Critics warn reforms risk turning college football into a professional league focused on money over school pride.
Everyone who follows college football saw huge changes in the game this year. There is now revenue sharing between the colleges and players, a realignment of conferences, expanded playoffs and no restrictions on players transferring. But most college football fans may not realize these changes arose due to a Supreme Court decision eliminating the restraints on a college player’s ability to make money. Permitting student athletes to receive compensation for their contributions is warranted; however, these changes have diminished the sport’s traditional appeal. Instead of representing their school, college athletes have become free agents, willing to play for the highest bidder.
In 2020, the Supreme Court ruled in National Collegiate Athletic Association v. Alston that the NCAA could not restrict a player’s ability to be paid for the use of his likeness or endorsements and struck down limits on the number of scholarships awarded to players. The Supreme Court expressly held that the NCAA is subject to antitrust limitations and suggested that the limitation on a school paying a player would be illegal also.
Although a few professional sports leagues, like Major League Baseball, are exempt from the antitrust laws, as of now college football is not one. To be expected, lawsuits challenged any restrictions on a player’s ability to be paid by the school they attend, and these lawsuits were consolidated as a class action. This past year, a settlement of the class action was approved.
Pursuant to the settlement, which colleges could opt out of and continue with litigation, NCAA Division I member schools can share up to 22% of the revenue of the Power 5 schools —SEC , Big Ten ACC, Big 12 and PAC 12—including media rights, ticket sales and sponsorships. This cap means that any one of the over 350 Division I schools can share up to $20.5 million with its student athletes.
The settlement has been criticized as merely exchanging one cap—zero—with another cap. This limit on revenue sharing, critics claim, will actually constrain an athlete’s earning capacity and is likely to engender more litigation. At the other extreme, legislation introduced in Congress, called the SCORE Act, would exempt college football from the antitrust laws.
There is a compelling argument to allow college football players to earn money for playing. College football raises millions of dollars for the schools, and the players are at risk of injury, which could prevent them from playing in the NFL. But the NCAA’s actions have made college football just another professional league. Fewer conferences now stretch coast to coast, players can transfer without restrictions, and colleges now compete as to how much money they can pay.
Revenue sharing seems like a workable solution, but the other reforms—including removing restrictions on transferring—such as losing a year of eligibility, did not have to be pushed to the sideline. College football’s popularity was based on student and alumni pride in their schools and regional rivalries. While complete exemption from the antitrust laws is not necessary, some leeway must be given to the NCAA to preserve players’ excitement for playing for their school’s pride and not just for money. That is a terrible thing to lose.
E. Christopher Murray is a partner at Rivkin Radler’s Commercial Litigation and Real Estate practice groups. The views expressed here are his own and do not necessarily represent the views of the firm.
The NCAA’s most powerful conferences delivered an urgent plea to congressional leaders last week: We need your help to save college sports – and need it now.
The commissioners of the Big Ten, Big 12, Atlantic Coast Conference and Southeastern Conference quietly lobbied leaders in both parties – including Senate GOP Leader Mitch McConnell and House Democratic Leader Hakeem Jeffries – to back legislation that would set national standards on how collegiate athletes can profit on their name, image and likeness.
Their warning: That a Supreme Court decision two years ago that paved the way for companies to pay student athletes has led to a complicated series of state laws that have undermined collegiate sports and could ultimately lead to the collapse of sports programs across the United States.
“The risk is permanent damage to an enterprise that has meant an awful lot to our country, and to those that have benefited from the experiences,” James Phillips, the ACC commissioner, said on “Inside Politics Sunday.”
Greg Sankey, the SEC commissioner, had a dire prediction if Congress doesn’t act.
“The risk is we see states further build walls around their recruiting grounds, thinking that that somehow provides a competitive advantage,” Sankey said. “The risk is that more and more young people sign agreements that they don’t understand. The risk is we move further and further from the academic nature of college sports.”
