Op-Ed: Too Big To Fail? Why The NCAA Is At Another Crossroads Over Athletes’ Rights

Fair and equitable treatment of athletes doesn’t threaten tradition.

It’s a tale as old as time, and the NCAA has been telling it for ages. Since 1906 in fact. 

Over the course of your lifetime, no doubt, you’ve heard some variation of the tale. A nonprofit organization, dedicated to the well-being and lifelong success of college athletes.

It sounds so wholesome and pure. How could anyone not believe it?

College athletics is an embedded part of American culture, and the United States is the only country in the world that hosts big-time sports at institutions of higher learning. 

Millions of spectators from Tuscaloosa to Ann Arbor, Eugene to Columbus, Durham to Los Angeles, and everywhere in between, gather in football stadiums and arenas each and every fall, winter and spring; with tens of millions more watching on television. 

This is the collegiate sports industrial complex where billions of dollars are generated by athletes in the revenue generating sports (basketball and football) and pocketed by the NCAA and its member institutions.

The tale, which is nothing more than that, is a story the NCAA uses to prop up the sham of amateur athletics.

In truth the NCAA is a cartel whose sole focus is to maximize profits while keeping its labor force, the athletes in revenue generating sports, mostly broke. 

However there has been a changing tide the last several years, as more scandals expose the hypocrisy of the NCAA and the sham of amateur athletics. 

In the last week alone, two of the NCAA’s most popular “student-athletes’” eligibility concerns made national headlines due to “improper benefits.” 

Related: Ohio State’s Chase Young Suspended Indefinitely As Athletic Department ‘Looks Into’ Possible NCAA Violation

Ohio State defensive end Chase Young was suspended last Friday (November 8), and is out indefinitely. 

Young received a loan from a family friend, which has since been paid back, to fly his girlfriend to California to see him play in the Rose Bowl.

Memphis baketball’s star freshman, James Wiseman, has been deemed ‘likely ineligible’ by the NCAA, because his mother received $11,500 in moving expenses from Penny Hardaway in 2017. 

Hardaway is classified as a booster according to the NCAA because of a $1million dollar donation he made to the university in 2008. Hardaway became Memphis’ head coach in 2018. 

Despite the NCAA’s ‘likely ineligible’ stance, Memphis is deciding to play Wiseman anyway, and will deal with the consequences when they come. 

But the question being asked, is why Young and Wiseman are in these predicaments in the first place? Why are they not allowed to borrow money from people they know? Why does the NCAA have to be involved in these matters?

Related: NCAA Says Memphis’ James Wiseman Is ‘Likely Ineligible,’ Head Coach Penny Hardaway Plays Him Anyway

That’s at the crux of this monolithic institution, its archaic bylaws, draconian methods of discipline and the relationship with its athletes. 

If these athletes, that are generating billions of dollars, were allowed to share in the revenue surely we wouldn’t need to worry about plane tickets and moving expenses. 

The idea of paying players isn’t anything new. The NCAA has successfully thwarted that idea for decades. 

But now it seems as though the tide may be turning against them, slowly, but steadily. 

California Governor, Gavin Newsom signed SB 206 into law on September 30th. The law enables college athletes to sign endorsement deals and hire agents while protecting their collegiate eligibility. 

In short, athletes should be able to profit off of their name, image, and likeness (NIL). Something the NCAA currently has rights to in perpetuity. 

Related: NCAA Athletes Could Be Paid Under The New ‘Fair Pay To Play’ California Law

The groundswell from this seemingly watershed moment continued and other states threatened to follow suit. That was more political theater than revolution, still, it was something. 

In classic NCAA fashion, they issued a statement, which read in part:

In the Association’s continuing efforts to support college athletes, the NCAA’s top governing board voted unanimously to permit students participating in athletics the opportunity to benefit from the use of their name, image and likeness in a manner consistent with the collegiate model. The Board of Governors’ action directs each of the NCAA’s three divisions to immediately consider updates to relevant bylaws and policies for the 21st century...

So, the NCAA voted unanimously to consider paying players so that their bylaws are relevant for the 21st century? Their bylaws weren’t relevant for the latter stages of the 20th century.

“There has been a lot of misrepresentation as to what they’ve actually approved,” Ricky Volante CEO of the Historical Basketball League (HBL) told BET. “They didn’t actually say they are going to permit college athletes to get name, image, and likeness rights back. But they did provide, what I think Val Ackerman (Big East Commissioner) called the ‘guardrails for the working group to move forward’, with a proposal and a plan that at the earliest would come into effect in 2021. 

