Why the NCAA has put all efforts to derail employment model in Congress' hands

Cut through all the colorful buzzwords – bad actors, Wild West and race to the bottom – and see that the 10th NIL hearing on Capitol Hill was really about something much more than new-age player bidding wars.

Changes to the NIL space are small ball in the debate over the future of college sports.

As Charlie Baker fielded questions Tuesday from federal lawmakers for the first time since he assumed his role as NCAA president in March, the heart of this hearing centered on something far more consequential:

It’s about the NCAA vs. the courts.

It’s about the NCAA deciding that begging Congress for federal legislation – that specifically includes limited antitrust protection and a designation that athletes are not university employees – is its best, and perhaps only, defense against what many see as an inevitability: the coming employee model.

The employment train is barreling down the tracks. Amateur hour is over. And the NCAA views a congressional lifeline as the only way to derail it. 

Federal NIL reform is a Hail Mary

Good luck. This is the NCAA’s fourth-down Hail Mary pass – throwing into the wind.

“Even employee status, all this is about is, ‘We don’t want to pay them fairly,'” witness Ramogi Huma, a longtime athlete advocate, said during the hearing. “We’re talking about equal rights. And this industry is operating in illegal fashion. It is breaking antitrust law. Breaking labor law. And now it’s coming home.”

Don’t be distracted by Senators describing the NIL world as “dangerous chaos” or “absolute chaos” or mere “chaos.” The beleaguered NCAA sees the writing on the legal wall. In a post-Alston world, federal courts are increasingly looking askance at the association. 

Plenty of battles are afoot: The high-stakes House antitrust case is proceeding in Oakland, while the Johnson lawsuit is ongoing in Pennsylvania. Meantime, the important National Labor Relations Board hearing begins next month over the unfair labor practices charges against the NCAA, Pac-12 and USC.

Employment model is virtual inevitability

The NCAA has ceded the opportunity to get out in front of the oncoming tidal wave to proactively create a new model. Sen. John Kennedy (R-LA), whose overall remarks were among the most memorable, noted that college sports, not Congress, should craft a new system. 

What ESPN analyst Jay Bilas recently told On3 captures the state of play, which was underscored in Tuesday’s nearly three-hour hearing. 

“It took a while for the courts to catch up, but anybody who read the Alston case, and the concurring opinion by Justice [Brett] Kavanaugh knows – it’s over,” Bilas said. “The only savior for the NCAA in limiting athletes going forward is going to be Congress. They can’t do it themselves. They know it. That’s their only hope.”

Jordan Acker, the outspoken Michigan regent, tweeted that it was noteworthy that pro-NCAA witnesses were not explicitly uttering the word “antitrust.”

“Tells you a lot,” Acker said. “Employee status is coming. So is revenue sharing.”

While a Title IX reckoning is real and is coming in the NIL space, NIL will continue to evolve as market forces shape it. But the NCAA’s sense of urgency stems from ongoing proceedings in the courts – and thus, a growing number of college sports leaders view an employment model as a virtual inevitability. 

As Sen. Lindsey Graham (R-SC) said, “If this committee and Commerce Committee doesn’t act in about a year, this thing will be a mess. You’re going to destroy college athletics.”

NIL killing D-II, D-III sports ‘a stupid scare tactic’

One can argue that an employment model – not revenue sharing, per se – would be a net negative for athletes. But it’s coming, at least for some athletes, and the most forward-thinking leaders in the industry believe it’s time to start exploring what that model would entail.

The NCAA’s contention is that an employment model would force Division II and III schools to drop sports to club level because they wouldn’t be able to afford them. 

On one hand, Baker said he believes painting with a broad brush is OK when implementing one set of rules for all athletes across all sports at all levels – regardless of whether it’s fair for the Power 5 athletes who drive enormous TV rights revenue deals. On the other hand, he believes painting with a broad brush in an employment model is not okay because it would decimate D-II and D-III.

“Laughable and a stupid scare tactic,” David Ridpath, a professor of sports business at Ohio University who has appeared before numerous Congressional committees regarding college athletics, told On3 on Tuesday.

Baker and fellow witness Jack Swarbrick, the Notre Dame athletic director, both said that the vast majority of athletes do not want to be university employees. That’s ironic as Dartmouth men’s basketball players await an NLRB regional director’s ruling on whether they can conduct a union election.

(Too bad no active Division I football or basketball player was a witness.)

