The Legal Free-For-All Undermining College Sports
You may follow college athletics as closely as I do. By that, I mean you follow scores of X accounts about college athletics, read at least a couple of stories about it every day and talk about it every day to someone or lots of people.
Or, you may simply root for a team and pay attention just enough to see if they’re winning Saturday afternoon and move on to something else.
Either way, you probably know enough to believe what most people believe right now about college athletics.
It’s a mess.
For most of their existence, big-time college football and basketball were amateur sports in name only. Those most serious about winning found ways to incentivize players to play for their school, usually in under-the-table cash payments or other inducements. This does not indict every player for every program. It is simply to say that plenty of players were induced and kept happy.
As the sport grew in popularity, the money flowed. Huge media rights deals brought hundreds of millions of dollars into the best conferences. Coaching salaries ballooned. Colleges still didn’t know where to put all the money, so they sank it into facilities, where universities engaged in building wars to induce players. Chocolate fountains, flight simulators and music studios were just a few amenities built by universities to lure high school players gifted at football or basketball.
The money had to go somewhere and it couldn’t go to the players since college athletics are defined as amateur sports, meaning the players play without tangible compensation, although a fully funded college education is worth six figures easily.
Eventually, the courts decided that players deserved compensation, within reason. Courts determined players should not be restricted in being able to profit from their name, image and likeness (NIL). If you want to use your time to promote the local furniture store, you should receive fair compensation. If Nike wants to use you for its fall campaign, you should receive fair compensation.
But never should this money be used as “pay-for-play,” as a strictly cash offer to come to University X or stay at University Y. This immediately became a completely unenforceable rule. Since NIL has become allowed just a few short years ago, rich boosters connected to universities across the country are reportedly offering around $4 million per year for the most sought-after talent.
Players who may have agreed to a much smaller amount often land at University X for a cup of coffee and bolt to Deeper Pockets University immediately. The unenforceable NIL rules, along with an almost completely nonexistent transfer policy, have sent college football and basketball into a head-spinning dysphoria.
It was believed that allowing players to transfer to other universities was only fair, given certain circumstances. Those that lobbied hardest for lax transfer restrictions believed only about 200 to 300 players would transfer each year, primarily to be closer to home and—in some instances—for financial reasons.
Here’s where we are now: More than 4,000 college football players entered the transfer portal in the past 12 months. Some of these players will end up in better situations. Those stories will be told. We have heard about Cam Ward, who made the jump from Incarnate Word University to Washington State University to the University of Miami to the number one pick in the NFL Draft.
Many, if not most, will end up in worse situations. At best, they will latch on to the tail end of a roster at a lower school. Many will find no spot at all and have no recourse to return to their original school.
It is chaotic for the athletic director, the head coach, the athlete and the athlete’s family.
On top of it, more than 30 states have crafted legislation to try to gain a competitive advantage in the NIL space. Most of them are pretty benign. They open the door for high school kids to receive NIL as long as they choose to play for an in-state university, etc.
However, leading decision makers have long understood that a sport cannot survive when different entities adhere to different rules. That’s why they have lobbied Washington for federal legislation to regulate college athletics.
Meanwhile, stakeholders have gotten together to hammer out a compromise. It’s called the House Settlement and it is the result of a lawsuit filed in 2020 by former Arizona State swimmer Grant House, who challenged the NCAA's restrictions on athletes' ability to profit from their name, image, and likeness. The case alleged these rules violated antitrust laws by limiting athletes' earning potential.
As a result, the parties agreed on several matters to try to get everyone on the same page. The settlement allows schools to compensate players directly while limiting NIL deals to “fair market value” only.
The settlement is far from perfect, but both sides have agreed on the structure and understand it will be better than the free-for-all that exists now.
However, Tennessee’s governor signed a bill into law on May 2nd that effectively exempts the state from enforcement. The bill essentially makes it illegal for the NCAA to impose sanctions against its schools and athletes.
Granted, the governor has said the state intends to abide by the terms of the House Settlement, but now it has an ace up its sleeve. Tennessee reserves the right to play by a certain set of rules, different from the rules in other states.
And so on and so forth it goes, with each state trying to carve its own advantage, and each state outdoing the last with favorable laws.
When riots happen in cities—and we’ve seen them over the past decade, 15 years—when they happen and there is a state of lawlessness, what do we see? We see people running into stores and grabbing what they want and running out. Basically, that is what is happening in college athletics now. We have no rules, so everybody is running in the store and grabbing what they can.
What the conferences are trying to do is quell the riot. And they’re trying to get some sense of law and order back in the sport. And what Tennessee is trying to do is carve out something that allows them to at least reserve the right to go into the store whenever they want to and take what they want with no repercussions. Why would that ever be allowed?
Maybe the House Settlement will surprise me and be more enforceable than I currently believe.
Most likely, however, chaos will remain without a federal law that forces all participants to play by the same rules. And I find it hard to believe that Congress will pass a clean bill that does just that without filling it with all sorts of junk that’s bad for the sport and the country.
We have two sports, college football and basketball, in which we are paying players like professionals and regulating the sports as if they are amateur.
That will never work.
