A slippery slope of their own making

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.

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“We have to get creative with that.”

Care to guess what NCAA rule they’re talking about?  ($$)

“I don’t know if it’s doing what it was intended to do,” Bamford said.

“I think it should go away,” NIU athletic director Sean Frazier said.

“I don’t know if it fits in today’s world,” Kent State athletic director Joel Nielsen said.

Why, this one.

The NCAA requires an average attendance of 15,000 fans per game once every two years to maintain FBS status. But the reality is a number of programs don’t reach that mark, especially in an era in which attendance is falling across the board while the number of FBS schools has grown. Attendance has fallen in the FBS as a whole seven times in the past eight years, and it is currently at the lowest average mark since 1996, according to CBS Sports.

As a result, schools that have trouble reaching the 15,000 mark have to boost their numbers through artificial means.

As long as some one, or some thing, is buying tickets, they count against the 15,000 limit.  Even if it’s sponsors through a sponsorship deal, or a distribution to local charities.  Or this:

“I don’t think the rule has had any impact on people’s desirability to stay FBS,” Turner said. “They’ll find ways to do it. Oftentimes, it’s through things like having your media rights partner buy the tickets from you and they reduce their fee by the amount of money. That’s crazy. There’s no reason to do that, in my opinion. It’s just fiddling around with the books. It’s arbitrary. It has limited value.”

And yet, it still happens, because schools that don’t stay in compliance are supposed to be penalized by being relocated to FCS.  And because the NCAA turns a willful blind eye to it — largely, I suspect, to maintain a decently sized pool of cupcakes for P5 schools to schedule.

Keep your hands to yourself.

TFW a recruiting violation is so stupid, I can’t even bring myself to snark Jeremy Pruitt about it.

“The one thing that would’ve changed our bargaining position? Cash.”

By the way, if you read the ESPN piece I linked to in the last post, you saw that sound bite from former Oklahoma State offensive lineman Russell Okung, who’s been an NFL player for a decade now.

“Why does a free-market system work for everyone but the student athlete?” Okung asked. “It’s about basic civil liberties and repressive measures that still exist today.”

Good question.  Okung fleshes that out in this well-written piece for The Players’ Tribune.

If you wonder why there’s grumbling now, when there wasn’t so much before…

The summer going into my senior year at Oklahoma State in 2009, I had a hundred dollars in my bank account and many bills to pay.

My mother had just lost her job and required my financial support. I was lucky enough to know that I would likely be picked in the first round of the NFL draft that spring and would eventually be financially secure. But at that point in time — like so many college athletes around the country — I was broke.

Being broke stung, particularly because I knew that my teammates and I had made others rich. During my days at OSU, I saw fans regularly pay thousands of dollars to fly out to Stillwater to attend games, while many of my teammates didn’t have enough money to fly home to see our families during school breaks. I watched our university lavish elite donors with high-end dinners, while some of my teammates were skipping meals due to lack of funds.

All of this happened while we were wearing commercial insignia on our helmets, shoes and jerseys so that big-time apparel companies could write multimillion-dollar checks to our schools; while we watched universities sell jerseys with our names on the backs — and memorabilia with our images on it — every day; while we saw our likenesses displayed on NCAA video game posters. Our team was worth millions to the school and yet we often had no more than a hundred or so dollars in our bank accounts.

And if you’re wondering why the court cases and the legislation now…

This is one of the main messages I’m bringing to the floor of the California legislature this afternoon, July 9, when I testify in support of the Fair Pay to Play Act. Things ended up working out for me, but there are countless other athletes who have really struggled because of the NCAA’s arcane bylaws.  College athletes are in school for a very short period of time, which makes it hard for us to organize — all colleges need to do to prevail is wait us out. We cannot win without support from the outside.  [Emphasis added.]

That’s why the NCAA plays the long game as it does.  It’s worked well, too.

“Armageddon threats”

It sounds like Mark Emmert’s threats to the California legislature have gone over as well as you might expect, based on the tone of yesterday’s hearing and vote (9-0) by the state assembly’s Committee on Higher Education.

… chairman Jose Medina called the NCAA’s threats and requests to slow down the legislative process during the past couple months “akin to bullying.”

“I don’t take too fondly to threats to the state of California regardless of where they come from,” Medina told ESPN on Tuesday evening.

It’s what a charm offensive looks like, minus the charm.

And how could the committee not be swayed by the powerful reasoning of Long Beach State athletic director Andy Fee?

He raised the scenarios of athletes accepting endorsements from casinos (giving the gambling industry a foothold in college sports) or marijuana products (a substance banned by the NCAA and illegal under federal law) as potential issues that should be considered. He also said the threat of not being able to compete in championship in the future could negatively affect coaches trying to recruit athletes.

“Where are the protections that prevent these things from happening? That’s why I urge a pause,” Fee said. “This is a good conversation. It’s the mechanism I oppose.”

Andy likes talking.  He just isn’t comfortable with the talking leading anywhere.  And his gambling concern is simply precious in this day and age of schools accepting “integrity fees” from the industry.

These people make it difficult to take them seriously.  Not that they care, of course.  They just want to hold off Armageddon as long as they can.

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UPDATE:  Political blogger, California resident and (most importantly) Georgia alum Ed Kilgore has a few thoughts on the subject here, including what should be our collective woke moment.

Perhaps I’m biased because my own alma mater, the University of Georgia, lost two all-American football players (A. J. Green and Todd Gurley) for parts of two separate seasons for, respectively, selling jerseys and autographs.

Another simple Monday question

With regard to the California Fair Pay to Play Act and its critics who claim (natch) it would hurt the very kids it claims to support:

“Why would any student-athlete go to, say, Arkansas, if they can make more money in California?” she asked during a Chronicle interview.

Why, the weather, of course, said absolutely no one.

Friday morning buffet

A tidbit here, a tidbit there and pretty soon you’ve got a real buffet.

• CFN’s Preseason All-American teams, three in total, boast a total of five Dawgs.
• Sporting News does two All-American teams.  Georgia has two players.
• “We say to the NCAA: go for it, make our day, give California the boot and watch it death spiral with its deep stash of Division 1 athletes and fifth-largest economy…in the world.”
• Maryland announced its athletic staff, which includes the head team physician, athletic trainers, nutritionists and mental health practitioners, will be employed outside of the department.
• There’s a void where Jeremiah Holloman once stood.  Can Matt Landers help fill it?
• NC State has partnered with New Belgium to make a school-themed craft beer.
• Pete Fiutak ranks the SEC head coaches and Kirby retains his second position on the list.  (Before you ask, no, Dan Mullen isn’t first.)