By Mark Schipper
College athletics under the NCAA’s rule have become a Byzantine mess, which the current push to grant student-athletes better compensation rights for their own efforts has proved once again. But in spite of the hangups the campaign to correct some of the system’s flaws is marching forward, and that is a good thing.
One year after asking the United States Congress for assistance in writing new legislation related to name, image, and likeness rights [NIL], along with new transfer guidelines, the NCAA Board of Governors missed their own deadline and this week delayed a vote on a new portfolio of rules that will significantly change the way their organization operates for the first time in decades.
The NCAA’s Board of Directors, a committee within the broader organization, released a statement in defense of the delay:
“Nothing about tabling the proposals should be interpreted as a retreat from the public positions and months of hard work to develop name, image and likeness opportunities for student-athletes in a manner that maintains the priorities of education and the collegiate experience, without compensation for athletics performance, thus maintaining the clear distinction between collegiate and professional opportunities.”
The association previously said they wanted the new order in place by January 2021, but after the delay at the Division I Council meetings the push to at least the autumn appears inevitable. The fact the NCAA wants to change but cannot seem to finish the job is indicative of just how entrenched their uniquely restrictive brand of amateurism is. Adding to the complexity of the impasse, multiple fronts went active all at once at the outset of 2021 and the NCAA is being forced to engage with each of them.
On the main front, a new United States Congress with a new political majority is preparing to take office, a reality that could vastly affect the direction this legislation takes in the nation’s capital. On a second front, the United States Department of Justice has sent the NCAA a letter warning of potential anti-trust hangups in their new legislation as its currently written. And finally, a time bomb has been set in Florida for July 1, less than seven months from now, when the state’s own legislation granting college athletes expansive freedoms not offered elsewhere goes operational.
“All of our college athletes are profoundly disappointed and, I suspect, even angry,” said Mark Emmert, the beleaguered NCAA president. “But we need to make clear we're still committed. We're still determined to move forward with name, image and likeness modernizations, and certainly with changing Division I transfer rules. We promised this to our students. We're going to get it done.”
Glaringly absent in Emmert’s statement is any mention of group licensing allowances, which for many was an A-1 priority in any modernization effort. Group licensing would mean that every athlete, whether the star quarterback or back up offensive guard, would be in for a taste of monetary compensation for any product using the sport as its selling point, like, for example, the hugely popular EA Sports NCAA Football franchise that was put on indefinite hiatus following the 2014 season.
Ross Dellenger, writing at Sports Illustrated, noted the omission, which is vintage NCAA in terms of digging in their heels and applying full braking pressure on any serious reform effort:
Many expected the NCAA’s first step into the NIL world to include group licensing and maybe nothing else, allowing athletes incremental payments across the board as opposed to solitary income opportunities for events such as autograph signings, televisions commercials and social media ads. The report instead revealed the opposite.
The NCAA, unsurprisingly, has apparently isolated group licensing as another lethal gauntlet to avoid running at all costs, as it would likely lead to a broader revenue-sharing model for football and men’s basketball, and some kind of unionizing push by athletes to create a collective bargaining situation and ensure their own rights were being looked after.
In this scenario the NCAA likely foresees their own end game and the destruction of college athletics as they are presently constituted. Certain ambitious members of the U.S. Congress, however, may attempt to force this new world on the association against its will, but more on that down the page.
The NCAA has built a reputation as a steadfastly conservative, even reactionary, organization after decades of swiftly and deftly shooting shooting to bits any proposal that threatened to modify their model of amateurism, which they had well established in the early decades of the twentieth century.
In recent years, however, the association has been forced off their stronghold by pressure, frequently taking the form of vicious national mockery, from nearly every side as billions of dollars and big-money enterprises attached themselves to football and men’s basketball—leading to what often is called the gold-plating era of college athletics—while the essential deal for athletes, (room/board, scholarship, modest-stipend, and extreme athlete-privelege), has remained exactly the same.
This time around, with the future of its organization in actual danger, the NCAA says it is in earnest about their particular piecemeal changes.
“The Council remains fully committed to modernizing Division I rules in ways that benefit all student-athletes,” said Council chair and University of Pennsylvania athletics director M. Grace Calhoun. “Unfortunately, external factors require this pause, and the Council will use this time to enhance the proposals.”
The congressional majority in Washington D.C. could have a massive near-future impact on what happens to the NCAA. The association waited so long to update their operating system they may now find themselves victims of a forced upgrade that even two or three years ago they would have had the initiative to modify to suit their vision. The conditions needed for that scenario likely have shifted.
Currently, a squad of zealous, bonzai senators are seeking to precipitate a massive overhaul of the association through a national legislative process, while another group, potentially now in the minority, is crafting a limited bill meant to give the association guidance and specific legal protection for their reforms, as opposed to re-writing the rules from the outside in. Whichever side wins that confrontation will determine how the immediate future looks for the NCAA, and whether or not the association will regret asking congress to get involved at all.
“I can’t think of another election that could have more profound implications for college sports,” Tom McMillen told Sports Illustrated. “If the Democrats win control of the Senate, then you have a much more expansive agenda than just name, image and likeness.”
