The vast majority of college athletic directors who responded to a poll do not believe the NCAA is capable of policing a potential future market for college athletes making money from endorsement deals.
There is a growing consensus among college sports stakeholders that an independent oversight board will need to be created to enforce new rules if the NCAA adopts a proposal to allow college athletes to make money from their names, images and likenesses. Those proposed rule changes, which were supported by the NCAA's board of governors in late April, would allow college athletes to make money while in school as long as the moneymaking ventures fit within a set of yet-to-be-determined "guardrails."
The NCAA rule-makers have not yet figured out what those guardrails would be, or who would enforce that no athlete or school steps outside of them. NCAA leaders such as president Mark Emmert indicated earlier this year that initial plans were leaning toward using the organization's current enforcement staff and campus-level compliance officers to fill that role. Roughly 85% of respondents to a recent poll conducted by Lead1 -- a professional association of athletic directors -- said they are "not confident at all" in the NCAA's ability to enforce its proposed rules, according to Lead1 president Tom McMillen.
Three-quarters of the respondents to the poll were in favor of creating a third-party board that would oversee the new marketplace for athletes. Members of the group who crafted the proposed rule changes are in the process of deciding the merits of a third-party oversight board, according to group co-chair Val Ackerman.
Rep. Anthony Gonzalez of Ohio, who is working on a federal bill to address the future of college athlete compensation rights, said he is favor of using a third party to oversee the process.
"A lot of these unanswered questions could be answered by an independent oversight body that reports to Congress," Gonzalez said Thursday during a webinar organized by the Knight Commission, a group that works to reform college sports with education as its priority. Gonzalez, Ackerman and McMillen were among the guests for a panel discussion about the future of name, image and likeness rights in college sports.
The NCAA announced its proposed rule changes in April along with a plea for Congressional help. More than two dozen states pressured the NCAA into action by introducing bills designed to help college athletes maintain their rights to profit from their name, image and likeness. California passed a law that will go into effect in 2023. Other states, including Florida, are marching toward the signing of laws that would go into effect as early as next summer. Emmert and other NCAA leaders have said that each state having its own law would lead to "chaos," and they have asked Congress to create a federal law that supersedes what is happening on a state level.
Gonzalez, a former NFL and collegiate football player, said he plans to introduce a bill in the next month that will include guardrails similar to what the NCAA has proposed. Rep. Mark Walker of North Carolina proposed a bill last year that would create a marketplace for college athletes free of regulation. Gonzalez said Thursday he has spent several months building a bipartisan coalition to support this bill.
Gonzalez said the biggest challenge is time. Congress would need to pass its bill before any state laws go into effect for it to have its intended unifying impact. That likely gives federal lawmakers only one year to act -- a task made more difficult by the global pandemic and an impending contentious election cycle. Gabe Feldman, a Tulane law professor who was a panelist on the webinar, suggested that Congress might be able to pass a temporary measure to delay the state laws while it works on the details of a permanent law.
The NCAA plans to sketch out the details of its proposal by the end of October and vote on the new rule at its annual meeting in January. Ackerman said a federal law isn't absolutely necessary to get the proposal approved by the NCAA membership, but it would be a major help.
The NCAA and conference commissioners have lobbied Congress to include exemptions from antitrust law as part of the new law. Gonzalez said Thursday that a blanket antitrust exemption is "legislatively impossible," but his bill will include provisions intended to protect the NCAA from legal challenges that threaten rules that prohibit schools from paying athletes directly.
Ackerman suggested that federal support will be key to the possibility of creating more opportunities for college athletes in the future, including any potential return of an NCAA-based video game. The group licensing that would be needed to bring back the fan-favorite video games is not included in the current proposed rule changes. Ackerman said her group is open to ideas on how they could allow group licensing in the future, saying it might be part of "Phase 2" of the changing rules.
Both Ackerman and Gonzalez acknowledged that the major change to NCAA policy will be bumpy. Ackerman said she is hoping for at least an "oiled machine" as opposed to the potential for a well-oiled one. Gonzalez said the odds of getting everything right on the first attempt are "basically zero." Both said that they hope the coming rules will provide enough flexibility to evolve and adjust. Gonzalez said having an independent body of experts who can spend the majority of their time thinking through these issues is an important first step in that process.