Making friends along the way

I have to admit it takes a special kind of talent to alienate both sides of a commitment.  Attorney Michael W. Caspino with Forward Counsel in Newport Beach, Calif. seems to have what it takes in that regard, in spades.  He’s got Miami running away from him, even though they were the winners in the Rashada Sweepstakes, but he didn’t stop there.

Shot.

“Florida is the most dysfunctional collective in all of college football,” Caspino said. “I plan on steering my clients away from them. From my standpoint, I never ever want to deal with them again. If it weren’t for the collective that’s completely dysfunctional at Florida, he probably would have been there.”

Chaser.

pic.twitter.com/KECMRpWKHe

— Gator Collective (@GatorCollective) June 27, 2022

I doubt they give a rat’s ass about Rashada’s eligibility, but Florida’s?  That’s a different story.

This one’s starting to look like a slam dunk for a school getting turned in to NCAA enforcement.  Also, can you issue a show cause to an NIL lawyer?  Asking for a friend…

The NIL Summit

It was just hosted in Atlanta.  David Hale’s summary is pretty spot on.

Another common refrain from many of the NIL Summit’s attendees was a reminder that this is all still new. For all the “what comes next” questions, there were very few answers. NIL has undoubtedly moved college sports away from traditional amateurism, but it’s still unclear whether it’s also a big step toward a pro model. While some experts theorized unionization and collective bargaining was the ultimate end point, few athletes seem to have given this much thought, and several attorneys and agents said the path to unionization would be incredibly difficult, suggesting instead that a group licensing model could be a better fit.

While school presidents and administrators have begged for federal NIL oversight, few in attendance in Atlanta believed that was forthcoming after a recent effort from Greg Sankey and George Kliavkoff to engage Congress resulted in no serious movement.

More likely, said several sources, was litigation that would more clearly define a framework for the marketplace. What happens when an athlete who unwittingly signed over NIL rights to a collective wants out of that contract? What happens when a company decides an athlete hasn’t performed well enough to warrant payment? What happens when the IRS comes calling because they’re not sure why a sports collective needs nonprofit status? The results of potential lawsuits might end up defining what NIL looks like down the road.

No shit. It’s way too early in the process to start drawing any hard conclusions about where this is headed.

By the way, this is what caused Mark Emmert to spend millions on lawyers:

The one constant refrain on money, however, was that much of what has been reported in the media is widely out of step with reality. Yes, some athletes have found deals into seven figures, but that’s incredibly rare. The median return for a social media post, for example, might be as little as $20, while even big-name athletes with large followings rarely land deals in excess of $20,000.

Kinda seems wasteful, but what do I know?

Those guardrails aren’t gonna build themselves.

This sounds cryptic.

The NCAA’s transformation committee on Thursday announced recommendations that would provide athletes with windows to enter the transfer portal each year, as well as changes to the current infractions process designed to result in faster outcomes.

The proposed transfer recommendations are “intended to stabilize the transfer environment,” according to the NCAA’s news release, and would require “additional accountability” for schools that receive transfer students. The NCAA did not immediately provide information as to what the specific transfer windows would be or how it would hold schools accountable on the receiving end.

Bless their hearts.  Of course they didn’t.  No reason to give those pesky antitrust attorneys a head start.  Five will get you ten the NCAA hasn’t exactly figured that out yet, either.

A day late and a dollar short, again

This isn’t about college football, but you can bet the suits running the NCAA are shitting bricks about it.

The Department of Justice, making a request on behalf of three former minor league teams suing Major League Baseball after the league stripped them of their affiliation, asked a federal court Wednesday to limit the antitrust exemption given to MLB.

The three teams suing MLB were among 43 that lost their affiliation when the league downsized the minors to 120 teams in 2020.

MLB has asked that the lawsuit be dismissed, citing the antitrust exemption. In the filing with the U.S. District Court in New York, the Justice Department asked the court to “define the exemption narrowly.”

… In a Supreme Court ruling in 2021, Justice Neil Gorsuch questioned the legal status of baseball’s antitrust exemption, citing the changes in the market since the initial ruling was made in 1922. The Supreme Court has said that baseball wasn’t subject to antitrust rules because it was a series of exhibitions and not interstate commerce.

I can’t think of a more deserving ending to the NCAA’s fruitless pursuit of amateurism, now in the NIL denial stage, than to watch their hopes for a broad Congressional antitrust exemption get nuked by the courts.  After spending millions more defending it, of course.  It’s the way they roll.

Split personality

On the one hand, please don’t call ’em professionals ($$).

The Southeastern Conference filed an amicus brief last week to support the NCAA in its ongoing attempt to prevent the recognition of college athletes as employees of the schools they attend.

The NCAA is a defendant, along with Villanova and other universities, in Johnson v. NCAA, a case originally brought by current and former college athletes in which they say that they should be qualified as employees under the Fair Labor Standards Act.

The conference argued that participating in college sports does not qualify as work under the law, that schools are not employers, and that athletes should not be paid.

“Such participation should be categorized as an extracurricular educational activity to be administered and conducted in a manner consistent with each institution’s broader educational mission and policies,” the SEC wrote in its brief. “Not as an employer-employee relationship between the institution and the participants that requires mandatory pay.”

On the other, can we please treat them the way professional players are treated?

That has added another layer to the highly-charged transfer issue. In the first year of the one-time transfer rule, coaches and administrators alike balked at the near-endless focus on the transfer portal, which unlike free agency in professional sports could be entered and exited at nearly any time.

