When it comes to recruiting, NIL has become the ‘Wild West’ that some feared

When a commitment of a high-profile recruit used to raise eyebrows, rival coaches often pulled a reporter aside and whispered privately about how a booster snagged the prospect by funneling money to his uncle, cousin or handler.

Now in the wake of another National Signing Day in the evolving NIL era, coaches are speaking publicly about programs allegedly leveraging NIL deals to attract top recruits. Alabama coach Nick Saban said that, while in favor of NIL, he draws the line at using NIL to get a player to sign with a school. And Ole Miss coach Lane Kiffin bluntly asked, “What would the NFL look like if there were a couple teams in the NFL where their salary cap was 10 times more than anybody else’s salary cap? That’s where you’re headed. They’re going to have to do something.”

But who is going to need to do something? And what can be done? Should anything even be done? On3 caught up with Peter Schoenthal, CEO of Athliance, who is on the front lines of the NIL space, to discuss how the narrative has abruptly shifted. During a wide-ranging discussion, Schoenthal touched on the problem with some donor-led collectives, what schools should do if they are not affiliated with one and pitfalls for schools that push the envelope too far.

This is part one of the Q&A; part two will be posted Thursday. This interview has been lightly edited for clarity.

Q: What was your biggest takeaway from National Signing Day as it relates to NIL?

Schoenthal: That the narrative has changed, that the first few months of NIL were all about how great this NIL thing can be. And it can be, and it is a great thing. But with a lack of legislation, with a lack of uniform rules and a lack of punishment for breaking the rules in place, NIL became that “Wild West” that everyone was afraid of. And all of a sudden, you had people trying to game the system a little more than normal, trying to do it out in the public eye. The narrative changed. And I think we’re seeing that NIL, in certain aspects, is being used as a guise to pay athletes rather than this be a supplement, and a way for athletes to profit off of their Name, Image and Likeness, and have the ability to profit off who they are and be able to make money and provide for themselves while they’re in college.

Q: What you just rattled off — the lack of legislation, a uniform playing field and enforcement — is the perfect recipe for a Wild West landscape. So what does the future hold? Should we get used to people openly questioning whether certain recruiting classes were bought with NIL money?

Schoenthal: I don’t think so long term. Let’s go back to what Lane Kiffin said, which I thought was a great comment, which basically was, “I hope these kids are going to get the contracts that they were promised.” In the space right now, in any space where you don’t have the data yet, people are allowed to pontificate and opine and make declarations that they don’t have to back up. In the next three to four years, we’re going to get the data to come in on what NIL looks like. Like anything else — like facilities — that if you’re being recruited by the top 30 to 40 programs, everything will be similar across the board. People will find the advantages that work for them, whether they’re in a big city but there’s lots of big fish, or they’re in a small city where you’re the only fish. And then we’ll have the same level playing field and down the line. I think the schools will all figure it out and get on the same page. And I also think within that time frame, I do believe we will have more uniform rules across the board. Because when you have people like Nick Saban and Kirby Smart and athletic directors across the country saying we need more legislation, that moves the needle. Let’s look at it and be honest: Lack of rules for people like Nick Saban and Kirby Smart actually benefit their programs with their boosters and their rabid fan bases. But for them to come out and say we need more legislation means that they see where the game is going. They are afraid for college athletics, and they know something needs to be done. And I commend them for saying that.

Q: Speaking of Alabama, is it a step in the right direction what is occurring now in the state of Alabama, moving fast to repeal a restrictive state law, or in Florida, where they are moving to amend the law? Would that begin to level the field or is federal legislation needed?

Schoenthal: I’ve been thinking about this, and I want to go back to the Alston [case]. I want to go to the opinion of Neil Gorsuch, who said, sure, there are some things that need to be re-evaluated from the NCAA standpoint. But let’s look at what the NCAA is and what they’re allowed to be. They are allowed to be a governing body that promotes and ensures competitive balance, so long as the rules are reasonable. The NCAA in November of 2020 put out legislation for NIL that was pretty straightforward. And it was in-depth and it was actually common-sensical. It was good legislation. Alston made them back off for a moment. But then what happened? You had about 25 states enact legislation that basically copied the NCAA proposed bill back in November 2020. So if the NCAA were to now enact that same legislation, and someone were to challenge it, I find it very difficult for someone to argue that it is unreasonable for the NCAA to enforce these rules when over or nearly half the states in this country enacted similar bills, which they basically deemed to be reasonable rules. Now, for the first time, the NCAA is actually in a position where they can legislate a little bit. Now, I’ve said this before: I’m rationalizing irrational people, so we’ll find out what happens. But when we first spoke, I had mentioned that the NCAA is looking at NIL and this is what they wanted. I think they wanted the Wild West. 

Q: But does the NCAA have the will to enforce NIL?

Schoenthal: I think so. If I were the NCAA, I would do it through the lens of, “We’re not going to go after the student-athletes the first four or five years.” We’re learning in this space that schools aren’t educated on NIL, how to go about NIL, liabilities that they can put on themselves, what they can and can’t do. Which means the student-athletes aren’t going to know, either, because they rely on their universities. So if I’m the NCAA and seeing the rules being broken and the schools turning a blind eye, I can still hit them with lack of institutional control. And there’s no antitrust issue that the NCAA is policing. The schools participating in NIL, especially now with the NCAA convention, it looks like what the NCAA is going to do is D1, D2 and D3 are going to have their own governing bodies to put forth their own rules and the NCAA will enforce them. If you go after a school that signs that charter, I just don’t see a situation where they can’t enforce it and where they would get in trouble in the courts.

Q: But until that enforcement arm is apparent, say I work at one of the blue-blood programs — USC, Ohio State, Alabama, Texas, something like that — why not push the envelope with NIL as much as we possibly can to gain every possible recruiting advantage? What’s the counter-argument to that approach? 

Schoenthal: There are two counter-arguments. One is Title IX. We’re going to see a Title IX issue appear sooner rather than later. If you’re pushing the envelope, and you’re getting involved, and you’re trying to get your boosters involved, if you’re not affording the same opportunities and putting the same resources toward women that you are toward your men, that is a huge issue. Only a matter of time before we see that. The other is liability. Let’s say a school gets involved in facilitating and brokering a deal and they get involved with a local car dealership and the player gets a loaner car from the dealership, or leases the car, that’s part of his deal. And then the athlete driving down the road gets into an accident, kills someone. When there’s a lawsuit, who is going to be attached to that lawsuit? It’ll be the player and it’ll be the university. What happens if the university connects an athlete with a local business to do a photo shoot or an appearance and the athlete gets paid and never shows up? The brand wants to get their money back. Where are they going to go after? Or vice versa? What if I connect one of my athletes with a brand and the brand screws that athlete over? Those are a few things no one is talking about in the space that, if I’m a school, I am tempering. When you look at what Ohio State did [with its Edge Team], I think it’s actually getting blown out of proportion. What they’re essentially doing is hiring someone for each team to guide their athletes. It says nothing about facilitating deals, it says nothing about brokering deals, it’s just to give them guidance and advice and to know the rules and how to build their brand. I think that’s what the Ohio State situation is, and that’s fine. But being a part of brokering the deal, facilitating and playing point person, I think that is very dangerous.