Congress Should Reject The NCAA And Send Them Home Empty Handed

The NCAA is in front of Congress this week, begging them again to bail out the NCAA in a way the courts have refused to do. The Supreme Court ruled recently in the O’Bannon case that the NCAA could not prevent student athletes from profiting from their name, image and likeness (NIL). It is pretty clear that the courts will not stop there and will likely rule against the NCAA prohibiting student athletes from making money from the sport they play. Congress should tell the NCAA to face up to reality that amateur athletics no longer exists when college sports is a multi billion dollar business and the NCAA received over $1 Billion in revenue in 2022.

At the heart of this restriction is the NCAA’s rule against “pay for play” which means that student athletes cannot be offered any form of compensation or benefit for attending an NCAA school or university. This has implications both for athletes signing letters of intent as well as using the “transfer portal” to change schools. The rule is simple. Student athletes can’t accept money for playing their sport even though the athlete’s participation in that sport is precisely what the NCAA is profiting from. I have written about how boosters of schools have formed “collectives” which are designed to ensure robust NIL benefits for students athletes attending that school and that these collectives have been accused of covertly using NIL as their disguise for what amounts to “pay for play”.

There are already states initiating legislation that would require student athletes to be paid for their services by the school, eliminating the NCAA’s pay for play prohibition. There are also student athlete lawsuits in process seeking to declare that these athletes are actually employees of the school and should not only be compensated but would be eligible for collective bargaining if they chose to unionize. The NLRB agrees.

The NCAA continues to plead with Congress to enact legislation defining NIL and protecting in some way the NCAA’s current prohibition against “pay for play”. This proposed solution would still subjugate athletes to the NCAA’s limitations on these student athletes participating in the revenues generated by college sports. Let’s face it, college sports is big business and quite frankly has little to do with education.

The better approach would be for the NCAA to act aggressively and proactively and accept that athletes are in fact employees entitled to educational benefits as part of their agreement. The NCAA should become an organization that collectively bargains with the student athletes in a manner modeled after how the NFL, NBA and MLB operate. The NCAA should encourage a student athlete union where a standardized athlete contract could be collectively bargained. This would eliminate the transfer portal and trading of players among member schools could be allowed under certain terms and conditions. That would add another intriguing wrinkle to college sports.

This is overly simplified and lots of details need to be worked out. But it is the only path forward that can truly resolve the thorny issues and injustice that has existed and continues to surface as college sports has become big business. All of the lawsuits seeking student athlete rights would stop and the NLRB would get off the NCAA’s back. Moreover, the NCAA could restore law and order in a way that is transparent, transformative and addresses the just cause of student athletes that are essential in driving revenue in the college sports business.

Recently, the NCAA introduced some proposed self imposed rule changes that focus solely on helping their member schools standardize and perhaps regulate the student athlete NIL deals. None of the proposed rules comes close to making any of the changes recommended above. Rather, the recent proposed rules do absolutely nothing to changes any form of the NCAA’s prohibition against pay for play.

If it hopes to future proof itself, the NCAA needs to take swift and decisive action to reinvent itself. It must come to grips with the reality that they are playing in a world where sports is big business and all necessary stakeholders, in this case, student athletes, are entitled to their piece of the pie. Otherwise, the NCAA’s archaic system will be struck down by an outside force and it will go the way of the dinosaur and become extinct.