It’s a difficult path to follow, the stilted steps taken over the past few years to attempt to rein in the out-of-control nature of, primarily, the major NCAA college sports of football and, to a lesser extent, basketball.
The two major points of regulatory conversation that have survived in one form or another are the SCORE Act, which the U.S. House of Representatives is still mulling, and a new, bipartisan and joint executive-legislative effort championed by President Donald Trump and committees set up by his adminstration to address the issues in play. The emergence of the latter effort would seem to threaten any chance the SCORE Act has at passage, as the U.S. Senate is considered unlikely to pass the House version of the bill.
Whatever is going to happen, though, needs to happen quickly, before the last vestiges of amateur sports get run under the wheels of opportunistic agents, an out-of-control market and a frothing media that has cast college athletes as all but enslaved to their schools, when in fact, almost all of athletes’ original set of concerns has been met and addressed long ago. Whereas at one point, there was legitimate consternation over athletes being allowed to find enough change in the couch cushions to purchase mundane items, or treat a date to a decent dinner, the new horizon of college sports lacks even the guardrails that make professional sports organizations work properly. It has created a system by which court loss after court loss has cast universities as conglomerate employers, with out-of-control costs spinning in the shadows, and not a system for higher learning.
The argument can be made that the mere existence of high-level college sports invalidates the traditional goals of colleges and universities, rendering them archaic. However, there is still taxpayer money involved in the majority of these institutions, and believe it or not, there are taxpayers who don’t follow college sports at all – and they don’t wish to see instutions that are an extension of the state try to gobble up extra dollars to remain competitive in the name of bragging rights.
This is, however, not just a problem for college sports – it is a problem for amateurism writ large. Far away from the multibillion-dollar lights of college football and basketball, there are entities like the American Junior Golf Association, bowling’s USBC Youth/Junior Gold programs, and any number of organizations that represent sports, both Olympic and otherwise, for which the concept of amateurism has been held sacrosanct. And whether or not that seems to matter to so-called “player advocates,” those kind of things really do matter to the public at large.
However, the first pass from the College Sports Reform Task Force, of which Nick Saban is a member, fell a bit incomplete. It chose to focus on coaching salaries, playoff issues and media rights, rather than to focus specifically on what has caused college football in particular to unwind like a ball of rubber bands: Free-for-all transfers and an NIL system so out of control that everyone on all sides already treats adding guardrails to it like an unenforceable joke – because it is.
Without getting down into the weeds of what is in either the SCORE Act or newer pieces of proposed legislation, these are five steps we believe are of great need in all non-professional athletics:
1. College athletics needs an antitrust exemption. This is a common thread between SCORE and the other permutations of legislation that have been proposed, but the rest of what comes is moot if the antitrust exemption isn’t granted. This would give the NCAA (or whatever organization is tasked with running the new format) a bit of a hammer to hit back with when court challenges arise to its authority. Moreover, provided the exemption was broad enough, it could allow for actual regulation of financial benefits – to both players and coaches – and establish to the courts that no, this business isn’t analagous to factory work. This is a no-go issue if not approved, and it should be substantial enough that it creates confidence among regulators to actually make policy decisions that stick. Fans (and thus, economic supporters) of sports tire quickly of attempts to patch holes in the system being batted back by the court system. Congress simply has to take it out of the courts’ hands.
2. The NCAA must either be empowered, or scuttled; no in-between. For those who would claim we’re only writing this now that Alabama is living in a post-Saban world, we’ve been complaining about the NCAA since we first published in 1996. The NCAA is, as the late sportswriter Cecil Hurt frequently labeled it, “arbitrary and capricous” almost as a default setting. And it didn’t take a modern-day Nostradamus to see that once the legal dominoes began falling in NIL-related lawsuits, the NCAA’s days were numbered, at least the old NCAA. If there’s to be a “new” NCAA, whether it’s the current organization beefed up, or a replacement product, it has to be given some real teeth. This means criminal penalties for violations. No more “disassociated from the program,” no more hand-slaps to boosters, no more one-game suspensions just because the athlete happened to get caught. We’re talking jail time for boosters who try to circumvent cap limits, fines that go 10, even 100 or more times the value of the extra benefit. It means amateur status lost for years or perhaps forever. But in doing so, the NCAA needs reform. Investigators need to actually know how to do the job. Personal grudges have no place in their work. Misconduct or negligence should be punished, with personal liability on the line. And finally, the new organization needs legal teeth. If the NCAA believes actual crimes against new laws have been committed, it should be able to bring in actual representatives of the law enforcement community who bring with them subpoena power and other powers of the criminal justice system. For too long – especially recently – boosters and their attorneys have been able to more or less ignore the regulatory system.
3. All player representatives should be regulated and approved by the sport’s governing body. Not just anyone can be an NFL player’s agent. The process includes tests, background checks and advanced degrees. Too many college athletes today are not represented by true agents, attorneys or licensed financial advisors, but rather by family members, girlfriends or boyfriends, and other hangers-on who are essentially looking for their own handouts. The process, for many, has become a collective enrichment scheme for entire groups of people. Whatever new regulation comes out of Washington D.C., it needs to client up this rogue’s gallery, because it truly is not in the best interests of vulnerable teenagers to have amateur representation when their financial future is on the line.
4. Some player compensation isn’t just appropriate, it’s completely necessary. We’re talking about three specific areas here: true NIL, where an athlete’s name, image and likeness is used in marketing for the school or the program; a stipend meant to replace the value of work that could be done if the athlete wasn’t already required to be present for practices and games; and a robust medical package that continues long after a player is done with school. Point No. 1 here is the crux of the original O’Bannon v. NCAA case, and the third item deals with issues of fairness arising from injuries that are, quite frequently, severe and hold the potential to become chronic. The second item is the hardest to put to paper, but student-athletes should be allowed a stipend in lieu of fair-market work, without being deemed employees of the school itself. As a suggestion, the NCAA would conduct wage studies of each school’s immediate job market and authorize payments up to a certain percentage of annual income. This would allow for higher pay in Los Angeles than somewhere like Ames, Iowa, or Starkville, Miss., albeit with restrictions, so that large-market schools can’t abuse the system to offer significantly advantageous financial packages. This takes care of the “can’t pay for a date” argument that ruled this space for years, allows for true NIL to be paid, and also provides for quality medical care for former athletes.
5. The transfer portal needs significant overhaul, and eligibility must be regulated. This is basically President Trump’s existing “five-in-five” executive order mated to a new way of structuring the transfer portal. No appeals, no special circumstances. Trump’s original order made exceptions for military service, pregnancy and religious missions; we’d like to see the religious exemption removed because such missions are voluntary, and also because it could become a potential target for abuse of the five-in-five system. Trump’s EO also gave athletes one free transfer and a second free transfer upon completing a degree, and we’re fine with those proposals.
Whether or not we see meaningful reform in the next year or two is up to Congress – a long shot, to be sure, given current events and the general appetite in D.C. for bipartisan solutions. But college sports is on the clock. The current system is not sustainable, and any adult who wants to see amateur sports continue to look even remotely like the sports they grew up with should get behind efforts to change the playing field.
Follow Jess Nicholas on X at @TideFansJessN