Category Archives: Political Wankery

More of the same

One other interesting thing this morning (at least I think it’s interesting):

If the NCAA and conferences were truly honest about their complaint regarding different jurisdictions with different NIL compensation laws (I know, I know), they’d embrace this effort as a means of leveling the legislative landscape.  But we all know the real reason they want Congress to manage this is because they believe it’s their only faint chance for an antitrust exemption.

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No football program left behind

If it strikes you as being a little bizarre that the NCAA’s retreat from any meaningful enforcement of players’ rights to NIL compensation makes it likely that football programs in states with NIL laws may turn out to be disadvantaged from a recruiting standpoint from those in states without… well, you’re not alone.

It’s an aggression that cannot stand, man.

Wanna bet said aide is in a state with an SEC school?

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Your post-Alston primer

I saw a lot of apprehension based on misconception in yesterday’s comment thread about the SCOTUS’ Alston decision, so I thought I’d devote a post to what the case means now and where it might lead to.

First, it’s important to note what the decision is exactly about.

The Supreme Court handed down a heavily caveated victory for elite college athletes on Monday. The immediate impact of the Court’s unanimous decision in National Collegiate Athletic Association v. Alston is that many elite student-athletes will receive additional education-related compensations, such as additional scholarship money.

To make it even more limited, that amount was capped by the trial judge at $5900 per athlete, per year.  To give you some perspective on the impact of that amount, try this.

Now, before you cry out “but what about the schools that can’t afford to pay that?”, keep in mind that this isn’t a mandate.  The relief sought by the plaintiffs was simply to prevent the NCAA from imposing limits on education-related benefits athletes can receive for playing college sports (and, as you can see, there is still a financial limit in play).  To put it in other words,

It’s a free market, competitive adjustment.  And it’s specifically tailored to education benefits.  That’s what Alston means in the immediate sense.

That being said, it’s also true there’s a bigger impact from it than just those particular benefits.  The NCAA got smacked in the face, hard, about its belief that it was immune from antitrust law.  As Gorsuch put it in the court’s unanimous ruling,

… to the extent that the NCAA “means to propose a sort of judicially ordained immunity from the terms of (antitrust law) for its restraints of trade—that we should overlook its restrictions because they happen to fall at the intersection of higher education, sports, and money—we cannot agree.”

In other words, the SCOTUS told the NCAA that if it and the schools want antitrust immunity, seek it from Congress, not the courts.  The NCAA’s problem is that right now, it’s naked.

Now, a lot of attention is being paid to Kavanaugh’s stinging concurrence.

In a concurring opinion, Justice Brett M. Kavanaugh wrote: ” … there are serious questions whether the NCAA’s remaining compensation rules can pass muster under ordinary” antitrust legal analysis. Kavanaugh added that the NCAA “must supply a legally valid” justification that “its remaining compensation rules” have sufficient value to promoting competitive balance and that the benefits outweigh the harm being done to the athletes.

“As I see it, however, the NCAA may lack such a justification,” Kavanaugh wrote.

The NCAA and its attorneys have tried yawning past that.

It’s like force of habit for them.  And, sure, it’s not like they have much else they could say, but while Kavanaugh’s opinion doesn’t have the weight of a full court ruling behind it, it’s certainly a warning about the road the NCAA takes from here.

The lower courts struck down the NCAA’s limits on education-related compensation for athletes, but left in place other limits on compensation — and the Supreme Court upheld this baby-splitting result in Alston.

But, as Gorsuch notes in his opinion, a major reason why the Supreme Court did not go further is that the plaintiffs did not ask them to do so. As he writes, “the student athletes [did] not renew their across-the-board challenge to the NCAA’s compensation restrictions” when their case reached the Supreme Court.

Although the full Court did not weigh in on whether elite student-athletes should be entitled to more compensation than the Alston opinion requires, Justice Brett Kavanaugh wrote a separate concurring opinion where he argues that “the NCAA’s remaining compensation rules also raise serious questions under the antitrust laws.”

As Kavanaugh writes, “the NCAA’s business model would be flatly illegal in almost any other industry in America.” Among other things, the NCAA “controls the market for college athletes;” it “concedes that its compensation rules set the price of student athlete labor at a below-market rate”; and it “recognizes that student athletes currently have no meaningful ability to negotiate with the NCAA over the compensation rules.”

