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The NCAA Doesn’t Know How To Stop Boosters From Playing The NIL Game

Boosters are the lifeblood of athletic departments around the country. The money poured into programs by supporters — from Phil Knight at Oregon to Jimmy Rane at Auburn — can then be used to do things like continually update locker rooms, install high-tech LED stadium light systems or build a slide in the middle of a football facility. Boosters probably footed the bill on your alma mater’s latest coaching buyout or sweetened the contract for its latest hire; two Michigan State boosters managed to secure football coach Mel Tucker and the $95 million owed to him. All of these investments are, of course, meant to entice prospective players or satisfy existing ones. Put another way, boosters recruit. 

But the booster economy has changed with the supercharged transfer portal and name, image and likeness (NIL) offerings that have likely secured numerous player commitments. So when the NCAA’s Division I Board of Directors met in Arizona last week to mull the future of college athletics, it was in an attempt to erect guardrails on a landscape in which recruiting classes are often decided by budget size. Directors issued “guidance” on existing guidelines and reaffirmed that boosters are prohibited from involving themselves in recruiting. As Darren Heitner of Heitner Legal put it, “It’s not really an announcement.” Heitner would know: He helped write Florida’s current NIL law.

The news may have reverberated more had the NCAA not specifically approved months ago that boosters — who have been banned historically from facilitating benefits to athletes and their family members — are free to enter into NIL agreements provided they operate independent of the university and its athletic department. They cannot push contracts to induce athletes to enroll, either. But that didn’t stop Texas’s Clark Field Collective from providing $50,000 to every Longhorns offensive lineman on scholarship or Built Brands from providing free tuition for every one of BYU’s 36 walk-on players. 

The NCAA defines boosters as “any third-party entity that promotes an athletics program, assists with recruiting or assists with providing benefits to recruits, enrolled student-athletes or their family members.” This catch-all label could also include collectives, or groups typically founded by university alumni that pool and allocate financial resources for athletes by way of NIL contracts. 

The NCAA has attempted to quell booster influence for more than a century with little to show for it. A 1929 study titled American College Athletics noted that university alliances with booster clubs had led to a complete lack of regulation. Program control, the study contended, had been paid for by alumni for as long as college athletics had existed. More than 50 years later, an NCAA Presidents Commission report on integrity and Finances included a poll in which 87 percent of Division I presidents surveyed cited boosters as the biggest possible cause of integrity problems. This month, a survey conducted by the LEAD1 association reported on by The Athletic found that 90 percent of athletic directors surveyed were concerned about collectives1 using NIL payments as improper recruiting inducements.

Howard Savage, who authored American College Athletics, wrote more than nine decades ago: “College athletics assumed gargantuan proportions before faculty members in general understood, much less considered, the implications of their exaggerated growth.” That ecosystem has exploded, yet the sentiment remains unchanged. 

“We forecasted pretty much everything that’s happened, except for collectives,” Big East Commissioner Val Ackerman, a member of the NCAA’s NIL subcommittee, told The Athletic. “We didn’t envision packs of donors banding together to create pools of money they would spend, in some cases, indiscriminately.” 

How the NCAA was unable to forecast the logical next step of booster influence in an economy in which money now freely flows over the table from boosters to athletes — heightened by the adoption of new transfer rules that incentivize market-to-market NIL competition — is perplexing. 

Enforcement staff has been directed to pursue only actions that “clearly are contrary to the published interim policy, including the most severe violations of recruiting rules or payment for athletics performance.” Ohio State Athletic Director Gene Smith acknowledged to CBS Sports that there is an expectation of litigation as a result of this updated policy. Sportico reported that BYU, Miami and Oregon are already being questioned about third-party NIL activity. Sanctions are possible for those who have violated NCAA rules. However, the wording of the release intimates that free passes could be granted for violators of the interim policy so long as the abuse wasn’t flagrant. And laws in nearly two dozen states shield athletes from punishment for accepting third-party money.

There are dozens of collectives across the country, including TigerImpact at Clemson, Friends of Spike at Gonzaga and Knights of the Raritan at Rutgers. Business of College Sports has launched a tracker of university-specific NIL collectives that updates daily. One of the first to market was Florida’s Gator Collective, which Heitner helped get off the ground.2

Some are nonprofit entities, while others are rolled into larger companies. Some feature advisory boards and subscription models. Some allow you to make one-time contributions to a specific team or to a general fund. Many provide access to sponsored interviews with athletes or entry into raffles for merchandise and autographed gear. 

South Carolina collective Garnet Trust, which offered an NIL deal to each of the 500-plus eligible Gamecocks on campus, helped a local business sponsor a Christmas shopping spree for underprivileged children in Columbia, which athletes attended, and a trip by football players to the local Boys & Girls Club chapter. “The service opportunities are special,” said Garnet Trust spokesperson Chris Clark. “We want to bring more opportunities to them. Some of these athletes don’t come from much and are just earning a living like other people around the country. They don’t have the time to get a job. They have bills. We want to bring awareness to that.”

Contracts offered by collectives seem to be more standardized than, say, contracts offered by a brand, Heitner said. “They rarely deviate one to the other to a tremendous degree. … When you’re dealing with a brand, really no two contracts are the same.”

There’s no denying that the NIL money flowing in and out of public view has exceeded expectations. “We were thrilled with reaching an annual revenue of $500,000,” Heitner said after Gator Collective became the first collective to market. “Then we heard about an $8 million offer to a high school athlete and quickly reconsidered where we sat within the power rankings.”

In the weeks since, a separate Florida collective raised $5 million in 48 hours, and the university picked up a $12.6 million pledge, the single largest donation in program history. “I don’t know which way to turn my head sometimes,” Heitner said. 

All the while, athletic directors and conference commissioners were working to draft a 500-word clarification unlikely to effectively punish boosters who secured commitments through NIL. “Frankly, I think a lot of this will be talk and very little action, because they know what will happen,” said Jeffrey Kessler, the lead attorney for athletes in a separate Supreme Court case on benefits.

The NCAA seems to still be learning that college athletes now have nearly the same rights as every worker in the U.S. Though it may have hoped boosters would simply stay out of the new landscape, the organization’s consistent head-in-the-sand approach has only muddied the waters for collectives. Boosters won’t stop recruiting; it may take more litigation to find where a line can be drawn.

Footnotes

  1. Not to be confused with directives, or single-party donors.

  2. Heitner has advised Gator Collective against presenting NIL offers to high school athletes and communicating with players in the transfer portal.

Josh Planos is a writer based in Omaha. He has contributed to The Wall Street Journal, The New York Times and The Washington Post.

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