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On June 29th, the Big 12 Conference’s university presidents and chancellors hired sports and entertainment industry insider Brett Yormark as its new conference commissioner. Yormark has no professional experience in higher education. In its announcement of the hire, the Big 12 lauds Yormark’s impressive credentials as the chief operating officer of Roc Nation, the chief executive officer of the New Jersey/Brooklyn Nets, and vice-president of corporate sponsorships for NASCAR. While the Big 12 presidents and chancellors made the final call on Yormark, they hired a head-hunting firm—TurnkeyZRG—to lead the search. Turnkey operates in sports entertainment, media-tech, intercollegiate athletics, and music. The NCAA has hired Turnkey to secure the next NCAA President and the next NCAA chief financial officer. This episode discusses the absence of emphasis on education in these hires making clear that entertainment and fan engagement have relegated education to the dust bin of Power 5 priorities.
One year ago, I published Episode 35 titled “Independence Day.” Today, I reprise that episode to refocus on the importance of applying our inalienable natural and American rights of liberty, equality, and economic self-determination to the athletes in college sports who give the revenue-producing products their value. Events of the last two weeks, including renewal of conference realignment and an emphasis on hiring key college sports decision-makers from the entertainment industry, call into question the value system of college sports and higher education writ large. The Power 5 and NCAA are nakedly and aggressively cutting the cord with their stated nonprofit educational missions in their quest for an NFL-style football product. Yet, at the same time, the Power 5 argue to Congress and federal courts that revenue-producing athletes are amateurs, not professionals, and “students,” not employees.
One year ago, the US Supreme Court issued what many view as a landmark decision in NCAA v Alston. The Supreme Court held unanimously that the NCAA was not entitled to antitrust immunity. For nearly forty years post-Board of Regents, the NCAA has successfully used off-hand language from that case as a shield from liability in lawsuits challenging the NCAA’s amateurism-based compensation limits or its regulatory authority. In short, the Supreme Court held that the NCAA was not above the law. In Johnson v NCAA, athletes allege they are employees under the Fair Labor Standards. The NCAA counters that it is entitled to a similar amateurism-based immunity created out of whole cloth by the 7th Circuit in Berger v NCAA. It treats Alston as either irrelevant to the FLSA issues or supportive of its amateurism-based immunity arguments. The NCAA’s briefing in Johnson makes one wonder whether Alston has any meaning at all. This episode analyzes the NCAA’s use of Alston and the state of amateurism in 2022.
In a trilogy of cases since late 2014, athletes claim they are employees under the federal Fair Labor Standards Act (FLSA). The FLSA provides minimum wage and overtime standards for hourly workers. The purpose of the FLSA is distinct from and more limited than the National Labor Relations Act (NLRA), which provides an avenue for workers to have a say in their work conditions through collective bargaining. Under both laws, putative workers must first establish they are indeed employees. The employee tests for the FLSA and NLRA have some overlap but are not identical. However, all employee tests are multi-factored and require extensive fact findings under broad statutory eligibility criteria that require an analysis of the totality of the circumstances. Neither law expressly excludes college athletes from coverage. In Johnson v NCAA, the 3rd Circuit Court of Appeals will determine whether the FLSA categorically excludes athletes from FLSA coverage. The primary inquiry under the FLSA is the “economic reality” of the relationship between putative employer and employee. In the first case of the FLSA trilogy—Berger v NCAA—the 7th Circuit Court of Appeals affirmed a ruling of the district court that athletes cannot be employees under the FLSA as a matter of law. Relying on a 1992 case—Vanskike v Peters—rejecting a prisoner’s claim that his forced prison labor made him an employee under the FLSA, the district court and 7th Circuit excluded athletes as employees under the FLSA without any factual inquiry or the application of any of multi-factored tests designed to determine employee status under the FLSA. Neither the district court nor the 7th Circuit in Berger disclosed the legal rationale of Vanskike, which relied on an exception to the 13th Amendment that exempted indentured servitude for prisoners duly convicted of a crime. In essence, the Berger courts said that because of the revered tradition of amateurism and the “student-athlete,” college athletes are similarly situated to prisoners. This episode discusses the FLSA litigation and the tactics employed by federal courts and the NCAA to avoid at all costs any factual inquiry into the truth of the college sports business model and, importantly, the actual “economic reality” of the relationship between athletes and their institutional overlords.
