Overshadowed by the public barbs and the accusations, the name-calling and the incendiary remarks, Nick Saban and Jimbo Fisher each fired a request into the public arena last week.
Saban encouraged the NCAA to begin enforcing its own bylaws, and Fisher wants Congress to create a uniform policy to govern name, image and likeness (NIL).
Many within college sports believe one of those two things is necessary to bring some kind of regulation to what has evolved into a pay-for-play scheme that officials say is disrupting the recruiting landscape.
So, will the NCAA and Congress listen to two of the sport’s most influential coaches?
Is a solution on the horizon?
“It’s the golden goose of a question,” says Drew Butler, a former NCAA and NFL punter who is vice president of Icon Source’s NIL collegiate division. “The bad actors knowingly breaking the rules should be concerned. The NCAA should bring the hammer down.”
David J. Phillip/AP
However, while the association released additional NIL guidance earlier this month, there is little evidence it plans to enforce that guidance. The NCAA is paralyzed by legal fears and significantly understaffed, officials say.
But what of Congress? Much like the NCAA, slow-moving and at times ineffective, Congress’s attention is focused on much more important matters in this midterm election year, a time when legislation is often difficult to move anyhow. And don’t look to the states, either. They have no incentive in creating a disadvantage for their own public universities by enforcing an NIL law for which those same colleges lobbied. So what now?
“I’m not a prophet but I think the professionalism of college sports is here to stay up to a point,” says Mike Aresco, commissioner of the American Athletic Conference. “And I don’t know what that point is. I don’t know why we’re calling it NIL anymore. It’s pay to play. It’s pay to recruit. It’s pay to retain.
“We always recognized that if you didn’t have a strict amateurism model, it could be abused easily. We didn’t make enough gradual and incremental changes. And now, we’re in the drink.”
With no enforcement, little policing and basically zero regulation, college football and basketball recruiting is a free-for-all, evolving into a bidding war of offers from boosters that are disguised as NIL. Whether it is sustainable or whether the market at some point levels off remains to be seen.
Two weeks after the NCAA approved guidance that clarified that boosters and booster collectives are prohibited from recruiting, very little has changed across the landscape, those within the industry say. Butler says the additional guidance is “a whole bunch of nothing.” Big 12 commissioner Bob Bowslby calls it a “feckless act” that won’t lead to any material change.
“I don’t see how they will enforce it,” he says. “I don’t think there was any structure provided that would inform an enforcement process.”
So what’s the rub? Aside from staffing issues—NCAA enforcement is down 15–20 people with only a small handful of active field agents (some say less than five)—there are legal concerns over enforcing its own bylaws.
According to NCAA bylaws and many state laws, boosters are prohibited from inducing prospects through NIL. And while officials say that many NIL deals being struck across the country are fairly obvious inducements, savvy donors and collective CEOs are crafty in writing contracts. They don’t bind an athlete to a specific school, are agreed upon after the athlete commits or signs and involve a quid pro quo.
One high-ranking Power 5 athletic director with a legal background is asked if the NCAA will enforce the bylaws. “No,” the AD answers. “It might look like an inducement and smell like an inducement, but it’s tough to prove it’s an inducement.”
Some believe the only way to ultimately prove inducements is through deals that eventually collapse. If a player feels their contract has not been honored and then they transfer, does that player open up to NCAA investigators about their previous NIL deal? Do they show proof of communication with a booster or collective during their recruiting process?
“I think there will be some tragic cases,” says one college official.
Almost everyone seems to have their doubts that enforcement will do anything.
“My opinion: I’ll believe it when I see it,” says one Power 5 compliance director. “They know the schools that have stretched it, but are they going to really do anything?”
No, says Jason Belzer, one of the founders of SANIL, an agency that helps manage several collectives.
“I don’t think they’re going to fight John Ruiz,” he says of the billionaire businessman who is responsible for offering NIL deals to several Miami athletes. “I don’t think they have the bankroll.”
The NCAA guidance wasn’t completely ignored, says Blake Lawrence, the CEO of the NIL marketplace Opendorse, a company that helps manage several booster-led collectives. Athletic directors who were excited about a collective coming to their market are now not as excited, he says. Some collectives have even paused or delayed startup plans. Others are scurrying to learn more.
“I think some ADs are waiting to see if there’s any level of enforcement before they would really bless a collective being built in their market,” Lawrence says.
