NCAA rushing a name, image, likeness rule as its power over college athletics is quickly diminishing

NCAA president Mark Emmert once again sent college sports administrators scrambling over the weekend when he told the New York Times that he will recommend membership approve name, image and likeness legislation for college athletes before July 1. That’s also the day NIL laws go into effect in five states setting off possible recruiting disparities and benefits for athletes beyond anything NCAA legislation has proposed.

If this is how NIL is finally implemented, it’s become obvious that it won’t fully be the NCAA’s call. Whatever strategy the NCAA employed, it has waited too long to have anything resembling full control over possibly the biggest rule change in the association’s history.

We’re watching the NCAA’s influence, power and leverage diminish before our eyes. It needs federal help to implement NIL. Whether or not it gets it, states’ NIL laws will supersede whatever the NCAA has in place — at least for a period of time.

In essence, the NCAA is losing its grip on what made it the NCAA: oversight of the collegiate amateurism model.

“That’s where we are,” one high-ranking source involved in NCAA governance told CBS Sports. “We’ve not taken care of business. The participants have gotten more litigious. You throw that all together and the only way you get answers is through federally-mandated standards.”

Emmert’s words are more proof of the NCAA’s desperation. With Congress not to due to act anytime soon, the NCAA must do something. It needs at least a limited antitrust exemption from Congress with NIL implementation to keep it from being sued.

That’s because any hint of the NCAA limiting athletes’ NIL compensation could bring more legal action.

“The problem is we have a reasonably large legal exposure if we implement a rule without having an antitrust exemption to cover us,” one FBS commissioner said under the condition of anonymity due to the sensitivity of the issue. “That’s what people aren’t getting, why this has taken so long. We’ve got to figure out a way to get that. If we don’t get that, we’re a dead association walking.”

There is no concrete evidence Congress will provide help by July 1 — or even by the end of the year. Meanwhile, every major decision the NCAA makes these days is based on that legal exposure.

The one-time transfer rule is the latest example. The longtime legislation was finally passed last month because, well, it was fair and administrators thought lawsuits were inevitable with athletes in only the five “revenue” sports being forced to sit out a year-in-residence when changing schools as undergraduates.

An NIL working group last year developed concepts, but in December, the U.S. Department of Justice had antitrust questions for the NCAA about NIL. That immediately delayed NCAA legislation that was expected to be legislation passed at its January convention. Emmert made his latest statements without an update on whether the DOJ had those questions resolved.

The NCAA could have solved this years ago, specifically in 2009, the moment Ed O’Bannon sued the NCAA for antitrust violations for putting his image on the cover of a video game. The NCAA’s official strategy: litigate, litigate, litigate. Since then, it has lost at almost every key turn.

“Too little, too late,” said David Ridpath, an Ohio University assistant professor and president of The Drake Group, an organization focused on reform. “The membership could have solved [NIL] months ago.”

One Power Five administrator asked about the possibly of a national NIL standard by July 1 called it, “Fleeting.”

The head of the nation’s most powerful amateur body calling for transformative change is less about his words and more about how it eventually happens. It’s not clear how quickly NIL legislation could be passed if it moves in the traditional manner.

The NCAA Council is the association’s policy-making board. It next meets May 19 and then again in late June. However, in this age of Zoom, it’s unclear whether the Board of Governors — the presidents responsible for running the NCAA — could take up the issue on its own immediately.

The NCAA typically doesn’t do things quickly when it comes to legislation, especially legislation of this magnitude. Existing NIL rules do not completely address recruiting. Sure, improper inducements to recruits are illegal, but the inducements themselves take on a whole new definition in the NIL era.

Big 12 commissioner Bob Bowlsby pointed out how it was once an NCAA violation to offer condiments for training table breakfast foods.

“We’re capable of getting ourselves in a cold sweat whether we get cream cheese on our bagels,” Bowlsby said. “You can wring your hands all you want; there will be some who abuse it. You just have to make the assumption [that cheating is] going to happen.”

It will be interesting to see the free market of capitalism (athletes able to capitalize on their worth) go up against the collegiate model. That has traditionally ended in conflict with schools winding up on NCAA probation.

Now, in one way or another, NIL benefits are going to be the law of the NCAA land. Just don’t look to the NCAA to fully administer and oversee those laws.

“[The NCAA] is not in control anymore,” said Ramogi Huma, a players’ rights activist who has battled the NCAA for years. “If the NCAA did not change its rules to accommodate state laws, it would soon be irrelevant. Congress may not address the issue this year or at all. There’s really not much choice. The July 1 showdown is pivotal.”

SEC commissioner Greg Sankey, among others, have called for a nationwide NIL standard from Congress. That would preempt any state laws and put the federal government in charge of amateurism, for better or worse.

“It’s in midair,” Northern Illinois AD Sean Frazier said. “We want a federal [law], not a per state [system]. We’d like to have something federal and across the board.”

