The NCAA's top decision-makers will meet Tuesday in Atlanta for their first formal discussion about modifying rules that currently prohibit college athletes from making money by selling the rights to their names, images or likenesses.
The association's long-held policy regarding that aspect of amateurism is under increasing pressure from state and federal legislators who believe college athletes deserve an opportunity to collect money from endorsements. The NCAA board of governors is expecting to hear recommendations on how to move forward from Ohio State athletic director Gene Smith and Big East commissioner Val Ackerman, who are spearheading a committee that has spent the past five months evaluating options for a more modern path forward.
This week's meeting will be the first official gathering of the board since the state of California passed a law that will make it illegal for schools in that state to punish athletes for accepting endorsement money starting in 2023. More than a dozen other states are considering similar laws. Two U.S. congressmen are also in different stages of proposing legislation that would have a similar effect nationwide.
Rep. Mark Walker, a Republican from North Carolina, held a roundtable discussion in Washington, D.C., two weeks ago to rally support for his legislation. Walker said he is hopeful that he can get Congress to vote on the bill by next spring and potentially implement a national law by January 2021.
"We feel like they've given us no choice," Walker said. "We have to drag them to the table because they have promised year after year to address such an egregious situation, but they've refused to do that."
The NCAA is willing to evolve, according to Michael Drake, president of Ohio State University and chairman of the NCAA's board of governors. Drake said in August that the NCAA wants to make sure any change that occurs won't destroy the line that separates college sports from professional leagues. That would likely mean regulating potential endorsement deals in some fashion and sets up a battle between those who wish to see an unrestricted market for college athlete endorsement deals and others who believe some degree of oversight is necessary. With one state law with virtually no restrictions already passed and many others in motion, it's not clear whether the NCAA has waited too long to control the direction of how it evolves.
Discussions about how to handle the fair compensation of college athletes have ramped up among athletic directors and NCAA officials in recent years. The "existential threat" of athletes making money, as NCAA president Mark Emmert deemed it earlier this year, has been a vexing problem looming on the horizon for more than a decade. According to multiple college sports industry insiders, the demand to share a bigger piece of their multibillion-dollar pie with athletes is only shocking because of how suddenly it has to come to a head.
Amateurism has been a central tenet of the NCAA's mission for more than a century. In the past decade, though, pressure from civil lawsuits has chipped away at the hard-to-define line separating college sports from the professional ranks. As more money has poured into the industry via television contracts and school-wide apparel deals, those lawsuits have spurred the NCAA to expand the list of benefits provided to athletes to include items such as unlimited meals, access to an emergency fund and a stipend to pay for the cost of attending school not covered by a traditional scholarship.
To date, all of those adjustments haven't changed the opinion of the U.S. court system that college athletes are students, not employees of the schools they attend. The added benefits have remained, as the Ninth Circuit Court explained in a recent appeal ruling, "tethered to education."
The chief concern among NCAA stakeholders with each new erosion of amateurism rules is that the next step will be the one that changes the court's opinion. If college athletes are viewed as professionals in the eyes of the law, the NCAA and its members would be subject to a hornet's nest of antitrust and labor issues that could collapse their current business model.
Some believe that a wide-open market on name, image and likeness deals like the one Walker has proposed would be a step too far on a slippery slope that leads to professionalized college sports.
A recent public opinion poll conducted by Seton Hall University found that 60% of respondents were in favor of college athletes being allowed to make money from their name, image or likeness.
Athletic directors throughout the country aren't far behind the public, according to Lead1 president Tom McMillen. The former basketball player and Maryland congressman runs an organization whose goal is to organize hundreds of athletic directors in their efforts to influence NCAA rules. McMillen said most of his group members have accepted that change is inevitable, but are hoping to set the terms on two key parameters of future rules about name, image and likeness.
The first is the creation of a uniform, national rule. A state-by-state approach could create major headaches for the NCAA and its members if they are forced to navigate (and potentially fight legal battles against) a variety of different laws all aimed at the same purpose.
"You simply can't do that," Emmert told the Indianapolis Star earlier this month. "It doesn't make sense. It can't be done."
NCAA stakeholders also want to chart a course forward that provides for a way to regulate the new market of endorsement deals. Walker's proposed bill currently creates an unrestricted open market for college athletes. The only major restriction in the California law -- written by Democratic Sen. Nancy Skinner -- keeps athletes from signing deals that would conflict with university sponsorships. For example, an athlete playing for a school that has an apparel contract with Nike couldn't accept money to wear Adidas shoes during games or other team functions.
Proponents of a more regulated approach say it would protect athletes from "bad actors" taking advantage of them and from unsustainable new additions to schedules that are already jam-packed with classes, practices and other obligations. Regulation would also allow schools to potentially weed out boosters willing to pay well above fair market value to an athlete as a recruiting incentive. McMillen and his constituents see that as an important distinction to keep a new model from sliding too far into the realm of payments being directly tied to an athlete's performance in his or her sport.
"The concern the athletic directors have is about guardrails," McMillen said. "I think most accept the fact that this is coming and they just want to make sure this is a regulated market."
The NCAA's best hope for getting guardrails in place may reside in an office just a few floors below Walker's in Washington. Rep. Anthony Gonzalez (R-Ohio) said he plans to introduce a second federal bill on college athlete compensation at some point in the near future. Gonzalez, a former NFL wide receiver and an All-Big Ten performer at Ohio State, said he is in favor of allowing athletes to profit from their name, image and likeness while also guarding against unintended negative consequences.
The NCAA rule-making process typically moves on a regular calendar. Proposals for rule changes are due by the start of November -- although exceptions have been made to allow for more time in the past -- and final decisions usually come from the board of governors in April. If the NCAA wants to be certain that it can lay out its own rules before state or federal laws change their business for them, they may need to act in this academic year's legislative cycle.