With new model ahead, NIL hearing highlights why NCAA is 'so inept'

The nearly two-hour NIL hearing before the House Committee on Small Business on Wednesday won’t inch Congress any closer to delivering the NCAA its long-sought federal bill.

But remember this hearing for another reason. It highlighted precisely what some lawmakers think of the association’s aggressive efforts to lobby Congress for a lifeline – all of those efforts occurring as the NCAA confronts a collegiate model teetering on the brink of an even more revolutionary transformation than the NIL Era ushered in two years ago.

The seminal question?

“When you all are asking the United States Government, where it will literally take an act of Congress to change something once we let it out loose in the wild, is the NCAA so inept right now that this is something Congress must legislate,” Rep. Morgan McGarvey (D-KY) asked.

Spoiler alert: Yes.

The NCAA is now a powerless organization without the ability to build consensus among power conferences that have been busy all summer poaching one another’s schools to construct super leagues fueled by billions of TV dollars, none of which are permitted to find their way into pockets of athletes.

After McGarvey asked the question, one college athletics source told On3, “You could hear a pin drop.”

And McGarvey himself said, “I’ll take some of the silence as an answer.”

Here’s the reality: The winds of change are fiercely blowing in one direction – toward a long-overdue revenue-sharing model. Forward-thinking leaders – including Oklahoma Athletic Director Joe Castiglione, Mountain West Conference Commissioner Gloria Nevarez and AAC Commissioner Mike Aresco – have told On3 that now is the time to explore what a revenue-sharing model would look like.

But the NCAA has exerted all of its efforts toward leaning on Congress to save it. Its wish list includes a preemption of state NIL laws, at least partial antitrust protection and a formal designation that athletes are not employees.

Their chances of securing even a fair portion of that?

As one prominent college source told On3 on Wednesday: “Hell, no. They aren’t getting shit.”

Instead of investing all of its efforts on the Congressional front – where a flurry of disparate bills face a steep climb to even a vote – college sports leaders need to step forward and start creating the enterprise’s new model. Or else the courts – or the athletes themselves – will do so for them.

What was hammered home in Wednesday’s hearing is that Congress isn’t eager to provide the lifeline.

“Somebody needs to step forward,” former Heisman Trophy-winning quarterback Gino Torretta, one of the four witnesses in the hearing, said. “It is apparent that the NCAA is not going to step forward, so I think that is why we are here. Maybe Congress can put the impetus on the NCAA to say, ‘Here are things that need to happen. Do it.'”

Leaders are saying: ‘We can’t do our jobs’

No one better articulated the state of play than Sen. Chris Murphy (D-Conn.), who said during Tuesday’s LEAD1 Association meetings that he is worried about Congress “micromanaging” rules of endorsement deals, the transfer portal or compensation.

“I would argue for the NCAA to be convening a conversation right now about what a revenue-sharing system would look like, to be thinking about, if not collective bargaining, a model where students actually got power,” Murphy said. “And instead of just being reactionary, which is where the industry and where the NCAA has been for decades, sort of understand that the courts are coming for the existing paradigm.”

The courts are indeed “coming.”

Efforts with Congress amount to background noise on a stage where truly relevant developments are occurring elsewhere. Want to know where college sports is headed?

Follow the motion hearing Thursday afternoon from Northern California in the potentially monumental House v. NCAA hearing. Keep an eye on the Johnson v. NCAA case in Pennsylvania. Circle Nov. 7 on your calendar, the hearing date for the National Labor Relations Board complaint against the NCAA, Pac-12 and USC.

And follow the implications of Dartmouth men’s basketball players filing an NLRB petition to unionize.

Congress wants clear, concise messaging on what solutions college stakeholders seek. Right now, there is no clear messaging. As a result, Congress isn’t eager to solve the NCAA’s problems.

