Did the NCAA pick a fight with Tennessee that it can't win?

Donde Plowman didn’t merely rebut the NCAA on Tuesday. The Tennessee chancellor came flying off the top rope, elbow up. In the process, she might have provided a blueprint for the response to a coming wave of name, image and likeness-related cases and hastened the coming schism that will fundamentally alter the way college sports are governed.

Shortly after a report from Sports Illustrated’s Pat Forde revealed that Tennessee was under investigation by NCAA enforcement staffers, Plowman released a letter she sent Monday to NCAA president Charlie Baker. The letter makes two things abundantly clear:

• The NCAA is about to accuse someone affiliated with Tennessee — but, perhaps most intriguing, not employed by Tennessee — with breaking rules regarding NIL payments to athletes.
  
• Tennessee is going to fight those accusations in every way possible. 

Plowman left plenty of breadcrumbs in her letter to NCAA president Charlie Baker. We don’t yet know exactly what the NCAA plans to accuse Tennessee of, but we can surmise from the letter that it’s NIL-related. Plowman writes in the letter that enforcement staffers met with Tennessee officials Monday to discuss “allegations the NCAA intends to bring against Tennessee related to NIL.” Plowman later called these allegations “factually untrue” and “procedurally flawed.”

Later, while listing multiple complaints, Plowman notes that “not one University of Tennessee employee has been named as committing any NCAA violation” and that “neither the collective nor student-athletes broke any rule or guidance document as they existed at the time.” This implies that the NCAA is accusing a collective attached to Tennessee with wrongdoing. 

We’ve seen two NIL cases resolved by the NCAA to this point, but neither took aim at a collective — the entities that sprung up to fund NIL payments to athletes after various state legislatures forced the NCAA to allow them by passing laws beginning in 2021. Those laws were written vaguely enough to allow payments, but the NCAA insisted that such payments couldn’t be used as recruiting inducements or to pay for the act of playing a sport.

Naturally, anyone with a functioning brain knew that’s exactly what the payments would be used for because there is a robust market for the services of the stars of a multibillion dollar business. Collectives popped up quickly at every school that plays some version of a revenue sport. Instead of individual companies hiring athletes as endorsers, collectives bought athletes’ NIL rights entirely for agreed-upon fees. These deals complied with state laws, but they absolutely took into account the player’s value to the roster and not purely as an endorser. One of the first such deals was the one struck between collective Spyre Sports and then-high schooler Nico Iamaleava, who enters 2024 as Tennessee’s starting quarterback.

We got our answer about Spyre and Iamaleava on Tuesday night when attorney Tom Mars released this statement.

This isn’t limited to Tennessee and Spyre and Iamaleava, though. Pretty much everyone else copied the idea. If you’d like to have a competitive football or basketball team at the major college level now, then a collective attached to your school is signing players to deals almost exactly like the one referenced above. That, of course, brings up a question: If Tennessee or its attached collective is being accused of NCAA violations, aren’t collectives attached to nearly every school in the FBS in danger of being accused as well?

Of course they are. And Plowman points that out in her letter. The interpretation of the rules being used by the enforcement staff doesn’t square with the reality of college sports in 2024. “The implication of the NCAA enforcement staff’s approach to date goes beyond our institution,” Plowman writes. Indeed, other cases are in the pipeline. 

But if the enforcement department — which understandably must justify its own existence lest the paychecks someday stop — thinks cracking down on what has now become standard procedure will somehow turn back the clock to a time when NCAA rules went unchallenged, it is making a grave and possibly fatal mistake.

We just watched Michigan, a school that long tried never to rock the boat, blast back at the NCAA and the Big Ten during the investigation into allegations of signal stealing by football staffer Connor Stalions. The Wolverines were preparing to go to court with the Big Ten over a suspension of then-coach Jim Harbaugh before backing down and accepting the suspension. That one didn’t reach a courtroom. But the next one might.

Don’t expect Tennessee to back down here. The Volunteers are in danger of repeat violator status because they just wrapped an NCAA case involving violations of recruiting rules by former coach Jeremy Pruitt. The cynical among us will point out that Tennessee happily handed over all the evidence against Pruitt to the NCAA so the school could fire Pruitt for cause and avoid paying a $13 million buyout to a coach whose record was floundering. (And maybe the NCAA enforcement staff didn’t appreciate being weaponized in that way.)

But no matter the reason, Tennessee is determined to not be found guilty by the COI in this case. And Plowman will have a number of weapons at her disposal. 

The politicians are already chiming in. The first was U.S. Rep. Tim Burchett on Tuesday afternoon. 

There is no act more bipartisan as an elected official in the Volunteer state than supporting the Big Orange against the NCAA. That particular activity has an approval rate between 95 and 100 percent.

If necessary, Plowman can call in the attorney general. In December, a consortium of seven state attorneys general sued the NCAA over its transfer rules. A federal judge quickly granted a temporary restraining order that effectively made it impossible to enforce those rules.

If Tennessee can find schools in other states facing similar investigations — we already know conference rival Florida is being investigated now — then we might see a similar suit. The result probably would be similar to the transfer case.

This is where the enforcement staff must be careful. The rules regarding NIL were not passed in the traditional way. They’ve been adjusted on the fly using what the NCAA calls “guidance” from NCAA staff. Last year, the rules changed again to presume the accused are guilty in NIL cases. That change, as Plowman points out in her letter, was approved in a vote of only 23 member representatives using a protocol designed for non-controversial or emergency measures. 

Because everything has changed so fast, the schools have not been given a chance to vote in the usual way on how they’d like to handle NIL rules. They have, however, voted with their actions. So we know what they’re OK with. And if NCAA enforcement staffers think multiple schools will be fine getting punished for exactly what everyone else is doing, they’re mistaken. More likely, the schools — which are the NCAA’s members — will change the rules rather than face a situation where everyone faces potential punishment.

What makes this even more absurd is that Baker himself has suggested changing the rules in a way that allows schools to have far more latitude and control when it comes to NIL. Under his own plan, NIL would move in-house at schools. 

Whether that plan will pass muster with the court system is another matter. The U.S. Supreme Court’s 9-0 decision in the Alston vs. NCAA case essentially put the NCAA on notice that any rules it uses to arbitrarily cap the earnings of athletes will be subject to antitrust scrutiny. Essentially, any rule the schools make through the NCAA that isn’t bargained with the athletes is going to be called collusion. 

That also includes the rules the NCAA enforcement staff is trying to enforce in the Tennessee case. At some point, someone is going to challenge those rules in court, and the NCAA probably will lose again. The question now is whether the NCAA has pissed off Tennessee enough to inspire the Vols to be the ones to pull one more block out of the NCAA’s rapidly swaying Jenga tower.