Inexplicably, NCAA is choosing to make enemies with schools it most needs to placate

Choose your favorite absurdity from the news the NCAA is investigating yet another school, Tennessee, over potential NIL-related impropriety:

That the alleged transgressions are petty; that the enforcement staff is circling over Knoxville while every major program worth its salt is dishing out dollars in retention and recruiting efforts; or that the NCAA is attempting this NIL crackdown at the same time it is actively trying to fast-track legislation that would allow schools themselves to enter into NIL deals with athletes.

But cut through all the noise related to the NCAA’s inexplicable enforcement actions and absorb this reality: The NCAA is choosing to make enemies with the very schools it most needs to placate. 

The choice to do so could carry dire ramifications down the road for the more than century-old association, which for decades has cornered the market on tone-deaf moves and policies.

College sports is on fire right now – set ablaze not because athletes can finally monetize their brands but because the current system is unsustainable, antiquated, and, increasingly in the eyes of the courts, in violation of antitrust law. 

The NIL “guidelines” are petty, contradictory and won’t be around in a few years anyway – and the NCAA may not be around either, at least not in its current form.

“I keep saying that the next 18 months or so,” one conference commissioner told On3, “will determine whether the NCAA will exist as we know it moving forward.”

Walls are closing in on the NCAA

Forget saving amateurism – that is a relic.

The walls are closing in on the NCAA itself, and here’s why.

All external industry forces are moving toward a true revenue-sharing model in major college athletics, where athletes finally receive a slide of the enormous media rights deals. Most leading stakeholders acknowledge, if not explicitly accept that reality – except that the NCAA continues to try to swim upstream against the current.

Everything is also likely moving toward an employee model for at least a segment of student-athletes, which could usher in revenue sharing and unionization. Legal experts and industry leaders see the employee train barrelling down three parallel tracks: Two National Labor Relations Board cases – one involving USC, the Pac-12 and the NCAA – and the other involving Dartmouth men’s basketball players; and the Johnson v. NCAA lawsuit carries employment implications as well.

In the meantime, lawsuits against the NCAA are coming fast and furious. Tennessee and Virginia attorneys general just filed one Wednesday, asserting that NCAA NIL guidelines related to recruiting inducements violate antitrust law.

The NCAA/college athletics should have been working on a new model that complies with antitrust and labor law the day after the Supreme Court’s Alston decision was released.

Instead, it was 2.5 years and millions of dollars trying to resist the inevitable.

— Mit Winter (@WinterSportsLaw) January 31, 2024

NCAA’s efforts to lobby Congress haven’t worked

Absent Congressional intervention, the only way to stave off further legal challenges – and they almost certainly will come – is to create and implement a college sports model that incorporates collective bargaining for athletes.

An employment model is needed to open the doors to unionization.

First-year NCAA President Charlie Baker has repeatedly discussed the need to evolve the NCAA and put the interests of student-athletes at the forefront. But instead of moving closer to a model that allows for collective bargaining, the NCAA continues to aggressively lobby Congress for a lifeline – a long-shot effort that the association wants to result in limited antitrust protection and codification that student-athletes are not employees.

Those efforts – and 11 NIL-related Congressional hearings – have thus far been fruitless. And if you’re looking for a sign that a federal reform bill is on the short-term horizon, don’t hold your breath.

“It’s not only they want all the power, it’s not only they want all the money, it’s that they want you to believe they’re good people who have the best interests of the athletes at heart – when they quite obviously do not,” Jason Stahl, founder of the College Football Players Association, told On3. 

Frustration mounts for Power Four leaders

Meantime, some stakeholders, especially those in the Power Four, are becoming frustrated and impatient.

Among the critiques of Baker’s reform proposal, sources say, many recognize it doesn’t go far enough to thwart the growing mountain of legal threats. And they see a potentially costly damages bill in the House antitrust case on the horizon, one that could put the NCAA and most of college sports on the hook for $4.2 billion in retroactive NIL pay and broadcast revenue owed to thousands of athletes.

That outcome could also change the NCAA model forever.

So why not change it now proactively, as an increasing number of power conference sources are now asking?

One Power Four athletic director told On3 that stakeholders “missed the boat” in not getting out ahead of NIL a few years ago and also not getting out ahead of creating a more athlete-focused reform model. As a result, the AD said, the industry finds itself in this cycle of being reactive rather than proactive – a period of chaos and confusion – even though it is clear that the eventual outcome will be a true revenue-sharing model. 

So who has the leverage? The Power Four, of course.

Keep picking fights with the Power Four schools over murky, contradictory NIL guidelines and they’ll gather their belongings and break away from the NCAA. Whispers along those lines are only getting louder.

“You think of a scenario that leads to the big schools more quickly taking their bases and going home …,” one leading college sports source told On3, “everything is on the table.”

Tennessee VS NCAA | Volunteers FIGHT Back, We Hear from @Brent_Hubbs of @Volquest_On3 | @ChrisDoering Joins | Re-Naming the "Power 5" with @TBob53, @JacobHester, and @slmandel https://t.co/JQkSutoLLQ

— Andy Staples (@Andy_Staples) January 31, 2024

Without Power Four, NCAA faces existential threat

Keep doubling down on NIL policing and, in time, those Power Four schools can also grab their basketball and move to stage their own lucrative championship postseason tournament.

The NCAA’s current March Madness deal, which runs through 2032 with CBS Sports and Warner Bros. Discovery, generates some $1 billion annually for the association, representing the vast majority of their yearly revenue.

Few are talking publicly now about how the lucrative NCAA tournament fits into the mass disruption that has engulfed college sports. But it’s an issue that in time will come to the forefront. It’s a big reason why the NCAA needs the Power Four much more than the Power Four needs the NCAA.

As Stahl framed it, it’s the basketball players themselves who create the billion-dollar value of the NCAA Tournament, which has long been one of America’s most treasured and popular sports properties.

“And they [NCAA] are paying hundreds of dollars an hour to lobbyists and lawyers trying to keep those players from making more money that they generate to keep the whole system going,” Stahl said. “I couldn’t imagine anything more exploitative.”

Some of the NCAA’s chess moves over the past year were at least understandable, even if you disagreed with the action. Even Baker’s December proposal served as a refreshing, bold concept for an association never before mentioned in the same sentence as the word bold. It was a clarion call to Congress that, “Yes, we’re trying to do something here. Now help us out with some antitrust protection.”

But this attempt to crack down on NIL activity – levying sanctions against Florida State and investigating Florida and Tennessee – is a sideshow. An increasing number of stakeholders privately say the NCAA’s credibility has been mortally wounded over time, and that it has largely ceded authority to lead as legal threats mount by the week. 

It’s early 2024 and the NCAA is taking on water from all sides: the courts, public sentiment and increasingly members within its richest conferences. So its move, inexplicably, is to make enemies with the constituents it most needs on its side?

That’s not a bold move. It’s one fraught with peril. Without the Power Four, the NCAA wouldn’t exist – at least not in its current form.