given the proper “legal framework.”
Two weeks ago Condoleeza Rice’s Committee to Reform College Basketball addressed, but refused to recommend how to address student-athlete compensation for use of name, image and likeness (NIL) because the issue was currently on trial before Judge Claudia Wilken of the Federal District Court for Northern District of California. Hours ago, in an interview with the USA Today, Rice commented that the Committee fully supports NIL compensation given the proper legal structure.
If you’re confused, you should be.
Here’s the exact text of her commentary from the Commission’s report on NIL compensation from two weeks ago (full text here), emphasis added:
“Finally, the Commission is also aware of many voices suggesting that allowing student athletes to earn some financial benefit from the marketing of their names, image and likenesses (NIL) is consistent with the collegiate model, particularly if students do not receive those funds until after college. Notably, the NCAA is a defendant in litigation involving the NCAA’s refusal to allow students to do so. The court suggested that if the NCAA allowed students to benefit financially from NIL marketing, plaintiffs would then be able to argue that all restrictions on income are anti-competitive. The court stated that “[t]he difference between offering student-athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor: it is a quantum leap. Once that line is crossed, we see no basis for returning to a rule of amateurism and no defined stopping point.” O’Bannon v. NCAA, 802 F.3d 1049, 1078 (9th Cir. 2015) (emphasis added).
A number of members of the Commission were drawn to the idea of reforms in this arena. However, given the lack of legal clarity on this matter, the Commission was concerned about the unintended consequences of such changes. See ES Section 1.D. The Commission recommends that if the legal context changes or clarifies, the NCAA should remain open to rule changes addressing student-athletes and NIL. But, in the current legal circumstances, the Commission decided to address the charge of exploitation by providing individual student-athletes with access to professional opportunities, and ensuring that the student portion of student-athlete is real. Specifically, the Commission recommends allowing student-athletes with a professional pathway to make the choice to leave college every year, creating resources so that they can make an informed choice whether to do so, welcoming back student-athletes whom the NBA does not draft, making a serious financial commitment to degree completion and severely punishing those who undermine the premise that student-athletes must receive a valuable – not a sham – education.”
Translation: This issue is being litigated right now. We are not going to get in the way of the legal system. If the court decides the NCAA should pay student-athletes for their NILs, then the organization will adjust its rules. For now, however, we recommend no changes.
There is no support for NIL compensation in the text of the report.
Compare that language with her statements to the USA Today, emphasis again added:
“We believe that students ought to be able to benefit from name, image and likeness but you can’t decide a program until you know the legal parameters. That was the point. I think some of the commentary suggested that we didn’t really speak on this issue. I think we did speak on this issue, it’s just that we understand there’s a legal framework that has to be developed first.”
“There is a legal framework that has to be determined, but name, image and likeness –athletes are going to have to be able to benefit from it,” she said. “I think everybody can see that. Exactly what that’s going to look like, I don’t think that we could design it. I don’t think that today the NCAA could design it because the legal framework still has to be developed. But when I see policies that are as confused as the NCAA’s policies on this, I think, ‘Why haven’t you gone and looked at this before?’ It’s really time to come to terms with name, image and likeness.”
“I really stand with the athletes on this. It makes sense for the NCAA to have a legally justifiable framework that works, and currently the framework doesn’t work.”
Translation: The NCAA’s current governance model is inherently flawed and is failing athletes. It is obvious these athletes deserve to be paid for the NILs, which the current framework does not allow for. Once the court dictates the framework for student-athlete compensation, the NCAA needs to pay student-athletes for NIL use.
Taken together: There is a chance Rice’s recommendations were misunderstood, although the language from the committee’s report seems to clearly favor not paying student-athletes until the court battle has been decided. Blame it on bad drafting. There is also a chance that Rice is reacting to being raked over the coals these past two weeks because her committee’s “findings” proposed no meaningful change to the current NCAA governance structure. If you want those changes, look to the Knight Commission. Instead, the commission purposely balked so as to not propose subsequent remedial measures to fairly compensate athletes while the issue is being litigated. Finally, there is a chance that Rice wanted to speak out personally on her individual views and not those of her entire committee.
No matter what the reasoning for breaking her silence, this is another bad look for the NCAA. Two weeks ago, Rice’s committee appeared to endorse the current NCAA model as is. Today, Rice demanded NIL payment once the legal framework is in place and pointed to obvious flaws in the system. Two weeks ago, Mark Emmert fully supported the committee’s recommendations. I wonder how he feels now that these changes apparently include the NIL payment his organization has litigated and so adamantly spoken out against for years, especially because he has so adamantly argue against any sort of compensation for athletes due to the negative effects it will have on the NCAA’s brand of amateur athletics.
Finally, it is important to note that from her comments today, Rice appears convinced the court will rule in favor of the student-athletes seeking payment for their NILs–and she also supports such a change. Her constant use of the term “legal framework” evinces a lack of faith in the NCAA to fix itself, and for good reason, they doubled down on their system in the face of an FBI investigation. Change is coming, and it will be dictated by the courts. Here’s to hoping Judge Wilken decides in favor of the student-athletes this December.