Professionalism in college athletics

Dear Readers, “March Madness” used to be one of my favorite times of year.  College programs did battle every two (2) or three (3) years with the same players, and Hall of Fame coaches slowly melded core players into a seasoned group.  The work that Tom Izzo did with upper-class guard corps, making a deep run almost every Tournament was inspiring.  As much as the upstart, usually senior-laden starting lineup, mid-Major upsets of the Blue Bloods.

Major basketball and football programs have garnered colleges millions, if not billions, of dollars, chewing up student-athletes in the process.  We love the competition.  This, in turn, exploded the cost of television broadcast rights.  The pious excuse for this soullessness is that those broadcast profits floated unprofitable sports like gymnastics, swimming, lacrosse, and field hockey.

The seedy side was a Kevin Ross.  A four-year graduate of Creighton University, a mid-sized competitive basketball program, he couldn’t read.  He had a solid NCAA career, but was not NBA material.  He toiled for his alma mater without financial compensation and received a worthless parchment as his only reward.

Those days are gone.  Ed O’Bannon was a star basketball player at UCLA, scoring 30 points and pulling down 17 rebounds in leading his squad to winning a national championship in 1995.  He never quite made it professionally, but he was a big deal in college.  

When his professional career flamed out, he sued the NCAA in U.S. District Court for antitrust violations on behalf of a class of all basketball and football student-athletes.  In 2014, District Court Judge Claudia Wilken ruled that the NCAA unlawfully restricted graduates from profiting from their own likenesses; the 9th Circuit affirmed her decision in 2015, though the Supreme Court declined to weigh in.

A half-decade later, the NCAA voluntarily went even further, adopting a policy that permits its scholar-athletes to license their likenesses.  Name, Image, and Likeness (NIL) became the coin of the realm by which students sold themselves to the highest bidder.  With transfer rules also loosened by COVID, each year has become a mad dash to the transfer portal – the University of Indiana’s National Champion Hoosiers a shining example.

Oddly, NIL has slowed the parade of underclassmen going professional.  In some cases, staying an extra year or two and collecting millions in NIL allows athletes to be more selective about when they are ready for the rigors of playing against men.  NIL has also helped some students in participating in less glamorous sports, like gymnastics and swimming, to profit from their amateur status.

Amari Bailey is the countervailing trend.  He was a major basketball recruit at UCLA.  He played only one year collegiately and declared for the 2023 NBA draft, hiring an agent in the process.  He was drafted in the second round that year by the Charlotte Hornets, played all of 10 NBA games in his rookie season on a 2-way contract, and toiled mostly in the G League for 2 years.

He wants to go back to school after failing in the G League.  The NCAA is refusing to let him have a “do over.”  The 2nd-round NBA contract he signed paid him only $565,000, far less than a major college NIL contract.

Precedent may not be on the NCAA’s side.  Charles Bediako successfully obtained an injunction in state court, allowing him to play last year for the Alabama Crimson Tide after 2 years in the G League.

The NCAA may be losing its grip on students.  It cannot allow undergraduates to maintain their United States amateur status after playing professionally at an international level.  It tried to adopt an “actual and necessary expenses” exception in 2010 to allow colleges competing abroad to open up to international students.  This exception portends a flood blurring the professional/amateur lines.

The reality of “pay for play” may also be changing, and Judge Claudia Wilken is once again prime and center.  Grant House, a former Arizona State Sun Devil swimmer, successfully sued the NCAA over revenue-sharing restrictions capping NIL payments.  

The “House settlement” dictates oversight of NIL contracts is now market-driven, policed by an independent auditor (Deloitte) and individual conferences, not the NCAA.  The power brokers are a College Football Playoff behemoth outside the NCAA’s jurisdiction.

The NCAA’s Ivory Tower is crumbling.  The financials of free-market profits are loosening their grip on student athletics.  March Madness may look very different next year.

Warner Robins attorney Jim Rockefeller is the former Chief Assistant District Attorney for Houston County and a former Assistant State Attorney in Miami.  Owner of Rockefeller Law Center, Jim has been in private practice since 2000.  E-mail your comments or confidential legal questions to ajr@rockefellerlawcenter.com.