The NCAA’s reported move to waive its existing rules prohibiting student athletes from being compensated for their name, image, or likeness — or NIL — is a smart one, given the writing on the wall after the US Supreme Court struck down association rules barring other types of compensation because they violate federal antitrust laws. It’s past time for the college athletes who generate so many billions of dollars for colleges and universities to get a cut.
The court all but announced that if a challenge to anti-NIL rules reaches its bench, the NCAA would lose. As Justice Brett Kavanaugh, himself a girls basketball coach, said in a concurring opinion: “the NCAA must supply a legally valid pro-competitive justification for its remaining compensation rules. As I see it, however, the NCAA may lack such a justification.” He scoffed at the NCAA’s contention that amateurism was central to its identity: “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.”
The proposed NCAA waiver is only a start: The organization’s board of directors must act swiftly to put permanent reforms in place that not only reflect the reality that it can no longer prohibit students from benefiting from their role in the multibillion-dollar college sports industry, but that also protect students and schools from the uneven market that has been created in large part by the association’s refusal to act before now.
Even before Monday’s Supreme Court ruling, six states had passed laws set to go into effect in July that would allow students in those states to sign endorsement contracts. The state laws supersede NCAA prohibitions, thus creating an uneven playing field for students and schools, since colleges in states including Florida, Alabama, and Arizona will have a powerful recruitment advantage. A handful of other states have laws set to go into effect over the course of the next two years.
That places the onus on the NCAA, which has long dragged its feet in amending laws governing student athlete compensation, to act now. The NCAA’s president, Mark Emmert, hinted that such a move was in the works in a written statement after the justices’ decision.
“Even though the decision does not directly address name, image and likeness, the NCAA remains committed to supporting NIL benefits for student-athletes,” Emmert said. “Additionally, we remain committed to working with Congress to chart a path forward, which is a point the Supreme Court expressly stated in its ruling.”
He is right that Congress should act rather than leaving a state-by-state hodgepodge of laws. But efforts to come up with a congressional response have gone nowhere, and Emmert and the NCAA’s board members can no longer simply pass the ball to lawmakers who keep fumbling.
NCAA officials have long said that college sports’ foundation in amateurism, as well as a recent uptick in antitrust litigation (including the challenge over educational-related compensation that led to the Supreme Court ruling), has made board members wary of passing any new rules, for fear that the changes would invite lawsuits.
But board members have also been financially incentivized to keep players from being paid. The board is made up of chancellors, presidents, athletic directors, and other officials from member schools. Athletes were barred from receiving compensation for their play, but coaches and schools have long benefited from lucrative endorsement contracts and apparel and facilities deals that not only pour millions into the coffers of schools but also pay big cash for coaches and other school officials in the form of contracts and bonuses. Voting to allow players to benefit directly puts them in competition for those dollars, said sports attorney Marc Edelman.
“These people are dragging their feet, and the reason they are is because it’s not in each of their economic interests” to allow players to sign lucrative contracts, said Edelman, a law professor at the Zicklin School of Business, Baruch College, City University of New York.
“If their college athlete signs a 4-year, $4 million contract with Nike, well, perhaps then Nike is not going to be signing your coach, or signing your athletic director, or agreeing to some deal with the school, and then the president won’t get a bonus off of it.”
The fact remains that college sports will continue to be an industry where a small percentage of school officials at the top — and now a handful of top players too — will profit the most off of the talent of a body of students mostly from more disadvantaged backgrounds. The board should also implement a number of provisions aimed at protecting students and their families as they navigate the fast-changing landscape of highly lucrative contracts.
Although the organization provided much-needed flexibility to students who had difficulty meeting minimum academic eligibility requirements during the pandemic, the NCAA board moving forward must enforce minimum academic requirements and pass measures incentivizing athletes to graduate, since only a small percentage of athletes will go on to professional sports careers. The board can pass bylaws requiring minimum academic qualifications for all eligible athletes, require financial literacy education, and also rescind rules that prohibit student athletes from being represented by agents and other professionals who can provide students with much-needed guidance.
With the first of the state laws going into effect in a matter of days, the time to act is now. And the NCAA has run out of time-outs.
Editorials represent the views of the Boston Globe Editorial Board. Follow us on Twitter at @GlobeOpinion.
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