Our traditional understanding of college athletics has taken a significant hit over the past several months since the NCAA lifted its restriction against players receiving compensation for their Name, Image, and Likeness. The NCAA has since provided little guidance in defining this new space. For example, a summary of the NCAA’s interim policy states:
- “Individuals can engage in NIL activities that are consistent with the law of the state where the school is located. Colleges and universities may be a resource for state law questions.
- College athletes who attend a school in a state without an NIL law can engage in this type of activity without violating NCAA rules related to name, image and likeness.
- Individuals can use a professional services provider for NIL activities.
- Student-athletes should report NIL activities consistent with state law or school and conference requirements to their school.”
The NCAA is reluctant to provide any governance because the decades long antitrust deference it had received in some cases was squashed in June of 2021 when the Supreme Court released its decision in NCAA v. Alston. Although this decision was based on the NCAA’s cap on educationally related benefits, both the majority and Justice Kavanaugh’s concurring opinion made it clear that the NCAA could no longer rely on interpreting dicta to formulate an antitrust exception based on preserving amateurism. Thus, the NCAA would have to reassess its position in this landscape to determine other procompetitive justifications for enforcement of any type of compensation restrictions, or, simply, take a hands-off approach.
Since June of 2021, the NCAA has taken the latter approach and maintained a hands-off posture with respect to college athlete compensation. Subsequently, state law and institution-specific policy are the primary forms of regulation in this space. As a result, we now have a combination of different state laws and institutional policies entangling with one another to “create” the player compensation market in college athletics. Of course, these differing forms of regulation lead to various inconsistencies, none of which is more important than interpreting “pay-for-play.”
Traditional Notion of College Athletics
One of the primary reasons college athletics has a special place in American sports is because it is embedded within the higher education enterprise and thus allows specific communities to share their love for their institutions through sports. Fixed in this traditional notion of college athletics was the understanding that college athletes played “for the love of the game” and not because someone was paying them. This, of course, is contrary to professional sports which traditionally has always had a “business” element.
Sure, those that participated at the highest level of college sports, namely, Division I, often saw financial compensation through the form of an athletic scholarship. Traditionally, however, much of the purity of college sports was because the “pay-for-play” element was not clearly associated with each participating member. Therefore, prior to Alston, the NCAA would discipline those schools that ran-afoul and paid their current or prospective players to play for their programs.
Since the NCAA lifted its ban, the debate for “pay-for-play” has become the most notable tension point in college athletics today. This point of tension was illustrated this past week with Nick Saban calling out Jimbo Fisher, and Texas A&M’s recruiting practices this past recruiting cycle. In an undefined space, this feud demonstrates the various interpretations of player compensation that exist at the most elite level of college sports. Ultimately, the Saban v. Fisher feud will prove to be good for college athletics because it demonstrates that this collegiate athletic market is simply figuring itself out.
Recruiting Feud of 2022
Nick Saban, the University of Alabama Head Football Coach, ignited the spark that set the college sports world ablaze on Wednesday May, 18, 2022, while at the World Games in Birmingham Alabama. There, Coach Saban called out Texas A&M Head Coach Jimbo Fisher and Jackson State and NFL legend, Deion Sanders, for allegedly paying their recruits to choose to play for their respective programs. At the World Games, Coach Saban made the following comments that illustrate his point of view:
“I mean, we were second in recruiting last year. A&M was first. A&M bought every player on their team — made a deal for name, image, likeness. We didn’t buy one player, all right? But I don’t know if we’re gonna be able to sustain that in the future because more and more people are doing it. It’s tough.”
In addition to calling out Texas A&M Head Coach Jimbo Fisher, Coach Saban also challenged the practices of Jackson State and the University of Miami.
“Hell, read about it in the paper. I mean, Jackson State paid a guy $1 million last year that was a really good Division I player to come to the school. It was in the paper, and they bragged about it. Nobody did anything about it. I mean, these guys at Miami that are going to play basketball there for $400,000, it’s in the newspaper. The guy tells you how he’s doing it.” Id.
Coach Fisher, of course, would not go silent. Following the remarks made by Coach Saban, Coach Fisher responded:.
“Some people think they’re God. Go dig into how God did his deal. You may find out … a lot of things you don’t want to know. We build him up to be the czar of football. Go dig into his past, or anybody’s that’s ever coached with him. You can find out anything you want to find out, what he does and how he does it. It’s despicable.” Id.
