair-priced market, presumably for transfers and high school prospects.

Now the conversation has shifted to how the NCAA would regulate 3rd-party NIL deals for players where the schools are not a party to the contract.

This is a quote from Purdue athletic director Mike Bobinski in an interview with GoldAndBlack.com.

"Bad actors are bad actors, but there is a 100% resolve and commitment, and in this settlement, there will be a clear prohibition against a third-party pay-for-play. But then there will be mechanisms that will be put in place, and it will probably be through a third-party clearinghouse type of thing, which the NFL has right now, to make sure sponsorships are not cap-evading type deals. They would evaluate any NIL deal that comes to the table. It will have to be reported, and then it will have to be evaluated where there are any market substances to it."

- Mike Bobinksi

Bobinski is describing a system to apply the same remedy the House settlement prescribes for in-house NIL to 3rd party deals to prevent pay-for-play disguised as NIL. There is logic to this thought process and if successful it could cure a big problem for college athletics as currently structured.

The question is whether the law will support the plan or if it will continue to violate anti-trust. As pointed out by Winter, a court settlement isn’t the same as collective bargaining and wouldn’t necessarily bring anti-trust exemption in the long run.

In other words, without anti-trust exemption, the NCAA could find it just as difficult to patrol 3rd party deals as it has been for the past few years. The example of the NFL clearing house cited by Bobinski comes with anti-trust protection from collective bargaining with a player's union.

Negotiating a settlement with a group of litigants isn't the same as collective bargaining with a player's union. While the clause regarding NIL contracts matching actual NIL value is a well-intentioned rule, it might turn out that applying it to 3rd party NIL contracts could prove difficult.

Will the House settlement actually change anything with regards to 3rd party NIL deals?

No doubt the NCAA wants to create a system that will serve the best interests of its member institutions, but it also wants to stay out of court as much as possible. It doesn't have a good track record in court lately. There should be motivation to create a system that minimizes the chances that further lawsuits will be levied.

It is challenging to predict the future considering there are so many things we don’t know for certain about the House settlement and how the courts will view future challenges, but if the NCAA is prevented from clearing 3rd party deals or is simply unsuccessful due to a lack of cooperation and subpoena power, it means collectives will continue to operate with little oversight.

This doesn’t necessarily mean NIL funds from collectives will increase. For most schools, they will probably decrease in total. I think most average fans will be less likely to contribute to NIL collectives when they know the school is contributing upward of $22 million in NIL for student-athletes. That won’t preclude wealthy boosters from continuing to donate to collectives, but donations will likely take a step back, with a few exceptions.

While the total NIL money from collectives might decrease for most schools, in practice, this will probably increase bidding wars for top transfers and high school recruits.

The school’s in-house NIL of $22 million will be spread across the different sports and athletes. This means the collective’s budget doesn’t need to be spread across the entire athletic department as it is now.

If there is no need to spread the funds of the collective across all sports & athletes, then those funds can be concentrated on a few high-profile athletes. No doubt these few will mostly be the best of the best in football and men’s basketball, from the high school ranks and the portal.

There are too many ifs to be certain of anything, but it is too soon to assume collectives like the 110 Society will be ‘going away’. It looks like they will simply adapt to the new reality.