This ($$) is the best explanation I’ve seen for why the NCAA and its member schools are likely to fight California’s Fair Pay to Play Act tooth and nail:
Even if the Working Group were to accept these sensible-sounding arguments in favor of an unrestricted NIL market, the Group or the NCAA may feel it is legally constrained from accepting the idea. U.S. District Judge Claudia Wilken in the Alston financial aid case, and the Ninth Circuit Court of Appeals in the O’Bannon NIL case, have held that colleges are permitted to vary financial aid awards up to the full cost of attendance only as long as they are “tethered to education,” while the Ninth Circuit has allowed the NCAA to ban NIL payments to athletes.
If the Working Group and then the full NCAA were now to embrace the idea that college athletes can accept any NIL funds from third parties, the NCAA’s lawyers could find it difficult to defend what little remains of its “amateurism” justification for imposing any limits of any kind on what college athletes can be paid and by whom. As the Ninth Circuit said in O’Bannon:
“The difference between offering student-athletes education-relation compensation and offering them cash sums untethered to educational expenses is not minor: it is a quantum leap. One that line is crossed, we have little doubt that plaintiffs will continue to challenge the arbitrary limit imposed by the district court ($5,000) until they have captured the full value of their NIL. At that point the NCAA will have surrendered its amateurism principles entirely and transitioned from its ‘particular brand of football’ to minor league status.”
The Working Group thus appears to be in a box: if it gives an inch on NIL, it may be treated the same way in court as going a mile.
The reason that’s a legitimate concern is because the NCAA has allowed itself to take the position that there’s no fixed definition for amateurism, but rather, the concept is simply what the organization says it is. That’s how you get from COA stipends once being anathema to now being part of the status quo.
There are all sorts of concerns the schools aren’t ready to address. Take Greg McElroy’s suggestion, for example.
“The only way I can see it being done is if the universities or the conferences or the NCAA takes the initiative and creates a fund,” McElroy added. “At the end of the year, all the money that’s in that fund gets redistributed.
“The only way to do it is for the NCAA to take it as one giant umbrella. You play Division I football, you account for this much of the pie. Every single player, however many tens of thousands of players, everyone gets a check.”
What about the other sports? If it takes including sand volleyball players sharing with football players, so be it. This could/should be about all NCAA athletes being able to share autograph, YouTube channel and licensing money.
Reasonable, eh? Well, not so fast, my friend.
Anticipating weaker versions of a free market in NIL contracts, Simon argues that requiring the money one or two athletes may get for their NILs to be put into a pool for others would be an administrative hornets’ nest, wouldn’t help some athletes who need it most, and wouldn’t weaken incentives for players to take money under the table or to go pro if they can. Moreover, he raises the prospect that the pro rata distribution of the NIL funds to athletes could be construed as salaries, making the athletes employees, a result the NCAA has never accepted — not only because it so clearly conflicts with claims of amateurism but also would give legs to the claim, so far not accepted by the National Labor Relations Boards, that athletes should be able to join a union.
Now, who knows if that’s a winning argument, but the idea that it would be raised is probably enough to render that NCAA Working Group on third-party compensation a quivering bowl of Jello. (Not that it was likely to be much firmer, anyway.)
The idea that there’s a reasonable way out of the mess the NCAA has fashioned is comforting, but unrealistic. Mark Emmert is going to do what we know Mark Emmert is going to do — bullshit the courts and legislatures in a holding action while begging Congress for an antitrust exemption. It may not work, but it’s all he knows.
