May 11, 2022 - Sports

NIL may be too big to fail

Illustration of hands holding a paintbrush, hammer, and measuring tape up against the NCAA logo.
Illustration: Aïda Amer/Axios

The NCAA D-I Board of Directors on Monday updated its name, image and likeness (NIL) guidelines for the first time since NIL launched last July, specifically targeting recruiting violations by booster-led entities called "collectives."

Why it matters: The original guidelines haven't been enforced as is, and the landscape surrounding NIL has evolved so rapidly in the past 10 months that the NCAA's latest move may be too little, too late.

What they're saying: "Whether it's possible to unring the bell, it remains to be seen," Big 12 commissioner Bob Bowlsby told SI. "Seems to me we would have been infinitely better off had we gone ahead and implemented the guardrails [from the start]."

Catch up quick: Not long after athletes signed the first wave of NIL deals last summer, groups of boosters began pooling their money and formed companies — called collectives — to facilitate NIL deals for athletes at the schools they support.

  • The problem? It appears many of those deals were NIL in name only, and were instead meant to induce recruits into signing with the boosters' school.
  • That practice has always been a recruiting violation when carried out by individual boosters; Monday's new guidelines merely expanded the definition of booster to include collectives.

State of play: The NCAA said its crackdown will be retroactive, meaning it may investigate particularly egregious violations from the past 10 months, but that its primary focus is on the future.

Yes, but: That's easier said than done, as industry consensus seems to be that pretty much any enforcement will trigger legal challenges that would be incredibly difficult for the NCAA to win.

  • For starters, many collectives track their deals through platforms like Opendorse, with built-in compliance checks. Plus, boosters are by definition deep-pocketed, and are also protected by various state laws, per SI.
  • Then there's the legal precedent from last year that paved the way for these changes, when the U.S. Supreme Court's unanimous decision for Shawne Alston said restrictions by the NCAA on student-athlete compensation would violate antitrust law.

The big picture: The NCAA's biggest fear with NIL was the likelihood of people exploiting loopholes that turned it into "pay for play," and that may be exactly what's happened.

  • The question now is whether the NCAA's rededication to enforcement will be enough to turn the tide.
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