NCAA seeks clarity on law governing athletes
There is no real debate among lawmakers on Capitol Hill about whether college athletes should be permitted to monetize their name, image and likeness, but there was a renewed request from the NCAA to help sort the issues. (June 9)
The basic premise of “The Purge” movie franchise is that a new American government sanctions a one-day event where all crime is legal, resulting in chaos and fear.
In fewer than two weeks, the moviemakers could have the template for a new installment of their series — only this time it’s the NCAA’s Indianapolis headquarters suddenly under siege.
One way or another, the name, image and likeness switch will be flipped on July 1 when eight state laws go into effect and money will start flowing to college athletes. This date has been so inevitable for so long that many of these endorsement deals that have long been illegal under current NCAA rules have already been lined up behind the scenes.
Companies who specialize in facilitating these deals are ready. Boosters are ready. Athletes are ready.
But the NCAA and its member schools who are used to fitting things within a regulatory framework? For them, anarchy is coming.
“The next couple years will be fascinating and messy,” said one Division I athletics director, who spoke on the condition of anonymity due to the sensitivity of the topic. “It’s going to be the Wild West.”
To say that the NCAA isn’t ready for what’s coming is an understatement the size of Mark Emmert’s ego. With no federal law coming from Congress imminently, no rules package for NIL approved yet by the NCAA Division I Council, no system in place for athletes to disclose what kind of deals they’re making and no infrastructure to evaluate whether those deals are within the framework of whatever rules they eventually come up with, we are entering a period where the working assumption is that anything goes and that the NCAA isn’t going to be able to do much about it.
Nobody in an official capacity is going to say that out loud, but it’s nonetheless an accurate assessment of the landscape with 12 days to go.
As one person familiar with the Division I Council deliberations put it, speaking on the condition of anonymity because they were not authorized to do so publicly: “Good actors are going to behave responsibly and the bad actors are going to do what bad actors do.”
That’s not a reassuring statement for college sports, an enterprise that even in the best of circumstances is as overmatched by bad actors as Gonzaga was against Baylor in the most recent men’s basketball championship game.
For the NCAA to find itself in this situation, still scrambling to get its arms around the most significant change to its model in a generation with just days to go, stands as the most damning blunder of Emmert’s presidency.
From a strategic standpoint, nothing about the way the NCAA has gone about this has worked out well since the California legislature got the ball rolling in February of 2019.
Never mind that a more competently run NCAA should have proactively dealt with the name, image and likeness issue after the Ed O’Bannon vs. NCAA district court trial ended in 2014. Even after it became clear California was going to pass the Fair Pay to Play Act, the NCAA’s response has been so flat-footed and unfocused that it’s been unclear at times whether the end game was actually to facilitate this happening in an orderly fashion or muck up the works enough to stave it off for awhile longer.
The general state of affairs, according to people familiar with the process, is that the Division I Council is waiting to vote on the package of NIL rules that have been on the table for months until a ruling from the Supreme Court on the Alston vs. NCAA case, which doesn’t deal with NIL specifically but could mandate more comprehensive changes in what kinds of benefits schools can offer to college athletes.
Depending on how that case turns out — and the Supreme Court could release its opinion on it as early as next week — the NCAA could either vote to approve the NIL rules or take on a completely different legal strategy and sue the states whose NIL laws go into effect July 1. The latter seems unlikely for a variety of reasons rooted in both practical and public relations concerns, but there’s a world in which the NCAA might attempt that to delay things at least until there’s a Congressional bill to get all 50 states on the same page.
The NCAA’s strategic decision to ask for Congressional help has been, to this point, a miserable failure. As anyone who’s followed the politics of the moment could have guessed, even a topic on which there’s general agreement between Democrats and Republicans has devolved into an ideological fight over whether federal regulation of college sports should be more expansive or focused solely on NIL and on how much protection the NCAA should have from certain kinds of lawsuits.
Realistically, it’s probably going to be months — if ever — before there’s a bill that will pass the Senate. But nobody involved in college sports wants an environment where athletes are only earning money in the handful of states whose laws are already on the books come July 1. From a practical standpoint, that means the machinery of NIL will start moving everywhere whether the NCAA passes its rules or not in time. People will just have to live with the differences from one state to the next.
Here’s where it gets more complicated, though. When the NCAA set out to build rules around NIL, it wanted certain safeguards mostly to ensure that these deals weren’t set up by the schools or boosters to use as a recruiting tool. To do that, it was going to put disclosure rules along with vetting and approval processes in the hands of a third-party administrator to assess whether the deals met fair market value standards. (As an extreme example, an athlete getting $1 million for one autograph would not be approved.)
But even if the NCAA votes to approve NIL rules in the coming days, the third-party administrator part of it will be tabled, according to people with knowledge of the council’s deliberations. That means, in essence, approval for deals will be dumped on schools and their compliance offices — which have not really been given a lot of guidance on any of this.
Ask any campus-level administrator these days and they’ll tell you the vast majority of their time is being spent trying to get ready for this and navigating any potential gaps in what the NCAA rules say and what might be allowed by their state.
“I’ve been meeting with student-athletes and some of them have deals ready to go July 1,” said one athletics director of a school in a state that does not have an NIL law on the books. “Our job is to be in a position to initiate that without jeopardizing their eligibility.”
But who would even know at this point whether it would jeopardize their eligibility, or how someone at the NCAA would make that determination? If there are no rules to enforce and no one to enforce them, we’re basically in the plotline of “The Purge.”
July 1 is going to be a great day for the rights of college athletes. But for the NCAA, it’s setting up for one of the messiest and most chaotic periods we’ve ever seen.
Follow USA TODAY Sports columnist Dan Wolken on Twitter @DanWolken