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NCAA hides true intentions behind disingenuous statements in attempt to win PR war
Name and image rights are coming to athletes, but the process is going to be slow, messy, and contentious.
Are you convinced?
With changes to NCAA regulations pending, I spent time last week wondering how well Cal MBB would be able to navigate an uncertain future. One week later, and the NCAA has made their first move towards reform. The actual results are underwhelming, even for those who hold a very low opinion of the NCAA.
The Division I Board of Directors and Presidential Forum met last week and issued various statements and recommendations. That means that none of this is settled, though I can’t help but assume that the board likely represents the prevailing opinion among decision makers.
First, the item that will have an immediate impact on programs and athletes: contrary to rumors, the board didn’t recommend allowing each athlete a one-time transfer exemption. That’s not necessarily because the board is adamantly against changes to transfer rules, but because they don’t want to rush into anything:
This development doesn't mean the issue is dead by any means. The NCAA board simply concluded the one-time transfer concept was too complicated to recommend pursuing it right now as it will require formal legislation -- instead of a mere tweak to existing transfer rules.
On the one hand, I understand the instinct to give yourself time to do it right. On the other hand, all but five sports allow transfers without sitting out, so it’s not like there isn’t some kind of structure already in place. I suspect that one time transfers will be allowed at some point, but I have no idea when that time will come. This means that Cal MBB transfer recruit Jarred Hyder’s status is still up in the air, and Cal still may not have a back-up point guard to Joel Brown*.
But more importantly, the NCAA finally tried to get out in front of the name-and-likeness issue . . . and for a brief period of time, appeared to actually be making positive changes to give athletes more autonomy and control:
When the news broke on Wednesday, most reporting read like NPR’s headline above. The NCAA will finally give name and likeness!
But of course it wasn’t that simple, and of course the NCAA is still trying to significantly curtail athlete autonomy. You can read the full NCAA press release here, but what you need to know is that the NCAA lists a bunch of principles that any reform package would need to adhere, then lists a bunch of things the NCAA is going to ask Congress to do:
The board also discussed the potential challenges to modernizing rules posed by outside legal and legislative factors that could significantly undermine the NCAA’s ability to take meaningful action. As a result, it will engage Congress to take steps that include the following:
Ensuring federal preemption over state name, image and likeness laws.
Establishing a “safe harbor” for the Association to provide protection against lawsuits filed for name, image and likeness rules.
Safeguarding the nonemployment status of student-athletes.
Maintaining the distinction between college athletes and professional athletes.
Upholding the NCAA’s values, including diversity, inclusion and gender equity.
The bolded items amount to a desperate Hail Mary to preserve NCAA revenue streams by begging congress to give the NCAA a legal monopoly and shield them from lawsuits.
You should read all of Brian Cook’s breakdown at MGoBlog, but he quickly summarized everything wrong with the NCAA’s attempt to protect themselves:
The NCAA wants to enshrine "athletes are not employees" into federal law and acquire an antitrust exemption that would shield them from the avalanche of lawsuits that keep chipping away at their exploitative business model. It says everything you need to know that the NCAA want to "safeguard" their athletes from employee status. As the ongoing NLRB battle between universities and grad students demonstrates, employees have rights. You don't safeguard people from rights.
So, maaaaybe congress steps in and gives the NCAA what they want, and the NCAA maintains a slightly weakened version of amateurism. But that seems unlikely. If the political will existed to protect the NCAA, why are so many states pursuing and passing legislation that supports athlete rights and eats away at NCAA authority? No, the NCAA isn’t going to get their way on this.
So what does the NCAA do when they don’t get their way? California’s already-passed reform bill doesn’t go into effect until January 1, 2023, which means that there’s still more than two and a half years for the federal government to pass legislation to try to establish national uniformity rather than a bunch of piecemeal, contradictory legislation passed state-by-state. There are also more than two and half years to keep shoveling March Madness $$$ into the pockets of various lawyers. I’d imagine that the NCAA will try to legally contest any state or federal laws that don’t, in their view, adequately protect amateurism.
Which is a long way of saying that we are years away from resolving these issues, and despite headlines to the contrary, the NCAA is still very much being dragged kicking and screaming towards reality.
*Cal MBB still has an open scholarship, and there’s been exactly zero news about what they might do with that slot since Michael Flowers indefinitely postponed his commitment. But that’s an article topic for another day!