Since the NCAA lifted its ban on college athlete likeness compensation, many have waited for regulations set by the NCAA to assure uniform enforcement. However, recent comments from Mark Emmert, President of the National Collegiate Athletic Association (“NCAA”), demonstrate the NCAA’s scramble to remain relevant.
History on Governance of Economic Issues under the NCAA
Before digging into the comments made by Mr. Emmert, it is important to recount the original intent and purposes of the NCAA and how the player compensation issue has evolved.
The NCAA was founded in 1906 to regulate the rules of college sports and to protect young athletes. In 1951, the NCAA elected its first executive director, Walter Byers, as the necessity of full-time professional leadership became apparent. Mr. Byers contributed to strengthening the NCAA and its enforcement division. Id. As college athletics gained traction, institutions began to invest more resources into their sports programs as entities embedded in their educational enterprises. Id. The growing popularity of college sports ultimately led to the NCAA negotiating its first television contract in September of 1952. The NCAA sold its exclusive rights to broadcast a weekly game to NBC. This contract was slightly over $1,000,000.
As college sports became more and more commercialized, many began to critique the NCAA’s enforcement and handling of television rights and its distribution of monies earned. Eventually, this tension point came to a head in NCAA v. Board of Regents, where the Supreme Court applied the rule of reason analysis to the NCAA’s restriction upon colleges pursuing independent television deals. Although the Court ruled, in a 5-4 decision, that the NCAA’s restriction was a horizontal restraint of trade and therefore unreasonable as a matter of law, the Court applied a rule of reason analysis that would be the basis for the NCAA’s justifications for years to come. In turn, the NCAA would rely on the concept of preserving amateurism as its justification for enforcing many of its restrictions. Id.
One of those restrictions, of course, had been the prohibition of player compensation. While the NCAA blossomed into a billion-dollar sports entity, primarily due to its various broadcasting deals, college athletes were not allowed compensation for their status as NCAA athletes in any way. However, due to technological advancement and the relatively recent introduction of social media platforms, the NCAA’s restriction against player compensation was becoming archaic and obsolete.
The NCAA’s reliance on preserving amateurism and its pro-competitive justifications for restricting player compensation demonstrated its decay initially in O’Bannon v. NCAA (Ninth Circuit 2014). There, Ed O’Bannon successfully sued the NCAA over its restriction on a student-athlete’s ability to receive compensation for his likeness. Ultimately, this led to the removal of the NCAA’s restriction upon scholarship up to the full cost of attendance at institutions. Id.
Furthermore, the NCAA’s amateurism model was exposed again in 2015. Id. In an unsuccessful attempt to unionize, Northwestern football players publicly illustrated the growing concerns of a very lucrative sports enterprise (NCAA) mistreating its “employees”. Id. There, the players from Northwestern illustrated the extreme work environment that included 60 hours a week of mandated football activities. Meshed into these intense workweeks were requirements that players maintain good academic standing as full-time students while at an elite academic research institution. Id.
The NCAA’s reliance on the preservation of amateurism finally dissolved in June of 2021. In Alston v. NCAA, the Supreme Court issued a unanimous decision that prohibited the NCAA from restricting academic related compensation for college athletes. Further, in a concurring opinion, Justice Kavanaugh emphasized that the “NCAA is not above the law.” This decision ignited the new-age of college sports: player compensation. While many anticipated this outcome, it appears that the NCAA did not. Furthermore, it appears that the NCAA had no interest in regulating the rules in college sports while protecting young athletes under a player compensation model.
The lack of direction from the NCAA has resulted in a scramble amongst states and their institutions. Currently, more than half the states in the country have player compensation legislation. The other half is either silent or has pending legislation. Furthermore, institutions in states that have not have enacted player compensation legislation have implemented their own such regulations.
Comments From the Final Four
Coach K’s Frustration
Many, including the iconic Duke Basketball Coach Mike Krzyzewski (“Coach K”), are concerned. During a media event ahead of Duke’s Final Four game vs. North Carolina, Coach K expressed his frustration:
“I don’t understand. I’m getting out of it. It’s crazy to me […] [t]he structure we have now does not work […] [t]his is a time not to look at nits and bits. It’s a time to look at the whole thing. I think we’re all frustrated. And that’s good because if you’re frustrated it means then all constituents want change.”
Furthermore, Coach K shared some of the questions that he would have for Mr. Emmert:
“I think the very first one is, where are we going? And who is going to be in charge?” Krzyzewski said. “Not that I’m saying that he shouldn’t be. But what are we doing? What are we doing to make sure we’re taking care of all divisions that are under your roof — men, women, all sports, those that make money and those that just make men and women out of people. And probably that’s more important than the other, but you have to do that. So there’s balance. And we’re understanding that everyone cannot be treated the same. That doesn’t mean that everyone’s not treated fairly. And it’s a new day that should have been a new day decades ago. So we’ve got a lot to make up for.”
State of the NCAA
Mr. Emmert followed Coach K in his media availability on March 31, 2022. There, he discussed the state of the NCAA. Although the NCAA had no problem enforcing its regulations under an amateur model, it appears now that the NCAA has no interest in implementing and enforcing regulations under a player compensation model. Instead, it appears to be trying to put the responsibility on the institutions and Congress.
“The Schools Have Always Been in Charge”
- “We’re at a place of huge disjuncture around college sports,”
- “We’ve got a relatively, in my opinion, short window of time during which the schools, especially in Division I, need to decide what they want the relationship [with] student-athletes and their schools to be,” “what the governance structure around that can be in the current legal environment, and how the rules and structures at a national level, a divisional level, at a conference level could and should be made.” Id.
- “We need to be ready, willing and able to shift and shift in dramatic ways,” “Collectively, we’ve gotta sit down and map out what we want to do.” Id.
- “Who is in charge is the same group that’s always been in charge. And that’s the schools,” “There’s an enormous amount of misunderstanding about what the NCAA is. People speak of the NCAA as if it’s some monolithic entity. It’s not. It’s 1,100 schools that come together and make decisions in a collaborative, representative democracy. Those schools always have been in charge and those schools will be in charge moving forward.”
“We Need to work with Congress to Create One Federal Landscape“
- “It is unfortunately a circumstance where we’ve got now 30-plus different states with different laws,”
- “We need to work with Congress to create one federal landscape. We’ve had a variety of legal actions in the courts with all of that.”
- “That supersedes the board’s ability … We have got to have Congress find a single legal model by which NIL and other relationships with student-athletes can be regulated. That’s going to be a big task.” Id.
- “We’ve got a relatively short window of time in my estimate — one or two years these decisions have to be made because of the dynamics that are underway right now […] The legal landscape as it exists today simply will not support and sustain the way college sports is conducted today,”
These comments, both individually and collectively, demonstrate that the NCAA has no interest in solely regulating college sports and protecting young athletes under a player compensation model. Perhaps this is reasonable because of various state laws’ impact. Nonetheless, one must wonder if the NCAA’s reactionary approach to the player compensation model will place them at an insurmountable disadvantage. By putting the responsibility on the institutions to interpret their relationships and roles with college athletes and seeking assistance from Congress for enforcement, what then is left for the NCAA? Only time will tell.
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