College football has no way to force competitive balance in the NIL era

A topic that’s been coming up with increasing frequency is competitive balance in the NIL era. Are we headed to a time when the schools with the most money will get all the best players and win all the titles? And is there anything we can do about it?

The short answer is no, and also that college football will continue to be what it largely always has been.

College football as a whole has fought over competitive balance for most of its history. The fight usually hasn’t been over how it could be implemented but rather whether it should be a goal at all.

If you look at the list of charter members of what would become the NCAA, you won’t find a single one of the northeastern powerhouses like Princeton, Harvard, and Yale that dominated the early era of college football. They weren’t about to sign up for an organization that could limit their power. More recently, the Universities of Oklahoma and Georgia went to the Supreme Court in the ’80s to break the NCAA’s stranglehold on TV rights, and their win made it possible for the power leagues to pull away from the pack in revenue.

The questions about whether the rich schools will just win everything was applied to TV money before NIL, and to rich booster clubs before that. Florida is something of a test case here. The Gators had some strong finishes like when they had Steve Spurrier in the ’60s or a couple of the Don Gaffney teams in the ’70s, but it wasn’t until a decade after Charley Pell began modernizing Gator Boosters that the program became a permanent member of the sport’s elite. Money is a necessary, if not sufficient, component of sustained success.

Professional leagues are not immune to rich teams winning a disproportionate number of championships, of course. The New York Yankees are the biggest example on American shores, and international professional soccer is dominated by the richest clubs.

There are a handful of ways that pro leagues in the US try to maintain some semblance of competitive balance, at least for the teams that actually try to win. However, none of them would work for college sports.

TV revenue sharing

There is TV revenue sharing in college athletics when a large body negotiates on behalf of constituent parties. It can be for a whole division or subdivision in the case of the NCAA’s March Madness deal or the College Football Playoff contract. Every FBS conference plus Notre Dame are parties to the contract that forms the CFP, so of course the money gets split between all of them.

The SEC also does TV revenue sharing within its membership. The league splits the money evenly among the schools, minus a small bit of bowl revenue that schools get to keep to defray travel costs.

What doesn’t exist is a mechanism within an overarching organization for sharing the SEC’s regular season TV revenue with, say, the Sun Belt. The TV contracts are between the SEC and CBS and ESPN. The Sun Belt isn’t a party to those contracts, so there’s no way to force the SEC to give some of its money to the SBC. Or any other league, for that matter.


Drafts put the worst teams at the beginning of each round and the best ones at the end. The idea is to give the worst off teams the best new players to prevent the recent winners from stockpiling all the talent.

Drafts won’t work for college sports. There is no way to coerce high school players into a draft-like scheme because they’re neither employees upon enrollment nor members of a player’s union. Good luck telling Kamari Wilson that he has to go to Boston College or Northwestern instead of Florida because one of those teams drafted him. There’s no enforcement mechanism for that.

Also, how are you going to get Florida to agree to a draft format? I’m sure BC, Northwestern, Vandy, and Arizona would love the chance to pick players ahead of the Gators. Make it for all FBS, not just the Power 5, and UL-Monroe and San Jose State would love it even more.

What are you going to say or do to teams that refuse to participate? Besides, whoever would run this draft would immediately get sued and almost certainly lose for trying to illegally restrict schools’ ability to admit whoever they want among their pools of applicants.

Salary caps

Pro leagues cap the amount that teams can pay their rosters, either through a hard cap (teams have no way to breach it) or soft cap (teams pay a penalty for breaching).

Scholarships, which are really financial aid contracts, are actually a handy way of looking at what can be done here. Restrictions on financial aid amounts have been going away in recent years, mainly through more court rulings. The ruling in the Ed O’Bannon case made it possible for schools to offer cost-of-living benefits with scholarships that the NCAA had previously forbade. The more recent Alston ruling removed NCAA restrictions on education-related benefits provided to athletes.

So, restrictions on what schools can offer to athletes as financial aid have been falling like dominoes. However, caps on scholarships and initial counters in each sport seem to be in no danger of a court challenge. What gives?

I’m not a lawyer, but here’s my understanding. The scholarship caps are about how many financial aid contracts a school can create and hold in a given year. If an organization decides to self-impose a limit on the number of contracts it enters into, I don’t think that’s illegal.

There are entire college courses on contract law, so I am vastly oversimplifying here, but one basic requirement for a contract is that there must be both an offer and acceptance of the contract. Neither side can be coerced if the contract is to be valid. I suppose someone might be able to sue the NCAA over the caps taking away someone’s ability to get an athletic scholarship, but there’s no way to force schools to offer more of them than what they do now. (Have I mentioned I’m not a lawyer? Don’t ask me for legal advice.)

What the O’Bannon and Alston cases did was prevent the NCAA from prohibiting certain things from being in the contracts that were being freely offered and accepted. Regulation of such is covered by relevant laws, including the antitrust laws that those cases were based on. For another example, some states have limited or outright banned some forms of non-compete clauses in employment contracts.

So, back to salary caps. Salary caps would be an illegal infringement on commerce if all the employees in question didn’t agree to them. This is why the government can’t cap CEO pay without passing new legislation, for instance. However, pro athletes do agree to salary caps in the collective bargaining agreements their unions sign with pro leagues.

If college athletes were employees of their universities, they might be able to form a union and agree to a CBA that includes a salary cap. That would only cover the salaries they get from the schools, though.

NIL wouldn’t have a salary cap. There are no endorsement income caps for pro athletes, after all. NIL deals are separate things between the athletes and non-university entities like collectives, local businesses, national brands, and whatever else.

We can argue all day whether making players employees would affect NIL, but there’s no way to cap it. It may be that in a world where athletes are employees, all prohibitions and inhibitions regarding pay-for-play would vanish and the NIL fig leaf wouldn’t be necessary anymore. But even if a college athletes union agreed to a CBA where they can’t just take checks from Joe Megabooster, it’s hard seeing why they’d agree to an NIL cap since that is outside the realm of the relationship between player and school.

Long story short, the ways that pro leagues try to maintain competitive balance just won’t work for college athletics. College sports aren’t as centralized as pro leagues, and the players can’t collectively bargain. The former makes restrictions among schools unlikely, and the latter makes a lot of competitive balance devices illegal.

We’re early enough in the NIL era that it still holds plenty of surprises for us. But if there’s going to be an increase in competitive balance, it’s not going to come through restrictions in the style of the major professional leagues.

David Wunderlich
David Wunderlich is a born-and-raised Gator and a proud Florida alum. He has been writing about Florida and SEC football since 2006. He currently lives in Naples Italy, at least until the Navy stations his wife elsewhere. You can follow him on Twitter @Year2