Unlike the NCAA, state legislators across the South knew they’d have to take action immediately.
You never take recruiting lightly.
Unlike the NCAA, state legislators across the South knew they’d have to take action immediately.
You never take recruiting lightly.
Just to give you an idea of how quickly the NIL ground is shifting under the NCAA’s feet, in the midst of the Louisiana Legislature’s rush to pass a bill granting college athletes the right to be compensated for their NIL rights, Tulane’s AD is threatening to allow its athletes to receive that funding even in the absence of a state law.
States which pass NIL laws appear they could indeed have an advantage over those which don’t, if state laws are the only rules in effect for a period of time. Florida state Sen. Travis Hutson told 247Sports that NCAA president Mark Emmert assured him the NCAA wouldn’t penalize Florida schools or athletes for using their NIL rights, even if there were other states that didn’t have such laws.
That assurance toward Florida, Tulane’s Dannen said, signals an unfair precedent that schools in states without NIL laws could challenge because of an important distinction: there are no federal or state laws prohibiting college athletes from pursuing NIL contracts. The NCAA is the governing body that penalizes such deals, and the forthcoming state laws bar the NCAA from doing that. So, if the NCAA doesn’t punish one state that does have NIL laws, Dannen argued, it can’t punish others that don’t.
“If Louisiana doesn’t do anything,” Dannen said, “I’d be hard pressed understanding why we shouldn’t as an institution do something because, again, I want to make sure my student-athletes are protected and entitled to the same opportunities every other kid is.”
Mark Emmert’s fatal flaw was underestimating the power of recruiting. Considering the organization he runs, kind of ironic, ain’t it?
The hand wringing in this piece about the box the NCAA has forced itself into is just priceless.
“That’s where we are,” one high-ranking source involved in NCAA governance told CBS Sports. “We’ve not taken care of business. The participants have gotten more litigious. You throw that all together and the only way you get answers is through federally-mandated standards.”
Emmert’s words are more proof of the NCAA’s desperation. With Congress not to due to act anytime soon, the NCAA must do something. It needs at least a limited antitrust exemption from Congress with NIL implementation to keep it from being sued.
That’s because any hint of the NCAA limiting athletes’ NIL compensation could bring more legal action.
“The problem is we have a reasonably large legal exposure if we implement a rule without having an antitrust exemption to cover us,” one FBS commissioner said under the condition of anonymity due to the sensitivity of the issue. “That’s what people aren’t getting, why this has taken so long. We’ve got to figure out a way to get that. If we don’t get that, we’re a dead association walking.”
Save us, Obi-Wan Antitrust Exemption! You’re our only hope.
Oh, in case you were wondering, that isn’t why this has taken so long. The NCAA could have bargained for a limited exemption years ago in the course of all the litigation it chose to fight. It didn’t because it chose not to. The only difference now is that its hand has been forced by the various state legislatures that grew tired of waiting for a good faith effort from Mark Emmert’s bunch.
The NCAA could have solved this years ago, specifically in 2009, the moment Ed O’Bannon sued the NCAA for antitrust violations for putting his image on the cover of a video game. The NCAA’s official strategy: litigate, litigate, litigate. Since then, it has lost at almost every key turn.
“Too little, too late,” said David Ridpath, an Ohio University assistant professor and president of The Drake Group, an organization focused on reform. “The membership could have solved [NIL] months ago.”
Put that on the tombstone.
NCAA President Mark Emmert told USA TODAY Sports on Saturday that he will be meeting in Washington next week with senators and congressmen concerning legislation based around college athletes ability to make money from use of their names, images and likenesses. The meetings have taken on greater urgency as the number of states enacting related laws with effective dates of July 1 or sooner has grown to six in recent weeks.
But time is running short for a bill to get through Congress and the White House by July 1.
“It obviously gets harder with every passing day because of just the timelines of getting things done on short notice in the Congress,” Emmert said. “And Congress is, of course, busy with a whole bunch of other things — big picture issues — that vastly exceed the world of college sports in America.”
It was hard a year ago, Mark. Excellent leadership on your part.