That’s exactly the sort of iron grip over pricing that antitrust laws are supposed to prevent.

It remains to be seen whether Kavanaugh’s opinion will someday become the law, but it will likely signal to student-athletes that they should consider filing a new lawsuit challenging the NCAA’s remaining restrictions on compensation.

Given the NCAA’s track record in such litigation…

… you’d think that would freak the membership out.  It also presents an opportunity for them to get their heads out of their collective ass.  (History defying as that may be, I know.)

Will they take it?  College athletes’ NIL compensation presents an immediate test.  Early results are muddy.

… A group of six conference commissioners, three from the Power 5, are encouraging the DI Council to scrap its long-readied NIL proposal and instead adopt an alternative plan. Under the plan, the NCAA would exempt itself from NIL completely. Schools in states with an NIL law may follow that law without penalty, and schools located in states without a statute are granted permission to each create and administer their own NIL policy, as long as they use two guiding principles: no pay for play or recruiting inducements.

The latest revelation has further delayed the long-awaited NIL vote and hurtled high-level administrators into a space of disagreement during the 11th hour of a process that began two years ago.

“In hindsight, I’m saying ‘S—, why didn’t we act on this in January?’” says one NCAA decision-maker. “We’ve done it to ourselves. Everybody has their own agenda. If we come out of this without doing anything, we are dysfunctional.”

“What a mess,” says another, both granted anonymity to speak with SI. “That’s exactly the right term. It’s a mess. If it doesn’t pass, you’ve got chaos.”

To summarize,

“This decision not only puts at risk any new legislation that might be put forward on NIL, but it puts at risk all restrictions the NCAA has on athlete compensation,” says Gabe Feldman, a Tulane law professor and expert on NIL matters.

The NCAA’s long-constructed NIL legislative proposal is rife with athlete restrictions. Most notably, the proposal prohibits athletes from using school marks and logos in endorsements, outlaws them from using school facilities for NIL activities and bans them from using university-provided content in NIL ventures.

“I don’t know how you can read the Supreme Court decision and not be concerned about being overly restrictive,” says one member of the DI Council. “It should cause everybody to take a deep breath. The proposal establishes restrictions.”

Or, if you prefer the tl;dr version:

“It feels like the NCAA is between three rocks and four hard places,” Feldman says. “There are so many forces closing in on them.”

It’s a mess of their own making.  Alston took seven years to resolve!  Mark Emmert’s had plenty of time to settle for something the schools could have lived with and it likely would have been less than it’s going to take to settle now.  Congress may not be populated with a bunch of rocket scientists, but one thing you can say about most politicians is that they know how to leverage a favorable situation.

Sen. Maria Cantwell, as the chair of the Commerce Committee, the most powerful lawmaker in the NIL debate, says the court’s decision “gives new urgency” to negotiations. Sen. Richard Blumenthal, at the center of negotiations, told SI that the ruling is “a gigantic kick in the butt” for congressional talks and that it’s possible an agreement can be reached by the time lawmakers break for August recess.

“It clears away the myth of amateurism,” he says. “Unanimous Supreme Court decisions are rare, particularly for this court. There will be additional force as a result of this one. ‘Force’ meaning not only legal persuasiveness, but also practical support for athletes rights.”

The NCAA is going to have to sue for terms.  They’re likely to get some form of an antitrust exemption, but they’re going to have to give up quite a bit to get it.  What they’d best hope is that they’re not playing the role of Germany in the Versailles Treaty.

Needless to say, this still has a long way to go from here.

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Filed under Political Wankery, See You In Court, The NCAA

NCAA delenda est.

If you want to know how badly the NCAA has screwed the pooch on player compensation, well…

Yep.  There apparently is a Congressional consensus to give them a limited antitrust exemption in the context of coming up with a global solution on treatment of college athletes and the NCAA is either too stubborn or too stupid to take the outreached hand and work something out in the name of future stability.

The NCAA deserves to have itself burned to the ground and the earth salted in its absence.

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Forget it, Mark. It’s Washington.

Let’s see… the NCAA’s got two weeks to get Congress to pass a bill for the POTUS to sign into law overriding the states’ intrusion into college athletes’ NIL compensation.  How’s that going, anyway?

Er…

The faint hope that Congress would pass a bill by July 1 to govern athlete compensation died long ago. Now, the hope that such legislation will get passed by the end of the calendar year is dwindling, too.

