The NCAA has been under fire for not doing enough to combat the college basketball scandal, and now it’s time for change. What will happen next?
It would be very telling of where we are if the NCAA headquarters in Indianapolis posted one of those “How It Started; How It’s Going” Instagram pictures. To make a point, I imagine the left side of the post to be the Titanic leaving the port with Mark Emmert at the helm, and the right side to be the ship shortly before it struck the iceberg, with Emmert signing a contract extension for the next trip. In this comparison, the main difference between the NCAA and the Titanic is that the NCAA was aware of the iceberg’s presence but continued on course to strike it since the iceberg was directly in front of the bank that held the NCAA’s billions in income. The mission has been completed.
The NCAA’s power and position have dwindled this summer, and serious concerns about the NCAA’s continued existence and sustainability have been raised. The NCAA’s present damaged state may be attributed to a number of factors. Over a decade of inept leadership, effective legal challenges to NCAA policies, the NCAA’s miscalculation of those legal challenges, legislative efforts by states across the country to force change to NCAA policy, an intentionally slow-moving bureaucracy, and the NCAA’s hubris and stupidity are all on the table. Despite this, money continued to flow in for NCAA membership, which was the primary reason the above-mentioned unacceptable conditions were allowed.
Despite all the wringing of hands about its ongoing existence, the NCAA is not going away. It will continue to exist and play a significant role. The NCAA’s position in college athletics, though, will undoubtedly be reduced. Consider the following scenario: The Amateur Athletic Union (AAU) was formerly the world’s most prominent sports organization. It now organizes sporting events and activities. It’s still there, but it’s no longer the dominating, “my way or the highway” organization that it once was. That is where the NCAA seems to be heading, and some may say that it is going there as a result of its deliberate and planned choices during the last four decades.
The NCAA’s Rise to Power
People believe that this is the most transformative period in NCAA history. It isn’t the case. The biggest shift happened in 1984, and the change that occurred following 1984 was massive, dwarfing the present climate.
The NCAA is a sports organization with over 1,000 member institutions competing in over 100 different leagues. The vast majority of NCAA members have nothing in common other than a desire to work together to develop policies, rules, and regulations to regulate the collegiate athletics business.
And the NCAA has a history of breaking federal antitrust laws.
The NCAA was challenged in 1984 before the Supreme Court of the United States (SCOTUS) for its rules regulating collegiate athletics. However, it was the NCAA’s members that took up the challenge, not the players. The NCAA set a limit on how many times a team may appear on television in one of its “traditions.” The NCAA feared that excessive television exposure would oversaturate the market, resulting in a drop in gate receipts as fans chose to watch games on TV rather than attend them in person. The colleges sued the NCAA for breaching federal antitrust law because being regulated when and how frequently they may appear on television harmed their ability to earn money and attract talent.
And the schools came out on top. The NCAA’s regulations limiting television appearances were found to be in violation of the Sherman and Clayton Antitrust Acts, which prevent monopolies and cartels from restricting free commerce. As a consequence, the conferences will be able to negotiate their own media rights agreements in the future. That was a massive shift that resulted in billions of dollars being generated by conferences and schools. This shift resulted in exorbitant pay, opulent facilities, private travel, and the multibillion-dollar development of the collegiate athletics industry.
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NCAA conferences eventually evolved into media rights consortia, and the money began to flow. Schools began to make hundreds of millions of dollars, and coaches began to make millions. Nobody, however, was concerned that the shift would lead to the death of college athletics, or that traditions would be jeopardized, or that college sports would go extinct. It was all in the name of business.
There were certain offhand remarks by the Court known as “dicta” in the Board of Regents decision by SCOTUS that were subsequently construed by most lower courts to give respect to the NCAA’s restrictions on amateurism to the point of becoming an antitrust exemption. The “dicta” had no effect on the Board of Regents decision, but it shielded the NCAA from legal challenges for decades, until the Alston case reached the Supreme Court.
The NCAA’s inept leadership, arrogance, and ignorance collided here, bringing the organization to its knees. A federal court in the Ninth Circuit ruled that the NCAA could not restrict what schools may offer to players in terms of academics after the NCAA’s regulations regulating precisely what could be given to athletes were challenged. If the decision stands, the NCAA will no longer be able to prevent a school from giving an athlete a laptop, a semester abroad, or a paid internship. The decision was narrow in scope and ultimately beneficial to the NCAA since it maintained the NCAA’s authority to prevent schools and others from paying players for reasons other than academics.
Photos courtesy of NCAA/Joshua Duplechian/Getty Images
However, very excellent wasn’t good enough for the NCAA, so it petitioned the Supreme Court for review, which it received. In the ultimate case of “be careful what you ask for,” the NCAA went before the Supreme Court and was soundly defeated, 9-0. SCOTUS also eviscerated the NCAA’s immunity from the dicta in the Board of Regents decision, thus declaring open season on NCAA rules restricting player pay. As a result, the NCAA will no longer get respect from the courts, and future legal challenges to NCAA rules that restrict player remuneration in any manner would almost certainly fail. All because the NCAA refused to be told what it could and could not do.
While the NCAA was mismanaging its legal position and losing in court, it was simultaneously mismanaging the legislative process, as its rules were being challenged by state legislators throughout the nation. It all began with Senator Nancy Skinner of California, who saw the NCAA’s restrictive rules on player pay as a civil rights problem. Rather of cooperating with Senator Skinner and reworking its rules on Name, Image, and Likeness (NIL), the NCAA threatened her with retaliation against California athletes if legislation that contradicted NCAA policies was enacted. Senator Skinner is not just clever, but also fearsome, therefore this was not a good idea. California has enacted legislation that allows athletes to benefit from NIL. Several other states followed suit and enacted their own NIL laws to demonstrate what true market competition looks like. Rather of adopting its own NIL law, which would have likely eliminated the need for states to fill the gap, the NCAA sat back and watched states perform its job and create legislation regulating player pay.