“We — meaning the NCAA, the members, (the association’s governing) boards, schools, me — we’ve made commitments to our student-athletes that we would have an opportunity for them to monetize their name, image and likeness by this coming school year,” Emmert said. “… We’ve got the rules drafted. The only thing that’s needed now from the NCAA’s side of it is, is a vote. And we need to get that vote done. … There’s no reason why we can’t do this, and I’m confident we will.”
Actually, there appears to be a reason why.
The precise timing for when that vote will occur remains to be seen. Big 12 commissioner Bob Bowlsby said his conference and others in the Power Five have been advised by their attorneys to wait for the Supreme Court’s ruling in the Alston case “just to make sure, in an abundance of caution, that we don’t do something that’s going to be contrary to what the court mandate is.”
A ruling is likely to come later this month or in June. The Alston case does not directly pertain to NIL, but the justices could address the NCAA’s authority to make its own rules in certain areas without facing antitrust lawsuits.
These dudes continue to think they’re about to get an antitrust exemption any minute. It’s a strategy, I guess.
But you’ve got to love this:
He said that absent a federal law, “probably the next-best position is to have both the state laws in some areas and an (NCAA) rule that governs for the people who don’t have a state law” that would loosen NIL rules.
And Bowlsby said, in that scenario, the association and the schools likely would simply have to live with the differences between state laws and NCAA rules. If the NCAA wanted to undertake a legal challenge to state law, he said: “It’s going to be difficult for the association to do that without the schools in that state joining the suit, and no institution is going to sue their own state legislature.”
There is literally nothing in those above quotes that wasn’t true a year ago. And yet, here we are. If you were a member of Congress, would you feel any sense of urgency to get something done?
This was said in the Missouri legislature a mere two days ago about a proposed NIL bill and it already seems quaint.
House Speaker Rob Vescovo, who rarely speaks on legislation, noted his opposition.
“I can’t support this amendment while the students are still receiving a scholarship,” he said. “It doesn’t make any sense. Why should they still get a scholarship while they’re making money on their likeness?”
I’m not talking about his flawed logic. I’m talking about Mark Emmert — Mark Emmert! — throwing in the towel.
In an interview with The New York Times on Friday, the N.C.A.A.’s president, Mark Emmert, said he would recommend that college sports’ governing bodies approve new rules “before, or as close to, July 1,” when the new laws are scheduled to go into effect in Florida, Alabama, Georgia, Mississippi and New Mexico.
… Under a proposal that has been before N.C.A.A. members for months, student-athletes could be paid in exchange for use of their names, images and likenesses by many private companies. The plan, which could take effect on Aug. 1, would also let players earn money through advertisements on their social media accounts.
“We need to get a vote on these rules that are in front of the members now,” Emmert said.
No, the NCAA proposals aren’t an exact match for what the states have already passed. That doesn’t mean Emmert can’t read the current landscape. Do nothing and hope the problem goes away on its own is no longer a viable strategy. The big question from here is whether the NCAA has waited too long to act.
Emmert would not discuss whether the association might challenge any of the state laws in court. He said, though, that he did not expect any decisions about new industry rules to hinge on the outcome of a case the association recently argued before the United States Supreme Court, which is considering the scope of the N.C.A.A.’s powers.
That sounds like he realizes the SCOTUS Hail Mary play for an antitrust exemption isn’t likely to produce the outcome the organization desires, as well as the futility of the NCAA attempting to tie a number of states up in court. (That would also put member schools in those states in a precarious position between the NCAA and state legislatures that control their funding.)
The options aren’t attractive, but that’s what happens when you procrastinate too long. It’s basically settle for what you can get time for the NCAA.
Or as Richt, who is now a television analyst for the ACC Network, put it: “It’s here, so you better embrace it.”
Mark Emmert has lost control of Mark Richt.
