The newest body to regulate NIL
What is the Coalition for the Future of College Athletics?
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Even though we’re in the middle of some hot conference races and national title bids, NIL is still an issue that captures the governing forces of college football. And shouldn’t it? This is a massive change to college sports. The amateurism model, like it or not, is now on life support with players receiving payments for their name, image and likeness.
We’ve talked a lot about NIL legislation and court cases here, since those were the two main ways to regulate NIL. The NCAA has done little to curb the NIL craze or impose their own rules. The first—and only—action from college athletics’ governing body came October 3, when the NCAA DI Council’s NIL Working Group made a proposal for NIL legislation within the governing body.
Did it matter? No, not really. The proposal only included oft-tossed around provisions in NIL-related discussions: transparency between the collectives or agencies and students and teams, standardized contracts, and increased student-athlete education. It even includes obvious NCAA terminology and worries, such as “weed[ing] out bad actors.”
The conferences, on the other hand, are getting fed up with the NCAA’s inability to do what they’re supposed to do and regulate the sport. So, they took matters into their own hands.
The Coalition for the Future of College Athletics
Enter the Coalition for the Future of College Athletics, or C4FCA.
The C4FCA is unlike anything we’ve seen in college athletics. Instead of some external body to govern how NIL is operated in college athletics, this is a coalition of college athletics. At the time of writing, 27 NCAA conferences are members of the Coalition, including all of the Power Five and Group of Five, HBCU MEAC and SWAC, and many other Division I conferences.
It’s hard to get every conference on board for anything, let alone a divisive topic like NIL. The fact that 27 conferences were willing to sign onto this is telling.
So, what does the C4CFA stand for? In short, they have five guiding principles that they believe are necessities in any NIL legislation or ruling: promoting academics, enhancing student-athlete welfare, precluding patchwork, providing opportunity, and protecting the ability to regulate. If all five of these principles are met, the C4FCA believes that any NIL legislation will preserve what it means to be a student-athlete, while also affording every athlete the opportunity to safely profit from their name, image and likeness. Let’s dig a little deeper into each of these principles to fully understand what the C4FCA is promoting.
As with any aspect of a higher education institution, academics are vital to a college experience. The moment academics are no longer required for college athletes, they become employees of a professional sport. The C4FCA specifically points to “emphasizing academic progress and degree completion” as ways to measure this. GPA can fluctuate greatly, especially for student-athletes thrust into a new situation in college where they have to learn and adapt to an entirely new lifestyle away from home. By focusing on degree completion and academic progress, student-athletes can graduate and continue to have success in the working world after they finish their sport.
The main point of any NIL legislation is to enhance the welfare of student-athletes. With the NCAA refusing to take the mental health of student-athletes into consideration for things like participation waivers, any NIL legislation will need to have provisions about that. The C4FCA has specific provisions that they want to see in future NIL legislation, including baselines for academic-related funding, healthcare for sport-related conditions both during and following participation, life skill and financial literacy training, and access to mental health and wellness resources. While this seems like a lot of bars to cross, especially when we look at the smaller FBS schools’ budgets, but remember conference affiliation is voluntary. For a conference to sign onto this deal, that means that its member schools are also consenting and able to take on this increased funding.
The biggest point for the C4FCA is to eliminate the patchwork system that is currently used across the nation. We’ve talked about how NIL rules can impact recruiting when looking at Missouri’s NIL laws allowing prospects signed to an in-state school to profit off of their NIL in high school. The C4CFA wants to eliminate that and establish a national standard for NIL that eliminates “unscrupulous actors” in NIL licensing, prohibiting pay-for-play recruiting, tighten recruiting restrictions around the usage of NIL offers to recruits, and maintain budget standards based on level of competition.
Providing opportunities that are equitable is also a key point for the C4CFA. They want NIL to be equitable and available across both men’s and women’s sports, as well as across sports. Interestingly, the group points to NIL protections for female student-athletes under Title IX. What that would look like is unclear, but it is a big step in NIL regulation.
Speaking of regulation, the C4FCA laid out in their final principle that they want to provide the NIL governing body “the ability to regulate in the specified areas of student athlete welfare, support and NIL.” They go on to say that regulation would be overseen “by an entity with the ability to enforce the regulations and without legal repercussions.”
Who would regulate this?
That’s the million dollar question.