On May 19th, the Drake Group hosted a panel discussion titled “Giving College Athletes the Right to Unionize.” An impressive panel of commentators—Bob Costas, Michael Hausfeld, Sen. Chris Murphy (D-CT), Andy Zimbalist (moderator), and Kaiya McCollough—shared their thoughts on athletes as employees and the possibility of collective bargaining through the lens of Sen. Murphy’s federal bill, the College Right to Organize Act. This episode analyzes the panel discussion, emphasizing (1) the difficulties athletes face in having their voices heard and valued in the regulation and business model of college sports.; and (2) the ease with which false status quo narratives marginalize athletes’ voices.
Last week the California Senate and NJ Democrat Senator Cory Booker buried the only two revenue-sharing proposals in the state or federal legislative landscape. The California bill, the “College Athlete Race and Gender Equity Act,” did not survive banishment to the Appropriation Committee’s “suspense file” (discussed in Episodes 113 and 117). The bill was designed to remedy the race-based financial exploitation of African American athletes in football and men’s basketball. The quiet death of the California bill is an inflection point in profit athletes’ attempts to have their true value to the college sports enterprise recognized tangibly. At the same time, in a Drake Group symposium on the integrity of college sports, Sen. Booker disclosed the removal of the revenue-sharing provisions of the “Athletes’ Bill of Rights” legislation introduced in the Senate in 2020. In its place will be a provision that provides “clarity” and “strength” to existing Title IX and gender equity laws and policies. This episode analyzes the demise of revenue-sharing and false choice between the interests of Black profit athletes in football and men’s basketball on the one hand and women’s and “Olympic” sports athletes on the other. This propagandized false choice appears to be a defining criterion in the content of any federal legislation under the rubric of “athletes’ rights.”
Nick Saban’s comments on the state of college sports regulation will no doubt be remembered more for the reaction they drew from Texas A&M coach Jimbo Fisher than for what they say about the future of college sports. This was textbook Saban. Grab headlines with provocative claims, then weave in the actual message. Saban’s claims that Texas A&M and Jacksonville State were “buying” players—and Fisher’s entertaining rant in response—are a sportswriter’s dream. This gift will keep giving until the teams square off in Tuscaloosa in October. But Saban’s comments are worth analyzing for a much different reason. In his portrayal of the chaotic state of college sports regulation, he was a human talking point for tired—and often false—narratives that justify protective federal legislation that would effectively end the athletes’ rights movement. Saban’s megaphone is second to none in college sports. When he speaks, people listen. Saban is a far more potent lobbying force than the army of paid lobbyists working on behalf of the NCAA and the Power 5 conferences, including the SEC. This episode examines Saban’s comments in the context of the NCAA/Power 5 lobbying and public relations war against revenue-producing athletes.
College sports now exist in a vacuum of leadership, self-regulation, and values-based messaging. The NCAA national office is collapsing under the weight of its arrogance and incompetence, while the Power 5—through the Transformation Committee—is beginning to sound more like Mark Emmert and the worn-out NCAA propaganda machine. The regulatory crisis is particularly acute in the Power 5’s attempts to reign in what they perceive as an out-of-control name, image, and likeness market. The NIL “guidance” memo released by the Division I Board of Directors on May 9th is a testament to the impotence of the NCAA and Power 5 as enforcers of college sports’ most sacred values—no pay for play and no recruiting inducements. This episode analyzes the state of college sports regulation, emphasizing infractions and enforcement, including a historical perspective on NCAA regulatory authorities.
