The NCAA announced Wednesday that one of its innumerable working groups made recommendations to its board of governors that college athletes should be allowed to make money off their name, image and likeness ("NIL"), with certain "guardrails" in place to fend off the "overzealous."
These allowances would not be noteworthy for any person in the United States, save for a college athlete. The ability of every person in the college space to profit off their NIL is a right that is not restricted in any way, with the exception of the collegiate athlete.
These recommendations, which include the ability to earn income from advertisements, are pending approval in January and are a significant departure from NCAA policy and rhetoric. And the NCAA clearly believes it deserves great credit for finally moving in this direction, however slowly, and despite the limitations that are still on the athlete.
Do these "recommendations" go far enough? No. Does the NCAA deserve credit for taking a step in this direction? Yes, if you are the professor who gives partial credit to the student who turns in their paper at least three decades late. If fairness is your guide in answering either question, then it's a resounding no. The NCAA has fought NIL rights at every turn, in court and out.
How late is the NCAA to this party? Well, if you acknowledge that the NCAA has been limiting athletes since its establishment on March 31, 1906, this initial step has been a long time coming. And all in the defense of "amateurism," which NCAA president Mark Emmert has publicly and under oath professed to be the core of college athletics.
Amateurism -- which the International Olympic Committee took out of its own charter in the 1980s -- has never been what the NCAA has purported it to be. Amateurism is said to be for love of the game rather than for monetary benefit from the game, but that has never been true. Before the NCAA was established, amateurism was a mechanism dreamed up by moneyed elites of the Victorian Age, looking to deny participation of the unwashed masses, the working class. In short, if you had a job, you were a pro. "Professionals" were not just those who played a sport for money, but those who were classified as common laborers. Amateurism was simply the upper class wishing not to play against the common man, and to compete only among one another.
The NCAA's codified version of amateurism wasn't much better. It was the NCAA's moneyed elites who didn't want to compete against common people, and common people could not afford to play. The NCAA's original amateurism rules did not allow scholarships to athletes. Of course, that changed as the lack of scholarships negatively affected access of the more selective institutions to the top athletic talent. They either had to evolve or be left behind, so they evolved.
Even as revenues from "amateur" competition skyrocketed, extending to multibillion-dollar media-rights deals that were negotiated and realized upon, the NCAA held firm that athletes should not be allowed one dime from participation in sports. For the NCAA, amateurism has applied to only what the athlete could make, not what the school could make off the athlete. Some athletes were coached by multimillionaires but required to be penniless, and the NCAA spent millions upon millions pursuing various legal avenues to avoid giving the players one cent, or allowing players to earn one cent outside of their school.
Emmert has, quite frankly, sold total nonsense about college athletics since taking his current job in November 2010. Early in his tenure, he stated that compensation to college athletes, including endorsement deals, would never happen on his watch. He said such endorsement deals would turn players into employees of the university, and that the recent California law allowing NIL rights was an "existential threat." He reasoned that athletes wearing shoe company apparel afforded to them via deals made with universities was just like soda brands being poured for students in those same schools' cafeterias. He compared the multibillion-dollar commercialization of college sports to a donor who gave money to endow an academic department, and therefore justified.
And now, after spending millions upon millions of dollars lobbying Congress and in legal fees to keep from having to allow athletes anything more than a scholarship, the NCAA held Wednesday's media call and took a victory lap over considering "recommendations." Not decisions, not rules, but recommendations. And the NCAA has the chutzpah to state and imply it is evolving into this policy about-face because it is about the athlete, and it made a recommendation to move a step closer to fairness.
No, this move toward a regulated and limited foray into NIL for athletes was forced upon the NCAA. Under Emmert's "watch," the NCAA has been found to have violated federal antitrust law, numerous state laws have been passed allowing athletes to make money, and public opinion has shifted under Emmert's feet. He made veiled threats to California lawmakers in 2019, repeatedly asked states to hold off so the NCAA could address the issue (a claim made for decades). But Emmert was way behind the issue he should have been out in front of.
The NCAA's low credibility in the eyes of the public and lawmakers has been earned, but its reputation has never been lower than it is now. The NCAA did not voluntarily move toward allowing players to monetize NIL -- it was dragged into this, kicking and screaming. So instead of a coherent policy, and specific and thoughtful rules implementation of a rather simple thing, the NCAA is playing catch-up with recommendations to a number of states that have actually passed laws.
The remedy for the NCAA going forward should be simple. Since amateurism is literally whatever the NCAA deems it to be at any given time, it's time to remove it from the NCAA constitution and bylaws. Allow college athletes the same economic rights as every other student. That means NO RESTRICTIONS on what players can earn or accept. If the NCAA deems that school officials should not be involved in recruiting, then all restrictions should be on the member school and its employees.
There should be no rules about "overzealous" boosters, who are never referred to as "overzealous" when giving money to the school or school employees (you never hear about "overzealous" donors). Once a player is in school, he or she should be able to earn or accept any compensation without the NCAA's say in the matter. The school should be able to determine whether it wishes to allow the use of its brand or mark in any deal involving a player, including group licensing. The NCAA is in no position to examine or pass upon whether an endorsement deal is fair market value. The only thing the NCAA needs to be concerned with is whether the player is a full-time student in good standing. The rest is up to the athlete and the school. Period.
While Wednesday's news might seem like a capitulation or surrender of the amateur ideal, this is far from over. The NCAA can still choose in January to roll these recommendations back longer, while still asking Congress to bail it out. The NCAA can still take legal action against states, claiming that different state laws make it impossible to hold fair competition, and that it violates the Commerce Clause of the U.S. Constitution. With any allowance of NIL rights to athletes, no matter how restrictive, the NCAA will run a very real risk opening up the O'Bannon ruling for challenge, and all of the NCAA's claims about amateurism, under oath, will come back to haunt it.
Hey NCAA, thanks for the heads-up, but give us a call when some actual legislation is passed. We won't hold our breath.