In their first-ever joint interview, the four power conference leaders told CNN that the current landscape has created grave instability where collegiate athletes increasingly transfer to different universities based on different states’ rules on profiting off their name, image and likeness, or NIL. Athletes’ increasing use of the transfer portal, they said, has become problematic in college sports, particularly for student athletes’ quest to get a college degree.
And, they say, college boosters have taken advantage of the current patchwork of laws to help their universities recruit the top athletes by promising big paydays – to the detriment of colleges in other states that are forced to play by a different set of rules.
They say it’s time to set a national standard to even the playing field.
“You’ve got a system where it becomes very transactional, in terms of how student athletes are moving and you see it on the field,” said Big Ten Commissioner Tony Petitti. “You’ll see tremendous player movement, but there’s also another side of it, which is a lot of student athletes just don’t end up some place. And that’s a problem. Because the grass isn’t always greener, there isn’t always a deal that comes through.”
Petitti added that programs “can rise and fall very quickly” with players choosing to transfer, while the ACC’s Phillips said “multiple movements shown in the course of the student athlete’s career that they’re less likely to graduate.”
Multiple proposals have been put forward by lawmakers for a federal NIL law, though getting floor time for a bill, much less enacting one into law, will be an arduous task. There’s new focus on an effort by Sens. Ted Cruz, a Republican of Texas, and Cory Booker, a New Jersey Democrat, to try to strike a bipartisan accord on a proposal. The four commissioners met with the two senators last week.
“I’m confident that there’s a bipartisan path and the urgency to get something done is there,” Booker, a former college football player, told CNN. “I think everybody who has a football or basketball player in their state is interested in getting it done.”
Among the hurdles facing the leaders: GOP resistance to enacting federal legislation as Republicans often advocate for states’ rights.
Asked if there has been any resistance to the push for a national standard, Sankey, the SEC commissioner, said, “Sure. Questions about that – like, why, why is this necessary? Now our federal government does have a role in interstate commerce, that’s the reality. There’s interstate activity, this is a national activity.”
NIL deals stem froman NCAA policy change in 2021 that allowed student athletes to profit from sponsorship opportunities – a move that came after the Supreme Court said that student athletes could receive education-related payments in a case that reshaped the landscape of college sports.
Student athletes have taken advantage – with well-known names in college sports like basketball player Caitlin Clark and football player Caleb Williams appearing in commercials for major national brands such as State Farm and Wendy’s.
Supporters of a national standard say its implementation would help safeguard student athletes by setting up critical guardrails as they sign on for potentially lucrative opportunities.
“We need protection for our student athletes. You know, some of the situations that they find themselves in, trusting advisors that steer them in the wrong direction end up being really counterproductive and harmful,” Phillips said.
ACC commissioner James Phillips speaks to the media during ACC Media Days at The Westin Charlotte. – Jim Dedmon/USA Today Network
In some cases, he said, “agents end up taking more of the income than goes to the student athlete or to their families.”
Brett Yormark, commissioner of the Big 12, said that it’s difficult for student athletes to navigate the different rules in different states.
“We think it’s positive for student athletes to be able to leverage their name, image and likeness in all the right ways. But we need some guardrails around it,” Yormark said.
In the absence of federal legislation, a number of states have enacted their own laws, creating a legal patchwork around the country.
“It’s created a disparity among states, where legislators are now changing their laws for competitive purposes. It certainly has created economic opportunity for younger people, but it has introduced an unregulated marketplace,” Sankey said.
“What we’re constantly hearing, from young people, from those on our campus involved in recruiting, is the current environment doesn’t make sense,” he said.
Asked whether McConnell and Senate Majority Leader Chuck Schumer expressed interest in a national standard, Sankey said that “both, very much interest, and in fact, both reflected on each other and the importance of having conversations on both sides of the aisle.”
There is bipartisan support in Congress for a law to set a national NIL standard, but some Republicans have warned that any new law must be crafted with minimal government intervention and without setting up new federal agencies to make or enforce rules, a potential sticking point in any negotiation.
Cruz told CNN he thinks “the prospects of passing NIL legislation are about 60/40,” and feels “cautiously optimistic.”
