Let's talk the NCAA and its myriad issues with Tom McMillen

This is the most consequential time in college athletics since the landmark 1984 U.S. Supreme Court ruling that broke the NCAA’s long-held control over college football telecasts and granted universities freedom to make their own TV deals. Take a look at the current landscape: The Name, Image and Likeness era is upon us, the industry is bracing for more dominoes to fall in conference realignment, and the NCAA, with diminished authority, soon will move to rewrite its constitution.

To explore a variety of these issues, On3 Sports talked with a prominent voice in college sports, Tom McMillen, the former U.S. Congressman and college basketball All-American and Rhodes Scholar who is CEO of LEAD1 Association. LEAD1 advocates on policy issues facing the 130 FBS athletic departments; creates working groups on issues such as NIL, transfers, diversity, equity and inclusion and enforcement; and provides feedback to the NCAA on best practices for representative governance. It also seeks to generate consensus opinion among FBS athletic directors on big issues.

(The interview has been edited for clarity and brevity.)

You’ve said the NCAA is imploding and is in retreat. Can you elaborate?

McMillen: A combination of fronts have just stripped a lot of the power away from the NCAA. It started in ’84, of course — 37 years later we see it with the Alston case, and then you’ve got the Justice Department and you have all these states (dealing with NIL). And we’re just not just talking about NIL, but we’re talking round two, maybe, with revenue-sharing, collective bargaining. It’s like the old bloodletting, so they’re trying to cure the patient by taking all their blood out. I was making the point that they are just battling on so many fronts. Certainly college sports has made a lot of mistakes. But I cannot understand how you can have a national sports organization with such devolved regulations where conferences are going to set their own rules. I mean, it would be like the NBA if the Eastern Conference or the Western Conference set their own rules. How could you have a national championship of any meaningful matter?

I go back to Justice (Byron R.) White (in 1984); he was probably wrong in the short run with his minority dissent opinion. But he said the ascendancy of commercialism over academics was going to be a problem for colleges and universities. In the short run, the decision unleashed a lot of entrepreneurial impulses in college sports, which the NCAA had been constraining, and that was all positive. But in the long run, I think that if he were alive, he might say that things are kind of out of control right now.

What is the future of the NCAA as an organization?

McMillen: I think Robert Gates said it best in his comment when they were talking about rewriting the (NCAA) constitution. He said, “Until we can better align the mission of association with authority, the NCAA will not be able to play the role it should play in governing sports.” You’ve got expectations that really cannot be met by the organization as it’s currently constituted. They take a lot of crossfire, but the fact of the matter is they have sort of nominal authority but not real authority to make change. I don’t know how you cure that because you’ve got a very fragmented environment in college sports.

The stratification is going to continue. Some conferences are going to get a half a million dollars per school in TV money and other schools are going to end up getting $60 or $70 million. It is very Darwinian because only the fit survive here. There’s a lot of complicating factors for the less-resourced school. They rely on student fees; they rely on institutional support. But all of a sudden, as we move more and more down this compensation road, student fees and all those kinds of support are going to be more problematic. That is going to exacerbate the stratification.

The NCAA, their kind of white flag was one of saying, “Look, Bob Gates said it accurately.” What do you want this association to do? And whatever you want it to do needs to be aligned with the power to be able to do so. That’s the core question. Right now, that question is not clear in anybody’s mind.

How would you assess Mark Emmert’s tenure?

McMillen: I’d rather not make comments because I work very closely with the (NCAA). In retrospect, it’s always easy to be an armchair quarterback. But my concern with college sports is that where we’re heading in basketball and football is mirror images of the NBA and NFL. I know our athletic directors are very afraid about that. We did a survey and asked what would you rather have: Would you rather be heading down the road where they turn sort of into mirror images of the NFL and NBA, where players get full employment rights, collective bargaining, all that? Or would you rather have Congress give you some kind of tools to try to control the aggregate spending and try to give kids NIL rights and better health and safety but keep it within the college model? And 97 percent were in favor of the latter — 97 percent of our ADs were afraid that the arms race is going to result in basically turning (college sports) into mirror images of the NFL and NBA with all the consequences.

I don’t know why that wasn’t broached a long time ago. Unfortunately, I think what’s happened is the arms race has gone on so far that only a very few schools — a handful of schools — can really weather through it in the long run. I think COVID has only made that worse.

Are the moves by Texas and Oklahoma to the SEC in the best interest of college athletics?

McMillen: The SEC was a big step toward building a brand and trying to get a bigger television contract. Is that good for college sports? The NFL and the NBA are built on, “We’re only as good as the weakest team in our league.” That’s sort of the philosophy of the professional leagues. They’re only as good as their weakest link.