Coach Fisher, when asked if he would be apologizing to Coach Saban:
“Not going to. We’re done. He’s the greatest ever, huh? When you’ve got all the advantages, it’s easy. … You coach with people like Bobby Bowden and learn how to do things. You coach with other people and learn how not to do things. There’s a reason, people, I ain’t back and worked for [Saban]. Don’t want to be associated with him. You can call me anything you want to call me. You can’t call me a cheat. I don’t cheat and I don’t lie. I learned that when I was a kid. If you did, your old man slapped you upside the head. Maybe somebody should have slapped him.” Id.
Finally, Coach Sanders also provided a response to the Saban allegations:
“You can’t do that publicly and call privately. No, no, no. I still love him. I admire him. I respect him. He’s the magna cum laude of college football, and that’s what it’s going to be because he’s earned that. But he took a left when he should’ve stayed right. I’m sure he’ll get back on course. I ain’t tripping.” Id.
Although the aforementioned clips are just a few said by Coach Saban this past week, they illustrate a fundamental issue in college athletics. What does it mean to “buy players”?
To be fair, Coach Saban took a step back after singling out Coach Fisher and Coach Sanders:
“I should have been more specific when I said ‘bought’ in saying you can buy players now through name, image and likeness and never mentioned any specific school and just said across the sport. That’s on me. But other than that, I don’t have any regrets over what I said Wednesday [at the World Games in Birmingham speaking event].” Id.
Nonetheless, whether it be Texas A&M, Jackson State, or another institution, Coach Saban’s comments clearly highlight the tension point of the reality of “buying players”.
Saban’s In-Depth Comments
While several of Coach Saban’s comments this past week were headline worthy because of the explicit call-outs of other coaches, more of his in-depth comments illustrate the current recruiting landscape in major college football.
“The issue and the problem with name, image and likeness is coaches trying to create an advantage for themselves. They went out and said, ‘OK, how can we use this to our advantage?; They created what’s called a collective. [A]collective is an outside marketing agency that’s not tied to the university that’s funded by alumni from the university. And they give this collective millions of dollars. And that marketing agency then funnels it to the players, aight. And the coach actually knows how much money is in the collective. So he knows how much he can promise every player.”
“That’s not what name, image and likeness was supposed to be. That’s what it’s become. And that’s the problem in college athletics right now. And now every player is saying, ‘Well, what am I going to get?’ Well, my philosophy is my job is to create a platform for our players to create value for themselves and their future by becoming better people, by graduating from school and developing a career off the field. And by seeing if they can develop a career on the field and play at the next level in the NFL.” Id.
“But now in recruiting, we have players in our state that grew up wanting to come to Alabama, that they won’t commit to us unless we say we’re going to give them what somebody else is going to give them. And my theory on that is everything that we’ve done in college athletics has always been equal. Your scholarship is equal. They get equal Alston money. They get equal cost of attendance. They get equal academic support. They get equal medical attention. Everything has always been equal.” Id.
Clearly, there is a divide in college football with respect to “buying players”, or, simply, “pay-for-play.” Indeed, Coach Saban’s comments were directed at Texas A&M and Jackson State, yet his frustration appears to be coming from the lack of consistency across college football. From a 10,000-foot perspective, there appears to be two general perspectives in the player compensation market: one that seeks to rely on regulation, whether it be NCAA enforcement, state law, or institution policy, and one that seeks to interpret the current regulations to their advantage. Neither party is right, and neither party is wrong. This is the player compensation market situating itself amongst the realities of college athletics.
As the market continues to define itself, tension points will likely continue to arise. Furthermore, tension points will likely center around player recruitment, whether it be recruiting high school players, or recruiting transfer athletes because recruiting is the life blood of a program and success is generally attributed to consistency in recruiting. Therefore, laws that restrict recruiting in the player compensation market will likely be amended or repealed (see Alabama NIL repealed after national signing day 2022) to generate more favorable outcomes.
In sum, the player compensation market is great for college athletics because it provides the opportunity for college athletes to maximize their platform by earning compensation opportunities while continuing to compete in college athletics. In doing so, individuals like Coach Saban, who developed a dynasty under the traditional landscape of college athletics, will look to get things under control. However, there does not appear to be any evidence of college athletics losing its popularity or becoming diluted because players are able to earn compensation for their likeness. In fact, it appears that the market may forming a more competitive landscape, one where the Head Coach at Alabama now has frustrations with the recruiting practices of Jackson State.
 Please note, this article is not intended to dive into the selectivity of discipline that the NCAA has shown with respect to “pay-for-play” over the past several decades.
President of the Buffalo Sports and Entertainment Law Society. Before law school, I coached college football at the University of Rochester for five seasons. I am excited to take these experiences, along with a legal education to make an impact on the ever-evolving landscape of college athletics. Thanks for reading our posts!