Nick Saban Has Right to Share NIL Opinions With Donald Trump

On the heels of reports that President Donald Trump is weighing an executive order that would attempt to impose a new federal framework for college athletes’ NIL and other economic opportunities, former Alabama football coach Nick Saban has drawn rebuke for his apparent role in shaping Trump’s viewpoints.

The rebuke amounts to an errant pass.

Saban reportedly met with Trump last week in Alabama. Trump has also discussed college sports issues with U.S. Sen. Tommy Tuberville (R-Ala.).

From a legal vantage point, the prospect of the president issuing an executive order on college athletes is problematic. 

As discussed on Sportico, Trump’s order could run afoul of state laws, which govern NIL and prospective employment of athletes at public universities, as well as federal statutes and the U.S. Constitution. It could spark new litigation at a time when college sports is attempting to emerge from 15 years of lawsuits.

To that point, an executive order could undermine efforts by the NCAA, power conferences and athletes in the House, Carter and Hubbard antitrust litigations to resolve the claims through a settlement that is currently before U.S. District Judge Claudia Wilken. The settlement contemplates billions of dollars in collective payments to current and former college athletes, with some concessions to the NCAA. One concession is independent review of NIL deals in excess of $600 to ensure they’re not cloaking pay-for-pay deals.

Steve Berman, who is co-lead counsel for the athletes, slammed Saban in a statement. 

“College athletes are spearheading historic changes and benefitting massively from NIL deals,” Berman said. “They don’t need this unmerited interference from a coach only seeking to protect the system that made him tens of millions.”  

Saban’s previous opposition to NIL was also stressed by Berman, who said Saban favored “pushing to add restrictions and red-tape through national legislation to add some sort of control.” Berman added that while Saban opposed college athletes landing NIL deals, Saban made “tens of millions of dollars” as the Crimson Tide coach.

The idea that Saban is at fault for “unmerited interference” is unfair.

For starters, Saban owes no duty to the NCAA, power conferences, or attorneys representing the athletes. He’s not part of the settlement or any of its parties and isn’t an emissary on any of their behalf. Saban now works for ESPN, where he’s a college football analyst (as Berman points out, Saban also holds a $500,000 per year post-retirement advisor role with Alabama). Saban offers opinions as part of his broadcasting work. Whether one agrees or disagrees with Saban’s opinions, he can share his views and often does so on TV. That’s the spirit of the First Amendment and is part of Saban’s professional life.

Second, it’s not known what viewpoints Saban shared with Trump. Saban’s viewpoints on NIL from years ago are not necessarily the same as the ones he holds today. He was an opponent in the past, but that was true of many people in college sports, some of whom now embrace NIL.

Third, it’s unrealistic to expect that if the president of the United States is interested in hearing from someone about a topic, that person should decline because there’s a settlement on a related subject matter that is nearing the finish line. It would seem awkward for Saban to tell Trump something to the effect of, “I can’t talk now, Mr. President, but let’s chat after the settlement is approved.” 

Lastly, whether Trump issues an executive order on college sports is up to Trump—not Saban or anyone else. As mentioned above, there are substantive reasons to be concerned about such an executive order. Trump would be well served to consult with a wide range of stakeholders, including athletes, before issuing one. If an executive order attempts to change the law, it is almost certain to face legal challenges.

But don’t blame Nick Saban.