clock menu more-arrow no yes mobile

Filed under:

EDITORIAL: The Name, Image, Likeness Proposal: An antitrust cry for help that may just win the NCAA’s war.

The sports media and California courts may have gotten us here, and the NCAA may have itself to blame, but P4P advocates may have actually lost the longer war.

<p zoompage-fontsize="15" style="">mark ingram ea cover

The past decade has been a whirlwind of activity advanced by pay-for-play advocates.

In a concerted multi-front effort, critics of the NCAA have hammered away at its purported core mission of college athletics — amateurism: From cases going off the rails of narrow questions on trial, to cost of attendance stipends (that have varied wildly and have created uneven playing fields), to failed attempts to form a union, to nearly unanimous editorial voices, to bombastic and wrongheaded race-baiting comparisons to slavery, to politicians championing P4P as cheap GOTV tactic for young voters, to those same lawmakers blatantly ignoring Title IX.

That offensive — charm and otherwise, has finally paid off. The NCAA capitulated last week when its board of governors announced that it had set forth guidelines for students to gain compensation for their NIL rights. The matter will be taken up for vote next Winter.

We won’t necessarily discuss the nuts and bolts of the proposal. There is plenty of #content out there for that. Nor will we necessarily dwell at length on the parade of horribles lurking just beneath the creaking hinge of Pandora’s fabled box (and some do exist, to be sure.) Rather, we will lift up the NCAA’s skirt and see what color their knickers are, and the motivation that lies just behind the NCAA’s eventual surrender.

In few words, the strategy is as simple as it is cynical: create the vaguest possible system, one that is unmanageable and subject to little oversight but has draconian repercussions for violations; one that pleases the fewest possible stakeholders, while inviting the most godawful corruption; and all the while, the NCAA will spend bountifully on congressional lobbyists to pull them out of a corner into which they have painted themselves.

And we are here for two reasons. The first of which is the stridency of pay-for-play advocates who for years devalued and denigrated and poo-pooed the hundreds of thousands of dollars that student-athletes get in cash and in-kind — from coaching, housing, nutrition, promotion opportunities, tuition, stipends and the like. It simply was not enough; was never going to be enough.

The second reason is because the NCAA is a broken weathervane, one incapable of reading the winds of change or being the slightest bit proactive. As one of the most reactionary institutions in American society, it has stridently opposed every measure that would allow even the most meager compensation for student athletes beyond the realm of the educational. Its failure to budge on even the most inconsequential battles over the years, led not only to some truly inequitable outcomes, but it has now resulted in states eventually forcing its hand.

Last week, the NCAA acted because it had to.

Six years ago, during the Keller and O’Bannon cases that we covered extensively here, we warned you we would eventually get to this point: what began as ostensibly an antitrust case was always a stalking horse to expand pay-for-play and to compensate presently for name, image, likeness rights (NIL) for student athletes. That litigation, and others like it was, as we described at the time, an existential threat to college athletics. Eventually a reckoning was coming.

The reckoning has now arrived.

As you can guess, major powers are going to benefit handsomely from the monied opportunities that exist off the field for their recruits. There is a reason that the Roy Williamses of the world celebrated it; while second-tier programs (like Scott Satterfield’s Louisville football team), realize how deeply and profoundly they are going to be hammered in the chase for the elite recruiting prospects. And, yes, Alabama will certainly be one of its beneficiaries — Tua Tagovailoa stood to have “made millions” while in college cashing in his excellence, his affability and charm, and his telegenic “aw, schucks”-perfect son personality.

So, where does the NCAA turn? Again as we predicted over half a decade ago, piecemeal litigation was going to force the NCAA into an arena where it really did not want to be: the halls of Congress. While courts can determine that an entity has violated antitrust laws, Congress can also provide antitrust exemptions. They have done so before, most relevantly in Major League Baseball.

For those purposes, it is important to the NCAA’s case that it is a “natural monopoly.” A natural monopoly is one that arises not from tactics that necessarily restrain trade, but because it is the only game in town — such as the one Ma Bell enjoyed for decades, and Alcoa, who for decades was the only manufacturer of aluminum and thus the only aluminum patent-holders.

Monopolies aren’t per se illegal in a mixed-market economy like ours, but the threshold inquiry is the balancing test: Do they arise naturally? Are they providing a benefit to society? Are they not engaging in underhanded business competition to maintain that market position? It is that last prong that failed Alcoa and failed AT&T. It will likely be that last prong that gets Amazon busted up one day.

But it might, just might be the one that saves the NCAA here. There’s no other game in town. And that game exists, by its own rationale (an important one recognized by the 9th Circuit), to advance amateurism; to prevent corruption; to level the structural playing field. NIL rights turn that notion of structural partity completely on its head — especially since the proposal allows literal NIL payments from boosters.

Think that’s an accident? I assure you, it’s not.

When O’Bannon was upheld on appeal, in a compromise decision that left no one happy, and the Supreme Court later declined to hear the matter, the majority’s reasoning may be what the NCAA is hedging its bets on. In its three-justice panel, the 9th Circuit agreed broadly that the NCAA had run afoul of anti-trust laws, but that the NCAA’s goal of amateurism was not only important, but was a vital and compelling core purpose of its mission. And, with the Supreme Court declining to hear the matter, that is still the raison d’être of the organization.

The obiter dicta by a majority of the appellate court — the importance of a level amateur playing field, is now what the NCAA’s legal case rests upon...well, that, and its formidable cash, a raft load of monied interests, political connections in every state, and a Congress with a median age of 57.6 (one of the oldest in US History).

What the final permutation of NIL rights (if any) will look like in 12 months is anyone’s guess. But, the NCAA’s proposal at this point feels like little more than a PR stunt on one hand, and a proposal that has left absolutely no side happy on the other. But that’s not a bug. That’s a feature. It was designed to be vague, it was an invitation to Congress to act.

The final rules from the board of governors will not even be voted on until next January. There is nothing that prevents the NCAA from rewriting or rescinding the proposals. And in the intervening months, Emmert has already said that the NCAA is hiring lobbyists to get “guidance from Congress.”

Last Thursday wasn’t the end of the war; it was the end of the cold war. Today begins the pursuit in hot blood, one where Congress will eventually be the sole arbiter...and where the NCAA has the most vicious pack of hounds.

Think that won’t happen? Think again. The hunt is already afoot — P4P proponents in Congress are profoundly upset with the proposal.

Because I’m sure that’s exactly what P4P and NIL activists wanted, right? A literal act of Congress? A Congress that could very well, very easily determine that there are no vested NIL rights inherent in a non-employee student piggybacking upon a university’s resources. And, along the way, it could also grant the NCAA antitrust status.

Far from earning market value, letting the market sort it out, or any other Horatio Alger trope that proponents wanted to believe, what they now get is a deeply divided, very old Congress deciding the matter and even more regulation. And if these proponents thought the NCAA’s rules and interpretations were arbitrary, just wait until they see how wildly disparate federal administrative agencies are with each successive presidential administration.