Whether you frame the issue as a circular firing squad or prefer to imagine the NCAA, Congress, and student-athletes locked in a Mexican standoff, the NIL issue facing all three parties is a messy one.
Any solution amenable to the continued existence of college athletics is going to leave at least one party displeased. The more a solution veers towards status quo, the more likely the aggrieved parties will be student-athletes. On the other hand, a solution that is sweeping in its scope and favors student-athletes is going leave the NCAA with less teeth than it presently has (or uses) as it gums away at sports’ worst cheaters. This says nothing of endangering Title IX, competitive balance, shuttering many programs, and costing hundreds (if not thousands) of scholarships every year.
And Congress, of course, doesn’t see much political hay to be made here in any event, (outside of bloviating for the kids) since the party with the most money at stake encompasses the powerbrokers. But the party that arrives to the table in far greater numbers, with the more equitable claim, and with overwhelmingly sympathetic press coverage, is the bloc representing the numerous players affected.
The intractable standoff and the tensions at play here have mainly led to hot takes from the press, meaningless denunciations from Senators, and stonewalling from the NCAA, as they come to Congress asking for the moon while offering up very little in terms of compromise or substantive change. Unfortunately, Congress is also the only entity capable of breaking this stalemate.
That is why it was very surprising yesterday to see the NCAA come to the Hart Building, hat-in-hand, and propose a student-friendly and exceptionally broad range of NIL rights for Congress’ consideration.
Ross Dellenger at Sports Illustrated has the full story here, but in a nutshell, the NCAA’s four-page proposal does the following:
- By June 30, 2021, the NCAA will “establish rules and standards for administering financial aid, participation benefits, licensing revenues and other benefits or payments, including NIL, to amateur athletes.” Collectively, these are called the “ventures”.
- The NCAA will examine compensation for the ventures by third parties to see if they are “inconsistent with eligibility for participation” or fall outside of a reasonable case for continued amateur status.
- These ventures can be compensated by cash or in-kind (good news for that Alabama Dodge Charger dealer!)
- And, finally, the case-by-case examination of the ventures will then be used to determine the eligibility of student-athletes.
Notice what’s not in there? No percentages, no monetary hard cap, no excruciating industry-by-industry restrictions on ventures.
So, say an Alabama running back can get a 4-year-old Dodge Charger with high miles if he appears in a hella’ cheesy local television ad. That sort of venture is not likely going to run afoul of continued amateurism or eligibility. But, LSU Bro signing a front-loaded $70 million dollar Nike endorsement deal, one that makes him a nine-digit-earner in college, is probably beyond any “reasonable case” to be made for continued amateur status.
In short, go forth and get paid...but don’t be absurd about it. The market won’t be stymied in advance, though it may be disallowed after the fact. And straight up Uncle Sugar bagman money is still prohibited.
To say that it is a bold approach is an understatement.
The NCAA isn’t playing nearly the role as a market regulator (or market prohibitor) that it had previously suggested to Congress, nor has it painted itself into the all-or-nothing corner it has maintained for almost a century. Since there is an implied reasonableness threshold — a very common and familiar objective criteria in the law — it seems to be one that is easy to administer and encourages NIL rights to be spread across more sports, more players, and even across the Title IX sphere — Sabrina Ionescu could have been making a nice living on the books the last four years at Oregon.
What does the NCAA want in return for a more hands-off, post hoc approach?
All that the NCAA is asking in return is everything.
No, seriously, everything:
The governing body of college athletics is asking for lawmakers to grant it antitrust protection, preemption from differing state NIL laws and to allow it to craft all rules on athlete compensation.
In exchange for letting players profit off of their image, name, likeness, performance, or even mere association with a winning program:
- The NCAA wants to be free from state interference, lawsuits, and regulations via congressional pre-emption. There shall be one standard, and it is the national one that Congress sets.
- The NCAA wants an antitrust exemption — in short, it can set the market, it can restrict access to the market, it alone can dictate the market’s terms and conditions, and it can control dissociation from the market. It’s the only game in town, and short of breaching the national antitrust terms, plaintiffs lawyers can’t go howling to their local courthose.
- The NCAA is to be the sole arbiter of compensation. This one is implicitly required for the NCAA’s proposal to work. If it can’t decide what is reasonable in terms of amateurism, then the rest of the proposal falls apart. It also gives the agency power to enforce traditional strictures and prohibitions against bagmen, pay-for-play, and the like.
The NCAA’s request is a big ask, to be sure. On paper, it looks like the NCAA is asking for everything. But, they do cite compelling reasons for Congress to play along — practically drafting the legislative findings of fact that would accompany any bill it passed. They are familiar arguments too. Pay-for-play and unregulated NIL:
threatens gender equity in athletic programs, creates tax liability for athletes, creates an employer-employee relationship between schools and athletes, and invites corruption into college campuses. If differing state laws are allowed to remain, they would adversely impact the competitive balance that currently exists in college sports.
It is hard to argue with any of those conclusions either; they necessarily follow from an unregulated NIL landscape.
But perhaps two other reasons surface, and while not explicitly mentioned, accepting the NCAA deal has two political benefits for Congress.
When (and it is a matter of when), Star Player is sidelined for accepting that Bugatti Veyron, then constituents and the media and other tastemakers can be mad at the NCAA, not us. And, secondly, the NCAA’s proposal doesn’t require perpetual congressional oversight — sign it, let the market sort it out, and let the whole mess be the NCAA’s headache. And the latter is a powerful motivator, to be sure.
Yes, it seems to weigh in favor of the NCAA, but the proposal also does not create a bottleneck on the front end. It is expansive. It is exceptionally flexible. And it would end silly ineligibility cases we’ve seen the last decade where players lose games and seasons and bowl games over some tattoos, a plane ticket here and there, autograph money, or a couple of extra meals.
To go any further does create an employee-employer relationship; it does foster an even greater inequity across states and conferences and even within them; and it would all-but certainly spell the end of smaller programs, the loss educational opportunities and scholarships, and even the gutting of Title IX athletics.
While many may want the entire thing blown up, and to instead install some bastard love child of Ayn Rand and Adam Smith, that is simply never going to happen.
So, how will it play out?
As usual, we find that what passes for policy in this country may come down to two competing camps, with the golden rule settling the score.
The right favors less restrictions on players, of course. The thousands of D1 athletes far outnumber their counterparts on the administrative side of the equation. But, these college-aged Americans historically are also the most apathetic voters, the least attentive to the political process, and are the poorest age demographic — hence, least likely to donate or vote. Meanwhile, the power brokers in the NCAA’s camp — and they are the governors and state legislators and big-time donors — wield the clout and the cash that Senators most covet. Expediency then may steer Congress towards pleasing those who make campaign contributions and are powers in their own right.
Golden Rule: He who has the gold makes the rules.
That said, there is almost no way that Congress won’t also make some demands regarding health and safety of players, concerns that the NCAA pooh-poohed away during their last hearing. But that is a story for another time.
For now, delight in the fact that the NCAA’s proposal is likely to leave no one (except perhaps Congress) happy, and that may be the surest sign that is also a fair deal.
What do we make of the NCAA’s proposal?
This poll is closed
Fair, but leans in the NCAA’s favor
A fair deal is going to make everyone unhappy, and this will.
Fair, but tilts in favor of players
Unfair, players are serfs bound to the land
Unfair, players are employees and this doesn’t go nearly far enough
TRACES THE SIGN OF THE DOLLAR IN THE AIR CRYING, "WHO IS JOHN GALT?!"