The NCAA and the schools that run it have long figured that if something doesn’t go their way in federal court in Oakland, they can run across the country to Washington and have congressional Republicans legislate away the pain. If those pesky athletes keep demanding a bigger slice of an ever expanding pie, then the status quo can be maintained as fast as a bill can become a law.
But something very interesting has happened in the past week. On Friday, a federal judge in Oakland handed the NCAA its second consecutive defeat in an antitrust case, but as losses go, this one is pretty tolerable for the schools who would like to keep their rules against paying players anything beyond what the schools determine an athletic scholarship to include. Claudia Wilken’s ruling in Alston v. NCAA essentially declares illegal any NCAA rule that caps what schools can pay for “educational expenses” for their athletes, but it does not force open the market for athletes’ services. The rules that keep schools from bidding straight cash may remain in place. So the NCAA and schools won’t be needing the GOP caucus to do them a solid. That’s probably a good thing for them, because on Thursday their rules will be challenged in a novel way by a Republican member of the House of Representatives.
Rep. Mark Walker (R., N.C.) will introduce a bill Thursday—likely through the Ways and Means committee—that would amend the definition of a qualified amateur sports organization in the U.S. tax code. In the new definition, a body seeking to be defined as a qualified amateur sports organization would be banned from “prohibiting or substantially restricting the use of an athlete’s name, image and likeness.”
In other words, if the NCAA wanted to remain tax-exempt, the schools that run it couldn’t keep a rule on the books banning athletes from making money off their names. If an athlete wants to sign autographs for cash, fine. If a company wants to hire that athlete to pitch its products, swell. Walker has been examining this issue for the past 18 months, and he sees it as a free-market issue and a basic rights issue. “It’s a travesty and an injustice that the one segment of our society that can’t access the free market like every other person in America is the student athlete,” Walker says. He’d like to see athletes treated like college students who excel at any other discipline. “If a kid is at a school on a music scholarship, you can go get gigs,” he says. “You can play in an orchestra, whatever you want to do without it having any kind of impact. And you’re doing it based on your talent, image and likeness.”
Walker met with several NCAA leaders last week because he’d still like to get this issue settled without passing a law. The group included NCAA general counsel Donald Remy, who was named the NCAA’s Chief Operating Officer late last month. Remy’s presence at the meeting tells us the NCAA takes this very seriously. Last week, the NCAA contingent wanted to let the courts decide all these issues. (Which makes sense, because Remy knew which way the wind was blowing in Oakland.)
The NCAA should worry, because Walker isn’t alone. He says he has met with House Democrats such as Bobby Scott (Virginia), Cedric Richmond (Louisiana) and Hakeem Jeffries (New York) about this bill, and Walker expects bipartisan support. “When we get ready to drop this thing on Thursday, we’re going to have overwhelming support,” Walker says. “It isn’t just going to be a Republican thing.”
He also wants to make one thing clear. He is not suggesting schools pay players. He is merely proposing a removal of the barriers that keep others from paying players*. This is similar to what happened to Olympic sports between 1968 and 1992, when rules were gradually changed by various international federations until pro athletes were allowed to compete in the games. In 1955, then-IOC president Avery Brundage said, “We can only rely on the support of those who believe in the principles of fair play and sportsmanship embodied in the amateur code in our efforts to prevent the games from being used by individuals, organizations or nations for ulterior motives.” This is very similar to what NCAA leaders said in their defense in O’Bannon v. NCAA and Alston v. NCAA. The rules, the NCAA officials and conference commissioners have said, exist to protect the athletes from being exploited.
*If you’ve been reading this space for a while, this probably sounds very familiar. It’s similar to what I suggested here eight years ago.
Common sense says the rules don’t protect the athletes from exploitation. They protect them from money. (From which no one needs protection.) More specifically, they protect the outside money from going to the athletes and keep it headed to the schools in the form of donations. But nothing about Walker’s bill would force the schools to spend an additional penny. It wouldn’t cap coaches’ salaries. It wouldn’t run afoul of Title IX, either. Because every athlete—male or female—would have the same opportunity to get paid outside money. The market would decide where that money went.
Walker started drilling down on this last year, but he’s been thinking about this for a while. The one-time pastor moved to North Carolina in 1992, just in time for some peak Tobacco Road hoops. About that time, he noticed what the Fab Five were doing at Michigan and, specifically, what the members of that group weren’t getting out of the deal. “They literally changed the face of the sport,” Walker says. And he’s right. The Fab Five changed the way basketball players played and dressed across the country. And they moved a lot of merchandise without an opportunity to profit until they reached the NBA. Which was fine for Chris Webber, Jalen Rose and Juwan Howard—not so much for Jimmy King and Ray Jackson. “Everybody [else] was getting a piece of that pie from a profit standpoint,” Walker says.
A more recent example is the situation at LSU. According to a Yahoo! Sports report, since-suspended Tigers coach Will Wade was caught on a federal wiretap discussing a deal to land guard Javonte Smart. According to the quotes attributed to Wade, the issue that vexed him at the time was that a middleman wanted a larger piece of a deal in relation to Smart and his family. If Walker’s bill passed, the middleman would get cut out entirely. Middlemen everywhere would suddenly become less employed than they already are.
Walker, by the way, does not want to force the schools and the NCAA to completely open this market. He’d prefer if they did, but he’d be fine with progress. If they want to establish trusts that athletes can tap when they leave school, he would understand. If they want to establish some limits, he’d understand. “I’m not telling you how you need to resolve it,” he says, “but what I am telling you is that you can’t violate these young adults’ rights any longer.”