If anything, the guidance has proved to many schools and boosters that they need to adopt a record and tracking system in case the NCAA inquires into their NIL dealings.
“Imagine that only one of 10 collectives were in the space of having conversations with prospects and the other nine were in the position of ‘Should we be contacting prospects?’” Lawrence says. “These rules put the kibosh on the collective conversations about contacting prospective student athletes. Now, 10 out of 10 are aware that their effort should be focused on current student athletes.”
But will the conversations with prospects or prospects’ agents really stop? “Somebody is going to have to be made an example of,” says Eddie Rojas, CEO of the Gator Collective. “There are people out there who are straight up ignoring the rules.”
“The NCAA has got to go after somebody,” says one Group of 5 athletic director. “Fight the fight and let the courts decide.”
Easier said than done.
“At a certain point, the NCAA is going to have to face it,” says Gabe Feldman, a sports law professor at Tulane who’s been integral in NIL matters. “Either the NCAA is going to defend its current model or it is going to have to get protection from Congress so it no longer has to defend its current model. Or its model will be sued to smithereens and it will no longer exist.”
Legal experts say lawsuits are coming and will likely provide even more clarity on the situation. Maybe an athlete sues a school or the NCAA for denying them an NIL deal. Maybe a booster challenges the NCAA over antitrust rights when it attempts to penalize a school for alleged inducements.
“If you are giving inducements and violating their bylaws, the NCAA has a right to regulate fair competition, and as long as the NCAA is not unreasonably restricting commerce, I think they win in court if they are sued,” says Corey Staniscia, the external affairs director at the NIL deal-making platform Dreamfield.
One league commissioner who spoke to Sports Illustrated under condition of anonymity says of potential lawsuits, “Screw it! We know we are going to get sued anyway.”
Congressional action, meanwhile, seems a ways away. For three years now, college leaders have visited Capitol Hill to lobby for universal legislation on NIL. Most recently, about two weeks ago, commissioners Greg Sankey and George Kliavkoff met with U.S. senators in another attempt to rally support for a federal law.
However, hurdles stand in the way—the same ones that wrecked a potential compromise last summer between Sens. Richard Blumenthal (D-Conn.) and Roger Wicker (R-Miss.). The two men were brought together by Senate Commerce Committee chair Maria Cantwell (D-Wash.) in an attempt to reach a deal. In the end, they couldn’t agree on the breadth of a bill. Republicans want narrow NIL legislation. Democrats want a broad bill that includes athlete healthcare and maybe even revenue sharing.
This November’s midterm elections could change the balance of power in a Democrat-controlled Congress. Most within college sports believe that a Republican-controlled Senate would create a more simple path to the passage of NIL legislation. A narrow bill has an easier shot.
“If you have Republican chairs of committees, it’s different,” says Tom McMillen, a former Congressperson himself who presides over LEAD1, an organization that represents the FBS athletic directors. “It’s more difficult to get a Democratic agenda through.”
So if not the NCAA or Congress, could state governments—maybe attorney general offices—police their own schools and boosters for inducements? It’s highly unlikely, and up to this point, it hasn’t happened.
“The problem is, if you’re a state, the only jurisdiction is the state actors. If you have to punish them, all you’re doing is punishing your own state schools,” says Peter Schoenthal, the CEO of Athliance, an NIL management and compliance software that works with college athletic programs and collectives.
While there appears to be no enforcement in sight, some think that regulation is on the way. In fact, Jim Cavale, the CEO of the NIL sports tech company INFLCR, believes that the future of collectives is “highly uncertain,” he says.
Among athletic administrators—many of them with collectives of their own—there is continued outrage over collectives, Cavale says. While guidelines suggest collectives can’t participate in recruiting, they are still indirectly involved. “If you can help the current athletes, what you do with them will be sold to future student athletes,” Cavale says.
Cavale believes college sports is in a temporary stretch where certain programs are taking advantage of murky rules and little regulation. He compares it to the Steroid Era of Major League Baseball. “There were not a lot of clear rules,” he says, “and there were folks who took advantage. Eventually there were rules. That’s what we need.”
Rules, regulation and enforcement—it all seems months if not years away. Welcome to the NIL Era of major college sports.
“We have completely gutted the model that governed us for decades,” says Mountain West commissioner Craig Thompson. “Boosters couldn’t give a ride to a guy in the rain. Now, we aren’t giving him a ride—we are giving him the car.”