“Why would they be?” Jason Stahl, the founder of the College Football Players Association and one of six witnesses who testified at the March Congressional NIL hearing, told On3 on Wednesday. “They’ve got so many other, bigger worries. They effectively have people who are paid multi-million-dollar salaries in the NCAA and college athletics coming to them saying, ‘Do my job for me.’ If I were a Representative, I’d be like, ‘Why? Do your own job.’ 

“Effectively what they are saying in begging for a federal NIL standard and antitrust exemption is, ‘We can’t do our jobs.’ Then why are you making all this money? I think it’s embarrassing, quite frankly. I don’t think anything is coming out of Congress.”

The NCAA ‘doesn’t have its act together’

As McGarvey said, the NCAA is the best institution to handle matters related to the college athletics space.

“This is the first time on our committee that I have seen an organization come before us that doesn’t have its act together and is so inept that it is actually asking the government to take over what is going on and regulate this,” McGarvey said.

As for the NIL hearing, the public may dunk on it and say it won’t move the needle. It never was going to move any needle. But it was illuminating on a number of levels:

Among the four witnesses, the stars were former Division I Student-Athlete Advisory Committee chair Maddie Salamone and Torretta. Salamone made several astute points on athlete health, safety and welfare, all of which and critically important and would make for a robust discussion in a subsequent hearing on those topics. Regarding the NCAA, she did pointedly say the association has “abdicated the throne” when it comes to NCAA enforcement.

It remains unclear why Torretta testified. Don’t forget he starred for Miami some 30 years before athletes were permitted to monetize their brands. But he offered strong insight on two fronts:

Torretta acknowledged the realities of the landscape: “The universities are getting free labor still.” To be a fly on the wall in Indianapolis when he uttered those words.

Torretta also rightly noted that the NCAA lacks “enforcement teeth” on NIL, fearful of further litigation. Who will police the space, he asked. Without a viable enforcement apparatus, he said, “there’s going to be bad things.”

After reading Torretta’s written testimony beforehand, I was somewhat optimistic that the hearing would be productive because he said that collectives need to move in-house, under a university’s umbrella.

It was inexplicable that no lawmakers went down this line of questioning, much less ask two prominent Power 4 athletic director witnesses – Ohio State‘s Gene Smith and TCU‘s Jeremiah Donati – two specific questions:

How would you characterize the extent of your school’s current relationship with the school-affiliated collective? And what are the pros and cons of formally moving collectives in-house?

NCAA chooses to play the role of bystander

Here’s why this is a critical issue in the NIL space: Evolving NCAA guidance still maintains there needs to be some distance between schools and collectives. Industry sources tell On3 that most Power 5 schools are ignoring that guidance. It matters because some 95% of collective dollars go to male athletes. 

If schools and collectives are quietly tethered at the hip, whether they want to acknowledge it or not, and the majority of funds are going to the men, we then have blatant Title IX violations, legal expert Arthur Bryant told On3. If the NCAA were to green-light collectives formally moving in-house, it would end the subterfuge. Schools would then have no excuse not to be Title IX compliant when it comes to NIL.

Unfortunately, the issue was never broached with Donati and Smith.

On another note, discussion at times centered on the need for more transparency measures, uniform NIL contracts and an agent registry. The NCAA’s NIL subcommittee this summer was green-lighted to develop those elements, along with an NIL database. Votes on those policy changes will occur next month and in January.

A focus on those measures in the hearing does nothing to advance NIL reform.

Overall, for all their efforts lobbying Congress, which has intensified in recent months, the NCAA’s ball hasn’t moved forward. It’s mired on the wrong side of the field, facing fourth-and-long and needing a Hail Mary with a quarterback expert only in running the triple-option.

All the rhetoric by lawmakers, meaningless predictions by Sen. Ted Cruz (R-TX) on the likelihood of a bill, and debates over dead-on-arrival bill drafts are all side drama.

With the NCAA ceding all opportunities to get out in front of developments, the must-see action will instead occur in courtrooms, continuing as soon as tomorrow. Like it or not, a new model is coming. And the NCAA chooses to play the role of bystander, futilely pleading for a Congressional helping hand.

As McGarvey twice said, “So inept.”