“I think we are risking doing enormous damage to college athletics if Congress does not step in and act. It is the wild west right now, and every senator, their universities in their states are telling them that this chaos makes no sense,” he said.
Cruz has put forward a draft bill to codify NIL rights. Separately, Booker released his own draft NIL bill along with GOP Sen. Jerry Moran of Kansas and Democratic Sen. Richard Blumenthal of Connecticut.
Cruz and Booker have had discussions over the two proposals and the issue of NIL as part of an ongoing effort in the Senate to find a way forward to pass bipartisan legislation.
Cruz told CNN he has had “very positive conversations” with Booker. “I think we’re making progress, but we’re not there yet,” he said.
Additionally, Republican Sen. Tommy Tuberville of Alabama, the former head football coach at Auburn University, and Democratic Sen. Joe Manchin of West Virginia have introduced an NIL bill.
“There’s enough positive in all the bills, to be honest, that we can work with some combination,” Petitti said. “The effort has been, especially over the last few months, let’s try to bring people together. There’s a lot of staff putting time in it. How can we get those staff to bridge and come together to have something.”
“There’s tremendous interest from our elected officials,” Phillips said. “They understand, I think, what’s at stake. I think at the core of this, for each of us and anybody that loves college athletics, is this idea of opportunity for young people.”
CNN’s Ted Barrett and Wayne Sterling contributed.
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The veteran sports psychologist will help steer the program’s mission of providing full-service mental health care, from screenings to long-term therapy, to all collegiate athletes across the United States.
BOCA RATON, Fla., June 15, 2023 (Newswire.com)
– Collegiate Behavioral Health Associates (CBHA) is proud to appoint Dr. Jeffrey A. Fishbein, a nationally recognized sport/performance psychologist, as Chief Psychology Officer. Dr. Fishbein brings over 25 years of experience working with elite athletes – from his decades’ worth of serving the Florida Marlins to his current tenure with the Chicago White Sox Baseball Organization since 2010 – alongside a deep understanding of the mental health needs of student-athletes.
Dr. Fishbein’s impressive career also includes working closely with athletes as the head Sport Psychologist at Northwestern University from 2002 to 2013, helping their student-athletes improve their performance both on and off the field. Under his guidance, the university’s athletes achieved numerous Big Ten and National Championships.
Despite the numerous achievements many of his clients experienced, Dr. Fishbein addressed the visceral stress, pressure, and other mental health issues student-athletes faced firsthand during his tenure. “This is a very vulnerable population,” said Dr. Fishbein, “and what I found on this campus was that there were never enough providers to meet the needs of the many student-athletes requiring mental health services. These are all exemplary young adults who excel not only on the field but are also required to succeed in the classroom. These pressures, along with the typical ones all college students face, are a few of the many reasons why mental health issues have been on the rise.
As Chief Psychology Officer, Dr. Fishbein will join CBHA’s mission of providing full-service mental health care to collegiate athletes, from screenings to long-term therapy on a consistent basis.
The solution to this, Dr. Fishbein affirms, lies with CBHA’s system. “Screening every athlete on campus four times per year is significant as it accounts for the separate ‘seasons’ an athlete may be in. ‘In-season’ vs. ‘off-season’ may produce a different set of symptoms that one sole screening can’t pick up on. Further diagnostic evaluations and follow-up testing with a diverse network of therapists will leave no stone unturned.
“In my two and a half decades of experience, there is no other program I am aware of with this level of thorough comprehension and commitment to the overall health and well-being of this community.”
Envisioning the future of CBHA’s impact, Dr. Fishbein added, “CBHA has just started making a difference on college campuses, and the impact it will have in the coming years will be substantial. To be part of the solution for years to come is the main reason I decided to bring my 25 years of experience working with top athletes in the world to CBHA.”
For more information about Collegiate Behavioral Health Associates and their comprehensive, full-service mental health care program for student-athletes, please visit www.cbhamedical.com or contact Victor Torres using the information below.