“So I think it was a situation of perception versus reality. The reality of it was that the NCAA and this working group wanted to take back the narrative.” 

This is a classic maneuver by the NCAA. 

A statement is issued that essentially says nothing, but appeases various parties and business continues as usual. 

It’s what they’ve successfully done for years whenever anything threatened their “natural order.”

They did the same thing when Title IX was enacted, but that was a federal mandate. So while they were hemming and hawing, people on the ground at the various universities were putting measures in place to adhere to the law. 

While the California bill looks good, it has no teeth. There are no punitive actions associated with it. 

Related: 'Fair Pay To Play' Act Seems Like A Step In The Right Direction, But If NCAA Has Its Way, It Will Be More Of The Same

But if you’ve been following college sports for the last 10 years or so, it isn’t as though the idea of athletes having control over their name, image, and likeness is a new concept. 

In July of 2009 former UCLA Bruins basketball player Ed O’Bannon filed a lawsuit against the NCAA and the Collegiate Licensing Company, alleging violations of the Sherman Antitrust Act and of actions that deprived him of his right of publicity. 

A Circuit Court judge ruled in favor of O’Bannon in 2014. 

In 2015, the Ninth Circuit Court of Appeals affirmed the Circuit Court’s ruling in part, and reversed in part. 

In 2016, O’Bannon’s lawyers appealed to the Supreme Court, but judicial review was denied. 

Obviously not the victory O’Bannon and his team was hoping for. 

But it sent a clear warning shot to the NCAA, that the way they have done business wasn’t going to stand with players moving forward. 

It also forced the NCAA to include “full cost of attendance” stipends to athletes in the Power 5 conferences (ACC, Big 12, Big Ten, SEC and Pac-12), which can range anywhere from $2,000-4,000 annually. 

That stipend of course pales in comparison to the massive amount of money brought in by the revenue generating sports. 

The NCAA has a lot of people with a vested interest in keeping the status quo, primarily its member institutions who rake in millions annually on the backs of its football and basketball players. 

RELATED: NCAA Votes To Allow Athletes To Profit From Their Name, Image And Likeness

The notion of cutting “another check” is something the NCAA and its member institutions say they can’t do. But why?

If athletic departments and universities are bringing in millions, why can’t the athletes in those revenue generating sports receive a stipend or benefits more in line with the actual cost of attendance and living expenses that correlate with the money they produce?

“Where I see this, is the relationship between the revenue and non-revenue sports. The money being generated by this enterprise is being spent in ways to make it look like the athletic departments are not making money, so that they don’t have to pay players,” said Victoria Jackson, sports historian and clinical professor of history at Arizona State University, to BET. 

“One way you can do that is to have robust travel schedules and expenses in the non- revenue sports and you can say ‘we need to do these things because of title IX,’ Jackson went on to say. “Yes, it’s true we should be providing comparable, qualitative opportunity when it comes to men’s and women’s sports. But it’s disingenuous when it is so over the top. A team on the east coast doesn’t need to fly to the west coast because the track on the west coast is known for producing fast times to qualify for the NCAA national championships or for USA’s (Nationals). You can stay on the east coast and accomplish that too.

“But it works well for the athletic department. It's a big price ticket and those programs can now say they are cash strapped. On the ground these programs are always worried about money, but at the same time they are kind of incentivized to be spending it all because you do have to come as close as you can to zeroing out. So that you aren’t an athletic department that ends the year with a $30M dollar profit on top of revenues,” Jackson added. 

So the excuse about there not being enough money to pay players is bogus, as we all know. 

Universities can and should do more for its so-called “student-athletes.”

“I see [the NCAA considering the option of allowing athletes to profit off NIL] in part as a small victory, because it’s a concession that they do have to address that there is a broader cultural shift towards supporting athletes rights,” said Jackson.

“An expansion of athletes’ rights to include their ability to own their own name, image, and likeness and potentially monetize that. It’s an expansion of dragging the powers that be along to a more positive system in which athletes have more of a voice,” Jackson continued. “Have more medical coverage, have an ability to advocate for keeping their scholarships, hopefully for the extent of the time they are undergraduates.”

As the movement continues for the expansion of athletes’ rights, it’s clear that athletes are beginning to recognize they have some leverage and choices. 

But there are different dynamics at play fort the revenue generating sports. 

Related: NCAA Creates The So-Called 'Rich Paul Rule' For Agents To 'Protect' Their Student Athletes

Many of the punitive measures by the NCAA seem slanted towards basketball players. 

Though to be fair, football has had more than its fair share of players who’ve gotten caught in the NCAA’s crosshairs. 