Critics have noted Congressional oversight may not end with NIL rights. The NCAA may be at its mercy. That’s an interesting development as, for decades, the NCAA has stiff-armed any attempt at federal intervention.

In the short run, those state NIL laws will cause a chaotic period of extra benefits for players and recruits in those five states: Alabama, Florida, Georgia, Mississippi and New Mexico. (No surprise that four of those states are in the SEC footprint.)

Florida coach Dan Mullen told CBS Sports that he has been recruiting players to his campus with the prospect of enhanced NIL benefits from a Florida state law since as early as Fall 2019.

“The horse is out of the barn relative to where this is,” Huma said. “It’s going to happen.”

In the long run, the NCAA could stifle some of the confusion with a blanket waiver while NIL is figured out. Such a move would waive any NCAA rule that would result in schools or athletes being deemed noncompliant.

Emmert has already told concerned players and state legislators that the NCAA won’t penalize athletes for benefiting from their state NIL laws. However, saying this and actually doing it are two different things in the NCAA. Emmert’s words gave definition to what has become obvious to several administrators.

With July 1 looming, the NCAA has no choice. It has finally been backed into a corner on NIL, a concept it had fought doggedly throughout its history. What could follow over the next few years is NIL adjustment on the fly. Think of the controversy over cost of attendance. Now it is an accepted part of a scholarship, barely mentioned.

Sen. Maria Cantwell (D-WA) is working on an NIL bill that would come close to bundling current legislation out there, multiple sources tell CBS Sports. It would include recent bills reintroduced by Sen. Cory Booker (D-NJ), Richard Blumenthal (D-CT) as well as Anthony Gonzalez (R-OH). Cantwell is the chair of the Senate Committee on Commerce, Science and Transportation.

One source described Cantwell as a “ringleader” trying to unite legislators on “both sides of the aisle.”

The NCAA needs Congress to properly implement an NCAA-acceptable version of NIL, but there are several bills pending without passage on the horizon. That’s why the NCAA is so compelled to move immediately.

If the NCAA passes an NIL rule on or before July 1, the power shifts to the states, at least until a federal law is implemented. Virtually all the pending state laws — there are 42 states where a bill has at least been introduced — are more expansive than anything the NCAA is proposing.

That’s the problem as state legislators scramble to keep pace.

“It is absolutely imperative that we beat Alabama in football recruiting,” Missouri Rep. Wes Rogers (D) told legislators discussing the merits of that state’s NIL bill.

In 2019, California passed the Fair Pay To Play Act. That made California the first state to legalize NIL rights for college athletes; however, it doesn’t go into effect until 2023. That it took a state to do that and not the NCAA raised concerns among the membership.

“I would call it a strategic error [by the NCAA] when California put its law on the books,” that FBS commissioner said. “You have a choice then. The NCAA either has to sue on [violation of] interstate commerce or you’ve got to get going and [develop NIL legislation].”

As late as September 2019, Emmert was calling NIL an “existential threat” to the collegiate model. By the end of that year, something changed. The NCAA leader was photographed cozying up to Congressmen while asking for them help to implement the NCAA’s version of NIL rights.

“For us to not embrace at this point would be silly,” Frazier said. “We embrace it and then we make sure we carve it in a way where it doesn’t destroy the collegiate model. If we don’t do that and someone else legislates that and we have Congressional intervention shame on us.”

The NCAA is already fighting significant ongoing legal battles that pertain to players’ rights. Beyond that, administrators are concerned more class-action suits could be filed by athletes from years past.

“The plaintiffs’ bar is just drooling this right now,” that commissioner said.

The NCAA’s implementation of NIL took a hit Monday when industry leader INFLCR pulled its name out of consideration to be a third-party administrator. The NCAA wants the so-called TPA to act as a clearinghouse in NIL deals determining market value of deals.

INFLCR was one of four finalists chosen by the NCAA for that key piece of oversight. But the naming of a TPA has been put off several times by the NCAA without explanation.

INFLCR CEO Jim Cavale told CBS Sports there was a possible conflict in his company providing NIL compliance software solutions for institutions and their athletes while also working for the NCAA. One NCAA Council member called the situation a “legal landmine”.

“The potential conflicts of interest are clear,” Cavale said in a statement.

There are those who think all of this may be leading to a breaking point for the NCAA.

Last week at the Fiesta Summit in Scottsdale, Arizona, several coaches and administrators expressed outrage that Emmert was recently given an extension through 2025. Others think NIL is much ado about nothing, an evolution that will eventually be folded in much like cost of attendance.

“I think there is a generally held belief that the NCAA is not going to do anything,” Bowlsby said. “I’ve always thought the NCAA would do something. The wrong situation is you could be in with five states with no guidance. I think that’s not a good position for other 45. [But] even if you have a state law, an overlay with NCAA is not the worst thing.”

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