Apocalypse Now: The Downward Spiral of the NCAA

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Apocalypse Now: The Downward Spiral of the NCAA

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Where to start?

College football, indeed all of collegiate athletics, is careening towards an undetermined future, and doing is so at warp speed. There are so many variables at work right now that it’s hard to even know which of the myriad of lawsuits and rulings are the most important.

When the last round of realignment was taking place, with the Pac-12 being decimated by defections to the Big Ten … then by defections to the Big 12 … then by defections … to the ACC (?), it seemed like the end of the NCAA (and collegiate athletics as we know it) would come towards the end of the 2020s, when the current television contracts expire. The thinking was that the top 24 … or 32 … or 48 … or 64 … college programs would break off from the NCAA, form its own football-only semi-pro league, and let the UCLA volleyball team go back to competing against Cal instead of Rutgers.

Now, however, it’s looking more and more as if the NCAA isn’t going to last even that long.

The governing body overseeing amateur sports is facing legal threats — some overlapping, some contradictory — to its status quo on several fronts. This past week, the National Labor Relations Board told players on the Dartmouth men’s basketball team that they fit the definition of a university employee. In a normal year, that would have been a bombshell, but in the current landscape, the ruling barely caused a ripple.

The day after the NLRB ruling, a federal judge wrote that the Tennessee attorney general is “likely to succeed on the merits” of a claim that the NCAA can’t legally punish players or their schools for negotiating name, image and likeness deals during their recruiting process.

The end of NIL regulation? Before it ever really even got started (or ever actually enforced)?

Okay.

The NCAA is already fighting existing court cases and lobbying Congress for national rules, and while there’s no clear, singular knockout punch on the horizon, it’s clear walls are closing in on what remains of amateurism in college sports.

Some highlights of frontal assaults being made on collegiate athletics in its present makeup:

Dartmouth, the NLRB, and collegiate “employees”

If the Dartmouth case sounds familiar, it should. Ten years ago, Northwestern players sued to form a union. They too won at the early stages of the NLRB process, only to be shot down later. The rationale at the time was that it would be an unfair advantage for private schools (like Northwestern) to have paid players when competing against public institutions with “amateurs” (the rest of the Big Ten).

Dartmouth competes in the Ivy League, which is made up of all private schools, so there is that distinction. But, the Dartmouth ruling could have wider implications, as the political sea change in favor of players being paid which has come about in the past decade make the ruling one which could be repeated around the country.

In Los Angeles, the NLRB will resume a similar trial later this month on behalf of football and basketball players at USC.

“[Dartmouth’s ruling] definitely bodes well for the USC case. And it’s not too much of a surprise,” Ramogi Huma, founder of an athlete advocacy group who filed a USC case for Trojan players to be considered athletes, told ESPN. “The USC case is even stronger because they actually get scholarships. We expect to win this.”

The anti-trust cases

With the NCAA unable to govern itself and its members, and with the NCAA unable to get Congress to come to its rescue, it has been left … sigh … to the Courts to establish how collegiate sports are to be governed.

Anti-trust lawsuits are not only changing the way football is played today, but will play a lead role in deciding its near and long-term future.

After defeats in major paradigm-shifting cases such as O’Bannon and Alston, which established that the Supreme Court no longer viewed college sports as fully immune from the rules that regulate other industries, the NCAA is currently defending four different antitrust cases directly related to compensating athletes (in addition to another case attacking its transfer rules).

Some – House v. NCAA and Hubbard v. NCAA – are primarily financial threats to the NCAA’s future, claiming that former athletes deserve some compensation for the opportunities they were denied before NIL and academic-based payment rule changes. The House case, which is much further along in the legal process than Hubbard, is scheduled to go to trial in January 2025. If the plaintiffs are successful, it could cost the NCAA and its schools billions of dollars.

(Side note … These lawsuits were the primary reason it took so long for the “Pac-2” to settle with the schools which were leaving the conference. Sure, the future money coming in was a sticking point, but Washington State and Oregon State didn’t want to be left holding the bag when – not if, but when – there are significant judgments against the NCAA and its conferences in these cases. The “Pac-2” teams didn’t want to be left being solely responsible for paying judgments entered against the “Pac-12”).

Challenging NIL

Two other antitrust cases, including the one filed last week by the Tennessee and Virginia attorneys general, are taking aim at what remains of the NCAA’s pay restrictions. One case, in its beginning stages, led by Duke football player Dewayne Carter, argues it’s illegal for the NCAA to place any restrictions on how schools compensate their athletes.