Yesterday, the California Senate’s Appropriation Committee sent the “College Athlete Race and Gender Equity” revenue-sharing bill into the legislative equivalent of a black hole known as the “Suspense File.” This quirky procedure removes the bill from open debate and leaves its fate in the hands of a tiny group of Senators and staffers. This process is opaque and unpredictable. While the public cannot provide further input, special interests and lobbyists exert pressure on the decision-makers in this star chamber-like environment. This episode discusses the idiosyncrasies of the Suspense File process and tracks the limited debate that occurred in two prior policy-oriented Senate Committees (Education and Judiciary). The values-based concerns—particularly Title IX and broader gender equity—raised by Senators from both parties may result in the bill dying a lonely death in the bowels of the Suspense File. Will these concerns be a bellwether for athletes’ rights debates in United States Senate, particularly the Commerce Committee?
On May 5th, 2022, Pac-12 Commissioner George Kliavkoff and SEC Commissioner Greg Sankey took to the halls of the Senate to seek “help” from Congress in the form of protective federal legislation that would eliminate the athletes’ rights movement. When it comes to college sports regulation, Cantwell and Blackburn are two of the most influential people in the Senate. Cantwell—a Democrat— is the Chair of the Commerce Committee, which has oversight jurisdiction for college sports issues. Any protective federal legislation from the Senate will originate in Commerce. Blackburn—a Republican—is also on the Commerce Committee. Blackburn’s role is crucial to the P5. She should be a reliable and influential vote for P5 interests; however, Mark Emmert’s arrogance alienated Blackburn from the NCAA/P5 campaign in Congress in 2020 and 2021. With Emmert on the way out, the P5 wants desperately to bring Blackburn back into the fold. This episode analyzes the P5’s reengagement with the Senate and what it says about the state of leadership in college sports. Of particular importance is the P5’s use of false gender equity and “Olympic sports” narratives to persuade the women of the Commerce Committee to P5-friendly legislation.
Last Wednesday, the NCAA flushed 70 years of militant anti-gambling rhetoric and policy down the memory hole by permitting conferences and individual schools to partner with the sports betting industry. The announcement didn’t register as even a blip on the sports or mainstream media’s radar. The NCAA’s once-sacred values opposing any association with sports gambling interests vanished into thin air. Poof! This episode examines this values upheaval and what it says about college sports and higher education more broadly through the lens of sports betting, the work of the Transformation Committee, the lobbying campaigns of the NCAA and SEC, and a recent Marist public opinion poll. The post-Alston/NIL/transfer market environment has turned the NCAA’s/Power 5’s traditional value system on its head. Not far behind these unexpected milestone events are demographic trends that portend a bleak future for the NCAA’s/Power 5’s tired talking points on “amateurism” or any iteration of it. One thing is clear: the NCAA/Power 5 are in a race against momentum in the athletes’ rights movement and the mid-term election clock as they try to redefine their values on the fly. So far, the prevailing value is the almighty dollar.
Yesterday, Mark Emmert announced his resignation as NCAA president. For many, this is a long-overdue announcement. Important questions remain regarding the future of the Association and its leadership going forward. This episode analyzes the decision, its timing, Emmert’s tenure, and the qualification criteria for the next NCAA president. Note: The opening montage quotes are: 1. Senator Marsha Blackburn (R-TN) from a Senate Commerce hearing on February 11, 2020; 2. Senator Claire McCaskill (R-MO) from a Senate Commerce hearing in 2014; and, 3. Senator Blackburn from a Senate Commerce hearing on June 9th, 2021.
