Two of the biggest names in college football recently took to social media to air out a debate over the role of name, image, and likeness (“NIL”) in college football recruiting.[2] Nick Saban, the head coach at the University of Alabama, accused Jimbo Fisher, the head coach at Texas A&M University, of “buying” top-ranked recruits through NIL deals.[3] Fisher denied the allegation and fired back at Saban for “having skeletons in his own closet” when it comes to Alabama’s football recruiting practices.[4]
Saban’s remarks came in response to Texas A&M signing the top class of football recruits this spring—the first time since 2010 that a school other than Alabama or Georgia brought in the top class.[5] In fact, Fisher signed more five-star recruits this spring than he has during his entire tenure at Texas A&M.[6] Saban implied that Fisher’s recruiting success is the result of collectives—third-party marketing agencies that are funded by wealthy boosters and alumni.[7]
Collectives emerged as a “creative go-between” for recruits to receive NIL benefits from boosters.[8]
Current NCAA rules preclude boosters from offering NIL deals to high school recruits, but coaches may entice recruits by promoting the amount of money available through the college or university’s collective.[9] Saban explained that coaches know how much money is in the collective and how much they can promise each recruit.[10] Once the player joins the team, the third-party booster collective funnels the money to the student as an “NIL deal.”[11]
In practical effect, collectives provide college athletes with unchecked NIL benefits.[12] Many coaches seem to support collectives as a means to fund their athletic programs, but diverge on how collectives should be used with respect to players. Saban, for example, supports Alabama’s collective but insists that every player receive the same amount of financial support to avoid an imbalance among the athletes.[13] Saban also raises concerns about how players are leveraging financial opportunity from collectives as a bargaining chip in the recruiting process.[14]
Collectives make it difficult for the NCAA to distinguish between deals for an athlete’s services on and off the field.[15] This difficulty follows from the Supreme Court’s 2021 decision in NCAA v. Alston, which found that NCAA rules limiting education-related compensation violated antitrust laws under the Sherman Act.[16] Alston opened the door to state legislation permitting student athletes to generate revenue based on their NIL.[17] In response, the NCAA implemented an interim policy in June 2021, which prohibits pay-for-play deals, recruiting contact by boosters, and deals that serve as inducements to attend universities. [18]
The interim policy is NCAA’s attempt to regulate NIL, but the recent emergence of NIL offerings by collectives demonstrate there is still a long way to go.[19] On May 9, 2022, prior to the Saban-Fisher debate, the NCAA issued new guidelines clarifying that collectives are to be treated as boosters.[20] This means collectives may not contact recruits (high school or transferring college athletes) or influence where they go to school.[21] Boosters may, however, provide NIL deals to athletes after they are enrolled.[22]
For violations that occurred prior to May 9, 2022, the NCAA directed its enforcement staff to review individual cases and pursue actions that were “clearly contrary to the published interim policy, including the most severe violations of recruiting rules or payment for athletics performance.”[23] While the NCAA will not directly sanction players for rule violations, it will sanction schools for not controlling their boosters.[24]
It is too early to tell what impact these new guidelines will have on the college football recruiting process. Some commentators argue that the guidelines are trivial because college football programs have always “bought” players even if they could not directly offer them money outright.[25] Big schools with sizeable athletic funding have always been able to offer recruits nicer facilities, a bigger stadium, more nationally televised games, and promises of being high NFL draft picks.[26]
Other commentators argue that NIL needs to be more heavily regulated by a uniform body, either the NCAA or Congress, instead of permitting individual states to enact their own NIL laws.[27] The NCAA, however, has seemingly been unwilling and perhaps even unable to enforce its existing bylaws due to concerns of triggering antitrust legal challenges that were the subject of the Alston decision.[28] As the only national governing body of collegiate athletics, the NCAA will have to walk a fine line between regulating NIL compensation, complying with state NIL laws, and avoiding antitrust scrutiny.
References: [2] Ronald Evans, Alabama Football: Nick Saban Accuses Texas A&M of Buying Players, BamaHammer (20 May 2022) https://bamahammer.com/2022/05/19/alabama-football-nick-saban-accuses-buying-players/ [3] Olafimihan Oshin, Saban Accuses Texas A&M of Buying Players Through NIL Deals, The Hill (19 May 2022) https://thehill.com/news/state-watch/3494192-saban-accuses-texas-am-of-buying-players-through-name-image-and-likeness-deals/ [4] Id. [5] Laine Higgins, It’s Nick Saban vs. Jimbo Fisher in a College Football Brawl Over Athlete Compensation, Wall Street Journal (19 May 2022) https://www.wsj.com/articles/nick-saban-jimbo-fisher-alabama-texas-am-11652985158 [6] Ben Kercheval, Alabama’s Nick Saban Goes In-Depth on Out-of-Control NIL: ‘[Texas] A&M Bought Every Player on their Team’, CBS Sports (19 May 2022) https://www.cbssports.com/college-football/news/alabamas-nick-saban-goes-in-depth-on-out-of-control-nil-texas-a-m-bought-every-player-on-their-team/ [7] Id. [8] Id. [9] Higgins, supra. [10] Kercheval, supra. [11] Id. [12] Id. [13] Id. [14] Id. [15] Dan Murphy, NCAA Division I Board of Directors Releases New NIL Guidelines Regarding Involvement of Boosters, ESPN (9 May 2022) https://www.espn.com/college-sports/story/_/id/33888469/ncaa-division-board-directors-releases-new-nil-guidelines-regarding-involvement-boosters [16] NCAA v. Alston, No. 20-512 (U.S. June 21, 2021) https://www.supremecourt.gov/opinions/20pdf/20-512_gfbh.pdf [17] Id. [18] Michelle Brutlag Hosick, NCAA Adopts Interim Name, Image, and Likeness Policy, NCAA (30 June 2021) https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx [19] Higgins, supra. [20] Michelle Brutlag Hosick, DI Board of Directors Issues Name, Image, and Likeness Guidance to Schools, NCAA (9 May 2022) https://www.ncaa.org/news/2022/5/9/media-center-di-board-of-directors-issues-name-image-and-likeness-guidance-to-schools.aspx [21] Id. [22] Ralph D. Russo, Keeping Schools Out of NIL Dealings Opened the Door for Boosters, AP News (17 May 2022) https://apnews.com/article/college-football-sports-ohio-state-buckeyes-7c15786e58e3fb2d3884e375a53d827c [23] Hosick, supra note 20. [24] Ross Dellenger, The NCAA Approval of Guidelines Signals a Crackdown on Boosters Could be Coming, Sports Illustrated (9 May 2022) https://www.si.com/college/2022/05/09/ncaa-nil-guidelines-boosters-athlete-funds [25] Kyle Qualls, College Football Teams Have Always Bought Players, Deadspin (23 May 2022) https://deadspin.com/college-football-teams-have-always-bought-players-1848963688 [26] Id. [27] Dellenger, supra. See also Ralph D. Russo, SEC, Pac-12 Leaders to Push for NIL Law in DC, News4Jax (5 May 2022) https://www.news4jax.com/sports/2022/05/05/ap-source-sec-pac-12-leaders-to-push-for-nil-law-in-dc/ [28] Dellenger, supra.
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