On September 25, 2024, UNLV starting quarterback Matthew Sluka announced that he would be departing from the program due to broken promises regarding compensation that was promised to him in an NIL agreement with the university’s collective. Despite leading the Rebels to a 3-0 start, Sluka will sit out for the remainder of the season as a redshirt and will enter the transfer portal in December. The NCAA’s Bylaw 12 allows football student-athletes to compete in up to four games in a season without utilizing one of their four years of collegiate eligibility. Additionally, a handful of other football student-athletes likewise chose to redshirt after only four games to retain an additional year of eligibility.
Sluka’s Backstory
Sluka started his college football career at Holy Cross University, an FCS school, and after a prolific 2023 season, opted to transfer to UNLV. Sluka’s NIL representative, Marcus Cromartie, who is also licensed by the NFLPA as a player agent, stated that Sluka’s departure from UNLV was due to the university’s (and its NIL collective’s) failure to uphold its commitment to pay Sluka a minimum of $100,000 in NIL compensation. Cromartie claims that Sluka only received $3,000. Bob Sluka, Matt Sluka’s father, has been vocal since his son opted to leave mid-season, and further seconded Cromartie’s assessment of the situation. Specifically, Bob Sluka alleges that UNLV offensive coordinator, Brennan Marion, among other UNLV assistant coaches, stated that the $100,000 payment would not be an issue, further enticing Matt Sluka to attend UNLV in the offseason.
NCAA’s Redshirt Rules
It is worth noting that Sluka’s decision to transfer after only three games was an effort to retain an additional year of eligibility under NCAA rules. When Sluka arrived at UNLV, it was projected to be his fifth and final season. He had never taken a redshirt season and was granted an extra season of eligibility by the NCAA’s blanket waiver for the 2020 seasons, which took place during the COVID-19 pandemic. College football players can play four games or fewer in a season and redshirt, without utilizing a year of eligibility. Thus, by only participating in three games in the 2024 season, and because Sluka has never previously exhausted his one redshirt season, he can opt out for the remainder of the year and still maintain his NCAA eligibility for the 2025 season.
NIL Collectives
One of the principal considerations at issue stems from where exactly NIL compensation comes from. The NCAA and many state NIL laws still uphold a strict prohibition on “pay-for-play,” meaning that student athletes are precluded from receiving compensation for their athletic performance. Furthermore, student athletes cannot be offered money directly by a university merely for enrolling or remaining enrolled at a particular institution.
On the other hand, NIL collectives are school-specific, independent organizations that can enter into contracts with student athletes and pay them an agreed amount of compensation, typically for a set of deliverables. However, these NIL collective agreements are not binding employment contracts and are negotiated by the student athlete and the collective, without direct university involvement. Of course, this structure is likely to change after the House settlement is finalized and universities may directly share revenue with student-athletes.
The NIL Agreement between Sluka and the UNLV Collective
While Sluka alleges that he had agreed to $100,000 in NIL compensation, the Friends of UNLV—the school’s NIL collective—stated that it never negotiated an NIL agreement with Sluka. Rather, these discussions were between Sluka and the UNLV coaching staff. Moreover, the alleged agreement between Sluka and UNLV was purely verbal in nature, rendering no evidence of a written contract between the parties.
The Contract Implications
As it relates to Sluka’s case, the first major concern is the nature of the contract itself. Even though oral contracts are not invalid per se, they are subject to heightened scrutiny and requirements. Significantly, Nevada Revised Statutes section 111.220 states that contracts not in writing are invalid if they are not performed in one year following the creation of the contract. For Sluka, in order for him to enforce this alleged NIL agreement, he is required to show that both parties could fulfill their respective obligations in under one year. Because of the absence of many pertinent details in Sluka’s contract, it may be difficult to ascertain when this “clock” started ticking.
