May 31, 2024
Re: College Sports, the “NIL Revolution,” and the Fate of Liberalism
A few years ago, when I was living in Philadelphia, I created a “group chat” with a number of friends from high school, giving it the apt (if rather silly) name of “Old Skool.” At first, we used “Old Skool” as a means of catching up, but perhaps inevitably it has morphed into a site to discuss sports. We’ll dig into various topics, ranging from the Super Bowl to high school baseball, though doubtless college athletics receives the most attention. This is probably a function of our age and our upbringing. Though all of us have moved around and traveled over the years, we were nevertheless shaped by the fierce Alabama/Auburn rivalry as kids and, for better or for worse, remain invested in it. Indeed, it is unfortunate for me that three of the six members of “Old Skool” are Auburn fans, and, in keeping with school tradition, they are especially prickly!
Thankfully, and despite this intrastate rivalry, we have recently found a topic that we all more or less enjoy debating—namely, the recent rise of “student athlete compensation” or, as it’s colloquially called, “NIL.” The acronym “NIL” literally stands for “name, image, and likeness,” but in popular usage it refers to a recent shift in amateur athletics. For decades, the National Collegiate Athletic Association (NCAA) had insisted that student-athletes are “amateurs” and, with the exception of scholarship money, could not be remunerated for their services. An “amateur,” after all, does not play for financial gain. The word itself is derived from the Latin amare, which means “to love.” To be an “amateur,” then, is to pursue an activity, art, or study for its own sake and not as a means to an end.
Of course, “amateurism” was the NCAA’s official policy, which member schools and athletes (particularly in football and basketball) were frequently willing to flout. In truth, the defiance of NCAA rules is almost as old as the NCAA itself. In 1925, prior to his final season of collegiate competition, University of Illinois star running back Red Grange (1903-91) made a surreptitious deal with sports agent Charlie “Cash and Carry” Pyle to turn pro immediately following his final game. On Saturday, November 21, 1925, Grange rumbled for 113 yards on 21 carries in a road game against Ohio State. The Fighting Illini prevailed 14-9. Less than a week later, on a chilly Thanksgiving Day at Cubs Park (later renamed “Wrigley Field”), Grange suited up for the Chicago Bears in an intra-city rivalry game versus the Chicago Cardinals of the South Side. The game ended in a 0-0 tie, but, much to the delight of the 40,000 people in attendance, Grange ran for 92 yards (pictured below).
Grange has long been credited with putting the NFL on the map, but he also showed that college athletics has immense money-making potential. A college athlete is not just playing “for the love of the game;” he is training for a job and, in the process, bringing notoriety and revenue to his institution. He is not really an amateur at all.
This insight, which was furtively endorsed by agents, boosters, coaches, and anonymous “bag men” for decades, has recently been codified into law. The breakthrough case was National Collegiate Athletic Association v. Alston, which was argued before the United States Supreme Court in March 2021 and decided a few months later on June 21, 2021. In a unanimous 9-0 decision, the Supreme Court upheld a prior ruling by the U.S. Court of Appeals (Ninth Circuit, San Francisco), which, citing antitrust grounds, rescinded NCAA caps on student-athlete benefits. In a nutshell, the NCAA could no longer restrict student-athlete compensation, particularly with regard to the individual player’s monetization of his or her name, image, and likeness.
As it turned out, NCAA vs Alston was just the tip of the iceberg. Initially, the NCAA maintained that NIL would not be used to lure recruits or to compensate superior athletic performance. It was simply a means for college athletes to earn money on an ad hoc basis—for example, a quarterback at an Alabama or a Texas (or some other D1 power) getting paid to promote a local car dealership. But it did not take long for this model to be expanded. University boosters and other interested parties soon set up what are now called “NIL collectives”—organizations that raise money in a variety of ways for the sake of distribution among particularly valued or sought-after student-athletes. Strictly speaking, the NCAA does not give NIL collectives carte blanche in how they deal with players. As David Ubben and Tess DeMeyer put it:
Collectives can pay athletes, but for athletes to remain NCAA-eligible, they must prove they completed a deliverable service in return for the payment. This can be through autographs, appearances at events for donors, appearances in commercials or participation in content the collective may distribute privately or publicly.
