At the NCAA, ‘Madness’ Indeed

By Graham Hillard

Thursday, March 02, 2023

 

The National Collegiate Athletic Association is older than the Model T, the Treaty of Versailles, and the State of Oklahoma. Founded in 1906 in response to college football’s appalling death rate, it was for years a mere rulemaking body, content to issue playing guidelines in consultation with university officials. Not until 1951 and the commencement of Walter Byers’s 36-year reign as executive director did the nascent association become the enforcement Goliath of popular conception, stalking the land in search of infraction-committing Davids. Yet the Supreme Court’s 2021 ruling dramatically limiting the organization’s power to regulate college sports touched off more than a return to a bygone era. Goliath has fallen on his back, and a ticked-off David is standing over him with a sword.

 

The NCAA’s troubles began years before the Court’s rejection, in NCAA v. Alston, of its price-fixing business model. Indeed, the organization has long been despised by devotees of college athletics, who see in its heavy-handedness more than a few parallels to the authoritarianism of divine-right monarchies. For every college-sports fan who has ever thought himself protected by the association’s eligibility and recruiting policies, another dozen have felt toward the NCAA some combination of rabid anger and eye-rolling contempt. To be sure, such emotions run highest among fan bases that have come face to face with the association’s “broken, capricious system for investigating and punishing schools.” (The quote is from a merciless 2012 takedown in the Atlantic.) Yet even the unscathed can recognize the organization’s hyper-legalism, which, in recent decades, has been about as subtle as a 360-degree dunk.

 

Take, for instance, the case of Enes Kanter, now known around the world as a critic of the Erdoğan regime in Turkey (and as Enes Freedom). In 2010, despite having moved to the United States as a teenager, Kanter was declared by the NCAA to be permanently ineligible to play college basketball. His crime? While rostered on a Turkish professional team as a younger teen, he had accepted $13,000 more than the association deemed strictly necessary for his food, shelter, and tutoring.

 

Or what about UNLV forward Chris Richardson, who was suspended for part of his junior season in 1998? As national outlets struggled to report straight-facedly at the time, Richardson’s infraction began when his mother bought him a used mattress upon his joining the team. Questioned by a compliance committee, Richardson neglected to mention that the seller, an assistant coach, had also provided a free moving truck for the afternoon. Quelle horreur!

 

There are, of course, myriad other over-enforcement stories, many of them equally repellent. Yet, had the forces of wokeness (or proto-wokeness) not opened a second front in the NCAA’s public-relations war, it is entirely possible that nothing would have changed. Here, too, examples abound. In a 2009 piece bearing the provocative title “The NCAA’s Slaves,” the American Spectator argued that the association was, in some respects, inferior to Southern plantation owners, who at least allowed their bond servants “to earn extra cash through self-employment.” A 2017 article on the Root’s website extended the analogy, comparing university athletes to “sharecroppers” on the NCAA’s farm.

 

Though a right-leaning college-sports fan base might have defended amateurism qua amateurism if forced to the point, almost no one at street level was keen to stick up for the NCAA as an institution, however obnoxious and racialized the attacks against it. Hence, perhaps, the resoluteness of the Supreme Court’s Alston decision. Clearly, and across all political sectors, the public was ready for the association to take one on the chin, a circumstance that may well have greased the wheels of the justices’ unanimity.

 

Whatever its socio-legal origins, Alston changed the college-sports landscape practically overnight. Gone were the NCAA’s restrictions on educational benefits, which had previously kept universities from offering student-athletes such noncash perquisites as computers and science equipment. Gone, too, on antitrust grounds, was the legal rationale underpinning the NCAA’s century-long ban on player compensation. Though the association had been considering since 2019 how college athletes might reasonably profit from endorsement deals, the Alston decision lent terrific urgency to that project. Within a month of the Supreme Court’s ruling, the NCAA had begun drafting rules to allow student-athletes to be paid for the use, by commercial firms, of their names, images, and likenesses (NIL).

 

Perhaps in an alternative universe the NCAA might have crafted these new rules with boldness and care. That is not what happened in the world in which we live. Instead, presumably terrified that future lawsuits would further chip away at its authority, the organization pleaded with Congress to enact federal legislation regulating student-athletes’ endorsement deals. When that effort failed — in no small part because the states had already begun to pass their own NIL bills — the NCAA released a sloppily conceived and laughably toothless “interim” policy governing NIL compensation.