“I’m a little biased, but I believe this is going to give coach (Kirby) Smart every bit of help he needs to bring home a national championship.” — Brian Kemp
As my readers know, I’m pro-NIL compensation for college athletes as an issue of fundamental fairness. That being said, while Kemp gave lip service to that consideration at yesterday’s signing (“College football is so big now. The finances are so big. The players have a lot at risk. You’ve got other sports where people can go pro right out of high school. I think this is the right step at the right time in the right direction to try to continue to protect the student-athlete but also give the athletes the benefit of what others are getting across the sports world.”), make no mistake about it, the driving force behind the legislation’s passage was to keep Georgia football from falling behind in recruiting versus programs in states where NIL legislation has already passed.
All you have to do is look at yesterday’s setting where Kemp signed HB 617 to get the message.
All of which begs the question as to why the legislature passed and Kemp signed into law a bill that contains a provision that will surely muddy the message. I’m referring to the now infamous pooling arrangement.
In English, here’s what we’ve got:
Colleges in the Peach State can elect to require their players (on all of their teams) to share up to 75% of compensation received for the use of their name, image, or likeness—including through endorsements, sponsored business arrangements and influencer deals on social media. The forced “sharing” would occur pursuant to what House Bill 617 terms a “pooling arrangement,” with the shared compensation directed to “a fund for the benefit of individuals previously enrolled as student athletes in the same [college].”
The fund would be fashioned as an escrow account controlled by the athletic director. After they graduate (or after 12 months pass from leaving early), former players could draw pro rata shares of the fund’s pooled contributions “based on the number of months the individual was a student athlete.”
News of the provision swept through social media and regular media like a storm. Some of the takes were flat out misleading, like this one.
One of the most notable distinctions in HB 617 is that it calls for student-athletes to deposit funds into an escrow account and wait to withdraw until they leave school. The bill also includes a revenue-sharing component, which sponsors say is intended to help curtail team dysfunction, but the provision has drawn criticism since it allows schools to take up to 75% of an athlete’s earnings for redistribution.
But almost as damaging were ones like this Yahoo! Sports header: “New Georgia law legalizing college athlete endorsements also allows schools to take athletes’ money”. “Allows” is doing some heavy lifting there, but it’s not an inaccurate description. And that, I think, is going to pose a problem for Kirby Smart and his staff on the recruiting trail this year.
As McCann notes, the pooling arrangement is unique to Georgia. What that means is other states with NIL legislation haven’t created a framework that allows their schools to retain most of a player’s earnings and distribute those to other student-athletes. Which in turn means that coaches in states like Alabama and Florida are about to engage in some serious shit talking with recruits about how, unlike in Georgia, their programs won’t be stealing money from them.
Now, sure, Georgia’s compliance office and Jere Morehead ran away from the pooling arrangement about as fast as they could. But as long as the law is on the books in its present form, rival coaches can present all the faux concern they like — hey, you never know at Georgia, right? — and that will leave Georgia coaches having to explain the situation. As the old saying goes, when you’re explaining, you’re losing.
The real puzzle to me is why anyone thought this was a good idea in the first place. Not only is it a scab that will be picked at endlessly on the recruiting trail, it’s an administrative nightmare for an athletic department to manage. The school has to manage its players’ contracts, collect the money from a variety of sources, construct a database of all student-athletes who played sports, as well as the time frame for each of them, track the twelve-month period before anyone is eligible for payment and then cut checks. Beyond that, because the school would insert itself into the payment process, it would have to manage things in a manner that doesn’t run afoul of federal regulations like Title IX, which is why HB 617 requires that schools can’t share or distribute funds in ways that discriminate on the basis of race, gender or other protected demographic traits.
Quite simply, who needs the aggravation?
I can’t figure that out, nor can I figure out why the language was added in the first place. If you explore the bill’s history in the legislature, it comes out of the House as a fairly anodyne product, without any unique restrictions. However, once it makes it way to the Senate, that changes. The pooling arrangement is added to the bill’s language, first with a 50% cap, and then increasing that to 75%, which is how the final version reads.
The Senate amendments were both introduced by Sen. Bill Cowsert (R-Athens), one of the bill’s sponsors. Note the area he represents, which raises the question as to what sort of input UGA had behind the language being added. And why. The only comment I was able to find from Cowsert about the law yesterday was this:
“I’m actually concerned about the potential for folks to cross the line, going from a supporter to using someone to promote their products and becoming a booster,” Cowsert told Atlanta Business Chronicle. “We have to be very careful that this isn’t used inappropriately by businesses agreeing to essentially pay some for their NIL when they really want to persuade someone to come to the University of Georgia.”
