Anyone, including and especially those in college football, who continues to call for the NCAA to put "guardrails" around NIL and the Portal is: A) well-intentioned, and B) totally out of tune with what's actually happening in the year of our Lord, 2024.
The NCAA spent much of last year putting "guardrails" around the Portal by denying the "overwhelming" majority of appeals for undergraduates to transfer a second time and compete immediately. In December, the courts struck that down. The US Justice Department earlier this month joined a group of 10 states suing in federal court for the government to rule that any restrictions the NCAA might attempt to enforce upon transfers was a violation of antitrust law. The NCAA has already thrown its hands up and allowed multi-time transfers to compete in 2024, leading to a flurry of Portal activity late in the winter window.
So that's one "guardrail" run over with a bulldozer.
On Wednesday, two states took a sledgehammer to the other guardrail.
The states of Tennessee and Virginia filed a lawsuit that would formally allow schools to use NIL as an inducement for recruits and transfers.
“Tennessee Attorney General Jonathan Skrmetti and Virginia Attorney General Jason Miyares have filed an antitrust lawsuit against the NCAA, alleging that the their restrictions on the ability of current and future student-athletes to negotiate and benefit from their Name, Image, and Likeness rights (NIL) violate federal antitrust law and is harmful to current and future student-athletes," the pair said in a statement.
In their legal filing against the NCAA, the Tennessee & Virginia AGs want the Court to bar the NCAA from enforcing its “NIL-recruiting ban” and bar it from preventing any recruits or transfers from entering NIL deals prior to enrollment. pic.twitter.com/UToUQfUz9o
— Ross Dellenger (@RossDellenger) January 31, 2024
Here is the states of Tennessee and Virginia arguing that, since the courts struck down the "guardrails" around the Portal, it should do the same with NIL and formally allow the market around NIL to function "fairly and competitively."
The lawsuit comes on the heels of the NCAA investigating Tennessee for possible NIL recruiting violations. The NCAA is pursuing a similar investigation against Florida, and recently dropped the first NIL-related sanctions against Florida State.
The irony of Wednesday's lawsuit is that while the State of Tennessee is busy suing the NCAA for prosecuting schools for using NIL as a recruiting tool, the University of Tennessee (and its collective) is simultaneously arguing to the NCAA that it didn't use NIL as a recruiting tool.
It's a bit like a 16-year-old arguing that, actually, he was home before his midnight curfew and so his grounding is wrongful and unjust... but at the same time all curfews should be done away with. To a neutral observer, the second argument weakens the first.
The University of Tennessee isn't worried about that, though. In their minds, they didn't break the rules and the rules shouldn't exist.
"I appreciate the action of Tennessee AG Jonathan Skrmetti for standing up for the rights of student-athletes," Vols AD Danny White tweeted Wednesday. "At Tennessee, we are always going to work to support our student-athletes’ rights and give them all the tools needed to succeed on and off the field. This is what strong leadership looks like!"
Let's zoom out from the particulars of the Tennessee case and take a 30,000 foot view of what's happening here.
Point 1: Countless coaches, administrators and fans have correctly argued that the current state of play in college athletics has created a Wild, Wild West environment of unlimited free agency and pay-for-play, where players can enter the Portal every single offseason to market their services to the highest bidder. And they are correct.
Point 2: But the states and the courts won't allow the NCAA to do anything about it. Any attempt to impose even the mildest restrictions, or to enforce the current rules on the books, is met with a near-immediate lawsuit from the states where, so far, the courts have ruled unanimously against the NCAA.
To put it bluntly, any complaints toward Point 1 without an acknowledgement of Point 2 is a waste of breath. It's a total failure to acknowledge reality. It's complaining for the sake of complaining.
The guardrails are gone, ripped out of the ground and crumpled along the side of the highway. Drive at your own risk.