AAC leaders: Time to outsource NCAA enforcement in 'almost anything goes' era

IRVING, Texas – Mike Aresco, the American Athletic Conference commissioner, believes it’s time for the NCAA to outsource its enforcement apparatus – and he’s not alone.

The association’s enforcement arm has long been derided by many stakeholders for any number of reasons: perceived selective enforcement; a heavy-handed, lack-of-common-sense approach; a process that proceeds at a glacier-like pace. But the NCAA’s policing of the 27-month-old NIL space is being increasingly called into question because, well, there effectively is no policing – at least to date.

In a post-Alston world, the NCAA has become “paralyzed” in its inability to pass and enforce its own rules, as Big East Commissioner Val Ackerman characterized it. Filling this vacuum, many stakeholders say, has been rampant pay-for-play schemes under the guise of NIL and new state NIL laws that explicitly prohibit the NCAA from policing certain NIL activity in those states.

“We’re getting sued for nonsense,” Aresco told On3 during AAC basketball media day on Monday. “College sports is not the candy store for these lawyers – that’s how they view it now.”

The NCAA’s central office is engaged in multiple legal battles, from the House antitrust suit in Oakland to the Johnson case in Pennsylvania. And it is just weeks away from an important National Labor Relations Board hearing that will weigh whether certain athletes are employees of their universities.

The concern among many industry voices is that a strong-armed enforcement approach to NIL would usher in open season for litigation.

Federal help doesn’t appear to be on way for NIL  

Aresco said it would be beneficial if Congress passed a federal bill that grants at least limited antitrust protection so the association can pass national policy and not get sued. However, that’s a scenario he acknowledged appears increasingly unlikely in the short term amid leadership chaos in the House of Representatives

Aresco said outsourcing NCAA enforcement has been a discussion point in Conference Commissioners Association meetings. It would address various paint points, he said, referencing a third-party model elsewhere – the International Olympic Committee’s launch of the World Anti-Doping Agency in 1999.

Aresco acknowledged the NCAA is hamstrung by its lack of subpoena power while praising new president Charlie Baker as a “breath of fresh air” with what he called an unpretentious willingness to drive into real issues.

But state attorneys general are becoming more willing to enter the college athletics fray. Even in the high-profile Tez Walker transfer eligibility case, North Carolina Attorney General Josh Stein sent a letter to the NCAA demanding that the association reconsider its decision to deny the football player eligibility at North Carolina.

NIL has gotten to point where ‘almost anything goes’

As for the NIL arena, enforcement – at least to date – is almost nonexistent. 

“They [NCAA] are almost overwhelmed now,” Aresco said. “It’s gotten to the point where almost anything goes. There’s almost no enforcement of any kind anyway anymore. It’s very tough for the NCAA right now. Public opinion has shifted.

“What’s also a little disconcerting is that the states have gotten involved. They are basically saying to the NCAA, ‘You can’t enforce anything in my state because my attorney general will go after you.’ That’s not healthy. Because if the NCAA needs to enforce something, they need to enforce something.

“You’ve seen some things right now where every time the NCAA turns around, some attorney general or someone in the state legislature is threatening to sue them. Then you have nothing but the balkanization of college sports, total fragmentation. In some ways, we almost are [there now]. Almost anything goes. It’s hard to enforce NIL. At some point, it almost blends into just paying players – the veneer is so thin. It is a real concern for me.”

AAC coaches agree with third-party approach for NCAA

Penny Hardaway, the Memphis men’s basketball coach, also believes that it’s time for the NCAA to outsource its enforcement efforts. He said the NCAA needs to have more “understanding” because at least 50% of their policies and rules are “too strict.”

“You can’t be the judge, the jury and the executioner,” Hardaway told On3 of the NCAA enforcement structure. “If it’s all in one building, then you control everything. You have to be held accountable and there has to be some other people who can actually come in and chime in, like when you have a jury. They can actually hear a kid out and have some compassion, whereas you [NCAA] would be like, ‘I’m not going to have compassion because 20 years ago we didn’t let this kid do it.’ They are judging off other situations. A [third-party entity] would not be judgmental.”

First-year South Florida coach Amir Abdur-Rahim echoed Hardaway’s sentiments, adding that when the NCAA “governs it and also enforces it, you run into conflict a little bit.”

“Some people can do certain things and they [NCAA] look the other way,” Abdur-Rahim told On3. “Other people do it and it’s like, ‘Oh, no, you can’t do that,’ because it’s not aligned with their agenda.”