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NCAA stuck in quagmire of its own making with latest NIL mess

It is a weird time in college athletics, perhaps the weirdest ever.

Let’s count the ways, shall we?

In December, the NCAA president himself proposed a plan that, if adopted this summer, would permit schools to directly strike name, image and likeness (NIL) deals with athletes as well as pay them through a trust fund. Within the next 18-24 months, depending on whom you trust, schools will pay athletes salaries as their employees or share revenue with them as their partners in a billion-dollar industry.

And yet, over the last three weeks, reports have emerged that the NCAA (1) is investigating Tennessee and Florida over violations related to NIL deals and (2) levied major sanctions on Florida State over violations related to NIL deals.

Confused?

You are not alone. Even those at the NCAA are aware of the confounding situation in which college sports reside (just look toward their own proposal opening the door for direct athlete pay).

Let’s use a popular meme to explain.

How it’s going: Athletes can be paid, not by schools, but by third parties — boosters and booster-led collectives — who offer five, six and sometimes seven-figure salaries to football and basketball players while masquerading the payments as endorsement and commercial “NIL,” yet they cannot “induce” such athletes with salaries and cannot attempt to enhance their school’s roster by using salaries.

How it will eventually go: Athletes are paid directly by schools or conferences for both their NIL as well as their services to play the game of football or basketball, operating from a regulated framework that binds them with contracts and permits them, when that contract is complete, to move about, perhaps, for better — you won’t believe this — salaries.

For now, college athletics sits in a sort-of purgatory — stuck, it seems, between archaic amateurism principles and a full-scale professional model. Exterior forces pull it toward the latter. Interior forces tug it toward the former. But amid the unregulated NIL landscape of the past 31 months, many of those interior voices — coaches, administrators and even commissioners at the highest levels — have abandoned such a cause.

They’ve tossed in the paddles. Waved their white flags. The calls for a new, professionalized compensation model are now coming from inside the NCAA’s own house, even from the NCAA itself.

ATLANTA, GEORGIA - DECEMBER 30: A general view of the football field and signage before the Chick-fil-A Peach Bowl at Mercedes-Benz Stadium on December 30, 2023 in Atlanta, Georgia. (Photo by Todd Kirkland/Getty Images)
There aren't easy answers to the myriad problems facing college athletics. (Photo by Todd Kirkland/Getty Images) (Todd Kirkland via Getty Images)

All of this makes awkward and complex the NCAA’s pursuit of those that have violated its NIL guidance, a temporary policy created and adopted by its own member schools that the association has even acknowledged is murky, ever-evolving and often needs clarity.

The NCAA’s predicament: For more than two years, coaches and administrators have staunchly encouraged the NCAA to punish schools for NIL violations. And, yet, when those punishments are delivered, the targeted schools vehemently decry them unfair and often even file legal challenges.

We could very well see legal action in the case of Tennessee, whose chancellor, Donde Plowman, used harsh language in email exchanges with NCAA officials recently.

“Two and a half years of vague and contradictory NCAA memos, emails and ‘guidance’ about name, image and likeness (NIL) has created extraordinary chaos that student-athletes and institutions are struggling to navigate,” she wrote to NCAA president Charlie Baker. “In short, the NCAA is failing.”

In reality, the system is failing.

It is untenable, this quasi-professional model. The entire situation is coming to a crescendo and soon, evidenced by the industry’s most powerful people gathering in Washington D.C. last week for a discussion of the future.

After all, it is unrealistic to expect people — school coaches, administrators and boosters — in a competitive environment to follow rules when those rules are ever-changing and often left up to interpretation. Just as it is unrealistic to expect people — NCAA leadership and enforcement staff — to enforce rules on member schools only to have those member schools challenge the very rules they helped create.

And the rules, they keep changing. Just earlier this month at its convention in Phoenix, NCAA schools adopted new recommendations to their NIL policy that would permit schools to have more communication and contact with collectives. The organization also adopted changes that will establish an agent registry, disclosure database and standardized contract — many of which are voluntary in nature.

As for its investigations, the NCAA enforcement’s focus is on two concepts that, it says, haven’t changed over time: schools, coaches, boosters or anyone else cannot offer (1) inducements and (2) cannot tamper with players on opposing teams.

At the convention, Mark Hicks, the NCAA enforcement managing director for development, told a group of administrators that the association has proof that recruiting rules are being widely violated. The NCAA has screenshots of text messages from sitting head coaches sent directly to players competing on other college teams in attempts to get them to transfer schools.

Coaches are, as well, reaching out to the high school coaches of college players as intermediaries, said Hicks. College coaches are messaging high school coaches, “If you go to Johnny and ask him to get in the portal, we’d be interested in him!”

Athletes are doing it as well.

“There are student-athletes reaching out to coaches, ‘I’m thinking about going into the portal. Would you be interested?’” Hicks said.

NCAA officials are learning of new ways that universities are inducing athletes to their campus, said Hicks, including offering a combination of cash, an apartment lease, a vehicle and transportation for family members to visit campus.

But who, at the top of college football, is not inducing? Who is not tampering? Oftentimes, when School A claims that School B is tampering and offering inducements, School B has their own proof that School A is doing the exact same.

What competitive market would operate any differently? For the last 31 months, school donors — some of them rogue — have been controlling the gears. What did anyone think would happen?

“We have an ecosystem where anything goes,” said Darren Heitner, a sports attorney based in Florida, last year. “There is pay for play and there are improper inducements. The only solution is to finally treat these athletes as employees. It’s free agency without salary caps, without a collective bargaining agreement. These athletes have more bargaining power than pro athletes.”

Such is the result of mismanagement and poor decisions by those among the NCAA’s previous leadership and those at the conference and school level.

They are starting to publicly own such mistakes.

“I’m indicting everyone, including myself,” said Kevin White, an athletic director at six different NCAA schools over 40 years. “We should have been far more progressive and forward thinking over the past 20 years or more.”

And thus, here we are, in purgatory.

Some may call it a Fresh Hell. After all, a school, Tennessee, is likely soon to declare legal war on its own national association; an ACC powerhouse, FSU, is attempting to secede from its conference; private equity firms are circling like buzzards to a carcass; one legal complaint is likely to turn athletes into employees; another has already created unlimited transfers; and a third legal challenge will separate, once and for all, the haves and have-nots into separate divisions.

It is, indeed, a weird time in college athletics. And it is unlikely to get any less weird, confusing, contradictory, messy, complex and complicated until the industry creates a compensation model that provides a regulated framework around the so-called labor: the athletes.

It’s time not to dip a toe into the professional pool but to plunge both feet.