On April 20, 2022, the California Senate’s Education Committee heard debate on the College Athlete Race and Gender Equity Act (the “Act”). The bill was authored and sponsored by state Senator Stephen Bradford who co-sponsored California’s 2019 name, image, and likeness law. The Act’s essential component is a revenue-sharing framework where athletes may receive payments directly related to their athletic services if fifty percent of revenues in their sport exceed the total cost of athletics scholarships in that sport. The Act passed the Education Committee 4-0-3 (4 yes, zero no, and three abstentions). A third-party fiduciary would manage revenues available for distribution from the trust fund. Athletes must graduate within six years to be eligible for distributions. Notably, the Act does not permit any trust fund distributions to create an employer-employee relationship with the athletes. Of central concern to the Education Committee were the method of calculating revenues and expenses and the potential impact on non-revenue sports and athletes. The Act now moves to the Senate Judiciary Committee for further debate and another vote. This episode analyzes the Act as a post-Alston/NIL/transfer stress test on the state of athletes’ rights in 2022. Will legislative decision-makers in California and elsewhere be open to revenue-sharing as a form of pay for play “light”?
According to a recent article in Sportico, the Mid-American Conference (MAC) has asked the NCAA for “clarity” on whether the MAC’s contract with Genius Sports violates the NCAA’s anti-sports betting rules. This episode analyzes the cynical ways the NCAA and major conferences are normalizing betting on college sports and the massive revenue bonanza that will flow from that normalization.
On April 12th, Tom McMillan appeared in a forum for university trustees titled “Name, Image, and Likeness(“NIL”): What it Means for College Governing Boards. The American Council of Trustees and Alumni hosted the forum. McMillan was a former member of the University of Maryland Board of Trustees. Since 2015, McMillan has been CEO of Lead1, a trade association for 131 FBS athletics directors, including the 65 Power 5 schools. Lead1 has taken policy positions on various issues including NIL, athletes as employees, infractions, diversity/inclusion/equity, transfer rules, NCAA governance, and importantly, sports betting. Joining McMillan were Michael Hsu, an athletes’ rights advocate and former member of the Minnesota Board of Regents, and Lyle Adams, the owner of Spry, a NIL company. McMillan’s message for university trustees was simple: the sky is falling in an unregulated and out of control NIL market and only Congress can save college sports from imminent collapse. McMillan recycled worn-out status quo talking points from the very beginning of the NIL debate in 2019. He also added a few new ones, including that unregulated NIL deals might increase susceptibility (primarily for star athletes) to sports betting corruption. The message from McMillan was clear: sports betting is bad news and posed a new and alarming threat to the integrity of college sports. This episode examines McMillan’s arguments for Congressional intervention and his role as a paid advocate for FBS athletics directors’ interests.
History may remember the 2022 Final Four for what happened outside the arena than within it. Will Mark Emmert’s press conference disaster(s) be the beginning of the end of his tenure as NCAA President? Will Kansas’ national championship insulate it from a harsh ruling by the NCAA’s Independent Accountability Resolution hearing panel? What does Bob Bowlsby’s decision to step down as Big 12 conference commissioner mean for the Big 12 and the Power 5? Can Greg Sankey and his Division I Board of Director’s Transformation Committee save college sports from self-destruction? Will the incessant cries from the NCAA/Power 5 for a congressional bail-out fall on deaf ears? Will athletes’ rights pathways broaden or contract? What power does the NCAA president have? These questions and issues are the flotsam and jetsam of the 2022 Final Four. This episode sorts through the trash.
On March 31st, Mark Emmert sat for his annual Final Four press conference. Coach K warmed up Emmert’s seat in his presser immediately preceding Emmert’s. Coach K—not one to mince words when annoyed—threw some serious shade at Emmert. Coach K asked the same question plaguing Emmert’s tenure from the beginning in 2010: who is in charge, and where is the college sports ship heading? True to his purpose as the NCAA’s master dissembler, Emmert served up a pile of NCAA/Power 5 garbage wrapped in the glory of this Final Four, and the beauty of college sports writ large. But Emmert’s actual audience in his 30-minute stump speech was the United States Senate, not coaches, the sports media, or consumers. Carefully prepped by NCAA/Power 5 lawyers and lobbyists, Emmert laid the foundation for the NCAA’s/Power 5’s re-engagement with Congress—most likely after the mid-term elections. At every turn, Emmert invoked the need for Congress to save college sports as we know them. One thing is clear. The NCAA/Power 5 war against revenue-producing athletes is far from over.
