Almost a year after new laws allowing NCAA athletes to establish NIL partnerships went into effect, the NCAA has decided to up the enforcement of those laws.
Last June, the NCAA interim policy established a laissez-faire standard where booster-athlete recruitment was concerned. On Monday, May 9, the NCAA released its first update to those policies. The updates address a few salient problems in the current NIL configuration.
With legal sports betting in Kansas more money will be funneling through the NCAA and their top-rated schools including ones in KS.
Boosters and recruitment
The NCAA’s primary goal is to keep boosters out of the recruitment process. They hope to disallow them from offering NIL deals as a form of recruitment. In the past year, athletes and their agents have used this approach to form a de facto collegiate free agency where athletes threaten to transfer or sign elsewhere if the NIL offer is not to their liking.
The implications of these changes loom particularly large for Kansasians as the Jayhawks are currently mired in a multi-year recruitment scandal. The scandal involves charges of “lack of institutional control” and “head coach irresponsibility”.
The NCAA has not yet handed down any sanctions on the Jayhawks. A fact many see as indicative of their overall inability to enforce policy. Mark Emmert, NCAA president, commented during the Final Four this year that the whole process has taken “way too long.”
Also in Kansas, companies such as 6th Man Strategies and 12th Man Strategies which handle KU’s NILs are pushing for more involvement from the government.
Boosters balk at the threat of NIL policy enforcement
Emmert, himself, has decided to resign early from his post as NCAA president. The shifting definition of amateurism and the infusion of boosters and corporate influences is likely a major reason behind his resignation.
While his reasons for resigning are likely multivariate, one can read into their concern with the NCAA’s ability to handle this new player-sponsor landscape.
Emmert is not alone in viewing the NCAA’s more aggressive stance on NIL partnerships with suspicion verging on defiance. Boosters and their lawyers have scoffed at the NCAA’s new plans. Mike Caspino, an antitrust lawyer representing athletes who’ve landed some of the largest NIL deals on record, said last week:
“The moment they come to try to interfere with one of my clients’ deals — the next day is the moment they get hit with an antitrust lawsuit. They’re saying there’s a whole class of people (boosters) who can’t participate in the market for athletes’ NIL rights. That’d be like saying red-haired people can’t buy meat. That’s antitrust.”
The Alston v. NCAA supreme court decision, and Justice Kavanaugh’s concurring position, have been the rallying cry of most boosters and attorneys. Kavanaugh stated, “the NCAA’s business model would be flatly illegal in almost any other industry in America.”
The fact that the NCAA is beholden to individual state laws where NILs are legal creates an almost insurmountable hurdle. Should the enforcement of their new policy transgress a state law, which it will, they will get sued. Which they will.
Lawsuits look like a way of life for the NCAA
The NCAA is banking on it. Partly so that they can draw a line in the sand separating boosters and donors from athletes. And partly so that they can gain more recognition at the federal legislative level around NIL.
The NCAA missed an opportunity two years ago to install broad federal standards around NIL. They had been hammered in the courts for restricting athlete compensation, and they didn’t want to invoke yet another policy limiting payment to athletes.
The result is the current wild west landscape. However, if the NCAA puts its shoulder to the wheel, it can potentially untangle the last ten months of wild NIL practices.
There will probably not be another death penalty as the booster collectives have for the most part abided by the current laissez-faire system. But there will be a fall guy. To return to the Jayhawks, would it be them? Probably not.
Their problems date back to pre-NIL practices. And, as such, will not mean that, in the worst-case scenario, this year’s NCAA banner would be pulled down. They may receive a penalty, a fine, or a suspension from next year’s tournament.
It’s anyone’s guess how large or how small the penalty will be. At the moment, it’s looking like a smaller and smaller drop in the bucket of college recruitment hijinks.
Photo by Orlin Wagner/Associated Press