Last summer, almost a year ago, the NCAA’s Division I conferences were more publicly divided than ever.
Because of the COVID-19 pandemic, some decided to play football. Others decided not to play football. And then some didn’t really know what to do. Lines were drawn, both in the media and in private.
We’re playing and we’ll ensure it is safe!
Well, we’re not playing because it cannot be done safely!
Round and round they went in one of the more divisive and fractured situations in the organization’s history. Surely, the association’s decision-makers—athletic directors, league commissioners and school presidents—would never be so divided again on any topic.
And then came this year, this summer and, even more specifically, this week.
“Everyone has their own agenda,” says one athletic administrator.
The NCAA enters one of the more consequential weeks in its 115-year history, as it plans to take a proverbial wrecking ball to a portion of its own amateurism rules in permitting athletes to profit from their name, image and likeness (NIL) through endorsement deals, business ventures and public appearances.
However, they’re split on exactly how to do it. For the most part, there are two options before them.
Option A: Provide a restrictive, detailed piece of uniform legislation for schools (in states without an NIL state law) to follow in an orderly fashion, but risk more successful antitrust lawsuits (i.e.: Alston) because you are colluding to prohibit at least some athlete compensation.
Option B: Use a more permissive, minimalist policy that allows the schools (in states without an NIL state law) to create their own rules, but risk a hodgepodge of policies governing NIL.
How do you both avoid lawsuits and a patchwork of rules? The answer is, you probably don’t.
“There is no perfect answer,” says Gabe Feldman, a Tulane sports law professor who has been involved in this issue for years.
Big 12 commissioner Bob Bowlsby describes the NCAA’s latest quandary as playing out along a continuum. You have quite a large group in support of a proposal that leans, on the continuum, toward Option A (restrictive, uniform legislation). You have a more vocal, smaller group in support of a proposal that leans toward Option B (permissive, minimalist legislation). And then you have the lawyers, who are squarely in the corner of Option B.
SI spoke to two high-ranking NCAA leaders, Bowlsby and SEC commissioner Greg Sankey, who support each one of the options. In fact, Sankey and some others (namely ACC commissioner Jim Phillips) floated a proposal two weeks ago similar to the one that NCAA leaders eventually selected, presented as an alternative solution to avoid litigation after the Supreme Court’s Alston ruling and conflicts with state laws.
“I respect the work done by the legislative solutions group, but the reality is, many of the proposals were drafted a year ago, in a different environment,” Sankey says. “Those proposals have not been adapted to a different environment. What has been presented as an alternative is a much more direct and concise piece of legislation.”
Bowlsby is a member of the NCAA legislative solutions group, a committee of school administrators that spent two years developing detailed NCAA NIL legislation (Option A). He is naturally in support of that solution.
“I feel like it is a responsibility of the legislative solutions group to be better stewards of the interest of the members,” he says. “They count on us for guidance. When there is a special committee assigned to do the job, they like you to do the job. I am tending toward more guidance because that’s what the membership is asking for. Some are tending toward less guidance.
“Reasonable people can disagree on it,” he continues. “The people on the opposite side of this and their lawyers, I agree with all the time on topics. We are just in a different position right now.”
Over the weekend, Sports Illustrated obtained the NCAA’s proposed NIL solution. It’s available to read here. In short, members came to a compromise—at least as much as the NCAA legal team allowed it to. Its proposed solution is closer to Option B—much closer—than Option A.
As reported last week by SI and others, states can craft and enforce their own NIL policy while using as a guide a small list of prohibitions, all of them geared to avoid any pay-for-play deals.
Around college sports, some believe it is a great solution. Others say it’s the only solution possible. And then many think it’s a nightmare solution.
“It’s hard to believe they’ll let schools do it on their own,” says one outsider who used to work in the college sports industry and still has a vested interest in it. “That goes back to the 1950s and 60s where you had rampant cheating. These are state institutions. They are not entrepreneurial companies.”
On Monday, the NCAA DI Council is scheduled to discuss the NIL proposal at a special meeting, pass feedback to the DI Board of Directors and then, for lack of a better phrase, get out of the way.
“This is in the hands of the Board,” a top administrator told SI last week.
The DI Board of Directors is scheduled to meet Wednesday where they will adopt the proposal. Will they adjust the current solution and provide more guidance to member schools? Institutions clearly want more guardrails, or at least a more detailed guide.
Among some of the biggest issues for schools is how to handle athletes using school marks and logos while endorsing a product. The legislative solutions group’s plan strictly prohibited such.
“We may get to a point where student athletes pay a licensing fee like others do. Because of the relationship, it may get to where the student athletes don’t have to pay a fee,” Bowlsby says, “but the legislative solutions group took a conservative approach and didn’t think students could have the use of marks and logos.”
This isn’t the only issue, says Bowlsby. The legislative solution group’s proposal offers exactly what an athlete can and can’t do. The NCAA’s minimalist proposal, outside of barring pay-for-play, does not.
The minimalist proposal represents “the top end of the food chain,” says Bowlsby. When asked to clarify, he says, “In the case of the SEC, they have all but one of their states having an [NIL] law in place and looks like that one will have one by July 1. They don’t have to worry about the NCAA having a rule. They're situationally different.”
One of the real issues with the minimalist proposal is it could, actually, put some schools in states with a state law at a disadvantage, says Julie Sommer, a member of the Drake Group who has studied the various state NIL laws, at least seven of which go into effect on July 1. Schools in states are required to follow their state NIL laws while those in states without a law—at first thought to be at a disadvantage—could gain an advantage by creating their own, less restrictive rules for their athletes.
“Who’s got the advantage now?” says Sommer. “States who didn’t do anything might be laughing. They can do what they want and make it less restrictive if it’s going to be about recruiting advantages.”
Another problem: schools hurrying to create a policy, especially those low-resource institutions.
“Do I think they’re all ready? No,” says Sankey. “Do I think that’s what reality will dictate? Yes. They’ll have to be prepared. That’s part of being a member of NCAA Division I in 2021.”
Everyone at least agrees on two things: (1) this minimalist proposal is only temporary and very much evolving; and (2) a federal, uniform bill from Congress is needed .
“I don’t think this is the most healthy environment,” Sankey says.
And so here they all are, a year after one of the most divisive times in the association’s history—do we play football or not?—administrators are split on another issue as the game clocks nears zeroes.
“We thought we might have a fire drill at the end of all this,” says Bowlsby, “and we have it.”
More From Ross Dellenger:
• Behind the Trend of Legends Leaving College Sports
• Why 12 Worked: Inside the Making of a New Playoff Model
• The Secluded Florida Region Where Football Coaches 'Find Peace'
• Student-Athletes Speak Out to Oppose NCAA's Alternative NIL Proposal