Notable Republican senators are not expected to participate in the latest Senate hearing Thursday over athlete compensation, a strong signal of the growing divide between the two sides over an issue that has sparked a sweeping, nationwide movement of state laws threatening the equitability of NCAA sports.

The Senate Commerce Committee, the group with jurisdiction over the topic, is scheduled to hold a hearing on athletes’ rights eight days after the last hearing ended without marked progress toward federal legislation. Thursday’s hearing is different, for two reasons, from the other six held on Capitol Hill over the last 16 months: College athletes will serve as witnesses and the top Republicans will not be in attendance.

The hearing, led by the Senate’s majority party, the Democrats, is expected to be absent of many of the Commerce Committee’s minority members, legislative aides tell Sports Illustrated. Those include, most notably, senators Roger Wicker (R., Miss.) and Marsha Blackburn (R., Tenn.), the two Conservative members of a five-person, bipartisan working group exploring a compromise on a federal bill to govern how college athletes earn money from their name, image and likeness (NIL).

Wicker wants to conduct a survey of athletes, which is nice, but hardly a path to getting action before month’s end.  And then there’s this bigger holdup:

At the center of the delay, sources say, is a request from Republicans to grant the NCAA antitrust protection from retroactive and future lawsuits over NIL—something deeply opposed by Booker and Blumenthal.

Yeah, that’s gonna happen quickly.  Good job on the lobbying, Mr. Emmert.

All that’s left between now and July 1 are two things:  (1) the Supreme Court’s ruling in Alston, which could happen any day now and is likely the only realistic last gasp possibility for an antitrust exemption and (2) the NCAA’s passage of its own “amateurism is what we say it is at any given moment” change to NIL compensation eligibility rules.  The latter is likely to be more restrictive than what the states have passed (although remember that it would have the effect of voiding Georgia’s law), but at least it will provide a level national floor, for what that’s worth.

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UPDATE:  In case you had any doubt…

The suspense was killing me.

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CFP’s Baghdad Bob speaks. Is Congress listening?

Hey, it’s not really a big day for the CFP if we don’t hear from Bill Hancock.  And yesterday he lived up to all my expectations.

About which Andy Staples waggishly observed,

The biggest cliché Bill laid out wasn’t about the fans, though.

They’re doin’ it for the kids, for the win!  Money had nothing to do with it.  You have the man’s word on that. (Bill’s got some sweet swampland in central Florida available for a song, if you’re interested.)

Anyway, that’s an interesting take, considering the participants in a national championship game will now be expected to play in their sixteenth or seventeenth game of the season, without any increased compensation.  (Okay, money did have nothing to do with that part.)  What makes that particularly interesting is the timing, considering what’s coming up next in Washington, D.C.

Gee, I wonder if they’ll get asked about…

I guess they will.

The delicious irony about this is that they’ll probably rake the NCAA over the coals about it, even though it’s the one area of collegiate sports the NCAA has zero control over.  Maybe Mark Emmert can bring Bill Hancock along to testify.

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“We are determined to get this done.”

Shot.

On Wednesday afternoon, the Power 5 issued a statement reading in part: “Only Congress can pass a national solution for student-athlete NIL rights. The patchwork of state laws that begins on July 1 will disadvantage student-athletes in some states and create an unworkable system for others. As leaders in college athletics, we support extending NIL rights in a way that supports the educational opportunities of all student-athletes, including collegians in Olympic sports who comprised 80% of Team USA at the Rio games. We continue to work with Congress to develop a solution for NIL and expand opportunities.”

Chaser.

Several congressional aides told ESPN last month that it was very unlikely that Congress will pass any type of college sports legislation before July. The debate appeared to be no closer to the finish line during Wednesday’s hearing.

Why is that?  Because Emmert’s gonna Emmert and Congress is gonna Congress.

During the hearing, Emmert declined to reveal whether the organization would file injunctions against states to delay their implementation of NIL law, saying the organization has taken no position but it has been “widely discussed.” Emmert acknowledged that it would be “very challenging” for a school to file suit against its state.

Meanwhile, the NCAA is expected to pass its own legislation by the month’s end, Emmert says, after the Supreme Court rules in the Alston case. The NCAA’s legislation will differ from state laws and it could trigger a wave of litigation—two reasons that the organization is encouraging Congress to create a uniform standard.

