Louisiana Voice

(Editor’s note: Paul Spillman is a U.S. Navy verteran who has authored the following guest column. He is a resident of St. Francisville)

To the casual fan it may seem as though college athletics has succumbed to greed and selfishness now that athletes sign name, image, and likeness deals and are even being paid by the schools they attend. The headlines invoke the end of an era – college athletes not playing for love of the game or good ol’ State U. just for whoever will pay them the most. But that view is a result of the all-encompassing political climate we currently live in, a doom-and-gloom environment of both real and imagined horrors. College sports is not nearly so desperate or so difficult to address. But no problem can be addressed or resolved if it cannot be accurately stated. The biggest impediment to resolution so far is that so few people can accurately state the problem.

This current wild, wild west era of college sports began with a 2014 Supreme Court ruling in favor of former UCLA basketball player Ed O’Bannon who sued the NCAA for denying him the right to earn money from his name, image, or likeness while the NCAA profited by selling those rights to EA Sports. This ruling opened the door for athletes to be compensated for the use of their name, image, or likeness and effectively ended the NCAA’s definition of “amateurism.” That ruling was followed by a 2021 decision in the case of former West Virginia running back Shawne Alston who challenged the NCAA’s right to deny education related benefits and privileges afforded any other student by withholding athletic eligibility. In a truly remarkable 9-0 decision the Supreme Court found the NCAA in violation of antitrust law – remarkable for the unanimous ruling. How settled must an issue be for all nine justices on today’s Court to agree? This is a crucial point. All nine justices agreed the NCAA was in violation of antitrust law.  In a concurring opinion Justice Kavanaugh wrote the “NCAA’s business model would be flatly illegal in almost any other industry in America,” further commenting that price-fixing labor while generating billions in revenue is unjustifiable under antitrust law. The overriding issue forcing change is that the NCAA clung to its outdated definition of “amateurism” instead of adapting to the 21^st century. It is not athletes, agents, or greed that created the current circus. It was a governing body failing to govern, leadership failing to lead.

The lack of response from the NCAA is the very thing which created the current state of affairs. The NCAA took no action following the O’Bannon ruling leaving lawmakers in all fifty states on edge over the fallout of that ruling. Finally, California became tired of waiting and passed NIL legislation in 2019. Thirty-one states have followed. Perhaps that was the unspoken purpose of the NCAA’s failure to act because the only action it has taken is to go hat-in-hand to Congress begging for an antitrust exemption in the form of legislation that solves all their problems for them and one of their main arguments is to point to all the different state regulations regarding NIL. Since the Alston ruling the NCAA has lost virtually every case brought to court on the basis of violating antitrust law. And in the absence of a governing body to set and enforce rules in compliance with the law who is surprised that in free-market-get-it-while-you-can America the circus came to town?

It is possible Congress can write legislation that grants the NCAA an antitrust exemption. Courts will uphold legislation that is specific and narrowly tailored, but are less willing to support broad or blanket legislation with a one-size-fits-all law. Currently there are several pieces of legislation in Congress attempting to address the issues either all or in part. The SCORE Act, for example, attempts the specificity needed for an antitrust exemption but would likely require the NCAA to reorganize its divisions. On the other hand, legislation introduced by Senator and former coach Tommy Tuberville grants five years of eligibility over a five-year period with one transfer allowed without penalty. That is basically the full wording of the bill. Senator Tuberville is not known for loquaciousness. That legislation should it pass would certainly be challenged as too broad to allow wholesale application for an antitrust exemption.

But again, the NCAA itself is the larger part of the problem. The NCAA is the governing body for more than 1150 colleges and universities. Division 1 has just over 350 schools that range from a university such as Ohio State with athletic department revenue of around $170 million and fielding teams in 36 sports involving more than 1,000 athletes, to a school such as Mount St. Mary’s with an athletic revenue less than $14 million for 708 athletes comprising 22 teams, if you count flag football and bowling. And therein lies the problem. Ohio State and Mount St. Mary’s are not the same kind of athletic entity. To get legislation specifically tailored enough for an antitrust exemption would likely require acknowledging the differences between two such schools and placing them in different divisions. That would mean an end to March Madness – the men’s and women’s NCAA basketball tournaments – as well as the post season for almost every other sport. The SCORE act for example would apply to schools with athletic revenue of greater than $20 million – so it would apply to Ohio State but not to Mount St. Mary’s. This would require the restructuring of NCAA divisions which no one is eager to do. It’s why the NCAA has dragged its feet. It’s why they want a broad antitrust exemption from Congress. It’s why they are doing their best to drag us back to 1985 and keep us there. Because no one wants to be the person who makes the call that ends March Madness as we know it.

But if one thing is certain it’s that change is inevitable. One can either roll with it or get rolled over by it. Those are the only two choices. If the NCAA refuses to reorganize it likely cannot get a broad antitrust exemption. If Congress writes legislation specific enough for an antitrust exemption it will likely not be broad enough for the current division structure of the NCAA. Congress could legislate college sports to death but no one in their right mind should want Congress involved any more than it has to be, if at all. If Congress starts legislating college sports it will not stop with NIL, revenue share, and transfer portal. Realignment, scheduling, and playoff selection would all soon follow and all legislation would have other unrelated bills attached and carry the force of law. Truly that would be the end of college sports.

Another option is for schools that wish to participate in the modern era of college sports to break away from the NCAA and form a separate umbrella organization for its member schools with rules specific enough to members to grant the antitrust exemption needed to regulate and enforce rules concerning eligibility, transfer, compensation, etc. This would also mean the end of current post-season tournaments.

So, yes, it’s a mess and the future course is still undetermined. But for readers who are upset with the current state of affairs in college athletics the blame falls squarely on the failed leadership at the NCAA. No where else. But change is in order and it can’t be stopped. Leaders with a vision forward are needed, not dinosaurs clinging to the way it used to be.