However, according to guidance issued by the NCAA in May 2022, 10 months after NIL activity was first allowed, collectives are banned from recruiting activity in the same way that school boosters have long been banned from recruiting activities. Under even more recent guidance, collectives cannot contact prospects about NIL opportunities before an athlete has signed with the school, and players can’t announce or enter into agreements with collectives before they’re enrolled in school.
And yet, by the same token, it’s clear that tampering occurs. In point of fact, this is an open secret, because NIL collectives are not formally tied to college coaches and thus incredibly difficult to monitor. A representative of a collective might make a “handshake deal” with a player without her coaches ever being the wiser. “NIL deals are private transactions between private citizens and mostly privately funded companies, so few concrete numbers exist in the public record.”
Needless to say, players have quickly adapted to this laissez-faire system, so much so that college rosters have become more far volatile than professional ones. To cite a prominent recent example—one that has been on the mind of many people in my neck of the woods—hulking five-star offensive tackle Kadyn Proctor signed to play football at Alabama in December 2022. He enrolled at the university a few months later and quickly earned a starting job. After some early season stumbles, Proctor greatly improved and eventually was named to the Freshman All-American team. He was seemingly poised to become the next great offensive lineman at Alabama—a tradition that includes NFL Hall-of-Famers John Hannah (1951-) and Dwight Stephenson (1957-)—and yet Proctor departed in the wake of legendary head coach Nick Saban’s retirement on January 10, 2024. Alabama fans went from disappointment to anger when it was rumored that Proctor had been seduced by a hefty NIL offer at the University of Iowa—the flagship football program in his native state. Indeed, Proctor even suggested that Iowa had been recruiting him throughout his 2023 season at Alabama. But the story was not over. In March, there were hints that Proctor was leaving Iowa and that, even more bizarrely, he was returning to Alabama. This potentiality was made a reality in April, and Proctor will suit up yet again for the Tide in the fall of 2024.
Though elated, even Alabama grads have had to admit that Proctor’s case was a curious one. For others, it was a further sign of the rampant degradation caused by NIL deals. Indeed, there were whispers that Proctor had collected a check from Iowa’s “Swarm Collective,” cashed it, and then bolted back to Tuscaloosa with money in hand. Apparently, things did not transpire in exactly that way, but, even if they had, the NCAA lacks governance to do anything about it. Hence, according to one Iowa sportswriter, Hawkeye fans are now free to openly despise Proctor: he has acted like a professional free agent, and he should be booed like one as well:
Kids can do what they want. It’s their life. Proctor has to do what he thinks is right for him. But forgiveness only goes so far. If this happens, it’s unforgivable, and Proctor will forever be despised in Iowa—and rightly so. It seems harsh to say this, as he’s just a kid, but let’s remember that college players want to be compensated and deserve to earn money. But that money makes them essentially professionals and no longer amateurs. You can’t have it both ways. So if Proctor wants to do what is right for him financially, and this would be a financial move, then he’s subject to the criticism and angst usually saved for NFL players. You wanna go back to Alabama? Okay, man, but you’re dead to us.
If the language here is harsh, the sentiment is increasingly banal. The news website Inside Higher Ed is not in the habit of featuring articles on college sports, but it recently opined that federal legislation is needed to bring order to the chaos unleashed by “the NIL reality.” In The Tennessean, guest columnist and longtime college basketball coach Cliff Ellis argued that “there should be some transparency to the process. Open and honest reporting of NIL transactions would force an appearance of legitimacy.” Even Nick Saban himself recently addressed the issue at a so-called “NIL Roundtable” on Capitol Hill, noting that NIL is harmful to both college sports and to college athletes themselves:
While generationally-wealthy coaches such as Saban have received criticism for wanting to place limits on how much money student-athletes can make, it is clear that Saban’s comments have a receptive audience. To be sure, the overwhelming feeling on “Old Skool,” the group chat I referenced earlier, is that the NIL has taken the fun out of college athletics. “Players are no longer loyal to a university but to the highest bidder.” “Rosters change too much.” “I don’t even know who these kids are.” “It’s all about money.” These sorts of comments turn up regularly. Nor should one assume that this logic only applies in the football-crazed South. Villanova University, my academic home for the last dozen or so years, is a relatively small private school in the Northeast. And yet, Villanova too was gravely impacted by the NIL when its own legendary coach, Jay Wright, unexpectedly retired following the 2022 basketball season. It was widely reported that Wright, though a still spry 60 years old, did not relish the idea of dealing with college basketball’s embrace of NIL and the NCAA transfer portal.
