Rewind to January for Exhibit A on the NCAA‘s chronic public messaging problem. There was Baylor President Linda Livingstone, chair of the NCAA Board of Governors, explaining at the association’s annual convention the rationale behind seeking federal intervention.
“We need a safe harbor to a certain degree from antitrust complaints,” Livingstone said. “We’re not looking for, nor do we need a broad antitrust exemption. But we do need the ability to make common sense rules without limitless threats of litigation.”
The beleaguered NCAA continues to cling to its endangered amateur system. Industry sources say it is trying to preserve a model in which all of the revenue flows upwards while seeking to unilaterally restrict the market for athletic talent. Livingstone’s comments loom as one of many missed opportunities to spell out exactly why the NCAA believes limited antitrust protection is essential for protecting the entire college athletic enterprise, which includes some 1,200 institutions with a wide array of missions and resources.
“This is the NCAA’s biggest problem and why they can’t get out of their own way,” Peter Schoenthal, CEO of Athliance, told On3 about the association’s messaging problem. “And they don’t understand why no one gets it. What she [Livingstone] meant was, ‘Based on what’s going on right now, we need a limited antitrust exemption because we want to be able to protect Title IX athletes, Division II and Division III. And we understand we’re going to have to share revenue with revenue-generating athletes, but if we don’t get the limited antitrust exemption, we’re going to hurt the whole model.’ If she would have just said that, it is a totally different story.”
NCAA messaging doesn’t reflect reality
The NCAA is looking to Congress for federal assistance on a uniform NIL bill, some antitrust protections and a designation that student-athletes are not employees of their universities. The association’s problem with messaging, industry sources say, is that the NCAA repeatedly fails to articulate a vision for the future that acknowledges a new model is necessary, much less what it may look like, and that public sentiment has shifted considerably around these issues.
“The issue with the NCAA’s public messaging is that it’s a message that doesn’t reflect the reality that people see when they watch high-level college sports,” Mit Winter, a Kansas City-based sports attorney with Kennyhertz Perry, told On3. “The NCAA is still focused on trying to maintain a system – amateurism – that doesn’t exist and that doesn’t match up with what high-level college sports are, instead of trying to talk about solutions or new models that will allow college sports to move forward with certainty.”
David Ridpath, a professor of sports business at Ohio University who has appeared before numerous Congressional committees regarding college athletics, told On3 that most of the NCAA’s problem is messaging and “candidly how bad they are at it,” he said.
“The old saying of ‘read the room’ should be applied more often by them,” he said. “My main issue is they are still trying to hold on to a lie – a lie that tries to paint education and amateurism as essential to the enterprise when they have been shifting their definition almost constantly to fit the reality that is happening.”
‘They can’t give up their paternalism’
Consider when Tom McMillen, LEAD1 Association‘s CEO, gave new NCAA President Charlie Baker the platform to articulate their broad strategy. As part of his response during the Q&A, Baker said, “I don’t think you’ll find very many student-athletes who want to be employees … I think student-athletes want to be student-athletes.”
There is a case to be made that earning employee status may be an overall net negative for student-athletes. As McMillen told On3 in March, he believes the potential for collective bargaining and revenue sharing could lead to schools eliminating Olympic sports or reducing them to club level. He believes it would benefit only a small percentage of athletes.
But Baker did not make that case. Instead, he followed a playbook familiar to anyone who has followed the NCAA’s broad messaging for years. His comments, sources said, were colored with a paternalistic hue, as if the association is once again saying, “We know what they want. We know what is best for them.”
“The overarching problem is they can’t give up their paternalism,” Jason Stahl, founder of the College Football Players Association, said recently. “They can’t give up their paternalistic mindset toward these athletes. Quite frankly, I think there is just an absolute level of disrespect toward college athletes from the administrative class in higher education.
“They wouldn’t want their own kids treated the way athletes are, with this sort of infantilization of them: ‘We know what is best for you. We’re going to figure this out for you. We’re going to go ahead and just keep dictating things to you.’ It’s like how many court decisions do we need? They are adults … They can actually participate in the discussion over the conditions and terms of their workplace.”
‘An issue we have some time to deal with’
Baker’s comments were juxtaposed with lengthy remarks made the following day at the LEAD1 conference in Dallas by two experienced sports and employment lawyers: Jon Israel, partner and co-chair of the sports and entertainment group at Foley & Lardner, LLP, and Sarah Wake, who advises universities on athletic compliance issues in her role as an attorney at McGuireWoods.
Wake said there is “no stopping the employment train.” And both attorneys called it a virtual inevitability that employee status for athletes is coming. Therefore, they said it was critical that universities be proactive now and strategize how they will confront this new reality on the horizon.
In contrast, Baker talked about seeking a lifeline from Congress on NIL issues, with no mention of a plan B. And when asked specifically how and when the industry should determine what a new collegiate model should look like, perhaps one different than an employment model, Baker mostly demurred. He said while addressing “the model stuff is a critical issue, but I think it’s a tomorrow issue … it’s an issue that we have some time to deal with as long as we do.”
Two distinctly different messages. One is rooted in the reality of the circumstances and the importance of being proactive now. The other is grounded in trying to preserve an obsolete model and kicking the can down the road until they are forced to address it.
Public opinion about amateur model has shifted
Public sentiment related to the amateur model has shifted starkly in recent years, especially with the player empowerment movement touching virtually every professional and college sports league. And when it comes to the athletes themselves, Winter believes the NCAA knows if it surveyed Power 5 football and Division I men’s and women’s basketball players about topics such as revenue sharing, “it will get answers it doesn’t like.”
Therefore, he said, when there are Congressional hearings, such as the one in late March, or when athletes are invited to be part of the NCAA process, it generally does not involve current P5 football or men’s and women’s basketball players.
In his CBS interview during March Madness, Baker talked about consumer protections and the need for uniform, standard NIL contracts. He talked about plans to talk with “folks in Washington” for assistance, a comment that drew an immediate rebuke from Charles Barkley, who called politicians “awful people.”
Ridpath said any consumer protections the NCAA wants would only be restrictive to the athlete. And he said the notion that “everybody lies” with NIL, which Baker claimed, is “silly” considering that lies have dominated the high-stakes college recruiting landscape for decades.
‘You reap what you sow from a narrative standpoint’
The NCAA did have a captive audience for the U.S. House’s Innovation, Data and Commerce subcommittee hearing in late March. During the hearing, there were general references to student-athletes being exploited by third parties and bad actors in the NIL space. But testimonies lacked specificity, lacked clear examples. It marked another missed opportunity, sources said, to lay out the scale and scope of the problem and put a face on it, if the issue is in fact as pronounced as the NCAA claims.
The broader point, Winter said, is it is time for the NCAA to acknowledge reality and publicly discuss practical solutions that entail sharing more revenue with athletes. Continuing to spend millions of dollars fighting the athlete compensation issue in court isn’t a prudent strategy, he said, and neither is asking for a federal law that seeks to enshrine the current rapidly eroding model.
Until the NCAA realizes this, Winter said, it will continue to drop the ball on public messaging.
“It just shows that the NCAA is one of those very large organizations that have too many lawyers in the kitchen,” Schoenthal said. “And when that happens, everyone gets afraid. When that happens, things get lost in translation. And when that happens, you reap what you sow from a narrative standpoint.”
Over the decades, Ridpath said, the NCAA had some success with its education and amateurism message. However, he added, it doesn’t resonate when you pay coaches $12 million, continually build new facilities and increase recruiting budgets exponentially.
“The house of cards has fallen, and most see through the facade,” Ridpath said. “Their message just doesn’t land like it used to.”