1. Drafting and negotiating contracts that are designed to be operative under a new law in the future is not, in and of itself, a problem, particularly when it is designed to implement FUTURE rules and policies of the NCAA.
However, signing such a contract and expecting it to be immediately enforceable is...problematic.
2. No, I do not believe that such a contract is enforceable today.
Let me explain the overall "problem" and why it exists. Let's say you EXPECT the NCAA settlement to be one set of circumstances in December. OK, the new year is coming up, what do you do, what do you do? The Wisconsin Collective could sign Xavier Lucas to a "regular NIL contract" under EXISTING rules, and then convert it to something different once the settlement is finalized and new rules exist.
OR...Wisconsin THE UNIVERSITY could try to beat the system 9 months in advance by signing a future "when the House settlement happens" contract. Couple problems, though. What if, say, the outgoing Presidential administration promulgates a policy in January that actually changes how much money will be available to football players? Or, what if the terms of the negotiated settlement CHANGE over the ensuing 9 months, and now the settlement contemplated in December is very different from the settlement concluded in August? Why should December's "contingent on the House settlement" language bind EITHER the university OR the player to a world that could be very different from what was contemplated at the time of signing. IS THERE a settlement? Well, sure. But is it the same as what it seemed like it would be in December? No, not really.
Now, if the contract contained a provision that said both parties need to RATIFY the existing agreement WHEN the settlement becomes final, a court would be more forgiving. RATIFICATION is an act that "re-accepts" the terms of a contract at a later time. Like, say, when a minor turns 18.
Finally, let's think about the big picture of the disparity in power and knowledge between the parties. I know it is popular on Wisconsin websites (and even among some purported Miami fans) to ****-shame Xavier Lucas "because he is an adult and he signed a contract". Uh, yeah, sure. But you are handing him a contract that is about more than just "I will do X for $Y". This is a complex contract that is claiming to be operative "today" based on the happening of some future event. Furthermore, it seems to claim ownership over a player's future school-related NIL rights (again, TV broadcast rights, merch sales, video game royalties, etc.) for multiple years, while not giving the player a similar term (or cancelable term) that would comport with his right to transfer.
In simpler words, THE BIG TEN, by drafting a "template" contract and sharing it with schools, is attempting to put a multi-year noose around the necks of players that contrasts with NCAA rules allowing the free transferability of players (who could sign revenue share agreements at their new schools anyhow) by not allowing the agreements to terminate when a player chooses to transfer to a new school. This is the "grant of rights" problem/scare tactic. You see, Miami can't leave the ACC if we don't have our TV rights until the mid-2030s. Or so we are led to believe.
And all of this was presented to Xavier Lucas...how, exactly? Did Wisconsin attempt to explain any of the rule-changes or future uncertainties to Xavier Lucas? Did they tell him to consult with an attorney? Did they give him adequate time to review the contract? Did they make it seem like "hey, Xavier, this is just the new-style NIL deal now, baby, don't sweat, don't fret, now you just sign with the university instead of the collective, chicky".
The NCAA House settlement is the single-largest change to the NCAA environment in history. And, what, some ******* FindLaw contract template that the Big 10 is pushing out to all of its member-schools, and which is sent to a kid during Final Exams and is just expected to sign without reviewing it...is what, supposed to be legal and binding and that some judge is going to take away his right to transfer "because he's 18 and he should read what he signs"?
Yeah, there are quite a few "public policy" arguments involved here. I find it hard to believe that any court, even one with a cheesehead judge in Wisconsin, will be ruling that these bait-and-switch Big 10 template contracts are worth even a penny more than the paper and toner they were written with.
If the NCAA is smart, they will hold a few Q&A educational seminars for all signees and returning athletes, to let them know their rights and responsibilities under the settlement. And if the NCAA has any value as an institution, they will put an end to powerful conferences (and one of the most powerful universities in the world, if the cheesehead Wisconsin fans are to be believed) from taking advantage of a massive power disparity to force players to sign "binding contracts" months before the settlement is actually settled. Because, you know, all these greedy and evil 18 year old football players are looking to rip off all these innocent schools simply because they want to make sure they will get paid during Spring semester 2025 before the football season starts and the House settlement even happens...HOW DARE THEY!
**** Wisconsin. And **** the Wisconsin fans.
