USA TODAY International Edition
Questions arise after NCAA’s latest on NIL
Ten months after legislation related to name, image and likeness went into effect, efforts by the NCAA to retroactively police existing NIL deals may only further inflame tensions over an issue that has created seismic change to the amateur model.
“Today, the Division I Board of Directors took a significant first step to address some of the challenges and improper behaviors that exist in the name, image and likeness environment that may violate our long- established recruiting rules,” Georgia President Jere Morehead said in a statement.
Good luck with that. The bell has already been rung. At this point, vague guidance from the NCAA is almost certain to be treated in one of two ways: with deaf ears or with resentment.
“We’ve got no governance” on the issue, Ohio State athletic director Gene Smith said last week.
That’s not to say the primary recommendation endorsed Monday by the Division I board of directors is misguided.
By taking aim at third- party entities involved in the NIL landscape, including “collectives” designed to create NIL opportunities for student- athletes, the NCAA could address a possible loophole that has deeply frustrated coaches now responsible for never- ending recruiting pitches designed to keep the best players on campus through the duration of their eligibility.
That still leaves far more questions than answers. For one, what sort of behavior would trigger an NCAA investigation – in other words, just how egregious would a hypothetical “pay- forplay” NIL package need to be to put a program under the microscope? And would anything unearthed by an investigation be met with a lawsuit?
In the end, the questions may be rhetorical. What can the NCAA do? Nothing, possibly. What penalties could they issue? Maybe none.
Instead, the backward- looking guidance may serve two purposes for the NCAA. One would be to make an on- therecord statement regarding collectives, which have sprouted up at programs across the country, with each deal conceivably reviewed by a school’s compliance staff. The second, and the more important, would be to establish a dialogue for NIL deals going forward.
For now, the conversation around NIL centers on three questions birthed
from the guidance provided by the NCAA.
Is there a serious threat of enforcement?
The NCAA will only “pursue the most outrageous violations that were clearly contrary to the interim policy adopted last summer,” Morehead said. In terms of the eligibility of student- athletes, “only the most serious actions that clearly violate the previously published interim policy would have eligibility implications.”
In an obvious circumstance of rules violations, the governing body could pursue an investigation that touches on programs, individual coaches and the student- athletes in question. Even then, the NCAA guidance is so undefined – and contains so many caveats – that the case would seemingly need to be unimpeachable to move forward.
These third- party collectives are under the microscope, however, especially in NIL deals that may be construed as enticing prospective recruits to sign with a specific school.
How will possible rule violations come to light? Simple, the NCAA said: “Schools are reminded of their obligation to report any potential violations through the traditional self- reporting process.” Again, good luck with that.
What will this do to collectives?
It might lead universities to ensure these groups don’t violate one of the basic principles of recent NIL legislation. In the interim policy issued last June, the NCAA maintained “the commitment to avoid pay- for- play and improper inducements tied to choosing to attend a particular school.”
The NCAA is less concerned over the NIL packages being handed out to current student- athletes. But there is obvious worry that deep- pocketed booster groups are creating financial packages to entice traditional recruits or sway active players enrolled at another school.
Individual boosters or larger collectives found to have provided these inducements will face a disassociation from the school, though booster groups are not subject to NCAA penalties and do not need to cooperate with any NCAA investigation.
But if a program is found to have worked alongside a collective to entice a prospective recruit, that could be met with a stern NCAA reaction.
What changes in the interim?
Nothing. Hypothetical “pay- for- play” deals have been prohibited since NIL came into existence. Collectives, businesses and other third- party groups that stayed within the lines of current NIL rules don’t need to change a thing, meaning schools that have clearly benefited from these rule changes can continue to use NIL to their advantage.
The tipping point may come with the first NCAA investigation targeting either a specific NIL deal or the broader actions of a specific collective. Last year’s unanimous Supreme Court ruling in NCAA v. Alston found that NCAA restrictions on student- athlete compensation violated antitrust law.
Any punishment that comes out of an investigation would undoubtedly be followed by this litigation; when the dust clears, we may find tighter rules around NIL legislation.
Conversely, lawsuits that will inevitably follow any NCAA penalties may loosen or even obliterate the already opaque guardrails put in place by last year’s interim policy.