NIL as pay-for-play is a bad system and can’t last

Suppose you run a restaurant in the region of North Central Alpine Austria. You have a well regarded — and well payed — head chef who runs the place.

However for traditional reasons rooted in how people viewed social class 150 years ago, you can’t pay anyone else at the restaurant a salary. The other employees learn valuable skills as they try to get good enough to move up to the Northern Forest Lands, where they can be paid directly. You can give them free food, lodging, post-secondary education vouchers, and other perks, but only that manner of in-kind compensation is allowed by the region’s restaurant commission.

There are some pretty intense foodies in the region too. They devote themselves to a single restaurant and refuse to eat at any others. They want to see their favored establishment win the annual food awards, and beyond the hardware, they just want a great product every time they eat there. They’ll never enjoy the success of another restaurant, so it has to be good at the sole place they’ll frequent.

Most of these foodies just come to the restaurant, eat their meal, and go home. They prefer a better meal to a worse one, but they don’t lose much sleep over a subpar experience or two. They’ll revolt if things get too bad, but you feel like you can satisfy most of them, most of the time.

There are a handful of super foodies, however. They want to be able to say they had the best meal of the year. They care about that experience more than they care about getting good value for their money, whatever that means to them.

And so, they start to pay up-and-coming cooks, sommeliers, servers, and even dishwashers on the sly to come work at your place. The restaurant commission forbids that on competition grounds, but only occasionally do they catch anyone in the act. Everyone knows this happens, but it’s in everyone’s best interest to pretend it doesn’t.

But then a court case goes against the commission, and now restaurant staff can be paid openly. Not by you, of course, but by those super foodies. They have to come up with some kind of fig leaf excuse for why it’s not an inducement to work at their favorite restaurant, but again, it’s in everyone’s interest to pretend it’s not happening.

It’s even so for the restaurant commission, which technically still bans such inducements, because it doesn’t have near the enforcement staff to police every one of these side contracts. It can still drop the hammer on you for direct compensation, but these side deals are too numerous to assess.

You still pay your head chef handsomely. However if you want to hire a great new cook with a bright future, you can’t just pay him more money than your competitors. You still offer him all the perks, but you also have to hope that one of your super foodies can pay him more than someone else’s super foodies.

You can’t be involved in the negotiations, so you have to hope the discussions don’t break down over some issue you could’ve smoothed out. And you have to hope that the people offering up the money for the side deal actually have the money. And that they’re willing to part with the money as agreed to. And that they don’t change their mind, or lose the ability to hold up their end of the bargain down the road.

Your ability to acquire and retain talent is now based partially but substantially on negotiations you can’t join, people you can’t control, money that’s outside of your revenue stream, and contracts you can’t be party to.

This, my friends, is no way to run a restaurant.

As I write this, I don’t know how the Jaden Rashada situation is going to work itself out. It’s almost better that it hasn’t been resolved, because the point still stands either way.

Florida is in this situation because the NCAA and its member schools — including UF, by the way — stood in the way of direct athlete compensation for over a century. The idea started in the Victorian ideal of amateurism, which itself was about keeping the lower classes who had more physically demanding jobs from dominating the upper classes in athletic competition. Later it became about the control of money too, and there were plenty of true believers in amateurism who didn’t think in terms of class.

That edifice couldn’t last forever, and the courts have finally started tearing it down. NIL was supposed to be a first step, but instead the dam just burst.

Actual, by-the-book NIL can be pretty cool, from legit social media influencers who happen to be college athletes getting to make money to Bijan Mustardson and DeColdest Crawford doing an HVAC ad. Athletes also no longer have to get waivers to do charitable activities with their names on them. All this is good.

But NIL is also pretty blatantly an avenue for play-for-play, and the NCAA doesn’t have near the staff to enforce its prohibition against inducements. If it did try, that probably would draw a lawsuit that would wipe away the rules against all forms of athlete compensation.

The NCAA and its members don’t want to have to pay athletes as employees or contractors, so they won’t push it. That lands us in this awkward middle area where Billy Napier has to hope that the Gator Collective, the Gator Guard, and/or any other booster with a business can write good contracts to pay players to come to UF and actually follow through with them from start to finish.

The UAA can’t use its TV money as a backstop to make sure an unexpected collective or booster’s cash flow problem doesn’t throw a wrench in the works. It can’t provide lawyers to make sure all parties are protected by good contract terms. It technically can’t even direct collectives or boosters who to negotiate with and who not to, though recruiting coverage and I’m sure some backchannel communication help guide the way.

A lot would be simpler if schools could just pay their athletes. It would solve a lot of these problems, especially if there was an NCAA-wide standard contract that everyone signed with consistent terms.

There still would be an NIL market, because a dude named DeColdest doing A/C ads is awesome, and there still would be pay-for-play inducements too. It really is true that some people care more about winning than money. This is why professional leagues have to put in rookie pay scales and salary caps, or else you get Sam Bradford getting a six-year, $78 million deal before even taking a single practice snap. Some of those who care more about winning than money truly can’t help it and have to resort to handcuffing themselves to keep the spending under control.

The kinds of changes that would result in school compensation being the cake with NIL only the frosting would explicitly professionalize college sports. This is, however, an entity with a growing number of billion-dollar media rights contracts and hundreds of people across coaches and administrators with seven-figure annual salaries. It is a professional enterprise now and has been for a while.

Once school compensation to athletes becomes the primary or sole income stream to most athletes again, college sports will make a lot more sense again. The mirror universe we’re in now is bad for coaches trying to run programs, for athletes trying to get certainty in their compensation, and fans who just want to cheer on their teams without having to worry about the giant mess that NIL has become.

Just as amateurism couldn’t hold forever, the NIL as pay-for-play era can’t either. It’s way too unstable, and it’ll blow apart far sooner than amateurism did. Fans will have to either decide to ride it out for now or decide whether they can keep coming to this restaurant at all.

(Author’s note: this is an opinion piece that only represents my views and may not necessarily align with those of Gator Country or its other writers. I know this is a fraught topic where emotions get high, so I want to emphasize this fact.)

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