The latter point by Baker and Swarbrick may be immaterial. As Huma said: “What are equal rights under the law? Do athletes have labor rights or not? … It’s a second-class citizenship. When you carve out players from rights, that’s a big issue in this country.”

People on NIL pannel ‘put us where we are now’

Ridpath said he saw Baker, Swarbrick and Big Ten Commissioner Tony Petitti trying to act like college athletes are students while treating them as employees but not giving the full rights of either category to the athlete.

“It is infuriating that they and members of Congress cannot understand this simple premise – they are either students or they are employees,” Ridpath said. “They cannot be both. Until this is figured out, we will be on a perpetual hamster wheel. The real kicker is – if the enterprise and Congress want restrictions on NILs, transferring, etc., the best path forward is to make them employees and collectively bargain any restrictions such as inducements.

“The sad reality is people on that panel put us where we are now. It is not about education. It is largely professional sports. The leaders do not want to unwind that because of the money and pressure to win, so they are hoping to have it both ways – and that will never work.”

Jim Cavale, who recently launched Athletes.Org, told On3 on Tuesday the NCAA knows “Congress is their only hope to provide them with the protection to roll back a lot of the progressions that are now being made on behalf of athletes.”

“My only question is what if there was another way, an additional path for the NCAA or college athletics to figure out the future with the athletes and create an alternative path that is not reliant on Congress and is not even necessarily reliant on the courts,” Cavale, whose company is media partners with On3, said.

Why wasn’t revenue sharing discussed?

It’s a shame lawmakers did not ask any questions specifically on revenue sharing – separate from an employment model – especially with Petitti as a witness. His league has become a coast-to-coast super conference, fueled by billions in TV rights dollars.

It would have been nice to hear Petitti on whether it’s time for athletes to get a slice of that revenue pie. That’s especially true on the heels of his most recognizable coach, Michigan’s Jim Harbaugh, endorsing such a model.

If Baker claims to have his finger on the pulse of what athletes want – he said he’s talked with at least 1,000 – are athletes in favor of receiving a slice of the revenue pie?

‘You may regret asking Congress to intervene’

The hearing wasn’t without a few curious comments:

Such as: Petitti saying, “We are concerned that management of college athletics is shifting away from universities to collectives.”

Interesting statement from a commissioner who knows firsthand that the entities that control college football are, in fact, not universities but rather puppet masters named ESPN and FOX Sports.

Later, Sen. Joe Manchin (D-WV) inexplicably said, “It’s hard to root for the kids when they are multi-millionaires as freshmen and sophomores.”

Mit Winter, a college sports attorney with Kansas City-based Kennyhertz Perry, tweeted: “As if they only go to games because they know the athletes don’t have much. The effort for a federal NIL/college athletics bill is really about having the continuing ability to limit athlete compensation.”

On another note, having Congress’ fingerprints all over college sports raises questions.

Kennedy echoed what AAC Commissioner Mike Aresco told On3: If you want Congress to save the day, be careful what you wish for.

“You may regret asking Congress to intervene here,” Kennedy said. “All of a sudden, you’re going to be micromanaged.”

Are college sports truly in chaos thanks to NIL?

Sen. Ted Cruz (R-TX) added: “Bad things will happen, I believe, if government takes over college sports.”

Senators were already depicting a college sports landscape several believe has been marred by NIL. 

Sen. Richard Blumenthal (D-CT) said state NIL laws will cause “dangerous chaos” – a characterization  laced with hyperbole – and that the “present system is broken.” Graham said between NIL and the transfer portal, “college football is in absolute chaos.”

And yet, Baker and stakeholders continue to seek a congressional lifeline against the backdrop of a prosperous college football landscape. Ratings are robust, storylines are fresh and compelling and college football is flourishing. That’s rooted in parity that’s been fueled by NIL and the transfer portal.

And women’s college sports are all the rage, with more than 50,000 watching an Iowa basketball game outdoors. And the faces of the women’s game have become NIL stars.  

A broken system? The only thing broken is the NCAA’s long-obsolete amateur model.

And the NCAA has no plans for an alternative model. Sen. Thom Tillis (R-NC) asked Swarbrick if there is a model Congress can follow. Swarbrick had no suggestion.

Amateur hour is over. A new paradigm is coming. The NCAA’s continued appeal to Congress is its only long-shot hope to stop the inevitability that looms. 

If that Hail Mary fails, the courts and the NLRB will have their say – and, as most expect, the employment train won’t be derailed.