As the NCAA and Power 5 accelerate their campaign in Congress for federal protections and immunities, a central threshold question remains:

What good are rules, policies, and laws if they aren’t enforced?

The NCAA and Power 5 have side-stepped this fundamental question in their quest to federalize their regulatory and business model and the NIL marketplace. 

At the state level, athlete-agent laws have produced very few enforcement cases.

Importantly, no state NIL laws or state governors’ executive orders have been enforced. 

At the October 17th, 2023 hearing in the Senate Judiciary Committee, NCAA President Charlie Baker testified. After the hearing, several Senators sent written follow-up questions to Baker.

Committee Chair Dick Durbin (D-IL) asked Baker:

“Have there been any documented instances of enforcement of state laws related to NIL?”

Baker responded:

“We [the NCAA] are not aware of any documented cases of states enforcing their NIL laws…most state laws do not appear to delegate a state agency for the enforcement or oversight of compliance with state NIL laws.” (emphasis added)

At the federal level, the FTC under SPARTA has been ineffective for many of the reasons outlined by Howard Beales in his testimony to Congress in 2002. 

Can the NCAA and Power 5 identify a single enforcement case against an athlete-agent under SPARTA?

What leads the Power 5 and NCAA to believe that a federalized NIL market with a federal NIL police force will be any more effective?

Moreover, and importantly, since the NCAA adopted the “Interim Policy” on NIL on June 30, 2021, it has chosen only to selectively enforce its rules and policies relevant to NIL activity in the marketplace.

Recent and pending case(s) against Florida State, Florida, and Tennessee highlight the NCAA’s regulatory schizophrenia.

In an effort to prove to Congress that it is capable of enforcing NIL policies and “guidance,” the NCAA has exposed the legal and regulatory deficiencies in its values.

College sports now exist in a regulatory vacuum that the NCAA and Power 5 characterize as “chaos,“ crisis,” and the “Wild West.” Yet the state of college sports regulation is a direct product of the NCAA’s and Power 5’s inability to self-govern competently and fairly.

The perceived regulatory and enforcement “crisis” is largely of their own making.