The NCAA Isn't Surrendering on Athlete NILs
Why an announcement on "modernizing" amateurism rules is the beginning—not the end—of a fight
|Patrick Hruby||Oct 29, 2019|| 3|
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In the television show Succession, there’s a scene in which media mogul Logan Roy—a power-obsessed sociopath played with delightful aplomb by the actor Brian Cox—is negotiating to buy a bundle of local television stations from some other business guy.
The other guy wants to sell. And he’s satisfied with price that Logan is offering. Logan’s quick-witted jerkoff son, Roman, wants his father to take the deal.
Only Logan is irritated. Pissed, really. Pissed because the other guy looked happy. And he shouldn’t. Nor should he be smiling.
Logan tells Roman to walk the guy to the elevator—and to make a new, lowball offer en route.
“You screw them out,” Logan says. “You chisel them out. You fuckin' hurt them. And then you watch them squeal.”
On Tuesday, the National Collegiate Athletic Association’s top decision-makers voted unanimously to begin a process of updating the association’s amateurism rules to allow college athletes to benefit from the use of their names, images, and likenesses—something that is currently prohibited.
The vote comes following the passage of a much-publicized California law, scheduled to go into effect in 2023, that would prevent the NCAA and its member schools from punishing campus athletes who receive compensation for their NILs. It also comes as a number of other states and lawmakers in Congress are introducing or exploring similar legislation—and as the largest national college athletes’ rights organization and a subsidiary of the National Football League Players Association have begun exploring ways that college athletes can capitalize on NIL deals.
Yet while the NCAA’s announcement was made under obvious duress—essentially, a legislative gun to the head—it’s anything but a white flag. Rather than signaling a willingness to stop stealing from college athletes by recognizing that they have the same personal property rights to their own names, images, and likenesses as everyone else in America, the association is attempting to maintain control. Fine, the NCAA is saying, we’ll let athletes get something more for their NILs. But only in a manner that we—an unelected group of university administrators and suits in Indianapolis—see fit.
To put things another way, the association is preparing to do what it always has done. Chisel athletes out. Dollar by dollar, bylaw by bylaw, condition by condition, until the schools keep all of the power and almost all of the money, while somehow the athletes who do the actual on-field work that makes college sports so damn lucrative are supposed to feel gratitude for the crumbs they’re permitted to receive.
And the NCAA isn’t hiding this! It’s all right there in their public statement on the vote. Let’s take a closer look at what the association had to say:
In the Association’s continuing efforts to support college athletes, the NCAA’s top governing board voted unanimously to permit students participating in athletics the opportunity to benefit from the use of their name, image and likeness in a manner consistent with the collegiate model.
The opportunity to benefit is vague. It could mean profit, receive compensation, put cold, hard cash into athlete’s pockets. It could mean trust funds accessible after graduation. It could be capped at a particular dollar amount. Right now, no one can say!
Meanwhile, in a manner consistent with the collegiate model is giveaway that the NCAA does not intend to go quietly into the good night of amateurism, the way golf, tennis, and the Olympics have. To the contrary, the association intends to preserve the collegiate model, which isn’t actually a real thing—like amateurism itself, it’s a simply a quasi-legal-sounding term that in reality is whatever the NCAA says it is, and generally translates into we ain’t paying athletes but we’re happy to give coaches cash bonuses for, like, leading at halftime and stuff.
Let’s move on.
The Board of Governors’ action directs each of the NCAA’s three divisions to immediately consider updates to relevant bylaws and policies for the 21st century, said Michael V. Drake, chair of the board and president of The Ohio State University.
“We must embrace change to provide the best possible experience for college athletes,” Drake said. “Additional flexibility in this area can and must continue to support college sports as a part of higher education. This modernization for the future is a natural extension of the numerous steps NCAA members have taken in recent years to improve support for student-athletes, including full cost of attendance and guaranteed scholarships.”
The NCAA likes to pretend that the idea of college students being able to sell their own names, images, and likenesses—again: their personal dang property!—is some sort of futuristic 21st Century revolution, like 5G wireless or widespread McRib availability. This is bullshit!
Additional flexibility in this area can and must continue to support college sports as a part of higher education means two things. First, the NCAA and its member institutions’ athletic departments would very much like lawmakers to leave their nonprofit, tax-exempt statuses alone—status that traditionally has been justified by tying big-time sports into education.
