The NCAA has been driven by a self-perceived moral compass, which they refer to as protecting the ideals of amateur athleticism. In this ideology, student athletes compete in athletics for the love the game, and in pure motivation, free from any monetary motivation other than perhaps a scholarship.

I will not attempt to explore or judge the moral foundations for these arguments, but rather, as previously posted, note that a new set of good/bad attributes will inevitably exist, just as they did in the old world.

The current NCAA interim rule allows students to receive payments for NIL, but they remain prohibited from accepting payments as recruiting inducements. However, this was not the NCAA’s first attempt at addressing NIL. The NCAA had drafted proposed rules and was set to vote on them at its Convention in January 2021. In a proposed rule, the NCAA was to establish an independent third-party administrator to review all contracts with athletes and determine whether the payments were NIL, as allowed, or actually recruiting inducements:

“The package of NIL proposals includes one that would require athletes to disclose their NIL activities to what is described as “an independent third-party administrator.” Last September, the NCAA issued request for proposals from firms interested in serving in this capacity and initially said the contract would be awarded Nov. 20. That award has not yet made.”

[The] “third-party clearinghouse would function to vet name, image and likeness deals signed by athletes to ensure they are not de facto recruiting inducements”. https://www.usatoday.com/story/sports/ncaaf/2021/01/08/ncaa-votes-name-image-and-likeness-rules-changes-could-delayed/6591709002/

These proposed rules would have required student athletes to disclose contracts (all contracts, NIL contracts?) to their schools so they could be reviewed for compliance. I believe it would have been impossible to expect that athletes would have brought these contracts to their schools and into the light. Just as they historically were expected to refuse any payments offered from boosters.

These third-party administrators would have reviewed player contracts to make a determination of the intent behind all payments made to players. I have previously pointed out how challenging or impossible this objective would be. (Note that at least one person is trying, John Ruiz of LifeWallet, who is directing large sums of money toward University of Miami players and recruits. More on this later.)

Why am I taking the time to explore proposed rules that were never voted on, and will very likely never be implemented? Because they illustrate how hopelessly entrenched the NCAA is in their ideology and the level of resistance to change that exists within the organization. Ultimately, the vote on the proposed rules never happened due to the evolving legal landscape and fear of litigation against rules that may have been determined to violate anti-trust laws.

In the absence of the desired new rules, the NCAA established an interim rule: (https://ncaaorg.s3.amazonaws.com/ncaa/NIL/NIL_InterimPolicy.pdf). The NCAA still expects universities to determine the intent of payments to players and distinguish NIL payments from recruiting inducements.

Colorado Athletic Director Rick George provided some insight into how at least some in the NCAA feel, and how resistant they are to the necessary changes. In reference to the current environment where donors are making payments directly to recruits, he offers the following thoughts.

This is the time we have to put our stake in the ground. Enough! This is not acceptable,” frustrated Colorado athletic director Rick George says. “What we’re doing is not good for intercollegiate athletics, and it has got to stop.”

“Just because we have NIL, it doesn’t eliminate the rules,” George says. “Everybody is like, ‘It’s NIL!’ I am totally in favor of NIL done right. It’s really good. [Athletes] should be able to monetize their NIL, but a lot of what’s going on out there is not NIL.”

One-hundred percent,” George said. “We have to look at these deals. The NCAA has got to look at them, and if they are not within our guidelines, then hold them accountable and be firm.” https://www.google.com/amp/s/www.si.com/.amp/college/2022/05/06/nil-chaos-leaders-urging-ncaa-new-guidelines

Gene Smith, Athletic Director of Ohio State, also believes it is important to protect the remnants of amateur athletics. When asked about the need for “guardrails”, such as limiting NIL deals to athletes after they have signed with schools and not during the recruiting process, he said:

“There’s no question in my mind,” Smith said. “If we had passed the guardrails that we had recommended originally, and we allowed enforcement to enforce those guardrails, we wouldn’t be where we are today. It’s not to say that we can’t correct what has happened, and hopefully we can. But in my view, we should have put those guardrails in place last year, we should have moved for enforcement to enforce those guardrails.”

In May 2022, the NCAA issued guidelines specifying that boosters are not allowed to make NIL deals with recruits or even engage in conversation with recruits.

“What we have to do is kill this inducement space in the recruiting area, those issues around that, but at the end of the day, it’s working.”

Ohio State athletic director Gene Smith – one of the chairs of the NIL working group that put together the new guidelines – has acknowledged that the NCAA is likely to face lawsuits once it begins enforcing the new guidelines due to varying NIL laws in different states throughout the country.

The NCAA, however, has decided the risk of lawsuits is now worth taking as it looks to put a stop to the rampant rise of NIL deals being used as recruiting inducements for athletes to attend specific schools. http://www.elevenwarriors.com/ohio-state-athletics/2022/05/130836/gene-smith-believes-ncaa-s-new-nil-guidelines-are-necessary-worth-risk-of-potential-lawsuits

I believe the current approach towards preventing inducements for recruits will fail for several reasons:

– the NCAA has no legal relationship with donors, agents, or recruits. This has always been the case, and greatly hinders the NCAA to levy rules or expectations on these parties or make any requests, such as access to contracts made with recruits or information about conversations or payments. As was previously the case, I don’t expect these groups to be very forthcoming about any contracts or payments which violate these rules. The only leverage the NCAA has would be to ask students, after they enroll, to certify they did not violate the rules (i.e. come clean).

– In the past, payments to players or recruits was enough to make an NCAA athlete ineligible. However, there are several NIL arrangements that would be permissible, such as NIL payments to recruits which are not made by a donor (search as a marketing agency, and presumably not an enticement), and payments which are not tied to the enrollment at any particular school. Most people understand that there were violations occurring in the old environment, but it is now much harder to identify to potential violations. The NCAA would need access to all relevant contracts with the players, if they even know they exist, and the evidence alone that money has changed hands is no longer a smoking gun.

– Banning NIL deals for recruits may likely be challenged in court, as a violation of anti-trust, and NCAA rules and enforcement actions may be determined to be illegal.

– State or federal legislation may be passed to prevent this limitation on payments to athletes, even during the recruiting phase.

– Given the amount of money that will inevitably be flowing for NIL and other reasons, it will be readily apparent that violations are occurring, and that the playing field for recruiting athletes is not level. This will put pressure on the NCAA to pursue a different regulatory course.

We have entered an era where players rights are more fully valued and in which the ideals behind amateur athletics are in conflict and will no longer be tolerated by society. I believe that while athletes are entitled to payments for NIL today, payments for much broader purposes will soon be allowed.

Living “in the clouds” in a kind of amateur athletic utopia and clinging to power and status quo are not good reasons for standing in the way of changes which will benefit the student athletes. Let’s move on and start to lead with a new set of rules for college sports.

Agree or disagree? Please share your thoughts.