According to the college sports commentariat, this year’s Final Four may be the most compelling (and valuable) in the tournament’s history. After a feel-good run by St. Peter’s, the tournament has reverted—as always—to its basketball blue blood standard-bearers: Duke, Kansas, UNC, and Villanova. The college sports ecosystem is in a feeding frenzy to capitalize on these Final Four athletes’ unique talents and achievements. Lost in the noise is a stark reality: the NCAA Division I men’s basketball tournament is the oxygen that supports the corrupt NCAA bureaucracy. In athletes’ rights discussions, the interests of revenue-producing football and men’s basketball players are conflated to suggest that they stand on equal footing in underwriting the excesses of Big Amateurism. While these two stakeholder groups have much in common, high-level Division I men’s basketball plays a unique and critical role in the exploitative business model. Because of the 1984 Board of Regents decision, the NCAA doesn’t receive any revenue from any big-time football products, including the post-season CFP and bowl game revenue streams. After losing its football empire in 1984, the NCAA was left with its consolation prize: the Division I men’s basketball tournament. Since then, the NCAA has marketed, branded, and exploited the commercial value of this single tournament as if its life depends upon it—because it does. This episode examines the unique value of high-level men’s basketball teams and players to the NCAA and Association-wide beneficiaries of March Madness revenue. Using the NCAA‘s 2018 Form 990 tax return, I break down how the NCAA claims to spend the 1.1 billion dollars per year it receives through its long-term contract with CBS/Turner. I also discuss the bonus structures in Final Four coaches’ and athletics directors’ contracts that relate to the performance of their teams in this NCAA tournament. Would it be the end of the world if the players responsible for these bonuses got one of their own?
In a March 17th, 2022, podcast interview, former UNC Chancellor Holden Thorp (2008-2013) spoke candidly on the state of college sports and the power of the NCAA’s amateurism lie. In 2010, Thorp and UNC became embroiled in an academic scandal that consumed the university for years. Thorp was among the many casualties of that scandal. The interview, conducted on Dr. Karen Weaver’s podcast titled Trustees and Presidents—Opportunities and Challenges in Intercollegiate Athletics—is a sobering insight into the realities of the big-time college sports industry and its impact on the values of higher education. Thorp concludes it is impossible to field consistently winning football and men’s basketball teams while preserving academic integrity. According to Thorp, institutional stakeholders have succumbed to an “intoxicating drug” fueled by the lie of the amateur ideal that permits stakeholders to hold—and harmonize— these irreconcilable beliefs. This episode discusses Dr. Thorp’s views and whether institutional decision-making stakeholders can face the truths of the big-time college sports business model.
For nearly seventy years, the NCAA militantly opposed any association with any component of the gambling industry. Now, with the NCAA’s/Power 5’s amateurism model in question, Big Amateurism is normalizing its burgeoning relationship with Big Gambling. On the backside of a 2018 US Supreme Court decision striking down a 1992 federal anti-gambling law (Professional and Amateur Sports Protection Act), the NCAA has quietly shifted to gambling-friendly messaging. In 2018, just after the Supreme Court decision, the NCAA partnered with Genius Sports. A central component of Genius’ business model is to purchase “official” sports data from professional sports leagues for resale to third parties in the sports gambling market. Genius bought the right to use and manage official NCAA statistical data. According to the NCAA, its contract with Genius does not permit Genius to use NCAA data for sports betting. However, in a recent op-ed piece in Sportico, the president and founder of Genius suggested that its ten-year contract with the NCAA envisioned an NCAA transition to college sports gambling. Just two weeks ago, the Mid-American Conference (MAC) announced its partnership with Genius. While the parties have been coy about the terms of that contract, comments by the MAC conference commissioner suggest that Genius will use MAC data for gambling. This episode discusses the normalization of college sports gambling by the NCAA, conferences, sports media, and gambling industry interests. This fundamental change in NCAA values is being re-propagandized as a wonderful thing for “student-athletes,” particularly those in women’s and “Olympic” sports.
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