By looking into BYU and Miami NIL deals, the NCAA is picking another fight they can't win
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Last week, at the LEARFIELD Intercollegiate Athletics Forum, NCAA president Mark Emmert said the NCAA was looking into several NIL deals:
Mark Emmert says NCAA enforcement staff has opened investigations into “a number” of NIL deals.
He would not expound except to say that, so far, schools are following guidelines.
— Ross Dellenger (@RossDellenger)
Dec 8, 2021
On Friday evening, we learned what at least some of those deals are.
Sportico reported that the NCAA enforcement staffers are "actively looking into" team-wide NIL deals at Miami and BYU. Via the story:
The NCAA is actively looking into a pair of high-profile NIL deals involving football players at Brigham Young University and the University of Miami for potential violations of the association’s interim rules regarding new marketing rights for college athletes, according to multiple people familiar with the probe.
NCAA enforcement staffers are trying to determine if these two deals qualify as a pay-for-play set-up, which is prohibited under the NCAA’s temporary NIL guidelines, according to the people, who were granted anonymity because the details are private.
The two deals, interestingly enough, are very different. The Miami deal is with American Top Team, a chain of MMA gyms in South Florida. All football players on scholarship at Miami are eligible for up to $500 a month for promoting the gyms on social media. The gym's founder, Dan Lambert, has been very vocal about trying to recruit other businesses to set up similar systems for Miami football, all in the hope of recruiting better players and improving Miami's football performance. The dude started a marketing company called Bring Back the U, after all.
The BYU deal, with Built Bar, is a little different. While Built Bar did offer $1,000 to every scholarship football player, the company offered an NIL deal worth up to the full price of tuition for every BYU walk-on, so long as they appear in promotional events. I wrote about BYU's deal in-depth here.
Miami and BYU aren't the only schools where entire teams are participating in NIL deals, but they were two of the first.
Lambert's response to the NCAA looking into these deals, for what it's worth, was certainly direct. Via the Miami Herald:
“[Expletive] the NCAA,” Lambert said Friday evening. “I would love to sue those scumbags. I hired the pre-eminent attorney in the country on NIL [Darren Heitner] and he crossed every T, dotted every I and they still want to look into it. Maybe [the NCAA is] scared they’re losing their power. They’re all pieces of [expletive].”
Unless BYU replaced their compliance staff with J Golden Kimball without telling me, I feel comfortable assuming the response in Provo was...not quite so loquacious. At least not around anybody with a notebook and tape recorder.
Why would the NCAA look into these deals? NIL is legal, right?
Much to the chagrin of most athletic directors and compliance professionals, the NCAA didn't really establish much in the way of national NIL regulations. They couldn't really, with so many states passing their own (slightly different) NIL state laws, and with Alston making it clear that the NCAA would be on shaky legal ground if they tried to limit athlete NIL compensation.
But there are national guidelines, and one of the very few rules says that NIL deals can't be explicitly pay-for-play. An NIL deal, for example, could not offer athlete performance incentives, or provide a bonus for transferring to a specific program.
I've talked to a few sports law experts, compliance professionals, and trusted industry observers over the last few days. The argument, as best as I can understand it right now, is not so much that Indianapolis is terrified of the concept of walk-ons in Provo getting a few thousand dollars. They're worried about the creeping precedent for team-wide deals, deals that could theoretically include athletes who aren't even on social media or who never play. The thinking goes, the NCAA isn't sure exactly where they can draw the proverbial line, so they're sniffing around to see where one could be drawn.
After all, the thinking goes, without any guardrails, well, the wealthy and powerful programs would set up huge NIL deals, and then only the programs with the most money would sign good athletes, right?
Well...if that was the purpose of these NIL deals, they failed
I'm a big skeptic of the idea that NIL will be a massive recruiting advantage, at least in the short term. Let's look at the actual data real quick, a few days before National Signing Day.
BYU, fresh off of back to back Top 25 seasons and this big ol' Protein Bar NIL contract, has a recruiting class ranked 56th in the country, (via 247Sports). The class would be near the bottom of the P5, and does not contain a single industry-consensus top 300 recruit.