… The American Football Coaches Association has recommended a pair of transfer “windows” that would allow players to move between teams at defined periods of time while giving coaches more certainty over recruiting and roster construction.

As always, the definition of amateurism is whatever they say it is.

Today, in the more things change…

No doubt you’ll be shocked, shocked to learn this:

Though discussions are ongoing, specific transfer windows to address the unsettled one-time transfer climate are unlikely to be approved by the NCAA this week, sources tell CBS Sports. Resolution of tremendously complicated issue hangs in the balance with various committees scheduled to meet this week at NCAA headquarters in Indianapolis.

“Other than bringing it up in concept form, I doubt that the [NCAA] Council takes any action,” said West Virginia athletic director Shane Lyons, current chairman of the council, which holds primary legislative authority for Division I athletics.

And this!

There are potential legal liability considerations tied to the transfer windows, Lyons said. Carving that nine-month transfer period down to a couple of months could raise concerns.

“There was some potential legal risk,” Lyons said. “That’s why it got kicked back to the Transformation Committee because of [potential] antitrust [violations].”

You know, you’d think with all the money the NCAA’s spent on antitrust attorneys, they’d have found at least one capable of giving meaningful advice now.

THIS time, they really mean it.

Boosters, consider yourselves on double secret probation.

NCAA Enforcement has released a letter, obtained by @SInow, to member schools regarding NIL. It is “working tirelessly to develop information and investigate potential violations.”

Key phrase: “staff is not focused on the eligibility of current or prospective student-athletes.” pic.twitter.com/4DGtHFQdRY

— Ross Dellenger (@RossDellenger) June 9, 2022

NIL is for the enrolled.  But what exactly can the NCAA do, assuming for the sake of argument that schools step up to control NIL abuse with their own programs and take reporting of infractions seriously?

That might very well survive antitrust scrutiny, but would it be enough of a threat to discourage boosters from throwing money at recruits?  I doubt it, mainly because I doubt the NCAA will ever be able to build a case.  But we’ll see…

Morehead to the rescue

From Mike Griffith’s slobbering interview with UGA’s president about the NIL “mess” (Morehead’s term, not mine):

School was back in session when the 65-year-old law professor was chased down by media members in a hotel hallway Wednesday to answer the question as to how the NCAA could govern NIL with the threat of antitrust lawsuits.

“You’re making an assumption that whatever guard rails created are ones that wouldn’t survive a litigation review,” Morehead said. “I’m also a lawyer, and I think we can devise rules that have the potential of surviving scrutiny…

Well, shit, Jere.  That’s all you had to say!  It’s a shame the NCAA blew through millions on attorney’s fees fighting O’Bannon and Alston instead of consulting with you from the get-go.

TFW you know the check has cleared

Mark Emmert:  sorry, not sorry.

NEW: I spoke with outgoing NCAA President Mark Emmert this month about his exit. He said he does not have regrets about how the NCAA handled NIL and was pleased with the association’s response to the resource inequities at the 2021 basketball tournaments. https://t.co/3julR6IKKE

— Laine Higgins (@lainehiggins17) May 30, 2022

Jere Morehead’s guardrails

Jere Morehead haz a concern.

As a member of the NCAA Division I Board of Governors and Board of Directors, Georgia president Jere Morehead has dealt directly with the topic of name, image and likeness. The conversation around NIL has not gone away over the offseason, and Morehead made it clear Thursday he’d like more changes to be made…

“It was intended to reward student-athletes for their name, image and likeness, as student-athletes enrolled at college institutions. It’s clearly become something different than what it was intended,” Morehead said. “I believe we’ve got to have some very clear rules that do not lead to the professionalism of college athletics. And you probably saw the action that the Division I Board of Directors took a few weeks ago at the NCAA, that was a strong statement by the board that we want the enforcement staff to enforce the rules that exist related to recruitment. And we don’t expect that NIL would be used as a recruitment device.

“I believe in the long term that we’re going to have to have a more formalized process whether that comes from Congress, or can come from the actions of the NCAA. We clearly need a strong framework that governs the conduct that every institution engages in when it comes to NIL. How we get there, and when we get there, is an open question. But right now I hope the enforcement staff feels like they’ve been given a green light by the Division I Board of Directors to investigate some of the cases that have gained a lot of national attention.”

What a false equivalency there.  The NCAA (of which Morehead himself is a figure of some influence) has the desire to do something, but apparently lacks the power, while Congress has the power but lacks the desire (at least in the sense of doing what the NCAA would like for it to do).  Quite the conundrum!  Just imagine the constructive role somebody like Morehead might have played had he made those comments a decade ago, had the desire and the power both co-existed.

While everyone’s at it, Jere thinks something needs to be done about the transfer portal, too.

“I think some work’s got to be done with the transfer portal. We’ve got, again, a great leader, co-chair of our Division I transformation committee, Greg Sankey, along with Julie Cromer, the athletic director at Ohio University. They’re leading our Division I transformation committee every Tuesday afternoon through important discussion of all these issues. And I’m hopeful that we can ultimately come up with a series of rules that will effectively govern us in a collegiate model.”

Give him credit — at least he’s not giving the “doing it for the kids” faux justification any lip service.  Of course, if the NCAA isn’t doing it for the kids, that could open up its own can of worms.  Sigh.  It’s not easy being a concerned school president these days.