By Dr. Katie Lever
It’s been a tumultuous few years in the sports law space and 2023 has been no exception. Since November alone, multiple lawsuits have been filed against the NCAA and several could have far-reaching repercussions, not only for the NCAA, but for the business model of college sports overall. Central to these changes is the concept of athletic amateurism, which stipulates that college athletes are amateurs, not professionals and therefore, cannot be paid for participation in their sport, but this long standing stipulation has come into question lately, punctuating 2023 with an emphatic question mark for what the future of college sports holds.
Earlier this month, NCAA president Charlie Baker announced a proposal that would allow Division 1 universities to pay athletes for their NIL and create a new subdivision where universities can allot at least $30,000 to at least half of their athletes in an “advanced educational trust fund.” Although the details of the proposal are still up for modifications (and it’s only a proposal for now, with no solid rule changes yet), the NCAA’s efforts are anything but par for the course. Amid virtually every legal challenge the NCAA has faced, the NCAA has chosen to resist, rather than encourage, or even acknowledge the many changes that have taken place within the college sports industry since the NCAA was first formed in 1906. At least two legal cases–most notably, Alston and O’Bannon–and both state-and-federal legal pressure, have contributed to the NCAA’s recent about-face on athlete compensation and it appears the pressure is coming to a head.
“The NCAA is acknowledging that amateurism—at least in the highest echelons of revenue generating sports—is dead,” says Julie Sommer, Seattle attorney and Executive Director of The Drake Group Education Fund, of the proposal. “Whether you argue over employee or non-employee status, no one can say this isn’t the boldest move yet by an NCAA leader to dismantle the NCAA of old and its tight restrictions and cynical use of the term ‘student-athlete’ as it’s used for decades in courtrooms across the country in defense of its old model.”
The proposal isn’t a cure-all–as Sommer alludes to, it doesn’t address the looming question of athlete employee status, and it won’t solve all problems for the NCAA.
“The pending lawsuits including the new ones filed last week will continue,” Sommer says. “Does [the proposal] pave a possible path to settling some of these lawsuits? Possibly. I think in order to exercise adequate oversight as a national governance organization, some type of protection from antitrust litigation is necessary.”
The NCAA has been lobbying Congress for an antitrust exemption for several years now but amid these efforts, however, many have called for the NCAA to modernize its business model instead of seeking congressional loopholes.
“I think the purpose of Baker’s proposal is to make a breakthrough and demonstrate he’s committed to evolving the NCAA and their longtime strict rules on amateurism and athlete compensation,” Sommer says. “I do think the goal with this proposal is to modernize college sports structurally and financially while showing a commitment to broad-based college sports…I also think Congress has been waiting for the NCAA to make a move—this was clearly their move.”
Making moves is one thing, but executing them is another situation entirely. And the feasibility of the NCAA’s proposal, both legal and logistical, will impact whether or not the proposed rule changes become actual rule changes.
“Feasibility from a legal and logistical standpoint are two very different things,” Sommer says. “From a legal standpoint, we know the NCAA continues to get hammered in courts on both rules and anything having to do with limits or restrictions on compensation and scholarships. I still think the NCAA—or any governance organization—would need the help of Congress to implement such a proposal. Or, the institutions would need to bargain directly with athletes to try and avoid any exemption from Congress.”
The question of finances also comes into play. Sommer sees the NCAA’s proposal as a cost-of admission to access the highest level of Division 1 competition–not too dissimilar to the costs and requirements for schools making the jump from FCS to FBS. Cost is an important issue, as NCAA schools must vote on the proposal for it to go into effect and many programs likely won’t want to pay the price.
“We know many institutions aren’t exactly pleased with the proposal,” Sommer says. “It’s basically a large fee for membership into the most exclusive collegiate sports club—a minimum of $30,000 annually per athlete for half of a school’s countable athletes with a guaranteed 50% of the funds to women and the school can now do NIL with their own athletes.”
As in many conversations around athlete compensation, the question of “how can programs afford to pay athletes?” comes into play. But for many of the universities that would be most affected by this potential rule change, the costs can likely be absorbed or at least redistributed.
“You must admit the irony of any institution at that level balking at the affordability of such a proposal to support and compensate athletes when you look at the across-the-board financial largesse of coaching salaries and exorbitant buyouts, administrative, and facility costs,” Sommer says.
As with many sweeping organizational changes, the NCAA’s latest proposal has a built-in pros and cons list. Although the details and logistics–as well as member buy-in could use some work–among the perks, Sommer believes the prioritization of Title IX is commendable–to an extent.
“I like the acknowledgment of a ‘Title IX framework,’ which hints that both the distribution of the funds and NIL support would be done equitably and in accordance with Title IX,” Sommer says. “But would the NCAA’s trust fund, NIL proposal ensure Title IX compliance? No. Only schools can do that and with a track record and current situation where the majority of schools are already out of compliance with Title IX and we have a billion-dollar shortfall in scholarships for women, I wonder how the chasm won’t grow wider.”
According to the Women’s Sports Foundation, as of 2019, 80-90% of institutions in the United States are in non-compliance with Title IX. Sommer sees the NCAA’s current attention on athlete compensation as an opportunity to address this issue. “It would be really great if we also catch up to giving women a fair shake at participation and basic support,” she says. “We should make compliance with Title IX a condition of membership as well.”
In what has been a historic period of change for college sports, opportunities to revamp outdated rules and systems abound. Sommer sees the NCAA’s attitude shift as one such chance.
“There is clearly a sense of increasing urgency—by the NCAA, by athletes, and by universities and conferences—to see action that levels the playing field and brings at least some order to the chaos of the past three years,” she says. “The Supreme Court ripped off the Band-Aid with the Alston decision, and the NCAA and Congress had literally no Plan B. So now we have everything from Title IX lawsuits to transfer portals creating alternate universes of NIL inducements.”
Although there’s plenty of uncertainty surrounding what the future of college sports will look like, one thing is certain: there’s no better time than the present to modernize the industry.
“Congress needs to act—and soon,” Sommer says. “There is rare bipartisan momentum and let’s all hope that something can be done this coming year before long-term damage is done to reforms that should be delivering equity and opportunity.”
Dr. Katie Lever is a former Division 1 athlete and current editor and freelance sports writer whose work has appeared in Global Sport Matters, Sportico, Extra Points, Forbes, and other outlets. She is also the award-winning author of Surviving the Second Tier, a dystopian novel about the dark side of the college sports industry, available on Amazon. Follow Katie on Twitter and Instagram: @leverfever.