The C4FCA has not, in any of their principles or messaging, pointed to the NCAA, so you can rule them out. Instead, it would be a third party group that would be in charge of NIL regulation. But who would that be? There are two main predictions on who would regulate NIL if it wasn’t the NCAA: a governmental arm or a new organization.
We’ve seen a lot about government regulation floated around in various lawsuits and legislation. To be fair, that’s essentially what we have now, but on the state level. For many, the most likely next step is to have the federal government lay out national standard and then regulate those standards. For example, the Student Athlete Level Playing Field Act, introduced in May by Reps. Mike Carey (R-OH) and Greg Landsman (D-OH), would have the Federal Trade Commission take the reins on enforcement, while a new Congressional Commission would handle the growth of NIL.
The problem with governmental oversight, though, is the fundamental lack of understanding. Sure, there are College Football veterans like Tommy Tuberville and Anthony Gonzalez in Congress, but a majority of legislators do not have experience in the college field. How can they effectively regulate this? Especially with legislators serving terms and constantly campaigning for reelection, are they the right ones to handle NIL legislation. Would lobbying turn it back into what we have now?
NIL will be overseen “by an entity with the ability to enforce the regulations and without legal repercussions.” - Coalition for the Future of College Athletics
On the other hand, we have the idea of an entirely new organization taking the role of the NCAA in this. Another pending piece of legislation, the un-introduced Fairness Accountability and Integrity in the Representation of College Sports Act, lays out this scenario. The FAIR College Sports Act would establish the United States Intercollegiate Athletics Commission (USIAC) to govern NIL.
This new Commission would serve to create a transparent regulating body for NIL. Student-athletes would be required to notify the USIAC within 30 days of signing an NIL contract or signing a deal with an NIL representative, which would be a de facto agent for the athlete. Additionally, the USAIC would create a nationwide NIL database and provide transparency reports each quarter to its member institutions.
The College Athletes Protection and Compensation Act does similar things as the FAIR College Sports Act. This bill would introduce a College Athletics Corporation (CAC) to regulate and enforce NIL standards. The bill goes further into athlete protections, such as tuition guarantees and a medical trust fund for injured athletes, but we’ll focus on the CAC for now. The new oversight group would make athletic department revenues and expenditures public record, which most already are at public schools. They would also make statistics like the number of hours athletes are at athletic events and their academic outcomes and majors public.
What are the next steps?
The C4FCA has made it clear that they do not want to get into oversight or crafting their own NIL rules. Instead, they are lobbying Congress to pass one bill that adheres to their five guiding principles.
So far, the CAPC Act is the closest, hitting the marks on enforcement that is “without legal repercussions,” as well as requiring financial literacy and life development classes, gender equity in facilities at NCAA-sponsored tournaments, and prohibiting inducements for recruitment. The bill, drafted by Sens. Richard Blumenthal (D-Conn.), Cory Booker (D-N.J.) and Jerry Moran (R-Kan.), has not been formerly introduced as of yet.
Right now, the C4FCA is a grassroots movement backed by the powers of the NCAA conferences. The NCAA itself has not commented on the C4FCA, but pleas from new NCAA president Charlie Baker for Congress to enact similar provisions as the C4FCA show that they are at least aligned on the major details.
The next steps are in the hands of Congress. With a presidential election looming in 2024 and war breaking out in Israel and Ukraine, though, will they move to act on NIL legislation? That might not be likely, but there are other arms to the government that can make a ruling.
That’s right. The Supreme Court may have their hands in NIL again shortly. In February 2023, the Third Circuit Court heard the arguments in Johnson v. NCAA, in which a former Villanova football player is suing the NCAA under the Fair Labor Standards Act, which should entitle athletes to minimum wage and overtime pay. Rulings have not yet been handed down in Johnson, but you can assume that no matter which side comes out on top, the other will want to appeal it to the nation’s highest court.
We saw this play out in Alston v. NCAA (2021), where the Supreme Court ruled in favor of student-athletes to receive uncapped educational benefits, which affirmed the Ninth Circuit’s decision in an earlier case. For those wondering, the Ninth Circuit made its ruling in May 2020 and the Supreme Court heard oral arguments March 31, 2021, so we’re looking at a year or more for Johnson to reach the Supreme Court if further appeals are made.
No matter how, NIL regulation is coming. It’ll be a long fight, though. The establishment of the C4FCA is a big step, showing that most of the nation’s schools and biggest brands are in lockstep on how to proceed to benefit student-athletes. All that’s left is for one bill or one ruling to set the standards.