Clemson Football: NIL is pushing college football minds to propose professional model solutions

Clemson Football has navigated itself through the new era of NIL and the transfer portal in college football about as well as any program could, all while maintaining certain principles.

Most of those principles are championed by head coach Dabo Swinney. Swinney has supported the creation of collectives for Clemson NIL efforts while standing by his stance that NIL should not be a bargaining chip in high school recruiting. He has used and explored the transfer portal a few times, but stands by his belief that high school recruiting should be the primary means of player acquisition.

He hasn’t hesitated to express his opinions about NIL and the transfer portal, even if they aren’t well received. Some of Coach Swinney’s peers have expressed similar opinions.

At ACC Kickoff, Pittsburgh head coach Pat Narduzzi expressed his opinion that there should be some sort of lid or cap on NIL expenditures to prevent programs with large fanbases and/or donors with deep pockets from having an unfair advantage over smaller and/or less fortunate programs.

Ole Miss head coach Lane Kiffin expressed similar opinions at SEC media day, citing the inequities between what programs, donors, and collectives can afford to pay players.

There are mixed opinions about Coach Narduzzi and Coach Kiffin, but I like both of them. I think they are both good coaches, intelligent and entertaining in their own ways. In fact, Coach Narduzzi is the only active ACC coach to win a ACC conference championship besides Coach Swinney.

What continues to stand out is how people like Coach Narduzzi and other very smart and thoughtful individuals continue to float the idea of a cap for NIL without realizing that caps only work if you are willing to end the amateur college-athlete model and declare the players to be employees.

It is perhaps best summarized in this quote tweet by NIL attorney Mit Winter.

https://twitter.com/WinterSportsLaw/status/1684207540861558802?s=20

A cap can’t unilaterally be put into place. Both sides – employers and employees – must sit down at the bargaining table and agree on how it should work. That would require the players to have a union to represent them. The only way that works is if the players are legally considered employees.

Further, I am not aware of a single professional entity – NFL, NBA, MLB, etc – that has a cap for anything but player salaries. True NIL (otherwise known simply as endorsement money) has never been capped. Even if it could legally be done through bargaining (which some believe is possible), it is unlikely that the players would ever concede that.

If NIL is essentially ‘pay-for-play’ today, that component could be ‘reclassified’ as salary, and it can be direct between a school and a player and capped through bargaining, but that player would still be allowed to sign endorsement deals with anyone outside of the employer-employee relationship.

Such deals are often negotiated in professional sports and are a major reason why pro athletes still tend to gravitate towards larger markets when they become free agents. Playing for a big-market team or a high-profile team will yield more endorsement money, and thus more overall income, than in smaller markets, despite the existence of a salary cap between the teams in those markets.

The Los Angeles Lakers may not be able to pay anymore salary for a free agent than the Charlotte Hornets, but a player in Los Angeles stands to make more endorsement money simply because their marketing value is higher just being a Laker instead of a Hornet.

Clemson Football would still have an advantage over other programs even if salary was capped

The same would be true if a college athlete was playing for a big program like Ohio State compared to a program like Arizona State. Even if a salary cap restricts Ohio State to paying no more salary than Arizona State, the endorsement deals are naturally more lucrative playing for a national program like the Buckeyes than a regional program like the Sun Devils.

You can try to direct pay-for-play into traditional salary and cap it, but bigger programs will still have the advantage. They always have and they always will.

Many people who are suggesting things like NIL caps are usually in favor of protecting the traditional model of college athletics, or in other words to keep them from becoming professionalized. The ironic aspect of this is that many of their ideas are only enforceable if collective bargaining is possible.

Maybe I am not giving Coach Narduzzi enough credit. Maybe he does realize that he is proposing a professional model solution. Maybe he just doesn’t want to label it as such, because there would be blowback from fans. I believe most people who endorse a cap for NIL don’t fully understand what that means.

There are multiple efforts to introduce NIL legislation at the federal level. Only time will tell if any of those efforts will yield laws. Even if laws are passed, there could be efforts in the courts to challenge them if they infringe on pre-existing statutes.

NIL is pushing more and more people, including head coaches, towards thinking about college football from a professional perspective. They just might not realize it quite yet.