Yesterday, the NCAA’s top governing board announced, well, not a whole lot, but it’s led to a lot of speculation about the future of athletes likeness rights.
Here’s what happened, what didn’t happen, and what might happen
Did the NCAA just say players can get paid now?
No. The NCAA said they “voted unanimously to permit students participating in athletics the opportunity to benefit from the use of their name, image and likeness in a manner consistent with the collegiate model.” They haven’t said what any of that means in practice. No floodgates have opened, no operational procedures changed, at least for now. If a basketball player takes a check to promote a nightclub on Instagram tomorrow, he’s going to find himself ineligible.
What the NCAA really said is that they agree with the idea of letting athletes monetize their likeness in principle, but it has to be done a very specific way, and now our membership will get together and decide what we want that way to be.”
What kind of policy will college administrators come up with?
It’s hard to conclusively say for sure, but we can safely assume that school leaders will want a much more restricted marketplace than what legislators in California (and other states likely to pass similar legislation, like Florida and Illinois) imagined.
The NCAA issued a few bullet points in their press release that could offer some clues as to their biggest concerns. These include:
Make clear that compensation for athletics performance or participation is impermissible.
Reaffirm that student-athletes are students first and not employees of the university.
Protect the recruiting environment and prohibit inducements to select, remain at, or transfer to a specific institution.
Many school leaders are very concerned about creating a marketplace for third parties to pay athletes to attend a certain school (even though that marketplace already very, very much exists). The NCAA may try to propose rules that would limit NIL marketplace access to enrolled students, rather than recruits, or try to cap the amount of money an athlete could make. A few other insiders have made more specific predictions.
What makes drawing more specific conclusions very difficult is the idea that the NCAA wants these reforms to happen “in a manner consistent with the collegiate model.” The collegiate model, historically, has been whatever the NCAA and member institutions say it is. It used to mean that schools couldn’t give athletic scholarships, until it didn’t. It used to mean that schools couldn’t give out cost of attendance awards, until they could.
If we interpret “collegiate model” to broadly mean “players don’t get paid”, then we’re at an impasse here before we even begin. If we don’t, then well, it means whatever various administrators haggle over. And it’s hard to exactly guess what that will be right now, or if the NCAA’s new definition will be acceptable to lawmakers.
I feel like this sums up where we are the best.
If this isn't a "we have no f___in clue what to do" statement, I don't know what is.. Everybody take a big cleansing breath. Nothing has changed https://t.co/yu3pPaPP7q— Bill Wilson, Esq (@brewonsouthu) October 29, 2019
Isn’t this all going to end up in the courts anyway?
The action taken by California likely is unconstitutional, and the actions proposed by other states make clear the harmful impact of disparate sets of state laws. The NCAA is closely monitoring the approaches taken by state governments and the U.S. Congress and is considering all potential next steps.
I interviewed Len Simon, a lawyer and law professor who was involved in creating SB 206, for my newsletter, Extra Points. He said the he thought a lawsuit over SB 206 “would be premature..but people should always plan. It is certainly possible that the NCAA would eventually sue, either over California’s law, or a future law that another state could pass.
Virtually every athletic director I’ve seen quoted, as well as those in high NCAA leadership positions, have been adamant that they do not want different state by state regulations.
I believe that some national policy is the most likely formal outcome, whether that is created by the courts, the federal government, the NCAA, or some haggling between all three parties.
Why is the NCAA so hell-bent on slowing this down? What’s the big deal?
Let’s pretend you’re a big time booster that wants your alma mater to be good at sports. Right now, unless you become a bagman, the best way to do that is to donate to your alma mater’s athletic department, who can use that money to pay for administrators, coaches, facilities, and other ways to indirectly benefit athletes.
With an open NIL marketplace, some schools are afraid they might lose donations, because boosters could more effectively give money directly to athletes. At Extra Points, I spoke to an NYU business professor about this scenario, and while there may be ways to mitigate it, it could be possible.
There’s also the possibility that more liberalized NIL markets could undermine the NCAA’s legal arguments elsewhere. From Patrick Hruby’s (excellent) newsletter:
Second, antitrust lawsuits seeking to overturn amateurism brought by current and former college athletes against the NCAA in federal court have hit a stumbling block: the association has argued that it should be allowed to limit athlete compensation for the sake of education, and despite a compete and total lack of supporting evidence for that position, appellate court judges have agreed.
If college athletes are allowed unrestricted access to the NIL market — and the world keeps spinning without a bunch of them suddenly flunking out of school — then the NCAA will have a much harder time making the same bogus argument when the next antitrust suit goes to trial.
That would be way worse for the NCAA than a linebacker getting a slightly too large check to be in a car commercial somewhere.
Oh yeah, what is the federal government going to do?
We clearly have the NCAA’s attention. Now, we need to have their action. While their words are promising, they have used words in the past to deny equity and basic constitutional rights for student-athletes. The NCAA is on the clock, and while they are, we’re going to keep working towards the passage of the Student-Athlete Equity Act to make sure their words are forced into action.”
US senators Mitt Romney (R-Utah) and Chris Murphy (D-CT) have also shown heavy interest in changing the NCAA status quo on NIL. Among presidential candidates, Cory Booker announced an even more ambitious plan for NCAA regulation, and Bernie Sanders has been supportive as well. So the issue certainly has the interest of federal politicians from all political persuasions, and could render arguments about state level legislation moot.
After the announcement, another US senator announced a very bad idea that he probably didn’t think through very much.
What’s the TL;DR here?
This is not the end point of the conversation. It’s not where you plan the victory parade or begin the sackcloth and ashes lamentations. It’s the start of a complicated negotiation, one that is only happening because politicians finally forced the issue. School leaders will try to push for as tiny and regulated marketplace as possible, while activists, lawyers and lawmakers will push for more wide-open ones. And in a few years, one way or another, athletes will be able to profit, on some level, from their own likeness.
The only major, obvious winner from yesterday? The only truly undefeated thing in college athletics.