‘The NCAA is going to be a shell of itself when this is all done’

Those who believe that beleaguered NCAA president Mark Emmert stepping down next year will be the magic elixir to cure all of the ills of college athletics couldn’t be more off-base.

The problems are inherent in a model that includes more than 1,100 member schools operating with different missions – sometimes vastly different missions – under one proverbial big tent. And as schools and leagues become more disparate, the system becomes increasingly untenable. 

To untangle many of the most consequential issues and assess the current state of play, On3 checked in with Tom McMillen, the former U.S. Congressman, college basketball All-American at Maryland and Rhodes Scholar. He is now CEO of LEAD1 Association, which advocates on policy issues facing the 131 FBS athletic departments; creates working groups on issues such as NIL, transfers, diversity, equity and inclusion and enforcement; and provides feedback to the NCAA on best practices for representative governance. It also seeks to generate consensus opinion among FBS athletic directors on significant issues. 

Here are two of the many important takeaways from a wide-ranging discussion with McMillen:

+ Once the winds of considerable change slow, expect a much different, diminished NCAA. McMillen: “The NCAA is going to be a shell of itself when this is all done.”

+ Conferences are preparing to assume more power in creating their own rules. But at the same time, only 34 percent of FBS athletic directors surveyed by LEAD1 agree or strongly agree with conferences having full autonomy to create their own rules. There is a major disconnect between how things are changing and how ADs want things to change.

The interview has been lightly edited for clarity and context.

Q: My view is that with Emmert stepping aside next year, there is a legitimate opportunity for a rebirth for the NCAA, to redefine its role and function. It’s a monumental task, but if not now, then when?

McMILLEN: A couple of things. One, a lot of the things that have transpired over the years are being driven by antitrust concerns and antitrust lawyers. But there are other things that I think the NCAA could have been more proactive on, irrespective of those concerns. Just the whole NIL progression that was painfully slow. And one of the areas, just to point out one, like group licensing. We submitted comment letters to the NCAA. We said, “Group licensing is the low-hanging fruit. It involves everybody. It doesn’t take a lot of time.”

The NCAA’s position was that you have to have a union to do it. And that’s just not factually correct. The NFL Players Association started out as a trade association before it became a union. You can do group licensing without a union. That’s just one example. I could never understand why they didn’t embrace group licensing. It is very clean. It is not going to be used in recruiting. And yet that was the one thing they always fought. Those were the areas that puzzled me.

Q: Could this be an opportunity for a rebirth?

McMILLEN: When you talk about the rebirth or a legitimate opportunity here, I think a lot depends on the transformation committee. Quite candidly, we all know that the NCAA is going to be a shell of itself when this is all done. And now we are going to be devolving authority to the conferences. They are going to decide a lot of the non-athletic rulemaking. They are going to decide the business stuff. They are going to have a lot more authority on the business stuff.

I’m sort of a skeptic about it, to be quite honest with you. It would be like the Securities Exchange Commission or like a national association all of a sudden devolving authority to entities that are competitors of each other. It would be like the FCC saying, “OK, now we are going to give all the authority to CBS and NBC to make their own rules.” … I can’t see how that is going to work in the long run because everybody is going to be competitive. They are going to try to do whatever they can to win. I wonder whether that whole Darwinian look at this is going to work for a national enterprise. It’s supposed to be based on national championships and all that. When you have a lot of rulemaking going to conferences who are competitors, I’m somewhat skeptical about that. We asked our ADs that question. We did a survey.

Q: How did the athletic directors respond?

McMILLEN: What was an interesting question on that was, “Should the conferences have full autonomy on issues like Name, Image and Likeness, athletic compensation, scholarship regulation and so forth?” Only 34 percent of our ADs strongly agreed or agreed. They are very skeptical of conference-by-conference delegation. Only 34 percent agree or strongly agree that that should be the place where the rulemaking goes. There is a disconnect between the ADs, who see the need for a national organization, and what is going to happen, which is going to be at the conference level.

I also find it interesting that 50 years ago this year, we were playing the Soviets in a world-famous game in the middle of the Cold War [in the U.S. Olympic men’s basketball team’s gold-medal loss to the Soviet Union, in which McMillen played]. Here we are 50 years later and we’re in the middle of a Cold War. History tends to repeat itself.

And you recall in the 1930s and ’40s, they had a very decentralized structure in college sports. Schools decided what they wanted to give their athletes. There was a [football] player who was making, according to the New York Times, in today’s terms $90,000. Finally they had to pass the Sanity Code [in 1948], where they harmonized the benefits for all schools. It was passed unanimously. In other words, scholarships, room and board, tuition and the like. The reason they did that was because every school was in it for themselves, and they had to come up with a common standard. The idea of devolving to competitors is very complicated and could get very messy.

Ultimately, if there is a Sanity Code down the road, it’s going to have to be Congress to impose it. The question is how do you have a national enterprise if every conference is doing something different? That’s the real question. And the NCAA can’t act because of antitrust reasons. So it’s either Congress gives them antitrust cover to do something national, or we live with a very decentralized environment.

Q: If only 34 percent of athletic directors believe conferences should have autonomy to create their own rules, why is everything moving in that direction?

McMILLEN: We’re moving in that direction because the antitrust lawyers say there are too many business rules and we’re getting sued right and left for that. We sent this survey to folks. Here’s a comment (reading from a paper): “We need some consistent rules, policies in order for fair competition. … We need a national solution.” It’s interesting. I think there’s a little disconnect between what is being driven by the lawyers and the lawsuits, and really where the ADs are on it.

Q: Given the complexities of the landscape and the unknown future structure of the NCAA – we don’t even know the precise role of Emmert’s successor at this point – are there some central characteristics you’d like to see in his replacement?

McMILLEN: Well, I think it’s important that you’ve got someone that, first of all, has a vision of what college sports should be. I have a sense that college sports is heading in a direction where it is not going to be the same vision. It’s going to be many different visions. You may have the semi-pro division. You may have the more academic version of it. Is that where we are heading? Or do we need a vision of what the collegiate model is about, tied to education and all that?

One of the things I think is very important is providing opportunities. We give a half-million kids financial aid, which is number two only to the G.I. Bill. It seems to me we’re heading in the wrong direction in that area, that we are going to end up cutting sports in the name of basketball and football. Is that the vision of where college sports should go? Is it providing much to a few or providing much to many? I think providing a lot to many should be the vision of college sports. I think we are going in the wrong direction. I think we are going into the football- and basketball-centric world, and I think that has consequences.

The first thing is you have to have a vision. The second thing is you have to be able to articulate that vision to policymakers like members of Congress. There are so many members involved in college sports today, whether it’s gender issues, tax issues, international students, enforcement, employment issues, collective bargaining. You never had as many members of Congress involved in college sports as you do right now. So I think it’s essential to the job that you have someone who can navigate those issues with Congress.

Q: And you have the movement to conferences having more power to create their own rules that a president must navigate, right?

McMILLEN: Given the devolution that is occurring, I think you have to work very closely with the conferences. Because one of the funny things about being the head of the NCAA is that $3.6 billion is given out [to schools] by the conferences through their TV contracts, by the NCAA through their TV contracts and by the CFP – $3.6 billion. Only $800 million of that or so is the NCAA. Think about that. Less than 25 percent of the money is coming from the NCAA.

There are great expectations, but follow the money. There is a disconnect between the money and the authority. And that’s a problem. So you’re going to have a very collaborative relationships with the conferences because both the CFP and the conferences give out way more money than the NCAA. So they have big power centers. And that didn’t work so well with COVID. Everybody was doing their own thing. I think that’s going to be the test of a new [president] as well.