The NCAA is no longer in the business of investigating NIL collectives for possible pay-for-play violations.
At least for now.
In the equivalent of an end-of-week news dump, NCAA president Charlie Baker told his members Friday afternoon that the association’s enforcement staff will “pause and not begin investigations” related to NIL infractions. Even if the NCAA resumes enforcement at a later date, Baker added, any conduct occurring between now and then won’t be penalized.
The announcement reflects U.S. District Judge Clifton Corker last week issuing a preliminary injunction barring the NCAA from enforcing any and all rules prohibiting college athletes and recruits from negotiating compensation for NIL with collectives and boosters.
Corker’s order, which will likely remain in effect for many months, came as the plaintiffs in Tennessee and Virginia v. NCAA have convinced the judge that NCAA rules prohibiting collectives from discussing NIL deals with recruits until after they have picked a school likely constitutes illegal price-fixing under antitrust law. Those rules are created by NCAA member schools, which are competing businesses and thus run into potential antitrust problems when they agree to limit competition. As Corker sees it, NCAA members have “suppress[ed] price competition by limiting negotiation leverage, and as a result, knowledge of value.”
Tennessee’s attorney general brought the case because a collective tied to the University of Tennessee was under NCAA investigation for possible violations. That investigation is now off.
Although Corker is a federal district judge in one state, his ruling is enforceable in every state under U.S. Supreme Court precedent—and is, thus, federal in nature. For that same reason, when U.S. District Judge Kathryn Kimball Mizelle of Florida struck down a national mask mandate on airplanes and mass transit in 2022, the ruling effectively meant airplane passengers across the country no longer had to wear masks why flying.
As a result, Baker had no real choice but to pause enforcement unless the NCAA were to appeal the ruling to the U.S. Court of Appeals for the Sixth Circuit. Baker acknowledged that the move “will raise significant questions on campuses” given that NIL collectives will likely increase efforts—and extend more lucrative offers—in pursuit of high school and transfer athletes.
“We needed meat and they gave us all potatoes,” a Power Five school’s compliance director, who asked not to be identified, told Sportico. “This doesn’t change much of the ambiguity that we live.”
Athletic department officials have grown accustomed to ambiguity since the advent of NIL rights.
“Much like the environment immediately following the first iteration of the interim NIL policy in 2021, campus personnel, including compliance professionals, must use the best information available to advise and assess risk, both for institutions and individual student-athletes,” said Shoshanna Engel Lewis, president of the National Association for Athletics Compliance. “While we don’t have clarity on when exactly this will play out, we are able to utilize today’s information to make a more informed risk assessment.”
Just how much more informed will still be an open question.
Baker, in his memo, signaled his hopes that the changes to NCAA’s NIL-related rules will ultimately be made in “a D-I meeting room, not a courtroom.”
The Baker memo felt like a step forward to some NCAA watchers.
“President Baker’s guidance brings clarity to member schools left wondering whether the injunction extends nationwide,” said Paia LaPalombara, a sports attorney who until recently led athletics compliance at Ohio State.
But, LaPalombara added: “It brings with it a whole host of other questions. What if state law is regulating NIL collective communication with recruits? How does this interplay with all of the other NCAA bylaws the NCAA will continue regulating, such as tampering and recruiting conversations? Over the next few weeks the NCAA should be candid and available to member schools navigating staying compliant while also pushing aggressively into this new frontier.”
Attorney Tom Mars, an NCAA critic who has represented college athletes and NIL collectives in enforcement matters, told Sportico that Baker’s announcement “seems to be grounded in common sense” in two respects.
“First,” Mars said, “it seems clear the NCAA is not going to waste more money appealing a decision that has no chance of being overturned. Second, considering that Judge Corker has telegraphed how he thinks the Tennessee case will end, it’s also sensible that the D-I Board basically directed the enforcement staff to stop breaking the law.”
