The NCAA is in a fundamental pickle. The association represents university presidents, and those administrators would really, really like to put a stop to football boosters using “name, image, and likeness” payments as carrots to recruit players to their schools. But the NCAA has spent the past decade, and especially the past two years, in the crosshairs of antitrust lawyers, politicians, and judges for similar efforts. These powerful interests have made clear that they take a dim view of the NCAA making rules that restrict the market for college athletes’ services. So, the association fights with one hand tied behind its back. It wants to rein in practices that its clients on campuses don’t like, but it wants to preserve the idea that, really, it isn’t doing anything at all, hoping the regulators and lawyers don’t notice and stay off their back.
This is not an easy needle to thread. Nonetheless, the NCAA has made flailing attempts at it since 2019, when it became clear that a California state bill, making NCAA restrictions on players’ outside earnings illegal, would become law. It started out by saying that the bill was unconstitutional, a position it never elaborated on and abandoned when dozens of other states took up and passed similar legislation. Around that time, the NCAA pivoted. The association’s now-outgoing president, Mark Emmert, has asked Congress countless times to please pass a national law governing how outside parties could pay college athletes. For the NCAA, the benefits are obvious: A federal law would avoid a regulatory patchwork across states, and it would give the NCAA a higher authority to follow, so that it could (theoretically, anyway) avoid getting sued for an antitrust violation. The NCAA has reason to fear that. The Supreme Court gave it a 9–0 smackdown last year in NCAA v. Alston, over the association’s restrictions on “education-related” benefits that schools could pay athletes. That was a follow-up to a 2015 lower-court ruling that rolled back prohibitions on schools giving athletes cost-of-attendance payments that went beyond their tuition amounts. Many sports lawyers think the next big challenge will be to the NCAA’s pay-for-play ban.
Simply put, it’s a bad time for the NCAA to look like it’s imposing new limits on athletes’ economic freedom. Congress has not played ball yet—although reinforcements have arrived to try to persuade Capitol Hill to help—and for the time being, the NCAA has rolled with a hands-off “interim” policy that went into effect on July 1, 2021. That policy, which came days after the NCAA’s unanimous defeat in Alston, left a lot open to interpretation. It could be summed up as the NCAA telling school compliance staffers something like this: “Hey! Players can make money on advertising deals now. But remember, all NCAA rules still apply, and pay-for-play is not OK. Thanks! Best of luck! Let our office know if you have any questions!”
Some measure of chaos has reigned since then, and the NCAA is now scrambling to settle things down with a new rule that, in its view, isn’t really a new rule. The association fought tooth-and-nail for years to keep athletes from getting paid by third parties, and as it scrapped its way to a long-inevitable defeat on that front, it declined to do any planning for what would happen once a new world arrived. Years of living in denial have caught up with the NCAA in a big way. Third-party payments to players have, in the absence of clear rules, given rise to the thing the NCAA really abhorred from the start: players getting paid to play for specific teams. By going all-out against athlete pay of any kind and declining to engage with even a relative half-measure like name, image, and likeness payments, the NCAA played itself.
The ruse, which at this point cannot convince anyone but certain administrators, continues. This week, the NCAA is in more hot water than usual over an attempt to have it both ways. On Monday, it issued new “guidance” that it emphasized was not a new rule but rather an emphasis—or something?—of the rule that went into force last summer. It seems that the NCAA’s main hope is to slow down one type of NIL organization that has started to throw its weight around.
After the NCAA started to allow outside payments to players without an in-depth framework, the inevitable followed. One by one, moneyed boosters at programs around the country fired up name, image, and likeness “collectives,” where donors send money into a pot that, in turn, gets paid out to a school’s athletes for what is nominally promotional activity. But the amounts paid to some players have made it obvious that the collectives engage in pay-for-play disguised as endorsement or sponsorship money from detached third parties. (The collectives set themselves up with tax-exempt status, something that’s already raised the eyebrows of a lot of tax lawyers.) So, name, image, and likeness became a backdoor—actually, no; it became the front door—for boosters to pay players to attend their schools. The new guidance mentions collectives by name and, to the extent it does anything, makes clear the NCAA’s view that these money pots are made up of boosters, and boosters cannot induce players to attend a school.
The way things are now is not worth outright condemnation. If a recruit can sign an $8 million “name, image, and likeness” deal, the first thing it proves is that players were worth serious money all along. But the current system, if you can call it a “system,” is messier than it should be. The ongoing transfer process of Pitt receiver and Biletnikoff Award winner Jordan Addison has caused a weird moral panic in some corners, but it has also laid plain that things could be a lot smoother for both players and schools. The confluence of an unregulated “name, image, and likeness” market and the recent rollback of a rule that required most players to sit out a season after transferring schools has brought about something closer to free agency than college sports has ever had. Schools can’t be sure that their players will hang around, and also can’t be sure what they’re allowed to offer them to try to keep them in the fold. Athletes can’t take money directly from the institutions they play for, so they have to work through third parties and operate in a regulatory gray area, sometimes on contracts that look highly exploitative.
This should point toward an eventuality: At least at the Power Five level (the five most competitive and most lucrative conferences), schools and athletes should work on an employer-employee relationship that clarifies what they can ask and expect of each other—a system that binds both sides to a contract or to a mutual agreement that functions like one. The government is already gesturing overtly in this direction, and it is by far the most straightforward way for college football to proceed into its everlasting future.
Is the NCAA doing that? Of course not. Instead, it is trying to bring order to the exchange between players and third parties, who often turn out to be boosters. But one thing about some of the people who give large sums of money to make their football teams better is that they like to be known as people who throw tons of cash at football, and they do not like the idea of being cowed in public by the NCAA. So, as the governing body has hollered, a range of agents, lawyers, and collective organizers are openly threatening the NCAA with antitrust lawsuits as soon as the NCAA moves to clamp down on deals with athletes. The NCAA, for its part, is trying to look ready for a fight without doing anything that could bring about said fight, because it is tired of defending and losing lawsuits.
To wit, in announcing its new guidance this week, the NCAA explicitly left open the door to bringing enforcement actions against players who were involved in deals over the past year that it didn’t like. But “only the most serious actions that clearly violate the previously published interim policy” would be a problem, the NCAA said. That’s because the NCAA is girding for battle. Unless it’s not. Meanwhile, nobody in the industry thinks the new guidance will change anything. And why would it? Which blue-blood football program’s donors want to be the first ones to unilaterally disarm? If schools don’t, will the NCAA stop them and risk getting drubbed in another lawsuit?
All of it is tantamount to the shuffling of deck chairs long after an old economic model hit an iceberg. The NCAA, and the school presidents it provides cover for, long expressed a violent opposition to outside companies paying players for the use of their names. The administrators’ fear was that allowing such a thing would set big-time college sports on a path toward their nightmare of schools themselves paying athletes. The NCAA has not been right about a lot, but it will turn out to have been right about that, at least in an order-of-operations sense. Universities will one day have to give money to the football players whose games TV networks pay billions of dollars to broadcast. How quickly schools acknowledge that will determine how quickly the NCAA can stop pretending to have a handle on a market where it has lost whatever control it once had. Doing it soon would also afford schools time to make the sort of advance plan they never made for the introduction of name, image, and likeness. For this group of administrators, it is yet another great opportunity to squander.