‘They’re shooting in the dark’: Why the NCAA is looking into BYU football’s tuition deal for walk-ons, and why experts say it was inevitable

Built Bar is paying the cost of tuition for 36 Cougar walk-ons. Experts believe the NCAA’s investigation could help clarify its own nebulous rules on name, image and likeness.

(Jaren Wilkey | BYU) Built Bar co-founder Nick Greer announced a historic NIL agreement to the BYU Football team. Built’s individual NIL agreements with BYU players include compensation to all members of the team, including compensation to all walk-on players in the amount comparable to the costs of tuition for the academic year. The NCAA is investigating BYU's deal with Built for a possible NIL violation.

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The CEO put his arm around BYU freshman quarterback Nick Billoups and recounted a story he heard about how the walk-on felt like he’d become “part of something” since arriving in Provo. He described Billoups as “a fighter,” then said the words that sent the entire room into a frenzy.

“At Built, we want you to be employee No. 1,” Built Bar CEO Nick Greer said. “We want to pay for your tuition.”

Green later asked every BYU walk-on to stand up and described them as “employees 1-36,” indicating that Built would pay the tuition for all of them last fall. The players in the room went wild.

Greer and his company entered into a multiyear name, imagine and likeness agreement with all 123 of BYU’s football players in August. The deal gives scholarship athletes the ability to earn $1,000 if they promote the brand in certain ways.

Non-scholarship athletes, however, can earn the equivalent of what it costs to attend BYU. Their compensation will be paid directly to them and they can spend that money how they choose, associate athletic director Gary Veron told ESPN.

Last fall, a video of BYU’s walk-ons learning their tuition would be covered went viral. Now, the nature of the deal between Built and the school is now the subject of a probe by the NCAA, per a report in Sportico. Of interest to college athletics’ governing body is whether the agreement violates pay-for-play rules, which are still in place despite a change earlier this year to allow student-athletes to be compensated for their name, image and likeness (NIL).

“We have communicated with the NCAA concerning the Built Bar NIL arrangement,” BYU associate athletic director Jon McBride said in a statement. “They have informed us they do not have any additional questions at this time. We will continue to monitor and abide by the NCAA interim NIL policy.”

The NCAA, per Sportico, is also looking into a team-wide NIL deal at the University of Miami that covers all athletes on scholarships. NCAA President Mark Emmert said recently that there are “a number” of schools being looked at for possible NIL violations.

Experts in college athletics and sports culture who spoke to The Tribune look at BYU’s deal with Built and the NCAA’s interest in it as the inevitable outcome of a nebulous policy on NIL compensation.

The NCAA’s rules simply state athletes can get paid for their names, images and likenesses so long as they adhere to the NIL laws in their respective states. If their state doesn’t have a law, they can still profit so long as they don’t break any NCAA rules. Utah has no such law.

The NCAA’s concern has always been what’s termed “pay for play,” which essentially amounts to a player receiving a salary for playing their sport. That idea goes against the NCAA’s rules on amateurism and the concept of a “student-athlete.”

But BYU’s and Miami’s NIL deals might be toeing the line, experts said.

“I think these are two situations in which you have a clear implication of pay-to-play that it puts the NCAA in a position where they almost have to respond publicly in some way,” said Daniel Durbin, director of the Annenberg Institute of Sports, Media and Society at the University of Southern California. “And it may, to a degree, be the tip of the iceberg.”

BYU officials are cooperating with the NCAA’s inquiries. Coach Kalani Sitake, who effusively advocated for the partnership when it was announced, did not seem concerned about the NCAA’s probe when asked about it Wednesday.

“We have nothing to hide,” Sitake said. “We care about our players, and that means our walk-ons as well. So if they want to question that, that’s OK. We’ll be fine.”

Steven Rackley, a professor in the sports management program at Rice University with more than 20 years of experience as a college athletic director, argues that the NCAA had plenty of time to iron out a coherent NIL structure that wouldn’t lend itself to schools flirting with rules violations.

“What bothers me about the NCAA is they had a year and a half to try and figure this out, and they didn’t,” said Rackley, who earned his undergraduate degree at the University of Utah. “They spent their time trying to get Congress nationally to pass a bill. Prior to that, they spent years fighting this coming on.”

The NCAA in 2014 lost a class action lawsuit brought by former UCLA basketball player Ed O’Bannon five years earlier and joined by Oscar Robertson, Bill Russell and several others. The judge ruled denying athletes payment for their names, images and likeness violated antitrust law.

California then passed its own NIL law in September 2019 despite the NCAA actively lobbying against it by sending a letter to Gov. Gavin Newsom arguing the law “would upend level playing field for all student-athletes.” That law was originally slated to go into effect in 2023 before the NCAA reversed course and announced its own interim rules would take effect July 1, 2021.

Durbin said the NCAA is likely interested in BYU specifically because of how open the university has been about compensating players, particularly the walk-ons. When the video of Greer’s speech was described to him, he said something like that five years ago would be “going so far over the line they’ll close your program down.”

In Durbin’s eyes, BYU’s deal with Built is effectively a “pay-for-play” situation.

“You do come to essentially the point where it is a pay-to-play,” Durbin said. “If you’re even giving money to non-scholarship players, but only of one sport, then there is a pay-to-play, ‘We’re going to pay you to be on this team’ element to it.”

The NCAA allows a maximum of 85 scholarships on any Division I Football Bowl Subdivision team. Any NIL deal like BYU’s that gives anyone outside of those 85 the opportunity for financial relief would likely be welcome. Sophomore offensive lineman Clark Barrington earlier this week said he wasn’t aware of the NCAA’s probe, but voiced support for the partnership.

“We’re happy to be partners with Built Bar and the boys are doing their job to hold up our end of the deal and Built Bar is following through with them,” Barrington said. “It’s been a blessing for lots of boys on the team and we’re excited to continue that partnership.”

The NCAA’s actions both in the past and with BYU and Miami now point to what Durbin and Rackley view as the governing body’s shrinking influence and its attempt to demarcate the boundaries of NIL payments. But Rackley did not seem confident that the NCAA will succeed in that endeavor.

“In just looking at their very vague guidelines, I don’t know how they’ll be able to do that,” Rackley said. “It just seems to me like they’re shooting in the dark here, hoping to hit something.”

More potential NIL violations are bound to emerge in the coming months as more universities and their athletes sign sponsorship deals and the NCAA continues to define what crosses the line. Rackley thinks a more balanced approach will likely be solidified in the next few years.

In the meantime, the result of the NCAA’s interest in BYU and Miami could portend what happens next in the NIL space.

“My guess is this will set a precedent,” Durbin said. “Whatever their response is will set a precedent for the NCAA, for their response to the next situation. I think … what they’re going after is setting a precedent for what their rules mean.”