Posted by: Mike Cornelius | June 24, 2021

The NCAA Flounders And Fails

With the NBA and NHL playoffs and Euro 2020 all starting to get serious, and with fans who aren’t engrossed in any of those games likely mesmerized by the new national pastime of on-field cavity searches of major league pitchers, it was easy to miss the latest twists in the decades-long effort to have college athletes – the stars of a multi-billion dollar industry – treated as something more than chattel by the schools and conferences that profit from their athletic prowess.  While this week’s developments in that long saga were eclipsed by those other stories, that news will ultimately impact thousands of young men and women, long after which franchise lost out in this year’s conference finals and which reliever dropped his pants in front of an umpire have been reduced to hard-to-remember trivia answers.

On Monday a unanimous U.S. Supreme Court fired the latest warning shot across the bow of the NCAA’s old and listing flagship, the S.S. Amateurism.  The decision, authored by Justice Neil Gorsuch, affirmed a lower court order that the NCAA could not limit education-related benefits paid to student athletes.  While important and potentially substantial, such benefits are of course not the same as either outright salaries or compensation for use of an athlete’s NIL – name, image and likeness – an area potentially worth vast sums to star players in major college sports.

But while Gorsuch, and thus the court, chose to rule narrowly, a concurring opinion by Justice Brett Kavanaugh took an astonishingly harsh view on the broader question of NCAA rules and antitrust law.  “The NCAA couches its arguments for not paying student athletes in innocuous labels.  But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America,” wrote Kavanaugh, adding “Price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work.”  Just in case the message wasn’t clear, he concluded with this succinct warning – “The NCAA is not above the law.”

That admonition is now just days from becoming demonstrably true in seven states.  On July 1, recently passed laws in Alabama, Georgia, Florida, Mississippi, Texas and New Mexico, as well as an executive order just signed by Kentucky Governor Andy Beshear, all allowing collegians to profit from their NIL, take effect.  State level regulation is the NCAA’s worst nightmare, since it creates the certainty of dramatically different frameworks between, and even within, conferences.  Overlay a map of the member schools of the Southeastern Conference on one showing those seven states, and consider the recruiting advantage Nick Saban, John Calipari, and other coaches at eight SEC schools are about to gain over their counterparts in say, the Big 10 or Pac-12.  Or for that matter, over their six conference rivals whose campuses aren’t in one of those states. 

Not that it is entirely hopeless for programs about to be left clinging to the outdated tenets of the NCAA’s rules.  Fourteen more states have laws scheduled to take effect on dates ranging from later this year to 2025, and legislatures in eleven others are considering laws of their own.  But even if all fifty states and D.C. were to act, there would still be differences between statutes.  Any highly recruited high schooler, especially if he or she plays basketball or football, the two sports with the most exposure at the collegiate level, would be a fool not to factor in potential financial opportunities when deciding what school’s letter of intent will get their signature. 

One might think that between losing a case at the highest court in the land, being flogged as a law-breaking cartel in a concurring opinion and having its regulatory landscape about to fracture into myriad pieces, the NCAA would be spurred to action.  One would be very much mistaken.  The NCAA’s Division I Council, which had been expected to act on NIL regulations at its meeting this week, instead adjourned Wednesday with nothing more than a decision to reconvene next Monday.  That paralysis may well be a sign of the Association’s ultimate weakness, namely that it must depend on broad agreement among its member institutions.  Independent conferences and individual schools are likely even now calibrating what they will be able to offer students based on what will soon be the law in their part of the country, versus the potential landscape if they agree to some common path forward.

NCAA president Mark Emmert has long since cast his lot with the increasingly unlikely answer of Congress passing national legislation.  His statement after Monday’s Supreme Court decision reiterated that forlorn hope, even as it also incongruously claimed victory by citing the Court’s affirmation of the NCAA’s rulemaking authority.  By Wednesday he was reduced to promising member schools “interim rules” before the various state laws take effect next week.

Because Justice Kavanaugh merely pointed out a simple truth, those temporary guidelines will be severely constrained by the new state laws about to take effect.  The best description for the near term is likely to be something between confusion and chaos, though the likely beneficiaries of the pending uncertainty will be young men and women with great athletic skill, which is not a bad outcome.  But every moment of confusion, every hour of chaos, every day of uncertainty, rests squarely on the NCAA.  The last chapter in this long saga could have been written years ago, but for the Association’s determination to cling to its archaic fiction of overseeing hundreds of schools filled with earnest scholars who just happen to play amateur sports in their spare time.  If you believe that one, Justice Kavanaugh will take you for a walk among the tailgaters outside Bryant-Denny Stadium, with its 100,077 seats, before an Alabama home game this autumn.

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