Yes, Virginia, the NCAA CAN Enforce Its Rules

On Tuesday morning, the NCAA handed down guidance to its membership regarding proper adherence to the organization’s rules on name, image, and likeness payments to players.

Before delving into this, understand that it is the editorial position of Bring on the Cats that players should absolutely be compensated for use of their name, image, and likeness — and we are even in support of the idea that players should be treated as employees. We’re not trying to put a stop to this newfangled zoomer nonsense; we’re 100% behind it.

But the record needs to be clear, and the wrong party is being blamed for all this. Let’s look into yesterday’s debacle.

The guidance took the form of a rhetorical question-and-answer session. The first five questions addressed prohibitions on NIL payments from an “entity closely associated with an institution”, any direct encouragement to attend a given school by boosters, incentives to boosters for providing funds to NIL entities, the making of NIL payments conditional on an athlete attending a given school, or direct payments to athletes by third parties specifically for participating in an event. None of this is particularly shocking.

The sixth question, however, had the internet up in arms.

Question No. 6: Some current and proposed state laws appear to now prohibit the NCAA from enforcing its rules. What is the NCAA’s position on its approach when an institution in one of those states violates NCAA legislation?

Answer: NCAA rules are adopted by member schools. It is not fair to those schools who follow the rules to not enforce rules against those who choose to not do so. Schools who do not like the application of a particular rule should work through the NCAA governance process to change the rule. Unless and until the membership changes a particular rule, all schools, as part of a voluntary membership, are required to comply.

The internet, including many journalists, took this with all the poise and dignity you’d expect, reading this passage as “the NCAA says you don’t have to follow state laws.”

But that is not what it says, at all.

This passage says that if you’re an NCAA member, you have to follow its rules or eat the punishment — and that is absolutely 100% correct, regardless of what laws a state may have passed. It has, in fact, been absolutely 100% correct since 1993, when the Ninth Circuit Court of Appeals handed down its ruling in NCAA v Miller. (Robert Miller was the governor of Nevada at the time the suit was filed, but he was individually removed as a defendant before the case reached the Ninth Circuit; his name remained in the docket anyway.)

Those of you who have a case of the olds may vaguely remember this case. Jerry Tarkanian, former head basketball coach for UNLV, was routinely in trouble with the NCAA for recruiting violations. A convoluted lawsuit which challenged UNLV’s authority to punish Tarkanian in compliance with a show-cause order from the NCAA resulted in the US Supreme Court ruling in favor of the NCAA in NCAA v Tarkanian (1988).

One minor portion of the court’s decision in this case is slightly relevant to potential outcomes in the future: Tarkanian, as part of his argument that the NCAA was in fact a state actor because its regulations were promulgated partially by state institutions and specifically in part by the University of Nevada, argued that the option for UNLV to leave the NCAA rather than abide by the NCAA’s order was no choice at all because doing so would have basically been biting off their own nose to spite their face. John Paul Stevens noted that UNLV’s lack of other options did not, in fact, render the NCAA a state actor.

In the wake of NCAA v Tarkanian, the state of Nevada passed a law which intended to restrict the NCAA’s authority to engage in enforcement activities within the state of Nevada. (Nebraska, Florida, and Illinois passed similar laws around the same time, while five other states — including Kansas — had bills working their way through state legislatures.) Nevada wasn’t even trying to ban the NCAA from handing down punishments to UNLV explicitly; they were merely trying to force the NCAA to exercise due process of law as viewed in the state of Nevada.

The Ninth Circuit ruled in favor of the NCAA. Among their bases for the ruling were (a) schools are voluntary members of the organization and thus free to leave, (b) by voluntarily maintaining membership, schools agree to abide by those rules, (c) the NCAA was incapable of complying with the law anyway because the NCAA did not possess subpoena powers, and (d) — most importantly and most relevant to yesterday’s events — the law was unconstitutional on its face thanks to the Interstate Commerce Clause.

One observation by the court is relevant here, as well: one state imposing restrictions on a voluntary organization forces that organization to adopt those restrictions for its entire membership — and allowing one state to do so opens the door for other states to attempt to impose different restrictions, thus potentially placing them in conflict and rendering the organization itself powerless.

(One can argue that maybe that’s a fate the NCAA deserves, but we’re talking about the law here.)