Is it likely that allowing athletes to make NIL money would in any way threaten that? Of course not. A quarterback endorsing a car dealership or a gymnast monetizing her Instagram account has nothing to do with their school. But still: better safe than sorry if your tax breaks are worth hundreds of millions of dollars.
Second, antitrust lawsuits seeking to overturn amateurism brought by current and former college athletes against the NCAA in federal court have hit a stumbling block: the association has argued that it should be allowed to limit athlete compensation for the sake of education, and despite a compete and total lack of supporting evidence for that position, appellate court judges have agreed.
If college athletes are allowed unrestricted access to the NIL market—and the world keeps spinning without a bunch of them suddenly flunking out of school—then the NCAA will have a much harder time making the same bogus argument when the next antitrust suit goes to trial.
Moving on again:
Specifically, the board said modernization should occur within the following principles and guidelines:
Assure student-athletes are treated similarly to non-athlete students unless a compelling reason exists to differentiate.
Maintain the priorities of education and the collegiate experience to provide opportunities for student-athlete success.
Ensure rules are transparent, focused and enforceable and facilitate fair and balanced competition.
Make clear the distinction between collegiate and professional opportunities.
Okay! Here’s where the real chiseling begins. Compelling reason is doing A LOT of work, there—what, exactly, does that mean? Compelling for whom? A bouncy power forward who has a chance to sign a shoe deal with Adidas? Or an athletic director who already is benefiting from an all-school deal with Nike?
The NCAA’s entire amateurism scam is predicated on pretending there are compelling reasons to treat college athletes differently than everyone else on college campuses—and in America—especially when it comes to economic rights established and protected in laws such as the Sherman Act. But what are those reasons, besides labor exploitation being a pretty sweet deal for the people doing said exploiting?
We’ve already covered why the NCAA is concerned with maintaining the priorities of education and the collegiate experience to provide opportunities for student-athlete success. That said, if the association and its members were really, truly concerned with education and success, they wouldn’t work so hard to keep money out of athletes’ hands.
Instead, they’d want athletes to make as much as possible. Why? Money makes everything in life easier—including studying and getting through college. And also:
Malcolm Turner@VandyADThe Accelerator program eliminates the biggest obstacle for student-athletes -- their limited free time -- and allows them to create a personalized program of study to boost their career prospects. The experience will be a game-changer in their lives. https://t.co/GOXdLWUGmJ
But I digress. Making sure rules are transparent, focused and enforceable and facilitate fair and balanced competition means the NCAA is planning to limit and police athletes’ NIL deals—which is not something it does for “non-athlete students”—and will justify doing so for the sake of competitive sports balance, which has absolutely nothing to do with education. So never mind what the association said in its previous bullet points. Time moves so quickly these days!
Making clear the distinction between collegiate and professional opportunities means absolutely nothing—money is money; a contract is a contract; payment for services rendered is payment for services rendered—except in the NCAA’s world of semantic make-believe, where standing behind a podium or in front of a federal judge and screaming “we can’t turn college sports into pro sports!” while stuffing GPA bonuses into Nick Saban’s pockets somehow counts as a convincing argument.
Even more moving on:
Make clear that compensation for athletics performance or participation is impermissible.
Reaffirm that student-athletes are students first and not employees of the university.
Enhance principles of diversity, inclusion and gender equity.
Protect the recruiting environment and prohibit inducements to select, remain at, or transfer to a specific institution.
Forget diversity, inclusion, and gender equity—those are wonderful things, but have little to do with individual athletes profiting from their NILs.
Instead, focus on the other three points. The NCAA wants NIL compensation to reaffirm that student-athletes are students first and not employees of the university. If that seems initially confusing—NIL compensation involves third parties, not drawing a school paycheck—remember that schools very much do not want to pay salaries or provide health benefits or worker’s compensation to athletes, and very much want to ensure that NILs don’t create a slippery slope toward doing so. (In fact, the NCAA invented the term “student-athlete” to get out of paying worker’s comp to the family of a dead college football player).
Protecting the recruiting environment and prohibiting inducements to select, remain at, or transfer to a specific institution seeks to prevent boosters or other third parties from compensating athletes via NIL deals to attend particular schools—something the NCAA has long propagandized as morally suspect, even though it isn’t. (No one had a problem with T. Boone Pickens lavishing cash on Oklahoma State athletics; no one has a problem with signing bonuses in the rest of the world).