That’s what it comes down to for Walker: a basic right. “We’re not asking the NCAA or a university to pay a single dollar to any student athlete at any point in time,” he says. “The only thing we’re doing is to remove the ban. When they have to sign over and put a moratorium on their likeness and image, we think that’s un-American. We think that’s wrong, and it’s time for that to be resolved.”
A Random Ranking
I opened the floor for suggestions this week, and I got a great one almost instantly…
I have some experience in this area. Every so often, my nine-year-old crushes me at Super Smash Bros. Ultimate.
1. King K. Rool
2. Zero Suit Samus
3. King Dedede
6. Rosalina and Luma
10. Little Mac
Three And Out
1. We briefly discussed federal judge Claudia Wilken’s ruling in Alston v. NCAA up above in relation to Walker’s bill, but SI legal analyst Michael McCann did a far more thorough job examining the decision when it was released Friday.
• He explained how the ruling could impact schools and conferences.
• He examined the broader fallout of the ruling.
• He also explained why the judge ruled in favor of the plaintiffs and against the NCAA.
2. Quarterback Alex Hornibrook, who plans to leave Wisconsin once he graduates this spring and play his final season of eligibility elsewhere, has decided on the elsewhere. It’s Florida State.
The Seminoles were left with only one scholarship quarterback (one-time starter James Blackman) after former starter Deondre Francois was dismissed last month. They also have added Western Michigan transfer Wyatt Rector, but Rector must get a waiver from the NCAA to be eligible to play this season. Most likely, the competition for the quarterback job will come down to Blackman and Hornibrook. Blackman will have all of spring practice to work with the first team in first-year coordinator Kendal Briles’s offense, but that doesn’t mean Hornibrook can’t make up ground. And if we’re being honest, both QBs probably will have to play if Florida State’s offensive line doesn’t improve dramatically from last season.
3. Former Tennessee athletic director John Currie will be back on the job soon at Wake Forest. I talked to Currie last week about a very odd past two years.
What’s Eating Andy?
Dan Jenkins was one of the best to ever write about anything—and he probably gets more credit for his golf writing—but he was one of the all-time great college football writers. Jenkins passed away Thursday night at 89. He left behind a trove of incredible stories, including these…
The clock rule change in 2008 that ushered in the current era of blur offenses was not the first such change that produced more points. Jenkins wrote about one in 1968.
Here’s Jenkins on the Game of the Century between Nebraska and Oklahoma in 1971 …
Here’s Jenkins suggesting a college football playoff… in 1965.
What’s Andy Eating?
At some places, there is one menu item so good that it isn’t really worth bothering ordering anything else. The signature dish is so good—and the rest of the menu so unworthy of mention—that the decision is easy. Archibald’s Barbecue in Northport, Ala., is one such place. Though you’d never know it reading this space, they do serve more than merely ribs and white bread. But you’d be insane to order anything else.
Then there are the places that have a stacked menu that still gets dominated by one incredible dish. At Casa Enrique, a Michelin-starred Mexican joint in Long Island City in Queens, the entire menu is excellent. But you’re going to want to order the Molé de Piaxtla as your entrée. You’ll be making the correct choice, but you’ll feel a pang of regret at all the delicious things you aren’t ordering.
But what if the dish that overwhelms the loaded menu is an appetizer? Instead of a problem, you get the best possible outcome. That’s what I stumbled into last week at TacoLu in Jacksonville Beach, Fla. The queso fundido—with the chorizo for $2 extra—blows away everything else. The tacos are amazing, and you’ll read why below, but the queso fundido is that good.
At TacoLu, they pan-fry Chihuahua cheese with roasted garlic and sautéed mushrooms. That’s decadent enough. But then throw in that spicy chorizo and a stack of flour tortillas to hold it all, and you have something that would make an extremely satisfying meal if you chose to let it. Grab one of those tortillas and spoon in that mix of melted cheese, mushrooms, garlic and sausage. Top it with a spoonful of TacoLu’s homemade salsa and fold. You’ll be eating a cross between a taco and the best slice of pizza you ever had.
But you need to make a choice going in. You probably can’t eat an entire pan of that stuff and then down four tacos. I did, but I’m a finely tuned eating machine. You’ll probably have to decide whether you want to make the queso fundido your meal or share it with your friends—warning: sharing will require every shred of generosity you have—and save room for tacos.
Because you’re going to be intrigued by the Carne Royale. This one mixes carne asada with TacoLu’s own brie and grape salsa. The sweetness of the grapes blends with the gooey, salty brie and the savory steak for a combination that tastes like the appetizer portion of a fancy dinner party folded into a tortilla. It sounds odd, but just taste it.
The less adventurous may opt for the Ten Dollar Taco, which—in one of the few instances of false advertising that works in the customer’s favor—costs $4.99. It’s steak, lettuce and cheese, but that steak is cooked-to-order filet mignon. I ordered mine rare, and the tender red meat with a charred crust made that taco taste like a much more expensive dish.
My other favorite was a basic carnitas taco made less basic by the braising of the pork in Coca-Cola and orange juice. This produced a sweet-and-salty meat that mixed beautifully with Monterey Jack cheese and fresh cilantro. I could have eaten three of each of these tacos, but that would have left no room for queso fundido.
So now you see my dilemma. I have another work trip to Jacksonville coming soon. I’m going to have to test myself. When I visit again, do I mix queso fundido and tacos? Or do I get two orders of queso fundido? I can’t lose either way, but my goal is to win the most. I’ll have to let my stomach decide how best to go about that.