Tom McMillen: As realignment spins, college sports' 'dog-eat-dog' culture on display

Buckle up for a pivotal fall in college athletics.

As college football readies for kickoff across the country, off-the-field developments promise to come fast and furious in the coming months and loom as far more consequential. The NCAA will continue its aggressive lobbying efforts in Congress, hoping by the end of the calendar year to secure a federal NIL bill. And developments emerging from the National Labor Relations Board hearing in November and the Johnson v. NCAA case in Pennsylvania could inch the enterprise ever closer to a potential employment model for student-athletes.

In an exclusive wide-ranging interview with On3, Tom McMillen, former U.S. Congressman and current CEO of LEAD1 Association, set the stage for a significant fall that will help chart the course for the enterprise in the coming years. Calling these next few months “very critical moments,” he said the true point of criticality won’t arrive for another year or two.

This is the second of a three-part discussion with Tom McMillen. Here you can find part one. Among the highlights in this part of the interview:

Tom McMillen said the ongoing round of massive realignment moves will not help the NCAA’s Congressional efforts. He also said that any athlete whose school has changed conferences should be permitted to transfer without penalty.

“The NCAA should give any kid that wants to transfer in these realignments, they should allow it to happen,” he said. “They need to give them mobility to move to another situation, even if they don’t have any transfer ability left. They’ve got to do some things like that to even the playing field.”

Tom McMillen also provided this assessment of the role conferences are playing in realignment: “No question that the conferences compete against each other. They are vicious. They’ll look for any angle to get ahead of the others. Even when working together might be in the best interest of college sports. There is a fragmentation where dog-eat-dog is the prevailing culture.”

And don’t expect the NCAA’s lobbying efforts with Congress to yield a bill that designates that student-athletes cannot be employees of their schools.

“There will not be a bill in Congress that comes out that codifies non-employment status,” he said. “It’s dead on arrival. And so there’s going to be round two. Round two is going to be much more important – much more existential.” 

(The interview has been lightly edited for clarity and context.)

Q: If there is not a federal bill that preempts the patchwork of state NIL laws, how can the clash between state NIL laws and NCAA guidance be reconciled? The NCAA is hesitant to enforce its own policy because of fear of litigation.

Tom McMillen: “It goes back to the Dormant Commerce Clause. That was tested once when Nevada tried to pass stuff to protect [Jerry] Tarkanian and the NCAA sued and took it to the Supreme Court. And the Supreme Court ruled that an association needs to be able to have established rules and regulations. So, if you’re a school and want to challenge the NCAA, you’re going to be left on the sidelines for an extended period of time. 

“Let me also say this, the CFP (College Football Playoff), if you look into their bylaws, I haven’t seen it but I am aware that their bylaws require compliance with conference and NCAA rules. It is just obvious. How can you have a football championship if the Green Bay Packers are going to come in and play in it? There are rules and regulations. 

“A school that starts walking down that road might be eliminated from conference championships. It might be eliminated from NCAA championships. They also may be eliminated from the CFP. So, I think there’s going to be some bluster here. But the NCAA came out pretty forcefully and said, ‘Our rules supersede state rules.’ And the last person to challenge this, Tarkanian and Nevada, it didn’t turn out so well. I’m not sure anybody wants to follow that pathway. So, I do think the NCAA has shown leadership by saying our rules are the ones that count.”

Q: Notre Dame Athletic Director Jack Swarbrick said on The Dan Patrick Show that what is happening in college sports regarding realignment is a “complete disaster.” Is this latest round of realignment in the best interest of the broader enterprise? And could it accelerate movement toward a revenue-sharing model because it illuminates how TV rights dollars drive these moves while the athletes receive none of it?

Tom McMillen: “I don’t think any of this helps Congressional efforts, although I’m amazed there haven’t been any members of Congress really stand up and scream about realignment. And partly that is true because there is not one state that got really harmed. If you’re [Oregon Sen.] Ron Wyden, a great sports fan, then you can say, ‘Well, Oregon won and Oregon State got screwed. Do I come out and bash realignment?’ The same thing with Washington. There is not a state where that school is a loser and there is only one school, and they are the only one left behind. 

“With the Congressional districts, I am surprised, and mostly it’s because they are on break now. But if I were the Congressman from Oregon State or Washington state, I would be going crazy. And same thing with Stanford and Berkeley. And I wrote about it. My book, I wrote it in 1991 and wrote about realignment. The realignment will proceed with a single-minded goal to maximize the bargaining strength of the colleges and conferences  … it will be down and dirty with dozens of also-rans being cut out of deals by their former partners. Most of all, it will reinforce in the minds of the public, including athletes and non-athletes from kindergarten to college, that sports are about money, nothing more, nothing less.

“This has been going on, there’s really nothing new about it. It’s become bigger geography. That’s the novelty of it. But ultimately, the irony of it is, when Justice [Byron] White wrote the dissenting opinion in the ’84 Supreme Court decision, I put legislation in ’91 to overturn that. I said, ‘Let’s restore the NCAA monopoly.’ I wanted an NFL kind of television model for college sports. The present model is quite inefficient if you talk to experts. Part of the bulking up is to give more leverage to these conferences. Because they will be in many time zones and there will be much more demand. 