Athletes may now earn money from sponsorships, with the NCAA unable to stop it, thanks to the devastating defeat before the Supreme Court in Alston and a plethora of state legislation permitting what the NCAA has long battled tooth and nail to prohibit. The NCAA is so weak in this area that it has walked away from it entirely, urging schools and conferences to follow state law or create their own NIL rules.
Meanwhile, long-serving administrators and coaches are bemoaning the massive shift and debating whether they want to stay in the collegiate athletics industry. Those long-serving administrators and coaches, on the other hand, were unconcerned about the revenue-generating changes. Multibillion-dollar television rights agreements, clothing partnerships, and uncontrolled facility expenditures don’t appear to bother them as much. Threatening to leave over league realignment does not sway them. For them, the true issue is the transformation that empowers athletes. Some players are threatening to retire because of the transfer portal and player compensation.
I get that, and I get where you’re coming from. I just disagree with it. Coaches and administrators who feel compelled to quit the profession because of recent changes should do so. They will be missed by the industry, but only for a short time. The industry will evolve, and it will do so rapidly.
The NCAA, on the other hand, strangely claimed triumph after its 9-0 defeat in the Supreme Court since the Court did not expressly find that it could not fully limit athlete pay. However, it is obvious that the NCAA’s restrictions on athletes are unconstitutional, and it is only a matter of time until they are overturned in court. Because it understands that NCAA rules violate federal antitrust law, the NCAA is trying to deregulate and decentralize, giving conferences control over some policies. Now, the NCAA’s only chance of continuing to limit athletes is if Congress grants the NCAA an antitrust exemption.
What the Future Holds for College Sports
Let’s start by defining what collegiate sports are and aren’t. College athletics are a multibillion-dollar business in the entertainment world. The most lucrative conferences are media rights consortia, which are each the NFL and NBA in terms of income creation, profitability, and management. While the sports business argues that collegiate athletics aren’t about money, they are. The SEC and Big Ten leagues, not the NCAA, will be the dominating powers in the future. And those conferences will do all in their power to establish themselves as market leaders in this competitive industry. This is referred to as competition.
The lower leagues for the professionals are not college sports. Minor leagues do not have multibillion-dollar broadcast rights agreements and do not pay their coaches and administrators millions of dollars. In every sense, college sports are big league.
In collegiate athletics, the fan and fan interest are catered to, and all choices are made based on fan interest and behavior. Oklahoma and Texas are leaving the Big 12 for the SEC not because they don’t understand college sports fans, but because they do. Fans did not walk out in protest of skyrocketing coach salaries, more games on TV than ever before, or the construction of Taj Mahal facilities, and those in control are well aware of this. They know exactly who college sports fans are and how much they are willing to spend and donate. All of these choices were made on purpose and with meaning.
College athletics have traditions, but they aren’t about them, and they aren’t dependent on them. The tradition argument is usually used by elderly men who have been in command for too long and are unable to comprehend where they have led this ship. Nobody was as outspoken about the massive revenue creation as they were about the gigantic income generation. We are only concerned with tradition when the athlete benefits.
The NCAA will no longer be the governing body for college athletics. The NCAA will delegate power to conferences to establish their own rules, taking a step back from the rules and regulations that regulate collegiate sports across the board. This is due of need. The NCAA has been found to have monopolistic power by the Supreme Court, and any NCAA regulations that limit commerce may be challenged in court. SCOTUS made it plain that conferences may establish their own rules regulating athlete care and pay as long as they don’t conspire. That is why the NCAA is holding a Constitutional Convention in November to decentralize authority and deregulate, allowing leagues to make such decisions. The NCAA’s role will be limited to organizing championships and determining beginning eligibility.
Congress is the NCAA’s last chance of maintaining its monopolistic control over players. Unless Congress gives the NCAA a safe harbor to continue to break federal antitrust laws, it will be up to each conference to decide which athletes are permitted in the future. Congress may decide in the coming months and years that college athletics are OK without its involvement. For a long time, the NCAA has been crying wolf. There is less motivation for Congress to become involved after all of the games have been played, the money has been collected, and the planet stays securely on its axis with NIL permitted. Who knows, however.
The main conferences will continue to battle for money, markets, and influence in the absence of congressional action. The SEC is the dominating player right now and will continue to be in the future. Conference realignment is far from over, and we should anticipate the larger, more powerful conferences to break away from the others in order to consolidate control. It’s already happened in football, and it’s about to happen in basketball. Content is key, as we’ve seen with media rights agreements and conference networks in the past. Not fewer, but more college sports will be seen in the future. It will increase in value, not decrease in value.
Finally, athletes will profit, and everything will be great. We’ll all grow accustomed to it, just as we did when Olympic competitors began to earn money. No supporter has walked out in protest of the team’s lavish expenditures on facilities, private flights, or skyrocketing coach salaries. They are not going to walk out in protest of athletes getting paid. The NCAA’s own ineptness and arrogance have ruined its influence and regulatory authority over collegiate athletics, and this is the only cause for its reduced power. The NCAA, on the other hand, cannot jeopardize or decrease the commercial value of collegiate athletics. Thankfully, the college athletics industry is impregnable to blunder.
