Hey, NCAA: It’s Time to Listen

March Madness 2021 has empowered the group with the most power to impact immediate and lasting change to the NCAA’s amateurism model–the athletes.

If the start of this year’s men’s and women’s basketball championships is indicative of what’s to come in 2021 for the NCAA, it should be scared. While the NCAA has faced legitimate challenges in the past, it now has a vocal adversary from the most intimidating group yet–its athletes. In previous years athletes have largely remained silent, especially during March Madness, but this year is different. The athletes are speaking up, and the nation is listening.

This criticism comes at a crucial juncture for the NCAA as its amateurism model is in jeopardy at the Supreme Court, in state legislatures, in Congress, and in the court of public opinion. The athletes’ criticism could be the final straw that brings an end to the NCAA’s existing structure in favor of a more fair and equitable model for all parties involved.


“Old” Threats

In 1984, the Supreme Court declared that the NCAA deserved enormous protection under federal antitrust law because it “plays a critical role in the maintenance of a revered tradition of amateurism in college sports,”  NCAA v. Board of Regents of Univ. of Okla., 468 U.S. 85, 120 (1984). The NCAA used this language to create a multi-billion dollar amateur sports monopoly at the expense of a free labor force, while relishing its position as the last bastion of amateur athletics in the United States.

The decades subsequent to Board of Regents, however, proved that the NCAA wasn’t doing much maintenance. As a result, threats to the model, especially with respect to the NCAA’s restrictions on athletes’ use of their names, images, and likenesses (NIL), began to surface.

The first challenges came in the courts. In 2014 ex-UCLA basketball star Ed O’Bannon attacked the NCAA’s antitrust deference in O’Bannon v. NCAA. This case was the first victory in the fight for student-athlete rights, as Judge Wilken of the Northern District of California ruled that the NCAA’s arbitrary rules barring payments to athletes violated federal antitrust law, calling into question the reasoning of Board of Regents in light of the new billion-dollar industry the case created. While the decision was ultimately tempered by the Ninth Circuit on appeal, it led to the current challenge, Alston v. NCAA, which directly attacks the legality of the NCAA’s ban on student-athlete compensation limits. The Supreme Court will hear argument on this case at the end of this month.

Next came the FBI. In 2018, an investigation into NCAA basketball revealed five and six-figure cash payments to recruits funded by shoe companies in order to secure commitments. Multiple shoe executives, along with four Division I assistant coaches, were indicted on federal charges of wire fraud, bribery, travel act, and conspiracy offenses. There was also Operation Varsity Blues, where the FBI uncovered Division I coaches using designated roster spots to help secure admissions to prestigious institutions for recruits who would never participate in a minute of athletics, in exchange for sizable donations to the program (or the coach’s bank account).

Then, lawmakers got involved. Starting in Fall of 2019, a wave of legislation was either introduced or passed in numerous state legislatures around the country that will make NIL payment legal in the coming years. Senator Chris Murphy introduced a similar bill to the Senate in February 2021 entitled the “College Athlete Freedom Act,” which seeks to permit athletes to earn money off their NILs, enable athletes to organize under shared representation, and provide enforcement mechanisms if the NCAA were to attempt to prevent such activity.

In October of 2019, the NCAA needed to do something, so it released a statement announcing that its Board of Governors “voted unanimously to permit students participating in athletics the opportunity to benefit from the use of their [NIL] in a manner consistent with the collegiate model.” Critics called this a “PR stunt” knowing full well the NCAA had no intention of instituting such massive change. The NCAA proved the critics right when it announced that it would not meet its self-imposed deadline of January 2021 to introduce such legislation.


A New and Very Real Threat

In truth, the NCAA needed March Madness 2021 to save face and its bottom line. Not only did it face the aforementioned threats, but in 12 months since last year’s tournament was cancelled, 352 programs were cut across the NCAA’s three divisions due to major revenue losses. The NCAA was limping into March with the hopes that the Big Dance would save college sports.