“That’s part of the reason. That’s kind of what [then-Big Ten Commissioner] Kevin [Warren] wanted to do in the Big Ten. And I guess they are following through on it. I don’t think it helps the legislative efforts. And certainly, it will have some rebound effect on athletes and what’s a fair deal for them … The NCAA should give any kid that wants to transfer in these realignments, they should allow it to happen. They need to give them mobility to move to another situation, even if they don’t have any transfer ability left. They’ve got to do some things like that to even the playing field.”

Q: I talked with Jay Bilas about the absence of a steward of the broader college athletics enterprise. Does the industry need one?

Tom McMillen: “Going back to the ’84 Supreme Court decision, [Justice White’s] dissenting opinion was so prescient, because he talked about commercialism running rampant over education. And I think if he were alive today, he would say he was wrong in the short term. Because what private sector entrepreneurialism did to college sports is it opened up TV where there’s a universal product out there. You can watch TV anytime, anyplace. Before that, innovation was limited. So killing the monopoly unleashed a lot of innovation.

“But I think in the long run, I think White’s concern has been really proven out. There’s always a tug and pull between academics and commercialism. And this is a classic case of it because football teams play a few games, they can charter, they leave on a Friday, they come back on Saturday. It is all doable. Basketball gets more complicated. Then you go to the other sports and it’s a very challenging scheduling environment. So that means to be seen. What happens to kids with their coursework and school and all that? And we don’t know the outcome of that. 

“But when you asked whether there needs to be that strong person in charge of college sports, I think Charlie Baker is trying to do that with collaboration and working with the conferences. But there’s no question that the conferences compete against each other. They are vicious. They’ll look for any angle to get ahead of the others, even when working together might be in the best interest of college sports. There is a fragmentation where dog-eat-dog is the prevailing culture. The best analogy I can give is if the FCC (Federal Communications Commission) said, ‘Wait a minute, we’ve been told we can’t make any more laws. And we’re going to let the networks and all the television properties – Amazon and NBC and ABC and CBS, Apple – let them make their own rules. You guys just go to it.’

“I see that as an analogy because you have competitors really effectively making the rules, to your points. These commissioners are super talented, high-charged individuals. I know they work hard to collaborate. But I also see it on the Hill sometimes, where there is not always a uniformity of opinions. Sometimes one conference goes one way, and another goes the other way. 

“It’s a problem. But I know Charlie is working very hard to collaborate with them, and hopefully, that will work. And if they can get a victory here [with a federal bill], it will set them up for a bigger victory down the road when the employment issue comes around.”

Q: Whether it’s in the form of what The Collective Association has proposed or not, how likely is it that revenue sharing is coming to big-time college athletics?

Tom McMillen: “What Charlie Baker has said – and I agree –is you have to bifurcate college sports. There are high-revenue sports and lower-revenue, non-revenue sports. We have to come up with a system – and the courts are not a good way of doing that – to create a model for the higher revenue sports that is Title IX compliant and creates greater equities, particularly for basketball and football players. How you get there is not easy. Because you do have Title IX. So, if you give $1 million to football players, you have to give $1 million to women athletes. It’s kind of a Rubik’s Cube. But it will have to be addressed.

“And you’re better off addressing it, and coming up with a plan, than having either Congress or the courts throw it in your lap. I don’t think 2024 is a seminal year. I think it’s more likely to be ’25, maybe even ’26. Anything that is done will be appealed. Here’s what’s interesting: If you look at the House and you look at the Senate, I think there’s only a minority who would support employment rights … The difference is any bill through the codifies that is not going to be easy because there’s a core of members who believe in collective bargaining, who believe in revenue sharing. They can hold the process up. So you’re going to have to have a compromise to move that ball forward in the legislative arena.

“What I’ve said to our ADs is that Name, Image and Likeness may very well be a dress rehearsal. Because whether NIL gets done or not, there’s going to be a bigger battle coming in the next year or two. Because they’re not going to, they’re not going to resolve it. There will not be a bill in Congress that comes out that codifies non-employment status. It’s dead on arrival. And so there’s going to be round two. Round two is going to be much more important — much more existential. 

“We have our meeting this fall, I said, ‘Go up on the Hill. Talk to your Congressmen.’ … There are provisions in all these bills. I think stumbling issues are what Cruz wants to do is give the NCAA more authority and some antitrust safe harbor and then others want to create another commission or whatever. Because of the NCAA’s PR position, they don’t want to give the NCAA a mandate now given all the problems the NCAA has had. There are members who hold firm on having a third party involved. That’s a crux issue … 

“The biggest stumbling block is who’s going to be the policeman on the street. The NCAA or a third party? That’s going to be one of the tougher issues to resolve. Agents and transparency and preemption, I think there is strong unanimity about that. But when it comes to who the policeman is, that’s where it gets tricky.”