Louisiana Voice

By Paul Spillman, guest columnist

As I’ve written about this both here and elsewhere and the subject is vastly more complex than one essay can address. I think a deeper dive into the current state of college athletics is in order. The essential problem remains unchanged – the NCAA as it is currently structured and organized is not exempt from antitrust law and cannot regulate the movement or earnings of student athletes. So how did we get here?

The NCAA was founded in 1910, evolving from an earlier organization which began in 1906. It was founded at the suggestion of President Theodore Roosevelt to address safety concerns in football, which at the time was only played at the college level. As a rule-making body for college football there was not even a thought as to application of antitrust law. But times changed.

Over the next several decades the NCAA became not just a rule-making body for football, but the rule-making body for all intercollegiate sports. And not just a rule-making body but a governing body as well, the rule-enforcing body. During this period of time – roughly the 1920s though the 1950s – the NCAA was rarely challenged as a governing body and if challenged rarely lost. There was no actual cash compensation – at least not legally recognized – and “benefits” could be denied in exchange for the real value of a degree. Courts generally acknowledged the authority of the NCAA to enforce rules. But time continued on and things continued to change.

In 1952 the NCAA had licensed the “Game of the Week” to NBC. The NCAA strictly controlled media rights under the argument it would impact attendance at games. Ticket sales and associated revenue was then, and still is now for many, a major source of dollars for both athletic departments and their colleges/universities. It was an argument with some legitimacy. Except that it was wrong. Games on television did not limit ticket sales but it did increase the demand for more games on television. Over the next twenty or so years the NCAA slowly licensed more games to broadcast companies but it maintained it controlled the media rights for member institutions until the University of Oklahoma successfully sued the NCAA in 1984. The Supreme Court found the NCAA in violation of antitrust law by limiting the media opportunities for schools. This ruling coincided with the advent of cable television and the Entertainment and Sports Programming Network (ESPN).

ESPN for a decade had been desperate for content. It would broadcast almost anything and sometimes days or weeks late just to have programming to fill the hours. The broadcast networks controlled the sports market leaving their rejects for ESPN. But suddenly hundreds of colleges and universities had media rights to sell and a burning desire to be on television. Most of those schools allowed their conferences to negotiate for them and in the last half of the decade there was an explosion of college football and basketball on television. By 1991 ESPN was not only airing multiple football games each Saturday but a prime time Thursday night game as well.

Fast forward twenty more years. Conferences are negotiating their own skyrocketing media deals. College sports of all kinds are on multiple networks. There is a football playoff in place. There are more post season bowl games than ever. March Madness legitimately causes work slowdowns all across America. This isn’t 1954 anymore. The value of a scholarship has become diluted by the money involved. The revenue generated is in the billions of dollars. And the NCAA is selling the name, image, and likenesses of former NCAA basketball players to EA Sports for their NCAA Basketball computer game. And refusing Ed O’Bannon any compensation for it. Whoever were the attorneys advising the NCAA at that time have to be the worst ever because every move the NCAA made then and from that point forward has been the wrong move.

Clinging to its definition of “amateurism” the NCAA lost the O’Bannon ruling and stopped selling rights to EA sports. But it stayed the course … right into the sandbar. The 2021 Alston ruling from the Supreme Court flatly denied the NCAA an antitrust exemption leading to the current state of affairs – there is no governing body for college sports.

That’s not universally true. The NCAA can still regulate eligibility, for example. But the proposed rule of five years of eligibility to be played in five years that start at high school graduation or age nineteen is a knee-jerk reaction to the transfer portal mess that will surely be challenged in court if adopted.

So what would the NCAA have to do to be granted an antitrust exemption? Simply, it would have to become more like a singular business entity than an umbrella organization. Among some of the issues that would need to be addressed is whether or not athletes are employees, with the legal standing of an employee. If not what standing do they have because they create the value. The membership would need to be more strictly divided and rules for each division would need to be consistently and universally enforced – as opposed to the sometime arbitrary enforcement of the current NCAA. The NCAA might also need help from Congress. If it was unable to reorganize in a way the Courts would support its authority Congress would need to write laws granting such. Regardless of any other law Congress will be required to write a national law on NIL compensation to override the current laws of 32 different states. And there is already one law on the books governing revenue sharing of those billions of dollars. NIL deals, transfer portal, and eligibility are all separate issues to be addressed.

Congress getting involved became inevitable following the O’Bannon ruling in 2014 when the NCAA did absolutely nothing to address any of the issues. College sports could not survive fifty different sets of rules. But Congress is a solution, not the best solution. Whatever law Congress writes and however many of them it takes college athletics will be bound by it for good or bad. Conservative author and commentator George Will is fond of writing about The Law of Unintended Consequences which immediately becomes applicable anytime Congress acts. There is certain to be unintended consequences to Congress governing college athletics. But will they be inconsequential?