That’s where the five-member Senate working group comes in. Cantwell, Booker, Blumenthal, Wicker and Blackburn are attempting to find a middle ground between two noteworthy and diametrically opposing college athlete bills already introduced in Congress: (1) Booker and Blumenthal’s College Athletes Bill of Rights, a somewhat radical and sweeping legislation that includes revenue sharing, long-term medical care, lifetime scholarships and unrestricted endorsements; and (2) Wicker’s narrow bill focused only on NIL and featuring NCAA protections and athlete restrictions.

A compromise bill would be more broad than Wicker’s but not quite as expansive as Booker and Blumenthal’s, all while providing athletes with enough freedoms to satisfy both sides.

So how close are the five lawmakers to agreeing on a proposal?

Now there’s a question.

The hearings on Capitol Hill related to this issue aren’t over. Cantwell suggested that there will be more and that the next hearing’s witness list will include current college athletes—a key group that’s been missing from these discussions.

To summarize, the NCAA is paralyzed until it finds out if the Supreme Court is going to give it an antitrust exemption and Congress isn’t anywhere near being able to reach a consensus by month’s end.  Business as usual, in other words.

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Mark Emmert… and a pony

Shot.

Chaser.

Doin’ it for the kids, for the win!

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UPDATE:  More here.  Emmert is all in on the impending apocalypse.

According to his testimony, Emmert is expected to again encourage lawmakers to create a federal bill to universally govern NIL while also expressing concern over a hodgepodge of differing state NIL laws that, he writes, “threaten the NCAA’s ability to provide uniform NIL opportunities as well as fair, national competition.” Ongoing litigation against the NCAA, coupled with the varying state laws and some Democrat-backed proposed Congressional legislation, endanger the very nature of college athletics, he says.

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Has HB 617 already reared its ugly head?

I ask in light of this de-commitment from yesterday.

“The landscape of football has changed tremendously since I last visited with schools…” is an observation I’ve seen discussed in several different quarters on the intertubes as referring to what’s going on with NIL rights.  Now, Georgia has its version of a law that permits compensation for a player’s NIL rights, but that law also contains the pooling provision that has some, including me, worried about it being used as a negative recruiting weapon with recruits.

I can’t say this came into play with this kid in particular, but I’m not dumb enough to think it couldn’t.  I’m not dumb enough to think it’ll be the only time, either, especially if it turns out to be effective.  Kirby may have his work cut out for him here.

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One more thing about HB 617

Steve Berkowitz wrote a handy summary of the various state NIL compensation laws due to come into effect in the near future.  Here’s what he wrote about Georgia’s:

The law has a provision under which schools can require athletes who have NIL deals to put some of that money into a pool that would be distributed to all athletes. The money from the pool would be distributed to athletes after they graduate or after they have been out of school for at least a year, with the amount to each athlete being based on the number of months in which they were an athlete for the school. Athletics department officials at Georgia and Georgia Tech say they do not intend to have such a pool, and it is possible this would conflict with the NCAA’s prohibitions on pay for play, since any athlete would be getting money.

Under another provision, no “officer, director, employee, or agent” of a booster club can provide an athlete with NIL compensation. The NCAA’s proposals do not squarely address this, but in a statement that addresses the rationale and intent of one proposal, the NCAA notes that “boosters may be the most likely sources of opportunities” for athletes to engage in NIL activities.

However, Georgia’s law also says it will be “rendered null and without effect” upon the effective date of “any policy, rule or regulation” that lets college athletes be compensated for NIL use. So if the NCAA passes a new set of permissive rules that take effect July 1, this law could get wiped off the books.

As much focus as has been paid to the part referenced in the first paragraph, not as much attention has been paid to what he mentions in his last.  Here’s the relevant language from HB 617:

In other words, if the NCAA enacts anything that could be considered a rule allowing college athletes to receive some form of compensation for their NIL rights, no matter how much more restrictive than Georgia’s law permits, the statute is immediately a dead letter.  Berkowitz doesn’t mention a similar provision in any other state’s legislation referenced in his article, so I presume it’s just another unique feature that could come back to bite UGA’s recruiting in the ass.

I’m beginning to wonder if anyone in the Georgia legislature ever reads what they pass.  I’m also beginning to wonder if the best outcome for protecting UGA’s recruiting from schools in other states with better drafted NIL laws is a federal preemption.  Sheesh.

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