Name, Image, and Likeness (NIL) is a straightforward, easily understood concept. Athletes can now earn money by allowing companies to use their names, images, or likenesses in promotional activities. That’s all there is to it.

Why all the fuss if NIL only grants college athletes economic rights that many, if not most, college football fans support?

When federal courts ruled that the NCAA could not deny athletes the right to earn money from their popularity (NIL), some university recruiting staff saw an opportunity to close recruiting gaps with rivals by taking advantage of the NCAA’s enforcement paralysis in the wake of adverse Court rulings.

The NCAA’s current adverse legal opinions are based on the Sherman Antitrust Act of 1890. Congress passed the Sherman Act to deal with monopolies in the American economy, like J.D. Rockefeller’s Standard Oil, which at one point controlled over 90 percent of U.S. oil refining. NCAA members award nearly all athletic scholarships and the U.S. Federal courts ruled that the NCAA’s control of college sports violates the Sherman Act when the Association exercises its monopoly power by limiting student-athlete compensation to a scholarship, room, and board.

After the Courts ruled that the NCAA violated the Sherman Antitrust Act by prohibiting athletes from earning money from their personal popularity (NIL), many university recruiters saw an opportunity to make recruiting hay by taking advantage of the NCAA’s paralysis in the wake of adverse Court rulings. Recruiting practices changed overnight by guaranteeing recruits and transferring players cash payments if those athletes enrolled at the school offering them. The Association became powerless to enforce its rules regarding restrictions on player’s economic rights.

Recruiting is the most crucial activity in college sports success.

The ability of a coaching staff to mold a group of players into a team in the short term is a relative constant, as are facilities. Talent is the critical annual variable. Traditionally, recruiting has been about lavish facilities and a team’s demonstrated ability to prepare players for their ultimate goal – NFL stardom and riches. With those adverse court decisions showcasing the enforcement weakness of the Association, enterprising recruiters injected a new arrow into the recruiting quiver – open cash payments. Of course, players have received extra benefits in the past, but those under-the-table deals pale when compared to today’s player market.

The original concept for NIL was simple. Suppose Company X believes Player Y will produce positive advertising results. In that case, Company X might contact the school’s collective (a clearing house for advertising deals) and hire Player Y for an ad campaign. Savvy recruiting staff quickly understood that there was no longer a rules structure to punish recruiting offenses.

The Wild West of college recruiting had arrived …

The NCAA, desperate to regain its power and ensure its continued existence, reasoned that in light of its antitrust problem, it would simply plead with Congress to grant an antitrust exemption similar to relief extended to major league baseball in 1922. Despite the NCAA’s pleas, Congress has yet to give the Association a similar antitrust exemption, leaving the NCAA to face an existential enforcement battle.

Jim Cavale of Athletes.org (founder of inflcr.com) sums it up succinctly with his catchphrase: “Remember, the players have the power.” At the same time, he councils players on the realities of the portal:

“The transfer portal hype is really about the 10% of players who have already performed well; it is not about the 90% that didn’t play and are just trying to go somewhere else. It doesn’t mean that if you are part of the 90% and you haven’t played yet, and you might have been a highly ranked player in high school and now your stock is lower, it doesn’t mean that you cannot transfer and have a good experience. The portal is really about the top players, but there are a lot of players who have worn three or four uniforms since this portal stuff changed. They had to realize that the common denominator was them. It wasn’t their coaches’ fault – it was them.”

Gonzaga Men’s Basketball coach Mark Few, in a recent interview, adds:

“If used properly NIL can be a really, really good thing, a positive thing that has been long overdue,” he said. “We are not in a good space in college basketball, you know, with how we are operating with no leadership and no rules right now.”

Georgia football has chosen not to become involved in high school recruits’ highly publicized bidding wars, preferring to put its assets to work securing NIL deals for current players like quarterback Carson Beck. Beck reportedly signed an agreement for his final UGA campaign worth $500,000, and shortly after, an Atlanta automobile dealer signed Beck to a deal that included the use of a Lamborghini. Beck’s deal illustrates the dramatic change in NIL from a concept characterized by payment for services rendered to a ‘salary’ negotiation. Carson’s Lamborghini is NIL, but if reports of his $500K deal are correct, any amount paid to him not funded by an ad deal is pay-for-play. The days of college athletes playing in exchange for the traditionally accepted compensation model are over, and the current free-market recruitment environment is unworkable in the long term.

What comes next?

The first step is distinguishing between NIL (payment for advertising services) and Pay-For-Play (payment to play for a school). Currently, both concepts are alive and well across big-time college football. Carson Beck’s newly acquired deals appear to have both. First is the Lambo deal, which seems to be a pure NIL deal. Beck will endorse the car dealer in exchange for the use of the car. However, Mr. Beck reportedly enjoys an agreement that will pay him $500 thousand during his final year at UGA. His Lambo deal will fund a portion of his contract, but any portion of his deal not funded through advertising is pay-for-play.

If the current unregulated player market is allowed to continue, at some point, annually increasing “NIL/PayForPlay” deals will cause an acute case of donor fatigue. The pit of wealthy donors willing to perpetually fund the “market value” of recruits is not bottomless.

Two possible solutions exist for the quagmire through which the sport is trudging. The first, and in my opinion, least likely, is an antitrust exemption like MLB enjoys. Congress must pass legislation to enable the exemption, which seems unlikely to happen anytime soon. The NCAA is pinning its survival hopes on Congressional action because the alternative will gut the organization’s premier membership and could precipitate its demise. That alternative to Congressional action is for the schools that are now known as Division 1 (or some portion of those institutions) to leave NCAA and form a new governing body.

The NCAA has lost its antitrust cases because it makes rules that all of its 1,100+ members must follow—the definition of monopoly power. If (when?) the new governing organization exists with 50-100 former NCAA members, there will no longer be a monopoly (trust) governing college sports, and antitrust laws will no longer apply.

NIL is also profoundly affecting the recruiting of high school prospects. The recent flip of a state of Georgia high school player’s commitment from UGA to USC seems to have resulted from Kirby Smart’s oft-repeated policy of not entering into a bidding war for athletes. Instead, Coach Smart continues to rely on selling recruits on his track record of grooming players for the NFL. However, the lure of big money now will often make it challenging for Smart’s message to hit home until rules return to recruiting.

The game has changed permanently. Regardless of the ultimate solution to the current financial lawlessness in college sports, the solution will not be a return to the rules of the past. NIL is here to stay. The best hope for traditionalists is an effective ban on pay-for-play, but the scholarship, room and board days are over forever.

In a few years, fans will have begrudgingly accepted the new world order of college sports, and we can get back to the critical business of hating rivals and winning championships.

It is that simple.