I’m a corporate lawyer. I spend a good portion of my day working with my businessfolks and negotiating large, complex deals with other lawyers and businessfolks. I use irritating business jargon like “we’ll take that question offline as a takeaway on our end” and “we’re aligned in concept, but I don’t know that we can operationalize it the way it is currently worded” and (to whoever is clearly taking a long and clearly satisfying pee) “if everyone can check your mic, we’re getting some feedback.”
I also have a three year old son. I spend a good portion of the rest of my day negotiating small, yet somehow more complex deals with a 35 pound terror who DOES NOT LIKE what has been proposed, even if it EXACTLY MIRRORS what he just proposed seven seconds earlier. I use parent jargon like, “buddy, I’m sorry, but I don’t know what you’re asking for” and “no, you just had two popsicles,” and “where are your pants?”
I say these things to say this: I’ve read this On3 article regarding the ACC’s memo on potential federal NCAA legislation several times, and it feels a LOT more like the latter than the former. The NCAA is in the middle of a very public meltdown without a specific cause or remedy, and the best we can do at this point is to keep them from hitting their head on anything.
What is the NCAA asking for?
The whole article is worth a read, but the author summed it up pretty well with this tweet:
We’ll set aside for a moment the idea that the ACC (or the NCAA more broadly) thinks they get to have “must haves” in federal legislation. You’re a collection of athletic departments. They are, you know, Congress. It reminds me a lot of the videos on YouTube where a “Sovereign Citizen1” shows up in court and starts making demands of the judge.
I’m more drawn to the substance. Their negotiating position is, quite literally, “we insist that we get everything we want, and that those things are codified in federal law.” Those aren’t ‘initial positions.’ They’re what we in the negotiating community the lines in the sand. The bright lines. The red lines. (We’re big on lines).
And what are they willing to surrender in exchange for getting everything they want?
The memo says additional student-athlete support “could be in the form of revenue sharing, direct NIL payments, other direct payments, all from the institution,” which the memo says amounts to a form of pay-for-play.
Healthcare benefits “could include establishing a minimum standard of healthcare benefits, including providing portable healthcare insurance policies that would cover a period of post-eligibility, and providing healthcare subsidy payments for the institutions outside the A5.”
There are 32 NCAA Division I conferences in basketball. The memo suggests the Power 5 could be required by law to help subsidize other conferences or institutions if future federal legislation mandates new healthcare costs.
It remains to be seen how potential federal legislation would be enforced. “We would need to reach agreement with Congress on what entity would be responsible for enforcing the new law,” the memo says. “Possibilities include the NCAA, a federal department or agency or an existing or newly established independent entity.”
Some unspecified compensation. Basic health care. The general concept that the law will be enforced by… somebody? Like, they’re willing to accept the supremacy of federal law over NCAA law?
In short, the NCAA has NO IDEA what a comprehensive reform would look like, at least not in a way they can articulate as policy. They know what they DON’T want: literally any change to anything, except to ‘fix’ NIL in a way to undo the recent changes to the extent possible. They want, like, 2007, though they will settle for anything pre-O’Bannon decision. But I haven’t seen anyone on NCAA’s side of the world come out with anything remotely useful in the last decade for what the New Normal should look like.
And I don’t think they are capable of it.
The NCAA had *decades* to ponder what a world with NIL compensation could look like. It was their escape valve. It was their way to allow athletes to receive compensation while maintaining their precious illusion of amateurism. The O’Bannon decision was the big bright flashing beacon that said, “you are going to lose on this issue, and you are going to lose soon, and you are going to lose huge.” But instead, they dug their heels in. And when California passed the Fair Pay to Play Act, the NCAA’s answer was to ask Congress for help. Shockingly, that didn’t work.
Even when the NIL floodgates opened (again, because they were forced to by state legislatures, not because they wanted to), their formal response was, “uh… okay fine whatever y’all want to do is fine, just don’t break the rules we can’t really articulate.”
So that leaves it up to Congress.
To figure out, by itself, a ground-up framework to save a dysfunctional organization from itself.
The United States Congress.
The United States Congress in 2023.
So, what should the NCAA be asking for?
Okay, so, let’s play along with the premise for a moment. Let’s assume that Congress WANTS to do something. And let’s assume that Congress is ABLE to do something (like, not legally able, but physically get-off-your-ass-and-find-the-remote able). And let’s assume the Overton Window exists in a realm you could swallow here, and that there are at least SOME issues on which you, 218 Congressmen, 60 Senators, and one President can agree.
(Author’s note re: that set of assumptions:
That’s a big ol’ pile of yikes).
ASSUMING ALL THAT, if I was advising the NCAA, I would speak to them in very much the same way I speak to my three-year-old. To wit:
“Make good choices” — Acknowledge that you can’t have everything you want. You have to choose priorities that have a snowball’s chance in hell. You’re not getting an antitrust exemption. You’re not going to get a broad statement that players aren’t employees. You’re not going to get Congress to state in the law that players can’t get a cut of media revenues. Your wish list is dumb. Choose smarter, more focused, more realistic stuff. And along those same lines:
“Use your words” — At its heart, this is a dispute between labor and management. You can’t just show up to Congress and say “settle this dispute, and please do so in a way that heavily favors management.” You have to be able to articulate a real compromise.
If it was me? I would try this:
We’ll surrender on employee status because we’re going to lose that one in the courts and the NLRB anyway. But we’d like a minimum wage exemption to make clear that we don’t have to pay the Rifle team $7.25 per hour.
We also commit collectively bargain with athletes, and we will make efforts to assist member schools to create bargaining units and/or get the everloving hell out of the way of the creation of such units.
We’ll commit to a certain baseline level of health care coverage, but again the athletes will be able to bargain for greater commitments.
We surrender on NIL generally. That horse has left the barn. However, we’d like the ability to require people to register deals in a national database, because transparency is to everyone’s benefit.
We’d also like to be able to limit explicit “I will give you moneystuffs if and only if you come to Miami” inducements. However, when it comes to the enforcement process, we’ll commit to providing due process-flavored protections.
We’d propose a National Office of NIL Enforcement at the FTC to protect athletes from scamsters and hooligans and ne’er-do-wells.
We’d REALLY like some clarification that doing all of the above doesn’t violate Title IX.
This is just one idiot’s idea about how to handle this, but in this idiot’s humble opinion it seems at least marginally closer to plausible than the current Veruca Salt-style ask.
“Dinner first, THEN you we can talk about dessert” — The NCAA needs to show some signs of good faith here. They’ve been dragged kicking and screaming through the entire Target. You need to at least try to look like the adults in the room before you go crying to Congress. There is low-hanging fruit. You can pledge continuing post-graduation health care today. You can start the beginnings of collective bargaining today.
“Put the knife down2” — In the meantime, be on your best behavior, and stop saying and doing stupid shit that makes everyone roll their eyes, like using your first NIL punishment on a Women's Basketball team and going to war with Jim Harbaugh over a burger or and declaring that you could find a school guilty of NIL infractions despite the absence of that pesky “evidence” stuff.
Will they listen? Absolutely not. But when the “Congress will save us because we asked gruffly” plan doesn’t work, don’t say I (and about 500,000 other people) didn’t warn you.
Warning: if you search for this on YouTube, their algorithm is going to latch onto that for MONTHS and recommend every single Sovereign Citizen video that gets uploaded. It’s worth it, though, if you are a fan of the “moron gets rekt” genre.
Parenting is hard, man.