If you live above ground and are a college sports fan, you have undoubtedly heard that the things that ail college sports are now an executive branch topic. Nick Saban had a meeting with President Donald Trump, and now we have a blue-ribbon commission to get to the bottom of the woes of college athletics. We have a Nick Saban Presidential Committee. The question that hasn’t been answered is, why?
Saban and Cody Campbell are co-commissioners of the committee. At this moment, they are also the only members of the committee. Everyone knows Saban’s curriculum vitae. As for Campbell, he’s an oil billionaire and a Texas Tech Board of Regents chairman. As our Andrew McCleary wrote yesterday, Campbell is also the founder of the Texas Tech collective that helps fund Red Raiders athletes. He sold his energy holdings company, Double Eagle, for $4.1 billion last month. Texas Tech coaches can go to bed with endless opportunities dancing in their heads.
At some point, more people will be added to this commission. There needs to be some former athletes from a few different sports on the committee. Current athletes would be alright. But college athletics are transitory these days, and so are the athletes. Their perspective is limited in scope. People who have already been through it and have come out the other side would be of greater value to the committee’s work.
But we digress. The bigger question about the committee is why. What do they intend to accomplish? Their ability to fix the issues, or have the federal government fix them, is really dubious. They will likely spend months discussing problems that are already obvious to everyone.
Do We Need A Nick Saban Presidential Committee?
Not A Real Issue
Saban thinks NIL is an issue. It is not. Collectives are an issue, and they are not the same as NIL. Ed O’Bannon’s win in federal court allowed athletes to own the rights to their name, image, and likeness. It gave athletes the same rights as every other citizen in the country already had. If a car dealer in Norman, Oklahoma, wants an endorsement from the Sooners’ starting quarterback, they cut a direct deal. There are contracts and cash or maybe even a vehicle for the athlete in exchange for appearances, autograph sessions, or whatever else the sponsor wants.
The Big Obstacle
But as soon as NIL became legal, the boosters were there with what amounts to legalized money laundering. They bundle money like a political action committee and disperse it to athletes on campus for the purpose of suiting up to play. Oh sure, every once in a while, there may be an autograph signing here and there. But the backup center on the football team is not getting his $75,000 because of a high demand for his autograph.
In practice, the athletic departments and coaches are supposed to be at arm’s length from the collectives, but that is rarely the case. The money is getting directed to the right recruits and players at someone’s instructions. The irony of the head of a collective being a co-commissioner of the committee is not lost on us.
Saban’s committee will also write a report on the transfer portal. The athletes are fine with it as is. They get to go where they want, when they want, within the assigned windows. Fans and coaches alike want structural changes in the system. And they can’t have them.
And that gets us to the real issue for which this committee can have recommendations with no real power.
The Financials
There can be no cap on NIL earnings…true NIL earnings. Without a nationwide contractual agreement, via collective bargaining, an individual has the right to earn whatever the market will pay.
The collectives are a different issue, but it is unlikely that the genie is going back in the bottle, especially with Campbell’s newfound clout on the topic. There has been hope that the restructuring of financial issues with the House v. NCAA settlement will diminish the impact of boosters and collectives. But that will likely be a school-by-school issue.
Portal Problems
The argument against changes or guardrails in the system will be that every other student on campus can transfer to another school whenever they wish. Why should the athletes be restricted? There are several reasons, but we will get to that when more time and space allow. But the bottom line here is that every time the NCAA has tried to impose new restrictions, they get taken to federal court within a day or two, and they lose. There are reasons why, addressed below.
Jurisdiction
And that gets us to the real issue. No matter what problems the committee regurgitates, and no matter what their recommendations are, there currently is no one, no organization or person, with the legal standing to make the changes.
The NCAA has had its decades-long stronghold on college sports ripped apart by federal judges. The NCAA, which is actually made up of all the college chancellors, presidents, athletic directors, etc., does not have antitrust protections. Thanks to those who were finally willing to challenge the organization, we have learned that anything the NCAA tries to do that appears to restrict the athletes will be challenged quickly by attorneys. And without the antitrust protection, the NCAA will lose almost every time.
This is a big part of the reason more than 40 states created their own NIL legislation. And that is one of the things Saban wants to see gone. He wants one national plan, as there used to be, instead of individual state rules, even though most of those laws are strikingly similar. But who implements that national plan?
Washington DC
There is no one who has spent half an hour studying constitutional law who thinks the president, this one or any other, has the authority to overhaul all of college sports with a signature on an executive order. It too would be challenged in court immediately
Congress, at some point, could make changes with national legislation. The appetite on Capitol Hill has grown in recent years. There are drafts of legislation from Ted Cruz (R-TX), Cory Booker (D-NJ), and Marsha Blackburn (R-TN). But at some point, when we get down to the granular details, every elected official is going to look out for the best interests of the schools in their state. It flies in the face of a unified plan. And has anyone ever seen Congress work quickly? We could be years away from an actual bill in committee.
NCAA
President Charlie Baker has sought congressional intervention. He wants his organization to be granted limited antitrust protection. He seeks a way that the governing organization can make changes to the system without being sued by every attorney on social media who claims to represent athletes’ rights. This would be the most expedient answer to the problems in the system. But the image of the NCAA has taken such a beating in recent years, and there will be resistance to reestablishing any of its power. And certainly with a bevy of attorneys who live on X/Twitter who want unfettered freedom for all college athletes, the litigation will still be there.
The Non-Answers
Collective bargaining and athletes as university employees are ideas that have their advocates and will undoubtedly get discussed at committee meetings. One is a non-starter, and the other is a really bad idea.
In order to collectively bargain for rights and privileges, there must be a collective. There must be two sides. Right now, there are five organizations who claim to represent college athletes to a grand total of about 200. That is out of nearly 300,000 college athletes. When the represented number gets to about 100,000 or 1/3 of the total, let us know. In the years it will take to get there, most of today’s college athletes will have moved on to other endeavors in the transitory system we are witnessing.
Workers’ Rights
As for the employment stand, there are currently seven states in the country that ban their state employees from engaging in collective bargaining, including Cody Campbell’s home state of Texas. That means athletes who participate in sports for public schools in those states would be barred from the negotiating table. But private school athletes could take part in the process. Athletes as employees do not bring about the national plan that Saban and company seek.
There are also three states that ban public employees from using their status to obtain NIL deals. That would prohibit some, but not all, athletes in those states from their own NIL deals if they became employees of public schools.
In The End
So what we have is some splashy headlines. The current Godfather of college football has permission from the president of the United States to find a way to save college sports.
And what we have beyond the headlines is an acknowledgement that we already know the issues at hand. We have known them for years. And we know the current obstacles. Why do we need a blue-ribbon committee to tell us what we already know? And what can they really do to fix any of it? So far it is a thought with no specific direction.
Main Image: Adam Cairns/Columbus Dispatch / USA TODAY NETWORK via Imagn Images
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