The pushback against unfettered NIL is underway

If you’re paying attention to the Twitters, you’ve probably seen a bit of a freakout about a new NCAA enforcement mechanism: a change in the burden of proof.

Investigators can now use circumstantial evidence (like a tip or news story) instead of on-record sourcing to presume a school violated NCAA rules. Schools can disprove the allegation or else be potentially charged. The move strengthens the enforcement staff’s ability to charge schools and allows more leeway for investigators.

“If it looks like a duck and quacks like a duck, it’s a duck,” Duncan said. “Instead of putting the burden on the enforcement staff to always come up with a smoking gun, which we don’t always have, there is a presumption. It puts the burden on the school. It’s a really powerful tool.”

While Duncan was not specifically referring to the fiasco in Gainesville, where a UF collective defrauded on a lucrative deal to prized quarterback Jaden Rashada, his comments unfurled in a timely manner. Such obvious violations—a third-party entity striking a deal with a player before he signs with the school—will be treated more aggressively than ever.

The short version of NIL is that: the Supreme Court told the NCAA that it couldn’t prohibit student-athletes from profiting off their “name, image, and likeness,” this was celebrated by one group of intelligent people who thought it was bullshit that the NCAA had historically prohibited this, and a different group of intelligent people told them that all this was going to do was legitimize the bagman system that had long existed, only it hasn’t done that, it’s gone on steroids.

It is possible, of course, to believe both that (a) college athletes should be paid in some form beyond the cost of their scholarship, and (b) the current system is a hot mess.

It’s also worth pointing out that the NCAA is the schools. The NCAA doesn’t do anything that the member schools don’t want it to, and the Power 5 holds more sway in that body than anyone else. If you want to know the real reason why the Power 5 doesn’t break away from the NCAA (as idiots on the internet frequently insist that they should do), it’s because it makes for a convenient shield to pretend that the reason why things are the way that they are is because mid-majors are worried about competing. Consider: the one-year sitout rule for transfers existed until the Power 5 more or less decided that they actually wanted transfers to be immediately eligible. Why they changed their minds isn’t really too difficult to figure out, either: instead of having to waste a roster spot on a guy for a year or two while he developed into a useful depth piece, they wanted to just be able to hit up a mid-major’s best player to come in and do that right away.

Many inquiries begin with an accusation of tampering or an obvious violation of tampering, when one representative of a school—a coach, a booster, a collective staff member—attempts to convince a player on another college team to transfer by entering the portal, many times with the inducement of a better NIL deal.

Tampering is not new, Hicks said, but it has increased since the NCAA gave players the ability to transfer one time and be immediately eligible at their new school. In the past, athletes had to miss the upcoming seasons as a penalty for transferring.

“Immediate eligibility is powerful,” Hicks said. “It changes your team, roster and changes your ability to win immediately. If a school can pull a scholarship if a student-athlete goes into the portal, then why the heck would they not want to know where they’re going to go [when they enter the portal]?”

And, of course, we all know that tampering goes on — when Vanderbilt’s second-best basketball player enters the transfer portal a month and a half after the season ends with a “Do Not Contact” designation and winds up at his hometown school a couple of days later, it doesn’t take a genius to figure out what happened. But since NCAA rules only limit the “tampering” charge to coaches dumb enough to directly contact a player at another school instead of, like, contacting his AAU coach to relay a message, there’s never any enforcement.

Back to that “the NCAA is the schools” thing, though. The reason why the NCAA is finally, at least publicly, appearing ready to gear up to launch a bunch of investigations is because the schools want them to. Because at the same time this is coming out, some coaches are suddenly shifting the narrative.

Now, you might be focused on the part where they’re still telling people to donate to their NIL collective, because until actual enforcement starts that’s the song and dance they have to do. You may not like the system but you can’t be the program that isn’t offering NIL payments, at least if you intend to compete at the highest levels of the sport. What they’re actually saying is that recruits who mostly seem interested in how much NIL money they’re going to get is a big honking red flag, because it’s telling coaches that they’re not interested in winning college games or preparing for the pros (where the real paychecks are, still, even in the world of NIL.)

But it’s telling that coaches are now starting to say this publicly, as though the narrative is beginning to shift and now it’s safe to come out and say this. Enforcement is coming soon, and everybody suddenly wants to get out in front of it.

You might also be interested in who is saying this, of course. The trick with NCAA enforcement is that it’s always worked like traffic enforcement: when 90 percent of the drivers on the road are violating some law, enforcement is going to be spotty and choices about enforcement are going to be made. Now, some of those choices are made for the wrong reasons (both with NCAA and traffic enforcement) and I’m going to leave it with that; but when police choose to ignore the drivers keeping with the flow of traffic (even if “keeping with the flow of traffic” is technically exceeding the speed limit) and targeting the most egregious offenders for enforcement, most people are going to find that acceptable.

While not new, the document details potential violations, many of which are routinely broken. They include most notably impermissible recruiting, such as a school-affiliated third party (“booster or collective,” the document noted) contacting a prospect or a prospect’s family about NIL before the recruit signs with the school.

In short, if it looks like a duck and quacks like a duck, guess what it is.

In short: enforcement is coming. Get ready.