X. Post-Interim Policy NIL Derangement Syndrome

As the NIL market evolved under the more permissive Interim Policy, schools in states with no NIL law had more market flexibility than states that had passed restrictive NIL laws. 

Unverifiable reports of multi-million-dollar NIL deals for star football and men’s basketball players flooded the sports and mainstream media. 

Two contradictory themes emerged.

One centered around the benefit of a less restrictive NIL market for female athletes.

For example, deals struck by Fresno State women’s basketball players Haley and Hannah Cavinder (who would later be lured to the University of Miami), U Conn’s Paige Buekers, and later LSU gymnast Olivia Dunne were hailed as positive inflection points for Title IX and gender equity (which they were). 

At the same time, similar NIL activity by high-profile male athletes in football and men’s basketball was portrayed as outright pay-for-play, recruiting inducements, and evidence of athlete greed. University of Miami men's basketball player Isaiah Wong—whose agent suggested he would transfer unless he got a better NIL deal—became a symbol of athlete self-interest.

A USA Today article claimed Wong was holding Miami “hostage.”

The article said, “The new era of college sports did not announce itself subtly. Instead, it came in the form of a ransom note from an agent you’ve probably never heard of and a player most people even in his own market wouldn’t recognize.”

“But Adam Papas [Wong’s agent] and Isaiah Wong of Miami Hurricanes basketball (at least for now) have pulled the pin and thrown a grenade right into the middle of the NCAA’s attempt to deal with name, image, and likeness by covering their eyes and hoping Congress will ride in to save them. This should be the wake-up call that college sports has no choice now but to become an active participant in its own rescue.”

Narratives like these fueled a backlash to the NIL market, particularly concerning high-profile athletes in Power 5 football and men’s basketball.

While the USA Today article suggests the NCAA should control its own destiny on NIL, the characterization of the NIL market as out-of-control became a rallying cry for the NCAA and Power 5 in Congress.

Similarly-themed articles became a mainstay for major sports media outlets.

The NCAA and Power 5 used this sensationalized coverage to bolster their efforts to achieve protective federal legislation from Congress. The NCAA and Power 5 propagandized the most extreme and outlier NIL deals as evidence of a poisonous NIL market.

In connection with a March 29th, 2023 hearing ostensibly on NIL, the House Energy and Commerce Committee—led by Florida Republican Gus Bilirakis—published a hearing memorandum loaded with scare tactics, including this:

“In the absence of formal organizational rules and transparency requirements to ensure legitimacy, rogue NIL actors have seized the opportunity to earn money, victimizing student athletes in the process. For example, T.A. Cunningham, a high school football player from Georgia, was promised millions of dollars by an NIL company if he moved to California, where it was legal for high school athletes to earn money from NIL deals.18 He was also promised a place to live while in California and a place for his mother to live in Georgia as the family was on the brink of eviction. None of this materialized. Instead T.A. was deemed ineligible to play in California, left homeless when the man he was staying with in California was arrested on charges of sexually assaulting a minor, and his family in Georgia was evicted.”

The Hearing Memo also invoked the Wong case as an example of an out-of-control NIL market that required immediate Congressional attention:

“Following the NCAA approval of NIL deals, the NCAA also changed its transfer rules presenting athletes with two windows to transfer that will not affect their ability to compete. This change has created a pay-for-play scheme where athletes can enter the transfer portal and wait to see who will offer them the best deal. University of Miami men’s basketball guard Isaiah Wong threatened to enter the transfer portal unless his NIL deal was increased.” (emphasis added)

While the NCAA and Power 5 ramped up their anti-NIL campaign, states with restrictive NIL laws moved quickly to repeal, amend, or suspend their restrictive amateurism “integrity-based” NIL laws to operate under the more permissive NCAA Interim Policy.

For example, Alabama, Florida, and South Carolina all scrapped or suspended their NIL “guardrails” out of fear of being at a competitive disadvantage in recruiting to schools in states with no NIL law.

The response of state legislatures to the evolving NIL market post-Interim Policy highlights two central themes in state regulation of college sports.

First, as demonstrated by the response to the athlete agent “crisis” in the 1980s through protective state regulation, the work of the ULC, and the passage of SPARTA, the primary motivation of key decision-makers in college sports is to protect institutional interests, not athlete interests.

Second, state legislatures, particularly those with high-octane Power 5 football products, will change their laws on a dime to align with the perceived needs of their Power 5 universities. 

Alabama’s U-turn was breathtaking. It enacted its integrity-based NIL law in April 2021 and repealed it just ten months later in February 2022. Has there ever been such a short-lived law in Alabama?

Perhaps more importantly, a NIL deal signed by a University of Alabama football player in January 2022 that ran afoul of Alabama’s NIL law and its amateurism-based “guardrails” could be deemed a criminal act (at least for agents). The same deal signed by an athlete in March 2022 was perfectly not only legal, but desirable.