Yet it sought to do so using a model that lacked integrity, ignoring the weight it put on the individuals responsible for making the Big Dance happen–the athletes. The tournament this year was a rescue operation, for which the players were the frontline personnel expected to serve at great risk to their health. Throughout the 2020-21 season, when their fellow students weren’t even allowed on campus, men’s and women’s basketball players endured huge restrictions on their daily lives to ensure NCAA basketball was played. The NCAA assumed the risk on behalf of its athletes, and the players were asked (read: “told”) to put their health at risk for the good of the organization. And they did.

The NCAA likely didn’t anticipate that this tactic would prove to the players their immense value, let alone that they would speak up about it. While the NCAA was used to sharp comments from ex-players, lawyers, legislators, and journalists, eligible college athletes remained largely silent in their criticism of the organization (but see the Northwestern football team’s attempt to unionize in 2014). Now, not only were featured tournament players speaking up, they were doing it when the world was watching.

It started on the Wednesday before the tournament’s play-in games. Led by Rutgers senior guard Geo Baker, a number of men’s basketball players took to Twitter to criticize the inequities in the NCAA’s system with so much riding on the tournament and so little given to the athletes:

Baker is undeniably right.

The goal of the NCAA’s amateurism legislation is to ensure that its athletes are treated no differently than other students. Unfortunately, the “improper benefits” the NCAA seeks to prevent through these bylaws hamstring athletes to the point that they have less opportunity than their peers. NCAA athletes are the only individuals on campus who are forced to abide by a set of rules that restrict their abilities to use their skillsets (in this case their elite athletic talent) to earn extra income. Add on the hours spent (read: “required”) on practice, recovery, and non-sanctioned team activities, the only academic part of a college athlete’s experience is going to class (if it fits in their schedule). Seen this way, they aren’t really students at all.

This is not lost on Baker: “They’re going to the ends of the earth to make sure that this tournament gets completed. We’re being treated as essential workers. Why are we not making any money from it? . . . We sacrificed more than any other group of college athletes in the history of college sports have. What we’re doing just to make sure they have a college season is crazy when you really think about it — but what are we really doing it for?”

The NCAA’s bottom line, of course.

But this was just the beginning.

The following day, Oregon redshirt sophomore forward Sedona Prince revealed massive disparities in the treatment of women’s basketball players compared to their male counterparts on a series of TikTok videos:

@sedonerrr

it’s 2021 and we are still fighting for bits and pieces of equality. #ncaa #inequality #fightforchange

♬ original sound – Sedona Prince
Talk about a bad look. For an organization that prides itself on providing opportunity to hundreds of thousands of athletes and protecting “competitive equity” across divisions, you would think the NCAA would at least consider giving women’s basketball players one squat rack. Instead, they got diddly squat.

In “Hey, NCAA: This Looks Bad . . . Really Bad,” UB Law Sports Forum contributor and former NCAA athlete Emma Powlin makes clear why this is so egregious: “Women’s sports in general have always been seen as lesser, not as important, or not as exciting. When the highest–and most profitable–collegiate athletic association does something that essentially reinforces that belief, that’s hard to swallow. The NCAA has faced much backlash across the country, especially from professional athletes and industry influencers condemning its efforts as unacceptable and disrespectful. Even though that support is heard and appreciated, it still doesn’t change the fact that we as a society have a long way to go to reach ‘true equality’ in men’s and women’s sports.”

Emma nailed it. The significance of this issue isn’t just the lack of equipment or food quality–but the lack of respect. The NCAA constantly speaks of how the College Football Playoff and March Madness help support all of the other sports that fall under its umbrella. The weight room proves that this, like so many other of the NCAA’s promises over the years, is just lip service.

Finally, on Saturday, Ohio State’s E.J. Liddell took to Twitter to show just how different he, and his fellow athletes are from your average student. Lidell’s Tweets showcased a series of direct messages he received containing both insults and death threats stemming from Ohio State’s first round upset loss to fifteen seed, Oral Roberts University.