Is the point to the pooling arrangement to lessen the incentive for a booster to cross the line? I’ve got no idea, but in any case, it doesn’t matter because Georgia has already taken the pooling arrangement off the table. The kindest thing I can say about the drafting is that it appears to be working at cross-purposes with itself, but I suspect that will be of small comfort to Kirby Smart when he sits down with a recruit. (Then again, how likely is it that Smart had no idea of the bill’s language before it was signed?)
Maybe I’m reading too much into all this, but it sure seems like an invitation to score some easy negative recruiting points. We’ll see how it plays out, but from where I sit right now, I expect Georgia hopes for a federal preemption of HB 617 to eliminate the chatter or, in the absence of that, a trip back to the General Assembly next year to amend the law.
UPDATE: I missed this quote from Cowsert at the end of Weiszer’s piece from yesterday.
Cowsert said of the pooling provision: “It’s not fair for just the skill players to take all the money, otherwise why is somebody going to block for you?”
There you go. Oy.
If you’re unhappy with what you perceive to be the chaos about to be inflicted on college football with the proliferation of NIL legislation sweeping throughout the various states, remember where the blame lies.
The members, of course, including the very schools now pushing their legislatures to create laws so as not to fall behind in the recruiting arms race. Talk about reaping what you sow. Well played, folks.
With Gov. Kemp scheduled to sign Georgia’s NIL legislation today, it’s worth noting that Smart was on Finebaum and had this to say about the pending law:
“You start with education,” Smart said. “You want everybody to understand as much as we can. We don’t know the rules we’re gonna play by, so it’s like playing a game that you don’t know the rules to. So everybody’s kind of on pins and needles. It’s an education process. It’s a great opportunity for student-athletes. Where it goes, I’ll be very interested to see. Because I’m a little bit more like Charles Barkley where I don’t think everybody is gonna be as marketable as some guys. When it’s not equitable, sometimes it’s tough.”
“It’s a little like COVID. The guy that manages that best, manages the egos and the problems or benefits that may come with it is probably gonna be a little bit ahead of the opponent. We’re all trying to manage it as best we can, but right now we don’t know. We don’t know enough about how it’s gonna be enforced, how it’s gonna be enacted at the state level, the federal level. We’re gonna find out in the next couple of weeks a lot about the future.”
First off, I think Smart is being a little disingenuous with his “who knows” shtick there. Sure, you never know what politicians, especially on the federal level, will wind up doing, but it’s hard to see how anyone will be able to stick the NIL genie back in the bottle once July 1st hits and the first wave of state laws becomes effective. Kirby, like a lot of sharp coaches, is going to be in the bunch that hopes to manage best. I expect to hear a lot of brand helping comments from recruits visiting Athens next month, for example. I also believe he knows exactly what’s in the new law Kemp will sign today.
That being said, I’d be lying if I claimed I’m not concerned about his “We’re gonna find out in the next couple of weeks a lot about the future” observation. Does that reference the pooling arrangement permitted in HB 617? Is he telegraphing worry that Morehead intends to embrace that? I don’t know, but I hope somebody in the media asks the same kind of questions. Maybe today would be a good time to start, if there’s a presser at today’s signing.
UPDATE #2: Take this for what it’s worth.
Lookee at what’s happening this week.
Is that a little awkward, perhaps?
Perhaps. But it’s worth waiting to see who has the last word on how HB 617 is implemented in Athens, particularly when it comes to this provision:
You know Smart has his staff geared up to push that personal branding message hard next month when recruits and their families finally show up next month. It would be a real shame if Georgia adopts a pooling arrangement that steps all over that message. (Although, to be fair, if there’s one thing the Georgia Way should be adept at promoting, it’s Butts-Mehre’s deep experience at managing a reserve account.) Will Kirby have to tell Jere to stay in his lane? Stay tuned…