 

To read that document now is to enter a state of bemused disbelief at the timidity of a once-mighty institution. Rather than laying down a set of hard-nosed policy directives designed to head off NIL-related corruption, the NCAA settled for a page of exceedingly gentle “guidance.” First, student-athletes seeking NIL compensation would be bound by the laws of the states where their schools were located. (More on this in a moment.) Second, student-athletes in states without NIL laws would nevertheless be permitted to seek endorsement deals, provided they abided by the rest of the interim policy. Third, players were henceforth permitted to use “professional services providers” (i.e., agents and alumni “boosters”) to facilitate their NIL dealmaking. Fourth, student-athletes were obligated to report all NIL activities to their schools.

 

Though the interim policy supplemented this list with a half-hearted enjoinder against “improper [recruiting] inducements” (whereby schools sign new players by dangling specific NIL riches), the document contained absolutely no references to enforcement. How could it have done so given the new jurisprudential reality? As Dan McLaughlin wrote for National Review Online in the wake of the Alston decision, the unanimous opinion “bode[d] poorly for the NCAA’s ability to defend its rules in future cases.” Simply put, enforcement by the association of any NIL rules could well result in further scolding from a conspicuously unsympathetic Supreme Court.

 

Unhappily for the NCAA, the state laws on which it hoped to rely instead were, in many cases, equally ineffectual. On July 2, 2021, North Carolina governor Roy Cooper released an executive order stating that “student-athletes and prospective student-athletes shall not enter into [NIL] contracts . . . as a direct inducement to enroll or continue enrollment at a particular institution.” My own state, Tennessee, wrote similar language into law, as did several others. The problem with this prohibition, whether decreed by the NCAA or imposed by the states, is that it is the equivalent of telling a fish it may do anything but swim. Once the association opened the door to agents, negotiations, and booster “collectives,” it was inevitable that prospective stars would begin shopping around for the best NIL offers.

 

Consider, for example, the recent case of Jaden Rashada, a highly sought-after quarterback in the 2023 college-football recruiting class. In November of last year, as reported by the Associated Press, the University of Florida’s “Gator Collective” offered Rashada a $13 million NIL deal to sign with the team. (Booster collectives are groups of wealthy alumni who facilitate, and sometimes guarantee, NIL deals.) Rashada duly committed to Florida, only to change his mind a month later when the financing for his deal fell through. One needn’t be a rule-book hound to recognize that the Rashada saga is a direct affront to the “improper inducements” standard described in the NCAA’s interim policy. Having first pledged to play for the University of Miami, Rashada flipped his commitment to Florida only upon being offered a huge pile of cash. Once that deal collapsed, he moved on to a third school (Arizona State), where he will presumably negotiate yet another contract.

 

Here, then, is the mess in which the NCAA currently finds itself. Unable to secure federal legislation and fearful of the courts, the association must now depend on the states to enforce its rules. Yet even those states that prohibit the use of NIL enticements in recruiting are unlikely to constrain their universities in practice. Indeed, all of the momentum is in the other direction. Concerned that their existing policies are putting their schools at a competitive disadvantage, a number of states have already moved to “amend” (read: loosen) their NIL laws. Expect that trend to continue as the NCAA allows cases such as Jaden Rashada’s to go uninvestigated. In the absence of a centralized compliance authority with teeth, the states have every incentive to look the other way.

 

Where all of this will lead is predictable enough. Imagine for a moment that a mid-tier Southeastern Conference school (say, Mississippi State) recruits and fields a once-in-a-generation football talent. Now imagine an NIL bidding war for that young man after his freshman season. Would the NCAA step in if Auburn or Alabama poached the Bulldogs’ starting quarterback by tripling his NIL compensation? It hasn’t said boo about Rashada and Florida. And it’s no longer clear that the organization has a legal leg to stand on in any case.

 

There is, furthermore, the matter of public perception, especially on the left. Because college athletes in the big-money sports are disproportionately black, any movement against NIL bidding wars could be framed as a racist attempt to lower the market value of black labor. Perhaps the NCAA had something like this in mind when, citing “racial equity,” it eliminated standardized-testing requirements for incoming student-athletes earlier this winter. Curry favor with the wokesters now and see if you can get away with disappointing them later.

 

Will the NCAA come through this stormy weather? It’s possible. Also possible, however, is the destruction of the association at the hands of its own athletic conferences. Already, the Big Ten and Southeastern Conference are rumored to be planning an alternative league. Were they to depart, the rest of the “Power Five” would soon follow, leaving the NCAA on the outside of higher-dollar college athletics looking in. Meanwhile, the association limps on, feckless, crippled, unloved, and ignored. It may yet regain enough relevance to avoid total collapse. But I wouldn’t bet on it.