Hey, NCAA: Put Your Money Where Your Mouth Is

Make no mistake, the NCAA’s statement that student-athletes will be able to benefit from their name, image, and likeness instituted no change.  It should be viewed for what it is — a PR stunt to stop momentum generated by legislation that will mandate student-athlete compensation.

Amidst the rising tide of state and national legislation that will require the NCAA to fairly compensate its student-athletes, the NCAA needed to do something.  So it released Tuesday’s statement announcing that its Board of Governors, the highest governing board of the NCAA, “voted unanimously to permit students participating in athletics the opportunity to benefit from the use of their name, image and likeness (“NIL”) in a manner consistent with the collegiate model.”

The statement (which can be read in full here) dictated numerous guideposts that all three of the NCAA’s divisions must follow when implementing their new NIL rules, which must be in place “no later than 2021.”  These guideposts are:

  • Assure student-athletes are treated similarly to non-athlete students unless a compelling reason exists to differentiate.
  • Maintain the priorities of education and the collegiate experience to provide opportunities for student-athlete success.
  • Ensure rules are transparent, focused and enforceable and facilitate fair and balanced competition.
  • Make clear the distinction between collegiate and professional opportunities. 
  • Make clear that compensation for athletics performance or participation is impermissible. 
  • Reaffirm that student-athletes are students first and not employees of the university.
  • Enhance principles of diversity, inclusion and gender equity.
  • Protect the recruiting environment and prohibit inducements to select, remain at, or transfer to a specific institution.

NCAA President Mark Emmert was also quoted in the statement: “the NCAA is uniquely positioned to modify its rules to ensure fairness and a level playing field for student-athletes. The Board’s action creates a path to enhance opportunities for student-athletes while ensuring they compete against students and not professionals.”

Don’t be fooled.

This announcement didn’t actually do anything.  Best said by former NCAA investigator and current founder and executive director of the College Athlete Advocacy Initiative Tim Nevius, it’s “a PR stunt.”

Nevius is spot on.  There is no guarantee that student-athletes will be permitted to receive compensation for their NIL.  Instead, they will be permitted to “benefit.”

Whatever that means.

A deeper dive into the NCAA’s language unfortunately points in the opposite direction of compensation.  Throughout the statement, the NCAA specifies in the language bolded above that its changes regarding NIL benefits will be:

  • “in a manner consistent with the collegiate model,”
  • “[m]ake clear the distinction between collegiate and professional opportunities,”
  • [m]ake clear that compensation for athletics performance or participation is impermissible,” and
  • “ensur[e] [student-athletes] compete against students and not professionals.”

That reads a whole lot like no NIL payment to me.  The current “collegiate model” that has enabled the NCAA to generate over a billion dollars of annual revenue does not include student-athletes being compensated for their NIL.  The consistent difference the NCAA has highlighted “between collegiate and professional opportunities” is the fact that student-athletes are not compensated.

And there are other clues.

The same Board of Governors who “unanimously approved” this initiative was the same Board of Governors that just last month wrote a “unanimous” letter to Governor Gavin Newsom condemning California’s Fair Pay to Play Act: “We urge the state of California to reconsider this harmful and, we believe, unconstitutional bill and hope the state will be a constructive partner in our efforts to develop a fair name, image and likeness approach for all 50 states.”

The NCAA showed its hand for the meaning behind Tuesday’s statement in its September letter to Newsom:

“NCAA member schools already are working on changing rules for all student-athletes to appropriately use their name, image and likeness in accordance with our valuesbut not pay them to play.  The NCAA has consistently stood by its belief that student-athletes are students first, and they should not be employees of the university.”

Where Tuesday’s statement was vague, this language is clear.  Pay for play will not exist in college sports.  And, until the NCAA amends its rules, the courts decide to strip the NCAA of its antitrust protection, or state and/or federal lawmakers enact law forcing such change, it will continue to be the case.

This is not to undercut the importance of the recent momentum gained in the battle for fair pay for play for student-athletes.  The NCAA is scared — and it should be.

In the past two months, state legislators in Colorado, Florida, Georgia, Illinois, Kentucky, Minnesota, Nevada, New York, Pennsylvania and South Carolina all proposed student-athlete NIL compensation legislation.  National legislation was introduced by Congressman Mark Walker (R-N.C.) seeking to eliminate the NCAA’s tax-exempt status if it didn’t allow college athletes to profit off their NIL rights.  And, Gavin Newsom signed the Fair Pay to Play Act into law on LeBron James’ show, Uninterrupted — the biggest step in the process thus far.

Governor Newsom did not understate the significance of California’s new law: “this is going to change college sports for the better by having now the interest, finally, of the athletes, on par with the interests of the institutions. [W]e’re rebalancing that power regimen.”

This rebalancing is going to take time though.  It is going to need more states, more congressmen, more legislation, and potentially the judiciary to confirm its rightful place in our laws.  The NCAA simply has too much to lose by giving up control.  It has fought tooth and nail in every litigation to keep a stronghold on its federal antitrust protection.  Given its multibillion-dollar business model, I find it hard they are willing to give it up so easily.  Their statements these past two months confirm as much.

So, good for you, NCAA.  Tuesday’s statement confirms you recognized the value of your student-athletes — you’ve been realizing that value in your bottom line for decades.  What remains to be seen, however, is how you actually choose to allow the student-athletes to benefit from that value added.  Until that “benefit” includes fair pay for the value the student-athletes bring to their colleges and universities, Tuesday’s statement will simply stand as a desperate, disingenuous act that provided a temporary lull in the face of inevitable change.

Photo Credit: USA Today

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