NCAA creates NIL problems by clinging to dying ‘amateur’ model

University of Georgia President Jere Morehead said the NCAA’s Division I board of directors has "to be cautious and careful because of litigation and potential litigation around any rules that the NCAA sets at a national level.” (AP Photo / Athens Banner-Herald, AJ Reynolds)

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University of Georgia President Jere Morehead said the NCAA’s Division I board of directors has "to be cautious and careful because of litigation and potential litigation around any rules that the NCAA sets at a national level.” (AP Photo / Athens Banner-Herald, AJ Reynolds)

There are easy, legal solutions to the alleged problems that college sports leaders cite with athletes profiting from their name, image and likeness. All they need to do is admit that athletes are employees and deal with them as such. Just abandon the “amateur” model that’s enriched coaches and administrators at the expense of athletes for a new system that pays the labor fair market value. College athletes were long forbidden by NCAA rules from receiving compensation for endorsements, autographs and the like, or from using their “name, image and likeness” (NIL) in any way to earn profits.

The NCAA’s muckety-mucks won’t implement those fixes, of course, because it would cost them money. Keep that in mind when you see college sports leaders wringing their hands about the supposed Wild West of NIL. They could bring order by treating athletes as workers, which everyone can see they are. They could negotiate the rules around NIL and other issues.

Instead, the NCAA mostly is interested in making sure everyone in the system except the student workers get a cut of the billions in revenue generated by their labor and marketing value. How else to explain college leaders digging in even as the college sports model’s slow death accelerates with legal defeats and shifting public attitudes?

No doubt, the NCAA would like to unilaterally put a cap on how much compensation athletes can earn from NIL. If the issue goes to litigation, then just cite the “amateur model” as sacrosanct. For decades, judges have bought that argument while allowing for-profit sports programs to engage in otherwise illegal, anti-competitive behavior. But that old, reliable strategy isn’t such a sure thing anymore.

The Supreme Court signaled skepticism about the NCAA’s cartel system while ruling against the organization in a case last June. Now college sports leaders who’ve kicked the can on athlete compensation have no idea what to do except make impotent pleas to Congress for help. Not being able to rely on the courts to rule in their favor has NCAA members being cautious about becoming too heavy-handed with NIL regulations.

“We have, I think, a high level of urgency to review that issue,” University of Georgia President Jere Morehead, chair of the NCAA’s Division I board of directors, told reporters, including AJC beat writer Chip Towers, recently. “But we also have to be cautious and careful because of litigation and potential litigation around any rules that the NCAA sets at a national level.”

Morehead expressed “serious concerns about where NIL has progressed” since the court forced the NCAA to allow athletes the right to profit. The progression is that some athletes are making money for endorsements. Most of the deals are modest. The panic among NCAA leaders is that NIL compensation might in any way be tied to their work as athletes.

It obviously is connected, and that’s as it should be. But players earning market value represents an existential threat to college coaches and administrators who are paid from the same pot of money. Boosters who donate to schools might instead decide that their money is better spent with one of the collectives that are pooling money for NIL deals for athletes.

The panicked scrambling by the NCAA to do something about NIL is a predictable, delightful outcome. Schools finally are getting some comeuppance for refusing to accept the writing on the wall. They are desperately trying to hang on to a definition of “amateurism” that few disinterested parties buy anymore. That includes even those Supreme Court justices who are ideologically aligned with business interests and hostile to labor.

The justices unanimously ruled in NCAA v. Alston that schools can’t collectively place restrictions on non-cash compensation for purposes related to education. The case didn’t directly address NIL. But Justice Neil Gorsuch, writing for the majority, threw shade on the NCAA’s entire legal rationale for limiting what athletes can be paid.

The court left intact the NCAA’s prohibition against “pay-for-play.” That’s the propaganda term used by the NCAA to make athletes being paid for their work sound like a shady, corrupt practice. However, Gorsuch signaled that justices are skeptical of the arguments that had largely worked for the NCAA with SCOTUS since 1984.

College sports leaders who want to limit athletes’ compensation will have a harder time citing the perils of “pay-for-play” as justification. They’ll have to come up with something other than their unsupported claim that the business of college sports can’t survive if athletes aren’t exploited. Morehead and his colleagues could look to Justice Brett Kavanaugh’s concurring opinion in Alston if they are looking for ways to limit NIL compensation without ending up on the wrong side of another lawsuit.

The problem, again, is they don’t like what they see.

Kavanaugh eviscerated the NCAA’s business model. He noted that it suppresses the pay of “athletes who collectively generate billions of dollars in revenues for colleges every year” while six- and seven-figure salaries are paid to school presidents, athletics directors, coaches, conference commissioners and NCAA executives. In Kavanaugh’s view, it’s legally questionable whether the NCAA can continue to “justify not paying student athletes a fair share of the revenues on the circular theory that the defining characteristic of college sports is that the colleges do not pay student athletes.”

Kavanaugh wrote that if it’s later found that all or some of the NCAA’s rules violate antitrust laws, then it could seek relief from lawmakers. That’s the route college sports leaders are taking now. They are hoping for a payoff on the millions of dollars they’ve spent lobbying Congress since it became clear that the NCAA model is in legal peril.

I doubt they get far with that strategy. Public opinion has turned squarely against the NCAA on this issue. There’s just no political advantage for members of Congress to do the NCAA’s bidding on this issue.

A Marist Poll released last week found that 74% of adults support college athletes earning money via NIL. About half of sports fans, and 46% of all adults, say colleges should pay athletes directly. After years of resistance to paying athletes, the public is rapidly changing its attitude as more people see that the NCAA’s claims about amateurism are a sham.

Kavanaugh offered another way for NCAA schools to compensate athletes should their model end up collapsing under the weight of the law. They could “potentially engage in collective bargaining (or seek some other negotiated agreement) to provide student athletes a fairer share of the revenues that they generate for their colleges, akin to how professional football and basketball players have negotiated for a share of league revenues.”

NCAA leaders will never go there on their own. They predictably dismissed Kavanaugh’s warnings at the time of the ruling.

“The notable thing is that eight other justices did not agree with that and wouldn’t sign on to it,” Jeffrey Mishkin, an outside lawyer for the NCAA, told USA Today. “So I don’t think that you can make very much of that concurrence.”

Concurring opinions are not binding and don’t have the weight of legal precedence. But Kavanaugh was sending an explicit signal to NCAA officials of potential legal trouble ahead if they keep trying to push the limits of antitrust laws.

It’s a warning that college sports leaders will continue to ignore. A radical reform of the system would benefit athletes, which is what the NCAA claims is its primary purpose. Changing the status quo is counter to the financial self-interest of the people with power. You’ll have to pry the “amateur model” from their cold, dead fingers as they clutch the money stolen from athletes.

If NIL has become a problem for college sports leaders, then that’s the reason why. It’s their own fault for being so myopic and greedy.