In the other case, Tennessee and Virginia argue the NCAA’s rules that prohibit the usage of NIL deals as a recruiting inducement are unfairly limiting athletes’ full potential to make money from boosters. The initial complaint said the NCAA’s current set of NIL rules “prohibits prospective college athletes and collectives from open and transparent interactions relating to NIL compensation and thus denies these athletes the ability to effectively negotiate their NIL rights at the very time they would best be able to maximize the value of those rights.”

A judge denied a request earlier this week to remove the NCAA’s NIL restrictions while the case is pending. But in his denial, the judge wrote that he saw sufficient evidence in the initial claims that current NCAA rules are “analogous to an absolute ban on competitive bidding, which the Supreme Court found to be anticompetitive ‘on its face.'”

So, while Tennessee, already under probation for violating NCAA rules, and again being investigate for rules violations, is hardly a sympathetic poster child for reform, it makes sense that Tennessee would want to lead the charge to eliminate all of the NIL rule enforcement.

And we thought NIL was already the “Wild, Wild West”.

When – again, not if, but when – the Courts rule in favor of the states and against the NCAA, even the unenforced rules about NIL will go by the wayside.

A chaos that no one (other than the lawyers filing all of the lawsuits) want to see happen.

The Big Ten and the SEC to the rescue? 

While the largest conferences are benefitting the most from the huge television contracts, and the biggest programs are benefitting the most from the basically unregulated “pay-for-play” model currently in place in 2024, even the big boys understand that there needs to be at least some barriers in place in order to preserve the sport.

And so recently the Big Ten and the SEC announced that they were putting together …  “a joint advisory group of university presidents, chancellors, and athletics directors to address the significant challenges facing college athletics and the opportunities for betterment of the student-athlete experience.”

And what should fans of collegiate athletics expect to get out of this “advisory group”?

Hopefully, some cohesiveness leading towards lawsuit settlements and revenue sharing. If the wealthiest conferences want to find a way to settle all of the lawsuits – particularly the billions in potential exposure of House v. NCAA – and use the settlement structure to create a path forward, then there is a modicum of hope for the future.

But there are dozens of hurdles before that becomes a reality.

For starters, it’s notable to point out who and what this advisory group doesn’t currently include. It doesn’t include any authority to act independently of any conference stakeholders. It doesn’t (at the moment) include any leaders from any other conference. It also doesn’t, (at the moment) include any coaches, or even more importantly, athletes.

It’s a comfort that the power brokers understand the dire need to get collegiate athletics under control, but, at least as of now, there is little going on other than the most preliminary of discussions.

And … Even if the current wave of antitrust lawsuits can be settled, it’s going to take Congressional action to prevent future lawsuits from destroying collegiate sports.

Some protection would likely be needed to slow or prevent future lawsuits from coming and challenging the structure. There are various opinions on how and whether that could be achieved, but that’s likely something that would need some type of government intervention. A settlement and some sort of revenue share could help encourage action from federal lawmakers, who have thus far made little tangible progress toward voting on the type of bill the NCAA and its members say they need.

“What they need from Congress, to be clear, is clarity,” Mark S. Levinstein, senior counsel for Williams & Connolly, who has decades of experience in the sports space, told ESPN. “They need a lot of answers. For example, with respect to labor law, can the athletes unionize? If they unionize and choose the labor laws, is everything the universities did now protected from being challenged under the antitrust laws?”

Levinstein added: “The universities would also need some help with Title IX — if the football players receive a percentage of the university’s revenues, what do they have to do for the women’s rowing athletes? And they will need some clarity on any restrictions they impose on NIL. Can they prevent boosters from paying athletes to come to the university? Do you allow the quarterback to receive millions in NIL deals if they’re actually NIL deals and not payments to get him to enroll at a particular university?”

So … What’s going to happen? 

We’ve seen plenty of committees, commissions and expert panels in college athletics over the years that have led to nothing more than additional committees, commissions and expert panels. What makes this partnership between the SEC and the Big Ten different is that the big boys have the financial muscle, alignment and leadership to bring about change.

But that doesn’t diminish the challenges.

And it doesn’t answer the question on the minds of many Buff fans:

When – not if, but when – college football has its own autonomous league, will the University of Colorado be a part of it? Will the ratings and interest in Coach Prime and his Buffs be enough to ensure a seat at the table?

Or will the Buffs be one of dozens of former Power Five schools who will find themselves without a chair to sit in when the music stops?

Sounds like a good topic for a future weekend Essay …

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