Sure, this is an egregious example, but it doesn’t take away from the fact that these are the pressures to which NCAA exposes its athletes. Liddell is supposedly a student in the eyes of the NCAA, and yet he’s getting death threats because he missed a shot in a basketball game. This is the byproduct and an unfortunate reality of the NCAA’s model, which seeks to squeeze as much revenue out of its athletes during this March month. Thanks to Liddell’s courage, it’s on display for everyone to see.


TIME TO LISTEN

The NCAA has remained steadfast in its commitment to its amateurism model in the courts, in the media, and in lobbying Congress. That is unlikely to change because, to date, its ability to push off NIL payments has been largely successful. Just look at how the organization leaned on 98-year-old Catholic nun to prove its model was uncorrupted despite reports that Deandre Ayton received a $100,000 payment to commit to Arizona just weeks prior to the Dance. The sweetheart of the 2018 NCAA tournament, Sister Jean stood for everything that was right and just about college sports. She proudly donned her Gryffindor-esque scarf and Loyola jacket, led the team in prayer before each game, and even confessed she picked her team to lose in the Sweet 16 (Loyola made the Final Four that year). She was the hero the NCAA needed, albeit not the one it deserved.

Sister Jean (now 101) is back in the tournament with her Loyola squad and she is yet again a prominent feature on the camera and the NCAA’s social media:

I’m happy to see her again. (Her bobblehead, a gift from my mentor, sits on my desk: a symbol of both the irony of the NCAA’s “amateurism” model and the pride Cinderella schools like my alma mater take in their teams), but her time for saving the NCAA is long past. Especially this year, the NCAA has made abundantly clear that it is committed to revenue and revenue alone, all at the expense of the athletes that Sister Jean so dearly loves.

Unfortunately for the NCAA, the athletes aren’t willing to be quiet any longer. They want their share, and they’re making a strong case for it with players like Baker and Prince demanding change the way they have. The attention they have received in the past four days is staggering. National media are interviewing players about NIL legislation and their desire to be justly compensated. Dick’s Sporting Goods offered to fix the NCAA’s mistake by providing gym equipment to the women’s basketball bubble.

Instead, the NCAA remedied the problem itself, showcased again by Sedona Prince:

Sedona is right. Never before have athletes been more empowered than they are right now. Social media is powerful. It is a weapon for equality, and this generation of athletes knows how to harness its power. Also, what better way to show the power and potential of NIL than athletes using their NIL to demand change?

This year’s tournament has forced the inherent hypocrisy of the NCAA’s NIL restrictions and amateurism bylaws into view for the world to see. The NCAA has pushed forward with the tournament, attempting to secure its bottom line, no matter what carnage occurs. As of the time of this article, it was just reported that VCU was forced to forfeit its game against Oregon due to multiple positive COVID-19 tests.

COVID and heartbreak–what a combination.

Most importantly, however, it is the athletes who have pushed these issue to the forefront, shifting the power dynamic in their direction for the first time. If the NCAA wants you to turn a blind eye for the sake of saving its model in the name of pure amateurism, the athletes are going to force you to take a hard look to understand that this argument is a sham. They want the world to pay attention and they’re ensuring that decision-makers beyond the NCAA (i.e. state legislatures, Congress, and the Supreme Court) know they are not complicit in this enterprise.

Sedona said it right: “Social media is powerful.” And thus while the NCAA may be able to restrict athletes’ ability to monetize their NILs (for now), it can’t suppress their freedom to use these NILs to speak out and institute lasting, meaningful reform to its monopoly on amateur sports.

Hey, NCAA. . . Excuse me. Hey, EVERYONE–it’s time to start listening.

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Attorney. University at Buffalo School of Law alum. Former legal intern and hitting partner at the US Open. Former Division I athlete and assistant coach at Davidson College.

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