Marcus Cromartie alleges that the agreement was put in place in January of 2024. However, for an NIL agreement to be signed, the student athlete has to be officially enrolled at the school. Because Sluka was not formally enrolled until nearly seven months later, there is uncertainty as to whether the oral agreement commenced in January or when Sluka enrolled months later. An additional complexity is determining when the contract was set to expire; for example, this could have been at the end of the 2024 football season or at the end of the academic year altogether. Because nothing has been put in writing, there are numerous outstanding questions regarding the term and validity of the agreed upon provisions.
Relevant NCAA Rules
Given the NCAA’s restrictions on “pay for play,” if the agreement is determined to have been purely a deal to entice Sluka to play football at UNLV, the agreement may be found unenforceable on public policy grounds being that it violates NCAA regulations. According to Bob Sluka, UNLV head coach Barry Odom has asserted that the offer is invalid because it did not come from Odom himself, entailing that the UNLV assistant coaches had invalid authority in offering the contract to begin with. There is also ambiguity surrounding the capacity of coaches to enter into a NIL contract with a player on a collective’s behalf.
NCAA Division I, Bylaw 11 states that head coaches are presumably responsible for the actions of assistant coaches and thus, such actions taken by assistant coaches can be attributable to a head coach. As a result, another factual question would arise as to whether the UNLV assistant coaches have exercised the practice of negotiating NIL agreements in the past.
Potential Legal Remedies
If we assume Sluka is unable to prove there was an enforceable contract, there could still be other contractual remedies available such as detrimental reliance and promissory estoppel, etc., further implicating UNLV to follow through with their commitment. Equally important, such remedies may be difficult to prove given the absence of a written contract in the first place. Moreover, a court may also be hesitant to conclude that a reasonable person would enter into a six-figure contract that was not in writing, rendering it unreasonable to engage in an oral contract of such magnitude.
More likely than not, neither party will go into court to try to enforce the unwritten NIL contract. Although Sluka has not been paid as promised, he has presumably no longer met his end of the bargain either. Sluka retains his additional year of eligibility because of the NCAA’s redshirt rules, and will find a new institution in the next NCAA transfer portal window. Although next time, he might opt for a written NIL contract prior to enrolling.
What does the Future hold for NIL Agreement Disputes?
Looking ahead, the future of NIL in college athletics still remains very much in limbo. Charlie Baker, the NCAA President, posted on social media following Sluka’s decision and continued his call upon Congress to implement guidelines and a framework to regulate NIL deals in college athletics. While Baker speculates that the current litigation and settlement actions involving the NCAA may aid in remedying these types of situations, it does not appear that cut and dry. The House v. NCAA settlement proposal prescribes a plethora of provisions relating to NIL, with stricter NCAA enforcement on payment to student athletes.
However, the settlement is still early in the litigation process and the proposed restrictions are not directly applicable to the facts of Sluka’s dilemma. Moreover, the role of NIL collectives in the post-House settlement world remains unclear. Because the upshot of the settlement would likely be more scrutinization on “pay for play,” in the future, situations like Sluka’s may become even more common.
Takeaways
Sluka’s situation will undoubtedly invoke a mixed range of opinions; some may see his departure as pompous and uncompetitive, while others may see it as a student athlete fighting the good fight against a bureaucratic entity. It is difficult to determine the proper recourse for a student athlete like Sluka moving forward. The NIL compensatory scheme as it relates to contracts is seemingly a catch 22. If a student athlete and a university enter into a defined written agreement, absent any collective involvement, this will almost certainly raise some red flags under the NCAA Bylaws and “pay for play” restrictions, placing the university in a vulnerable spot.
However, entering into a strictly oral agreement like Sluka’s carries its own arsenal of concerns, namely, questions on enforceability. Perhaps, the best course of action would be for the university to work as closely as possible alongside its collective to ensure that the collective can foot the bill for a student athlete’s NIL compensation. Under this framework, the collective can engage in a written agreement with a student athlete, thereby reducing the contractual uncertainties that may be brought about in a situation like Sluka’s, leading to greater enforceability mechanisms. Importantly, and in addition to having a written NIL agreement, student-athletes should work with experienced athlete agents and counsel to mitigate the possibility of NIL contract disputes.
