Recruiting, fair market value, federal law in limbo as NCAA attempts to handle NIL rights itself

There remain unanswered questions as the NCAA takes a step forward in the name, image, likeness rights conversation

The hardest part is still to come with name, image and likeness. The hardest part has always been the recruiting piece.

How do you keep Big Daddy Booster away?

How do you decide what's proper income and what's an inducement?

In essence, what's the appropriate market value of a college athlete?

What's appropriate, period?

"This is a new space in our world," NCAA working group co-chair and Ohio State athletic director Gene Smith said on Wednesday's conference call announcing a step forward in the NIL rights process. "What and who can be a digital entrepreneur? If I do a deal with Panera Bread and I do two 'likes' [on social media], and they pay me $50,000 for that, I'm not so sure that's in the realm of what we're talking about."

Change the name of the sponsor to Chick-Fil-A and the entrepreneur to Trevor Lawrence and that compensation might be totally appropriate. In fact, given that Clemson's quarterback is the presumed No. 1 draft choice next year, $50,000 might not be enough.

Away from the college space, there are athletes, celebrities and so-called influencers getting that kind of money for merely mentioning a product. The NCAA Board of Governors Federal and State Legislation Working Group that cobbled out Wednesday's concepts heard from some of them.

Even so, it's clear the NCAA hasn't figured it all out yet. There is recruiting. There is legislation. There is a pandemic. There is a presidential election.

There is the question as to whether Congress has interest assisting the NCAA in that recruiting piece while dealing with a pandemic in an election year.

Wednesday's announcement seems trivial considering the NCAA still has so much NIL work to do.

"Relative to the boosters, that is one of the big issues," Smith said. "The membership needs to develop guardrails."

"Guardrails" is a term that sprang up out of the NIL discussion. That means putting some sort limit on how players can accept compensation. It means the intricate surgery of deciding the difference between an extra benefit and an athlete's right to earn money off his very being.

It means keeping recruiting from running off the rails.

It isn't going to be easy. What once would have earned a school a postseason ban will, in some cases, be allowable.

"This is the source of the most concern about how to make this workable in our system," said Val Ackerman, Big East commissioner and working group co-chair. "The difficulty in it doesn't mean we can't try. We don't want boosters being part of the recruiting pitches."

The basics have long been known. They became reality Wednesday when the NCAA Board of Governors accepted recommendations from that NIL working group.

But it was always about recruiting. How do you regulate it? That was a main question in what has become a college black market. Now the NCAA has the duty of making it palatable for players to be able to capitalize on their name, image and likeness.

"What the working group brought forward was a green light to explore those types of questions," NCAA president Mark Emmert said.

But there were few meaningful answers Wednesday. There may not be an answer by July 1, 2021. That's really the next deadline for the NCAA as it's when the state of Florida's NIL bill goes into effect. It's also the start of the 2021-22 season.

The NCAA can't afford to let it get that far. It doesn't have the legal means to fight, state-by-state, what are now 30-plus pending bills.

"Congress is going to look at its pace as they need to. They are appropriately otherwise occupied," Emmert said.

Before that date, the NCAA must convince Congress it needs an anti-trust exemption to clean up that recruiting space.

So far, not so good.

"This proposal is one step forward, one step back.," said Sen. Chris Murphy (D-CT) in a tweet responding to the NCAA's release. "The NCAA wants to limit athlete endorsement deals in a way that could make them totally impractical. And the NCAA wants Congress to give it total power of athletes' compensation. That should be a non-starter."

CBS Sports has obtained the draft of a proposed Congressional bill that would grant the NCAA anti-trust exemption if it implemented those basic NIL rights. That means the NCAA and its members schools would be safe from litigation. You might have noticed the NCAA doesn't do anything these days without considering its legal liability.

"It's often been the case as decisions have been made … that's been followed by a wave of litigation," NCAA president Mark Emmert said.

You think? That's the reason we're here in the first place. The NCAA has twice been found guilty of violating federal antitrust laws since 2014. Once in the landmark Ed O'Bannon trial and again last year in Alston v. NCAA decision.

If the NCAA now needs an antitrust exemption to set guardrails in recruiting, what certainty is there that fair market value will be fair to athletes?

Anything that even smacks of capping athletes' earning power is a bad look, not to mention to mention possibly illegal.

"The NCAA has been saying in court documents and publicly that players don't have any value in name, image and likeness," said Ramogi Huma, NCAA athlete activist. "It doesn't even exist. So you're going to let NCAA determine what the players' market value is when they don't believe it exists?"

"This is a new business so to speak," Smith said.

What was once unthinkable is now accepted. The surprise has worn off. The players deserve these rights … at a minimum.

Wednesday's release also included nothing positive about group licensing. Those of us who have ever picked up a video game controller are disappointed. Allowing group licensing likely would have been meant the return of the popular "NCAA Football" video game.

The NCAA wants to stay away from anything that smacks of an employer-employee relationship. In the video game world, the two sides would have to be "partners."

But a group license can work. The players could have been allowed to sell their rights -- essentially the names on the back of their jerseys -- to the game manufacturer through a third party. The NCAA and schools could separately sell their trademarks.

Let the millions flow.

The eventual NIL outcome is knotted in uncertainty.

If the association doesn't have Congress' help, recruiting will remain a free for all.

Only a fraction of the legislators who will decide the issue are even familiar with it. Government intervention will not sit well with many in college athletics. The danger is that it doesn't and the government becomes too big of an influence on college athletics.

Whether it's federal government or major-college sports, the hard part is still to come.