The group of politicians being referred to are generally identified by membership as Senator Cory Booker of New Jersey, along with both Senators Richard Blumenthal and Chris Murphy of Connecticut. Their push for a total overhaul is being made behind Booker’s expansive and revolutionary College Athlete’s Bill of Rights, which would fundamentally change the way the NCAA operated and could potentially trigger a mass re-structuring of the organization if its passed in its current form. It is not an exaggeration to say Booker’s plan could end college football and basketball as we know them.
In its most revolutionary mandate, Booker’s Bill of Rights requires NCAA schools to pay their athletes, granting not only NIL rights but forcing schools to share fifty-percent of revenues with athletes competing in all revenue-generating sports, a provision which refers almost exclusively to FBS football and Division-I men’s basketball.
This pay for play concept has been roundly rejected by the NCAA and described for decades as a non-starter as a reform mandate. It is an issue they consider untouchable as an amateur organization and one that would signal the end of their oversight of collegiate athletics. Even their new reform legislation is explicit about athletes not being employees of any single school, or being compensated directly for their athletic efforts. All of their proposed compensation allowances are tied to individual name recognition and notoriety, and not as athlete-representatives of a specific university.
Secondly, Booker wants to bring in the U.S. Departments of Health and Human Services, as well as the Centers for Disease Control, to build universal health standards for college athletes, including concussion protocols and other traumatic brain injuries, along with issues of sexual assault, and compel the NCAA’s member schools to abide and operate by them.
Thirdly, in Booker’s bill, athletes would be guaranteed a full academic scholarship for as many years at it takes to earn an undergraduate degree, while banning coaches and administrators from exerting any influence, or making any retaliation, against an athlete for their chosen course of academic studies, even if the work load is too difficult or ends up with the athlete ineligible to play.
Fourthly, an individual medical trust fund would be got up for every athlete to use not just during college, but for five full years after their eligibility has expired, to be drawn against for out-of-pocket medical expenses related to any sport-induced injury.
Lastly, and one of the few places where Booker’s bill aligns with the NCAA’s immediate plans, includes a complete lifting of restrictions for athletes who want to transfer from one program to another. Under this plan, an athlete would be allowed to transfer a limitless number of times and not suffer any sit-out penalty as a result. Currently an athlete is allowed to transfer once without penalty if they receive a waiver, a requirement the NCAA appears prepared to do away with as well.
While the NCAA went to the government hoping for legislative protection for their updated rules, what they may in fact get is a complete re-ordering of their organization and no legal protections at all. The Booker bill and the movement behind it reportedly would not include anti-trust protection from the government or even a pre-emption of state laws, meaning an individual state could write legislation to entice athletes to play at their universities, including a wide open marketplace for name, image, and likeness opportunities, and the NCAA would be powerless to enforce penalties against the schools.
“There is a growing consensus in the Democratic party that if we’re going to debate legislation on college sports, we shouldn’t stop at the limited issue of NIL. If we’re going to spend time on a college sports bill, it should be broad-based,” Senator Murphy told Sports Illustrated.
Regarding the potential anti-trust issues, the NCAA recently received a letter from Mark Delrahim, the antitrust division leader of the U.S. Department of Justice, warning that a program overly restrictive to an athlete’s rights to compete in an open marketplace could trigger antitrust action from the government.
“Ultimately, the antitrust laws demand that college athletes, like everyone else in our free market economy, benefit appropriately from competition,” Delrahim’s letter read, in part.
Ironically, this was the situation the NCAA explicitly said it wanted to avoid and was a large part of the reason they asked the government to get involved in the first place. The association’s early communication with the government expressed a desire for federal legislation to protect against any legal challenges to whatever changes they felt comfortable making to their NIL rules, and now they might end up without any.
On the final battle front, and related to the anti-trust letter, is the time bomb set by the state legislature in Florida and set to go off July 1, when new laws for college athletes go into effect. The new deal in Florida will give athletes far-reaching opportunities to profit off their athletic accomplishments and will in turn give universities in that state a potent advantage in recruiting.
While six other states across the country have comparable legislation pending, the fear, of course, is a doomsday scenario that the NCAA refers to simply as “chaos,” in which an entire aggregation of state legislatures go into a panic and begin writing helter-skelter new laws in order to stay competitively viable. This would create an untenable scenario in which each state was operating under a different set of recruiting, transfer, and compensation rules while under the same NCAA umbrella.
Creating an even playing field and enforcing rules—a charge the NCAA has frequently failed at in lurid fashion—would become outright impossible. That situation, if amplified nationally, could mark the beginning of the end of the association as it’s currently constituted.
Even as the NCAA attempts to move forward, they are finding their organization is stuck in the past. And because they waited so long to acknowledge the problems with their model of amateurism, their piecemeal approach to fixing them has come so late in the game they are in danger of being swallowed up by a far more revolutionary model mandated out of the nation’s capital by ambitious legislators.
Whether or not the NCAA survives this round, and they will, is not the important thing. These battles over the future of college athletics are only beginning and what comes out the other end in the next decade is at the moment a bad bet on any square. The NCAA might get its chaos, after all.