The bottom line, however, is that federal courts have ruled that a state may not pass laws preventing the NCAA from enforcing its own rules on its membership, which brings us back to “Question No. 6”.

The NCAA, here, is simply reminding its members that any law which would prevent them from enforcing their rules is unconstitutional.

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There are larger issues here which are much more important than Question No. 6.

First is the distinction between permissive laws and restrictive laws. The NCAA has no issue with states passing laws which make it legal under state law to pay players (a permissive law); that’s their prerogative. Their issue is with the idea that their enforcement might be restricted by law in individual states. Stare decisis is going to cripple individual state attempts to shield their schools from the NCAA’s wrath anyway, so the NCAA’s statememt that it doesn’t matter if states try to prevent them from enforcing their rules is a pointed reminder to those states that they’re going to get their member institutions in trouble.

Of course, one solution is to just not get in the way of paying players, but this brings up the second point.

One of the NCAA’s primary functions is to make the competition fair. Now, if one state is letting its schools shovel money into players’ pockets and another isn’t, that presents an issue. You may say “that’s Pennsylvania’s problem, not ours,” but the NCAA doesn’t and shouldn’t see it that way.

Because of this, and because of the ruling in NCAA v Miller, it is patently obvious that any solution to this issue must come from the federal government. But what’s being forgotten here is that the NCAA has been asking Congress to act. They want Congress to solve the problem, one way or another, once and for all — precisely as a result of states passing their own laws on the matter.

If Congress passes a law authorizing schools to directly pay players, and prohibits the NCAA from enforcing its existing rules which allow them to punish schools for doing so, the problem is solved without any constitutional shenanigans getting in the way.

The third issue is the idea of just leaving the NCAA and their silly, silly rules behind for a bigger and better world. There are problems with this, though.

The largest of these is that unless you have a critical mass of schools willing to take that step, the schools that do are quite frankly screwed. One person on Twitter yesterday suggested the Texas Legislature could just say “We out”, and... okay, great. You’re out. And unless a whole bunch of other states tag along with you, the University of Texas football schedule will suddenly be Texas A&M, Texas Tech, North Texas, UTSA, UTEP, West Texas A&M, Texas A&M-Commerce, Texas-Rio Grande Valley, Tarleton State, Angelo State, and Sul Ross State. Every year.

How much do you think ESPN’s going to pay Texas for that? And say goodbye to all that sweet, sweet NCAA Tournament money.

“Oh, but why don’t the SEC and Big Ten just leave?” Well, maybe the whole SEC would do it, but the Big Ten’s not going to. They are warrior poets, friends, not filthy mercenaries. It would take a dramatic sea change to cause a mass exodus from the NCAA which remained economically viable, and if there’s that much momentum for such a move, there should be enough momentum to change the NCAA itself.

This isn’t rocket surgery.

The fourth, and most important issue to our way of thinking, is this: You’re blaming the wrong party. Pinning all of this on the NCAA is like blaming the cops for making speeding illegal.

The NCAA, as generally perceived by the public — i.e., as an enforcement boogeyman — is just the cops. They’re merely enforcing the laws passed by their bosses — and those bosses are the very presidents of the universities whose athletic departments are crying foul right now.

This is not a battle between the NCAA and the players. It’s a battle between university administrators and their athletic departments. We cannot stress loudly enough that people need to start understanding this and directing their ire toward the proper responsible parties, because as long as the NCAA is the convenient scapegoat, university presidents are going to continue allowing the NCAA to take it on the chin.

It is not “the NCAA” which clings desperately to the apron strings of “amateurism”, but the university administrators who bend over backward to maintain the pretense that their institutions are not football teams with classes attached. These are the people who consistently vote on NCAA legislation which maintains the student-athlete fiction. These are the people who could solve this problem by simply acknowledging reality.

These are the people standing in the way of progress.

When you yell at “the NCAA”, what you need to be doing instead is yelling at your own school’s administration, and telling them to stop screwing around and start treating athletes fairly. Tell them to lobby your state’s congressional representatives to pass some legislation to resolve this, or to introduce NCAA legislation to resolve it internally and then whip the votes to get it passed.

Until you break down that barrier, nothing substantial is going to change anyway... because your university president doesn’t want to pay players either.

Never forget that.