It’s also important to keep in mind that this principle doesn’t protect athletes. To the contrary, it robs them of negotiating leverage at the moment of their peak value: when two or more schools/boosters are competing for their services. What you’re paid to do something is always a function of what it takes to get you to do something—and that amount goes up in a bidding war.
Making compensation for athletics performance or participation impermissible potentially constrains NIL value even more. Does that mean a star linebacker can’t appear in a commercial wearing shoulder pads? Or that a champion women’s basketball team can’t make money signing posters and basketballs? Separating performance and participation from the fame and marketability crated via on-the-field heroics isn’t easy. And it shouldn’t be necessary—unless, again, you’re trying to chisel athletes out.
Now to the final portion of the NCAA’s statement:
The board’s action was based on comprehensive recommendations from the NCAA Board of Governors Federal and State Legislation Working Group, which includes presidents, commissioners, athletics directors, administrators and student-athletes. The group gathered input over the past several months from numerous stakeholders, including current and former student-athletes, coaches, presidents, faculty and commissioners across all three divisions. The board also directed continued and productive engagement with legislators.
The working group will continue to gather feedback through April on how best to respond to the state and federal legislative environment and to refine its recommendations on the principles and regulatory framework. The board asked each division to create any new rules beginning immediately, but no later than January 2021.
“As a national governing body, the NCAA is uniquely positioned to modify its rules to ensure fairness and a level playing field for student-athletes,” NCAA President Mark Emmert said. “The board’s action today creates a path to enhance opportunities for student-athletes while ensuring they compete against students and not professionals.”
The key clauses above are continued and productive engagement with legislators and how best to respond to the state and federal legislative environment. The NCAA and its member schools are going to press state legislatures and Congress for more time, craft and pass NIL rules by 2021 that preserve as much of their current power and income as possible, and hope that lawmakers are satisfied.
Will they be? Hard to say. On one hand, they’ve repeatedly signaled a willingness to work with the association, and a hope that schools will liberalize their athlete NIL restrictions before governments force them to do so. On the other hand, the NCAA clearly does not want to go as far as lawmakers have suggested.
To wit: California’s law puts very few restrictions on athlete NIL deals, while Rep. Mark Walker’s (R-NC) current NIL bill in the U.S. House of Representatives contains none. Meanwhile, Ohio State athletic director Gene Smith said Tuesday that the NCAA's new rules would not follow the “California model” of a virtually unrestricted market.
Someone will have to give. And someone is going to squeal. There will be lobbyists. And lawyers. And lots of billable hours. Today’s NCAA announcement is unprecedented, for sure—but for athletes and their advocates, the long battle for NIL rights isn’t over. It’s just beginning.
More to the Story
You’re in luck! While I’ve written a whole bunch of stuff on NCAA amateurism, the last two editions of Hreal Sports cover specific angles of the athlete NIL issue:
Why California’s college athlete endorsement law may not be a game-changer
“I think [the California law] is a bunch of bulls—t,” says Richard Johnson, an Ohio-based attorney who represented former Oklahoma State pitcher Andrew Oliver in a landmark 2009 case against the NCAA.
“The NCAA knows that it can sit back and do nothing for the next four years, because the law doesn’t go into effect until then. Then when there’s a lawsuit, they can kick the can down the road for another decade. That’s what they’ve always done.”
Group licensing for college athlete NILs could restore EA Sports' football game—and much more
On Monday, the National College Players Association (NCPA), the nation’s largest campus athletes’ rights group, announced that it has entered into a partnership with a marketing subsidiary of the NFL Players Association, REP Worldwide, to explore how to maximize NIL rights, with the ultimate intention of providing group licensing representation to “every college athlete whose state passes a law to allow it.”
Among the areas the NCPA and REP Worldwide intend to explore? Merchandise, gaming, and broadcast revenues.
The latter would be a big freakin’ deal.
This has been Hreal Sports, a weekly newsletter written by Patrick Hruby about sports things that don’t stick to sports. If you have any questions or feedback, contact me at my website, www.patrickhruby.net. And if you enjoyed this, please sign up and share with your friends.