But college sports is heading in the opposite direction. There’s going to be greater stratification. So that’s a value judgment, whether it’s good or bad for college sports, but I would say it will result in further stratification. Alston, giving conferences more authority. NIL, giving conferences more authority. And now expansion of the CFP, potentially; that’s only going to increase the stratification in college sports and that’s a question that every school, every Congressman representing that school, is going to have to ask: Is that the kind of model you want?

As we move toward the potential era of super-conferences, are you concerned on the basketball side that those conferences could break away and stage their own postseason tournament, keeping the little guy out? And we all know it’s the little guy that makes March Madness so captivating.

McMillen: The NCAA tournament, March Madness is such a brand that it is hard to imagine trying to poach that. … But the vast majority of our ADs are concerned that the road we’re on in the long run has some real, real problems. The CFP could bring another $2 billion in (annually). The SEC could bring in $1.2 billion (annually) or whatever. I can’t blame them because that’s how the system is designed right now. But there are always consequences.

Remember something: The SEC will be 16 schools, but there are a lot of other schools that will be outside that orbit that will be trying to find ways to keep up. So it’s a typical kind of Darwinian, “strongest survive” sort of mentality. But that model of sports, if you take a cue from the NBA and the NFL, it is not how they’ve survived. So that’s a question for the future.

So much of college football is driven by billion-dollar TV rights deals. Is there concern among your ADs that television partners have too much power and influence?

McMillen: It’s an interesting question. You’ve got Bob Bowlsby sending a cease-and-desist letter to ESPN; you’ve got Mike Aresco denying any intrusion or involvement. I think there are a lot of hard feelings. I hear that a lot from ADs. There’s a lot of hard feelings right there. I’m not sure what is going to happen in the near-term, but I think there are a lot of hard feelings generated.

What are you hearing from ADs on early impressions and surprises of the NIL era?

McMillen: We did a webinar last week. Some of the smartest people in the business were on that webinar (among them Lyle Adams, founder and CEO of Spry; Courtney Altemus, founder and CEO of TeamAltemus; and Jim Cavale, founder and CEO of INFLCR; the companies help schools and athletes with NIL compliance and education). It was interesting. They said there’s certainly agents out there. There’s concern about possible conflicts. There is concern about disclosure to the schools. Clearly, the majority of deals are going to be fairly small, although there will be some that really do strike fairly good deals.

Some of the stuff that you’ve written about — NIL has created an interesting dynamic with respect to recruiting. What’s interesting about it is that if you go to the G-League, you’re basically kind of lost. You don’t have a whole lot of brand-building while you’re in the G-League. Colleges have always been the brand-building machine. They have hundreds of years of stickiness from fans and alumni and so forth. And that’s irreplaceable. When a kid goes into a school and if he does well, that school’s ability to make a brand for that athlete is just incredible. With NIL, you’ve only strengthened the college model with respect to recruiting.

Back to the NCAA. What I hear a lot is if the NCAA couldn’t create NIL legislation in two years, how is it going to rewrite its constitution in a few months? What are your thoughts?

McMillen: Is that any way to run an (organization), when you’re talking about a national sports organization having 32 conferences setting up 32 different sets of rules? I’m wondering how that will work. Clearly on Alston, the NCAA is not going to step in and I don’t see the NCAA regulating that. It’s going to be up to the conferences, and I don’t know who’s going to challenge the conferences if they do go very aggressive on that.

It’s the same thing on NIL; you’re leaving it where the conferences may very well put some rules of the road in. But if a school decides to get aggressive on NIL, who’s going to enforce this? One of the things we heard from our seminar this week was that probably the only enforcement would be if like if you had two schools like Florida State and Florida, two intrastate rivals, where one was taking a conservative approach and one was sort of stretching and breaking the rules on NIL relative to a state law. Would the attorney general enforce that?

Basically, you are in an enforcement-free zone right now with NIL other than the school and its internal compliance departments. Can you imagine that? I can’t even imagine college sports being in that position. But that’s what’s happening right now.

The season is fast approaching as the Delta variant is sweeping across the country, especially in the SEC footprint. What is your level of concern, and concern among ADs, about the virus disrupting the season?

McMillen: They’ve learned tremendous protocols and all that. … This is extraordinarily contagious. Some of our schools have 70 percent or 80 percent vaccinations on their teams. And some of them are 90 percent and even higher. Others are, you know, 20 percent or 30 percent. I’m sure the regional variances parallel the states that have low vaccinations.

The problem is the way the schedules are put together — there’s no room for makeup games. So if you have three or four players who get COVID in the middle of a week, what are you going to do? You’re going to quarantine them, but you’d have to quarantine everybody. I just don’t know how you manage through it, especially something that’s much more contagious than the original COVID.

I think it could have some impact. Schools have become so good at managing through this. But there’s very little room for error.

(Top photo: C. Morgan Engel/Getty Images)