Maybe it’s because top prep basketball players have a variety of choices now besides the NCAA model. Also, NCAA basketball players can leave school after one year and turn professional. 

That’s less time for the NCAA to capitalize off of them.

In 2022, graduating high school players will become eligible for the NBA Draft again. 

The NBA’s G League offers select contract status to top prep players. 

Plus there is the overseas option. 

Texas high school star R.J. Hampton bypassed several NCAA Division I offers and now plays professionally for the National Basketball League in New Zealand with an option to leave for the NBA.  

Then there is the Historic Basketball League, HBL, run by Volante, former NBA player David West, and Andy Schwarz, a member of the O’Bannon legal team. 

This startup league is set to launch in 2021 with the stated goal of allowing athletes to directly benefit from their talent and marketability by offering education and compensation. 

An admittedly difficult task, but something Volante believes they are uniquely positioned to do. 

“Our sole focus is going to be on preparing you for life after the HBL. Rather than putting players in compromising situations, both in the classroom and on the court, which leads to detrimental development for a lot of guys that ultimately aren't prepared for the NBA,” said Volante. 

“Our NIL rights for athletes is going to be totally unrestricted. It’s structured just like the NBA, in that you can sign a shoe deal in addition to our apparel partner. Athletes will get the $150,000 salary from us, but we think conservatively for our top players, they could potentially pull in seven figures from a shoe deal in that one year they’re with us,” Volante continued.

“As we just saw with R.J. Hampton who went to New Zealand and signed a shoe deal with Li Ning. The $150,000 is great, but it may end up being low seven figures for the right athletes, and even in the mid to upper six figures for other athletes that choose us, which is significant value. Plus our scholarships are guaranteed for up to five years, and can be completed on a non continuous basis. Our athletes can come back whenever they want and finish their degrees,” he concluded.

Prep football players don’t have the same choices and options as their basketball counterparts. 

We’ve seen football players, like former Northwestern Wildcat Kain Colter, work to establish a union to assert college athletes’ status as employees with the right to collectively bargain for basic protections.

But the sheer volume of players needed for football makes a startup league an extremely difficult lift. 

“The numbers in [college] football are about 110 on a team. Finding that many guys, and the money? It would be tough,” said lawyer and Young Money APAA Sports NFL agent Nicole Lynn. “Every time we see one of these leagues start, they fold. Even the NFL has struggled to create a developmental league.”

The thing the players in the revenue generating sports do have in common is leverage. 

“At the end of the day, players have the leverage. They are the people that bring the fans to the seats, Lynn said. “When you’re making players upset, and eventually they come together, there’s a way that the NCAA can be pushed to do something that benefits the players.”

For those of you pearl clutching over the idea of your beloved college football and basketball turning into “professional sports”, take heart. Or take a sedative. 

They’ve always been a form of professional sports, you just believe the tale of “amateurism” the NCAA has been weaving for more than a century. 

If the athletes you come to support every Saturday at Camp Randall, the Horseshoe, Between the Hedges or at the Big House are being fairly compensated for their labor, will you enjoy the games any less? Will you stop adorning yourself in parahanalia from head to toe, and screaming “first down!”? Will you stop singing the “fight song”? 

“If the Ohio State Buckeyes are a professional team in Columbus affiliated with the university, I don’t think a fan whose generationally attached to that school, whose grandparents were fans, whose parents were fans, they’re fans, now they are bringing their kids, said Jackson. 

“I don’t think they are going to think any differently about that team and its traditions like ‘Hang on Sloopy’ and the marching band ‘dotting the I.’ All of those traditions are going to be the same if those professional players are making money and earning a degree, or they’re just making money. But it still has an affiliation, and that name, and that local attachment to community. I don’t think it’s going to be all that different,” Jackson concluded. 

The NCAA in its entirety is likely too big to fail. But it might not have to. 

Its member institutions proudly boast some of the brightest minds in the world. It seems to me that these intelligent people can come together and create a system whereby proper compensation is afforded to its labor force. 

Continuing the “business as usual” model isn’t going to work this time. Eventually the labor force, and those with a vested interest in seeing that labor force treated fairly, will demand and create change. 

As a fairly minor character of a hit prestige television show once said:

“Those in the margins often come to control the center, and those in the center make room for them, willingly or otherwise.”

Jarod Hector is a New York City born-and-raised sports and pop culture enthusiast. A multimedia content creator & host who enjoys nuanced discussions of the intersection between sports, culture, and society. He believes My Beautiful Dark Twisted Fantasy is the greatest album of the past 20 years, and says if you root for billionaire owners over millionaire athletes you're part of the problem. You can find him on Twitter and Instagram @jshector.

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