Yet, if we zoom out and consider the NIL from a wider perspective, it’s clear that the NIL controversy is part of a wider trend in American culture. On a purely descriptive level, absent of normative ethical claims, communal tradition is slowly but surely yielding to egocentric self-interest. Patriotism, for example, is plummeting. In January 2001–less than a year before the infamous September 11 terrorist attacks—55% of U.S. adults said that they were “extremely proud” to be American. In 2022 that number had fallen to a record-low 38%. The situation is more acute among young people. A July 2023 poll indicated that only 18% of people between the ages of 18 and 34 would say that they are “extremely proud” to be American. This is a significant downturn, but it doesn’t just represent an age gap. Consider: in 2013, 85% of people aged 18-29 answered that they were “extremely” or “very” proud to be American. Clearly, a sense of deep affiliation with one’s country is eroding in the United States.
As I’ve written about before, the same trend holds in religious life. Almost one-third of Americans now consider themselves religiously disaffiliated, though it’s hardly the case that such people don’t believe in God. In fact, according to a 2022 survey, 81% of Americans believe in God. This number represents a significant decline from a 92% high-water mark in 2011–intriguingly, the very year that Snapchat appeared on the scene and just a year before the founding of ByteDance, the Chinese conglomerate that would go on to launch TikTok in 2016—but it still indicates that the vast majority of Americans are theists. Moreover, among those who don’t profess belief in God, only 4% identify as “atheists.” It seems that, for some people, belief itself is the problem, no matter if it’s belief in God or belief in “no gods.” Hence, in the present context, religious disaffiliation might very well be compared to free agency or, better yet, to the NIL situation discussed above. More and more Americans have entered the religious “transfer portal,” albeit without a specific destination in mind.
I could multiply these scenarios, perhaps especially in family life and in education. But the bottom line is that a contradiction has manifested itself in American society:
Traditional associations, groups, and organization are consistently declining in the United States, ranging from American Legion posts to church bodies to labor unions.
And yet, whether in stump speeches, op-eds, or group chats, people regularly lament this downturn.
Tradition is out; change is in. Legacy is out; novelty is in. Loyalty is out; adaptability is in. The NIL situation, then, is just the latest instance of a cultural trend. College rosters are constantly in flux, losing old players and bringing in new ones. At the same time, the more coaches, fans, and sportswriters complain about it, the more inevitable the process seems. In point of fact, a February 2024 federal court ruling divested the NCAA of any authority over NIL compensation. It’s officially the “Wild West” in college athletics.
The fatalism surrounding the NIL, not to mention the other issues mentioned above, seems to come from two places. On the one hand, Americans are inherently uncomfortable with limitations imposed on the individual’s pursuit of life, liberty, and happiness—a presupposition that is reflected in any number of cultural debates. College athletes, so this thinking goes, should be given the same latitude as other hard-working Americans. On the other hand, there is a growing sense that, unchecked by external policies and procedures, people “are gonna do what they’re gonna do.” There is no noncoercive tradition persuasive enough to guide the individual over against her own material needs and wants. In other words, self-interest is the real inevitability underlying the NIL or other similar “breaks” from community and tradition. A child may grow up wanting to play for his favorite college team, but, if another team offers him more money, he obviously will (and should) go to the highest bidder. And why wouldn’t he? Isn’t that “how the world works”? If the individual’s interests align with socio-familial custom and conventional common sense, then that’s fine. But the latter cannot be expected to sway the former, much less govern it.
