Analyzing the NCAA’s shrinking authority

The past few years have not been favorable for the National Collegiate Athletic Association (NCAA). The agency that had once been the ultimate rule-maker for on- and off-the-field engagement is now desperately trying to catch up with the times.

Some say it’s a bureaucracy that can’t see the forest for the trees, and as a result, events that would have caused major scandals at the turn of the century are now quickly forgettable.

Let’s discuss how recent lackluster rule enforcements and the development of name, image and likeness (NIL) standards exemplify how close the NCAA is to obsolescence, and how it can impact student-athletes as we approach the 2023-2024 season.

NIL’s impact on the NCAA

The issue of student-athletes earning compensation from NIL has unquestionably caused the most damage to the NCAA. The hypocrisy of schools earning enormous revenues off the talent of their kids – without offering fair compensation for their abilities – has been called out by fans, professional athletes, members of Congress, and this lawyer.

Perhaps the most critical condemnation occurred in July 2021, when the United States Supreme Court unanimously sided with former college players in American Athletic Conference et al. v. Alston et al., in a dispute with the NCAA about compensation and academic benefits. This precedent-setting decision set in motion significant changes to the landscape, and upended decades of unfairness to the players whose athletic prowess had generated billions of dollars in revenue which they never saw a dime of.

Players scored an extra point in September 2021, via a memo from the National Labor Relations Board (NLRB), which affords statutory protections to certain players as employees under the National Labor Relations Act.

The NCAA created interim policies to guide NIL. Unfortunately, after two years of essentially saying, “we’re looking into it,” it has become clear that the NCAA did not have a long-term strategy following Alston and Congress’ inability to unite on one federal framework.

Since that time, we’ve seen players finally get their financial due with NIL deals. Others have tested the limits of the interim policies, only to spend brief time fencing with the hopelessly ambiguous rules.

For example, on Feb. 24, 2023, the NCAA made a critical NIL ruling against two of the most popular female college athletes and top NIL earners, twin sisters Haley and Hanna Cavinder. Forbes reported that the TikTok stars had earned close to $2 million at the time thanks to NIL endorsements.

The basketball players transferred from Fresno State to the University of Miami in April 2022. The NCAA announced penalties against Miami Hurricanes women’s basketball regarding “impermissible contact” between booster John Ruiz and the Cavinder twins during their recruitment. Evidence of the meeting emerged when Ruiz posted a picture to social media, meeting the twins for dinner. Part of the fallout and penalty included Hurricanes coach Katie Meyer missing the first three games of the season, which was hardly significant.

A statement from the NCAA detailed the other penalties:

• One year of probation.

• A $5,000 fine plus 1% of the women’s basketball budget.

• A 7% reduction in the number of official visits in women’s basketball during the 2022-23 academic year.

• A reduction of nine recruiting-person days in women’s basketball during the 2022-23 academic year.

These consequences are not that impactful. Sure, there was some minor backlash in the media and from the public. Remember, a team that earns millions of dollars was not about to balk at thousands of dollars in fines and a few days without a coach all because they crossed a crooked line. Better to just concede, pay the fine and move on.

Recruitment violations and suspensions

Another example of the nearly-toothless enforcement occurred in late July. The NCAA suspended Michigan head coach Jim Harbaugh for the first four games of the 2023-2024 football season as a result of alleged false statements made to the association in response to an investigation of recruiting violations.

Harbaugh’s offense is a little more clear-cut: Lying to the investigators about recruiting methods has its place in the hall of shame. Knowingly violating the rule is never advisable. Interestingly, his negotiated suspension was only four home games, which will be against teams that pose no imminent threat to the Wolverines’ BIG10 prospects, and is frankly laughable.

Other members of the Michigan athletic staff also received one-game suspensions for violating the recruitment rules. It is doubtful anyone in the Wolverines’ organization is sweating these insignificant penalties.

Forward motion

New NCAA President Charlie Baker has publicly stated his support of players being able to profit off NIL; it’s a great sentiment, but it may be too little too late. Fact-finding missions like the two-day session held over the summer during the Division I Board of Directors meeting noted progress, but unfortunately no major takeaways.

Several bills have been introduced in Congress to address the state of college athletics as it pertains to NIL and the actions of the Supreme Court and NLRB. When federal legislation eventually passes to provide a framework for NIL governance, there is a chance Congress may not turn to the NCAA to act as its enforcer. Why should they be in charge if they haven’t been able to get out of their own way, let alone lead?

For example, Senators Cory Booker (D-NJ), Richard Blumenthal (D-CT), and Jerry Moran (R-KS) announced a draft of legislation, titled the “College Athletes Protection & Compensation Act.” Specifically, Moran said the bill would establish national NIL standards and protect opportunities through a central oversight entity – the College Athletics Corporation – to set, administer and enforce rules and standards.

That another agency would need to be created to enforce NIL rules clearly demonstrates a vote of “no-confidence” in the NCAA’s effectiveness. The call for feedback on this proposed act closed in August so it will almost certainly be updated. Furthermore, Booker is a former student-athlete who has considerable momentum among his peers in this arena.

By imposing forgettable suspensions and meaningless consequences, the NCAA is – perhaps unwittingly – demonstrating how it has symbolically lost its status as strict headmaster to part-time hall monitor. Congress is omitting the NCAA from the current draft legislation, so what credibility do they have among lawmakers? This all hints toward future athletic seasons with limited NCAA input.