What are we supposed to make of these new NCAA NIL rules?
Are they actually as crazy as they sound?
Good morning, and thanks for your continued support of Extra Points.
Earlier this month, you might have read about the NCAA's new policy regarding NIL rule enforcement. Essentially, the NCAA is telling member institutions that when it comes to investigating NIL rule violations, the NCAA will assume that a violation occurred unless the school can specifically prove otherwise, rather than assume the school is innocent.
Given that the NCAA doesn't have the power to subpoena anybody or actually make anybody talk to them, this sort of policy change might be the only way to 'convict' anybody. Of course, to say nothing about whether it's actually a good idea or not...the policy could also attract new legal challenges.
Wait, this new policy feels really Draconian. Does anybody actually support this? Was this just one guy in Indy going rogue?
I can assure you it isn't just one guy. Let me share a recent quote from Abe Madkour, the Executive Editor of the venerable Sports Business Journal.
To any industry insiders that speak to Mr.Madkour but are afraid to let their true feelings be known in public, please allow me to step in for a moment to assist. My friends, NIL has some big fuckin' problems right now, and admitting that doesn't make you a College Sports Pinkerton.
I'm probably hearing the same things that Abe Madkour is hearing, and the same things that nearly every journalist who writes about this stuff hears.
While there are coaches and admins who steadfastly oppose any athlete earning outside financial compensation, 19 months into this business, those are increasingly rare.
But there are a lot of leaders who are frustrated over a lack of clarity on what is and is not permitted, the variations between different state laws, the political and financial power of collectives that are sometimes run by less-than-reputable characters, and the lack of any sense of structure to this whole operation.
To the best of my professional knowledge, there is a legitimately broad interest among coaches and leaders for somebody, probably the NCAA, to do something to reign in real and perceived excesses in the industry. Nobody working in college sports wants another Jaden Rashada recruiting story.
The problem, of course, is that doing something isn't just an academic thought exercise. Without subpoena power, enforcing any kind of regulation (be that about NIL or loads of other things) will be very difficult, because third parties could simply tell the NCAA to kick rocks.
I thought this thread here from ESPN's Dan Murphy is especially useful. This NCAA policy, and most others that the public doesn't love, are not the brainstorms of a lone cubicle in Indianapolis. The NCAA is the schools, and when the NCAA does something controversial, it's because the schools asked them to. This particular policy exists because schools are asking for it.
So what does this actually mean? Different experts have told me different things
I actually had the chance to chat with somebody working with NCAA enforcement last week. This individual reiterated a talking point I've heard from several others in Indianapolis about NIL...the current enforcement doctrine is not meant to be a punitive measure against athletes. There isn't the appetite to go after ticky-tack amateurism violations anymore, like, say, this one.
The NCAA would instead like to focus on going after athletic departments, collectives, and boosters. Of course, the NCAA doesn't really have much jurisdiction over collectives and boosters, and very strict penalties against schools would, arguably, still punish athletes.
As one FBS AD explained to me last week..what kind of penalties are we really talking about here? Making a school disassociate from a booster or a collective? Make athletic departments pay fines? What sorts of meaningful penalties are out there if impacting athlete eligibility is mostly off the table? Is it possible we're all arguing over nothing?
I've also been told, not just by NCAA personnel, but other industry lawyers, that the expectation is that the NCAA will not formally open any big NIL investigations in the very near future...and potentially not for several months. After all, if the NCAA wants to make a big showy argument to Congress that they need federal help to enforce NIL regulations. That means that actually enforcing NIL regulations would undercut that message a bit. The NCAA may have informal conversations, observe, and conduct interviews, but they're not ready to send out formal allegations for Croot Crimes next week.
Neither the AD or the enforcement officer I spoke to believed there was a major risk of message board types or angry fans dictating enforcement actions, a popular concern on Twitter after the policies were announced. I haven't heard serious NIL industry professionals indicate a fear of this happening here.
Still, if an outside fan didn't want to give industry professionals the benefit of the doubt here, well, I'd certainly understand.
A third source, who works on the collective management side, summed it up like this. "I think the NCAA is in over their head here."
Is this whole thing just a lawsuit waiting to happen? How is anybody supposed to get enough information to do anything?
One of my smarter readers certainly seems to think so:
What??? No. No no no no no no. No. HELL no.
Maybe these new bylaws are an NCAA message of "Well, if Congress won't help us, maybe we can get a favorable court to pare down Alston a bit in our favor"? Because this is an invitation for litigation.
— Sam C. Ehrlich (@samcehrlich)
Feb 7, 2023
Not every single organization's disciplinary hearings completely match up with the rights you might expect in court. If you work for a non-unionized company, for example, you might not have the same due process rights if you decide not to cooperate with a PIP or investigation.
Or for another example, if my Bishop decided to call me in for some sort of ecclesiastical disciplinary hearing because I published a newsletter with the work 'fuckin' in it, and I decided to deny that I had ever heard of a college sports newsletter, or insinuate that perhaps they had me mistaken with another Matt Brown, or otherwise not comply, I could be theoretically stripped of my ability to teach Sunday School or something. It's not the same standard here to convict me of an actual Crime Crime.
But that doesn't necessarily give the NCAA license to enforce a "guilty unless proven innocent" standard, and trying to enforce this policy could potentially invite even more litigation. Sure, ADs and coaches and senior leaders hate the current NIL system, but do they hate it so much that they're willing to stake even more money on legal fees? To be determined!
One thing that every industry source has stressed to me, be that NCAA employee, AD, NIL Industrial Complex Cog, etc, is that all of this is new territory. The NCAA guidance today might not be the NCAA guidance five months from now, because the industry, and regulatory environment, is changing rapidly. No memo, no matter how ominous sounding, should be treated as laws irrecoverably decreed from heaven or anything. If this policy doesn't work, somebody is probably going to change it.
My main TL;DR from all of this, besides the fact that I really don't think Sliced Bread or BroBible dot com is going to be the catalyst for the first major NIL investigation, is all of this is still evolving.
I can't say for certain exactly what NCAA enforcement of NIL policies will look like, or even if they'll actually happen. I can't say what kind of punishment, or to whom, will be sought. My best, educated guess, is that no punishments will be dished out in the immediate future.
But after that? TBA. Anybody involved in major NIL deals ought to make sure those contracts are properly drawn up, with every T properly crossed...just in case.
This edition of Extra Points is brought to you in part by Baylor University Faith + Sport Institute