This is, of course, a story still being written. However, I want to end by sketching a few potential takeaways from the unfolding NIL saga. First, and most obviously, there is a great deal of confusion about the nature of freedom in American culture. To cite an example from recent memory: The people who oppose governmental restrictions on abortion tend to favor governmental mandates on COVID-19 vaccines; the people who favor governmental restrictions on abortion tend to oppose governmental mandates on COVID-19 vaccines. These sorts of contradictions are nothing new, and, at the very least, they indicate incommensurable perspectives on how institutions are to promote the good life. So it is with the NIL. Some believe that the most desirable college system would give players maximal flexibility, whether to pursue different opportunities or to seek bigger paychecks. Others believe that such fluidity needs to be restricted for the sake of college sports writ large. For the former, “freedom from” is absolute; for the latter, “freedom for” is most important.
Second, and as the NIL controversy demonstrates, the “freedom froms” typically have the upper hand in American culture. 69% of Americans believe that first-trimester abortions should be legal; 72% of Americans believe that Amendment II to the United States Constitution gives them the right to own a gun. It is unsurprising, then, that 63% of “college sports fans” support “NIL rights.” In short, when push comes to shove, people don’t want to be restricted by the government—or by the NCAA.
And yet, third, most Americans still prefer that people use their freedom for the sake of the greater good. According to one 2023 poll, nearly 80% of Americans believe that having “strong moral values and character” (“commitment” and “citizenship” were specified) is important, even as, in the very same poll, nearly 80% of respondents said that American society is less “values-based” than it used to be. So, people are supposed to want to do the right thing (whatever that may be), but they should not be compelled to do so. They should value personal loyalty and civic engagement, but what these virtues mean or how they’re discharged is effectively a private matter.
On the face of it, this is not an unreasonable position. Wouldn’t it be best if people pursued the good out of their own freedom, rather than through an alien form of coercion and intimidation? But the problem—and this point is reflected in the polling data mentioned above—is that we don’t know how to achieve this outcome. Too much freedom has weakened the very institutions needed to cultivate the virtues that hold society together.
Notably, a number of thinkers have foreseen just this predicament: what Americans most deeply desire stands in contrast to the nation’s formal embrace of liberalism. For instance, the French political philosopher Alexis de Tocqueville (1805-59) once observed that Americans tend to act better—that is, more morally—than the dictates of their “philosophy.” He attributed this tendency to the nation’s roots in Christian teaching, even going so far as to borrow from the Puritan clergyman Cotton Mather (1663-1728). Just as Mather had recommended a higher freedom that, guided by proper authority, emerges from a self-disciplined willingness to serve God and neighbor, so does Tocqueville believe that an effective democracy can only be sustained by the individual’s desire to limit her own preferences for the sake of the common good. If this self-abridgment were eventually to run out of steam—and Tocqueville was concerned that it would—then society too would be at risk. A true and enduring social order is not fashioned by a series of distinct rights that isolate the individual from others; it is the product of people learning to rule themselves.
In his 2018 book Why Liberalism Failed, Patrick Deneen arrives at provocative conclusion:
Liberalism has failed because liberalism has succeeded. As it becomes fully itself, it generates endemic pathologies more rapidly and pervasively than it is able to produce Band-aids and veils to cover them. The result is the systemic rolling blackouts in electoral politics, governance, and economics, the loss of confidence and even belief in legitimacy among the citizenry that accumulate not as separable and discrete problems to be solved within the liberal frame as deeply interconnected crises of legitimacy and a portent of liberalism’s end times.
For Deneen, the discontent now evident in American politics is not incidental; it is a sign of a fragmenting society in which “the crises will become more pronounced” and “the political duct tape and economic spray paint will increasingly fail to keep the house standing.”
Ultimately, I would say something similar about the NIL controversy in college sports. After all, the NIL stems from the liberal embrace of self-interest and self-profit, and, as Deneen envisions the “end of liberalism,” so have many seen the NIL as the demise of college athletics as we know it. The answer, however, is not a return to the world of NCAA authoritarianism, which, as noted, was not as pure as people tend to think. It is to unite the virtues of amateurism—playing for the love of the game—with a modest, reasonable, and big-picture approach to NIL opportunities. But this sort of attitude will have to emerge from somewhere beyond the political world of liberalism itself. It may come from the family, the church, or from a well-balanced education, but the message will have to be: you can only have it all if you don’t want it all.