There's a good reason for that, despite the fact that BYU athletes can expect NIL money. BYU is a challenging school academically, in a market that doesn't produce a ton of elite talent, doesn't have a great track record of developing NFL talent, and, of course, has a famously restrictive Honor Code, one that prohibits drinking alcohol and premarital sex.
It's gonna take more than a few thousand dollars in NIL deals to make up for that.
But what about Miami? That's a bigger NIL contract, a school that does produce NFL talent, and in a market loaded with elite athletes. Well, Miami's class is even worse. It's currently 58th, although that's likely to improve in the coming days.
Why is it so bad? Well, Miami was lousy this season, their coach was on the hot seat all year, and then just got fired. Even with guaranteed NIL money, it would appear NIL just wasn't as important to recruits as coaching, staff relationships, and the perceived ability to win in the short term.
Other schools that were early leaders in the NIL collective space, like Florida and Indiana, have also not enjoyed huge recruiting boosts. That's not a surprise. Those teams were bad!
If the NCAA is hoping to come down on group NIL deals in an effort to stamp out any overwhelming recruiting advantages, well, they've picked some interesting case studies.
Everybody I have spoken to so far does not expect the NCAA to invalidate these deals or apply sanctions.
There are a few reasons for this.
For one, both schools believe they had expert advice in creating the deals, and were acting in compliance with the rules. Gary Vernon, BYU's "NIL guy", used to be BYU's Director of Compliance, and I'm told the Built Bar deal was vetted by very senior members of the university. At Miami, Lambert worked with Darren Heitner, who also helped create Florida's state NIL law.
Industry experts I spoke to also question the NCAA's ability, legally, to step in and penalize the schools (or athletes) for participating in these deals. After all, the central office did spend months claiming that they do not have the authority to establish unified guidelines, and needed the federal government to do it. Now they've decided they want to try and enforce national rules? It's not like Alston changed in the past few weeks.
Perhaps most importantly, I've also been told to watch for a lack of institutional will.
One thing that is always important to remember is that the NCAA IS the schools.
In the weeks after the Alston decision, I heard from a lot of frustrated ADs and conference leaders, wondering why the NCAA spent so much time and money with a legal strategy not everybody agreed with. Every minute spent on defending the association from lawsuits, attacking media coverage or angry politicians is a moment they're not doing well, anything else.
After the last few months, does every member institution really want to get up in front of the world and say "we believe it is worth our time to make sure these walk-ons aren't getting a few thousand dollars?" At the exact moment they're trying to negotiate a favorable outcome from Congress?
It's one thing to ask clarifying questions. It's quite another to dig in for yet another lawsuit, which is exactly what would happen if anybody at the NCAA tried to penalize either institution for these deals.
Do some NIL deals out there violate the spirit of NCAA or even state laws? Yeah, probably. But what is anybody really going to do about it?
I suspect that eventually, there will be some NIL market corrections. Some NIL money meant as recruiting inducements will probably move back to the underground market. Brands, athletes and schools will better understand what pricing is actually supposed to look like. The five-star freshman locking in a six-figure plus endorsement deal before he plays his first snap may not be sustainable. The IRS, I suppose, could decide to look into whether some of these "charity NIL collectives" are, in fact, actually charitable.
But even if some deals pretty transparently err on the side of Pay For Play, well, who is going to do anything about it? The NCAA, who risks a prolonged legal battle and months of additional assault in the court of public opinion? State governments, who never really got around to explaining who was supposed to enforce all those NIL laws? The feds? Batman?
If the NCAA wanted to prevent this particular outcome, the time to act was probably nine years ago. They can ask questions now, file paperwork, poke around, give concerned interviews. But if they try to draw the line here, even if their lawyers can find a way where Miami and BYU failed to cross every T and dot every I...they can't win.
They've lost in the court of public opinion. They've lost in the court of, well, the United States. And they're in danger of losing the hearts and minds of their own institutions. It would be better to not escalate this.
And if they do, well, at least try to keep Dan Lambert away from a mic.
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