In keeping with NCAA enforcement’s notoriously plodding pace, it appears some NIL-related allegations from two years ago are only now crossing its desk.
On Jan. 15, Florida State was penalized for a booster collective’s involvement with a transfer portal target in April 2022. Four days later, we learned of an investigation into Florida for that fall’s booster-bungled recruitment of Jaden Rashada.
Now, Tennessee is in the NCAA crosshairs regarding its NIL collective, Spyre Sports, and its involvement with recruits — in particular quarterback Nico Iamaleava, who committed to the Vols on March 21, 2022. This was back in the early, early days of NIL collectives when few people outside the industry even realized they existed.
But the NCAA would have known exactly what Spyre was up to had it read a Feb. 15, 2022, feature story by The Athletic’s David Ubben, in which Spyre president and Tennessee alum Hunter Baddour candidly boasted, “We’re prepared to invest a substantial amount of resources into the 2023 recruiting class … well into the seven-figure category.” Spyre claimed it “had significant conversations” with nine prospects in Tennessee’s previous class, including seven who wound up signing.
Today, those comments would barely bat an eye, but they were jaw-dropping at the time. Yes, the NCAA finally had allowed athletes to make NIL money beginning July 1, 2021, but it was clear that money couldn’t be used as an inducement. And boosters have never been permitted to help a school recruit, much less offer players money.
But no one involved seemed particularly concerned that the increasingly toothless organization would be able to stop it. In the two years since, NIL collectives emerged with connections to virtually every major athletic program, all presumed to be doing the same thing as Spyre, although most of them far more discreetly.
Now we’re about to find out once and for all whether the court-neutered NCAA of 2024 can police NIL in the way it threatened to two years ago.
According to The New York Times, “The NCAA’s investigation is focused in part on the use of a private jet by a so-called donor collective to fly a high-profile recruit — now the school’s starting quarterback — to campus while the university was wooing him.”
Filling in the blanks: The collective is Spyre, and the high-profile recruit is Iamaleava, a former five-star who committed to Tennessee within 10 days of The Athletic reporting on a four-year, $8.1 million NIL contract between a five-star recruit and a school’s collective. In a statement Tuesday, Spyre acknowledged a contract with Iamaleava. Like others, it was carefully worded to avoid any mention of a specific school, much less a requirement to play for its football team.
— Tom Mars (@TomMarsLaw) January 31, 2024
Tennessee is only months removed from sanctions for recruiting violations under former coach Jeremy Pruitt. But those were issues the school hired a law firm to uncover, allowing it to fire a struggling coach for cause. If determined to be an NCAA repeat violator, the consequences would affect popular and successful replacement Josh Heupel.
As such, chancellor Donde Plowman preemptively sent a fiery letter to NCAA president Charlie Baker accusing his enforcement staff of “trying to retroactively apply unclear guidance to punish and make an example of (Tennessee) and others.
“The University of Tennessee complied with the interim NIL policy and guidance as it was put into place by the NCAA,” and “neither the collective nor student-athletes broke any rule or guidance document as they existed at the time any actions were taken.”
Tennessee is following a familiar playbook for those under NCAA investigation: Lawyer up and fight back. It worked for North Carolina, which managed to convince the Committee on Infractions that 18 years of blatant academic fraud were not academic fraud. It worked for Kansas, which staved off significant punishment and won another national championship in basketball despite the FBI catching Bill Self and an assistant discussing potential payments to recruits.
Plowman’s letter offers a strong hint at Tennessee’s likely rebuttal to the NCAA. It will contend that whatever Spyre was up to occurred during that murky period between the NCAA’s initial “interim” NIL policy on June 30, 2021, which mentioned only a “commitment to avoid pay-for-play and improper inducements,” and its May 9, 2022, “guidance” that contained the first explicit mention that collectives would be held to the same recruiting restrictions as traditional boosters.
Tennessee under NCAA investigation for NIL violations
The key giveaway from Plowman’s letter: “No member institution could follow future guidance prior to it being given, let alone interpreted.”
The layperson might read that and say, “You’ve got to be kidding me — do you really think the Tennessee collective needed a memo to realize it can’t be flying Tennessee recruits on a private jet and giving them multimillion-dollar contracts?”
But a well-trained lawyer might argue that the NCAA failed to provide their client specific guidance as to what it can and cannot provide, and it can’t lawfully punish the client even if it did.
“The moment they come to try to interfere with one of my clients’ deals, the next day is the moment they get hit with an antitrust lawsuit,” attorney Mike Caspino, who negotiated the $8 million NIL contract and others like it, said of the NCAA in May 2022. “They’re saying there’s a whole class of people (boosters) who can’t participate in the market for athletes’ NIL rights. That’d be like saying red-haired people can’t buy meat. That’s antitrust.”
No one could handicap the results of a potential Tennessee versus NCAA royal rumble, but here are a few points worth considering.
There has been a notable change in tenor regarding enforcement since Baker replaced Mark Emmert last year. Case in point, Baker’s decision last fall to share the evidence in Michigan’s sign-stealing case with the Big Ten in real time. Meanwhile, NCAA folks had no reservations telling people at their recent convention that they have screenshots of several coaches caught tampering.
That being said, Baker authored a proposal in early December that would allow schools to directly enter into NIL deals with their athletes. Is the NCAA going to levy a lack-of-institutional-control punishment at Tennessee for failing to control an outside entity for something it might soon be allowed to control itself?
The courts have unquestionably been hammering the NCAA recently on various matters. Still, judges tend to fall on the side of voluntary membership organizations enforcing rules that their members voluntarily agreed to.
Still, the NCAA is currently a defendant in at least four major antitrust suits. A group of state attorney generals recently got all remaining transfer restrictions temporarily lifted via a restraining order. Does the NCAA have the stomach to risk another one being brought by Spyre and/or affected Vols athletes?
Much more so than the Florida State or Florida cases, this one feels like a bigger-picture referendum on NIL collectives. Hammering Tennessee might be the NCAA’s only chance of cracking down on the practice of pay-for-play masked as NIL.
But with most schools at this point openly embracing their collectives, it’s likely a case of too little, too late. The NCAA finally got around to addressing everyone’s complaints from 2022. But it’s 2024. College sports are facing much bigger crises than private jets.
(Top photo: Eakin Howard / Getty Images)