Why now is the time for a better CFB future, and how to make it happen

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Every organization has its flaws and cracks — you just never know when and how they might get exposed.

The many cracks in college football’s infrastructure — from how players are treated to the sport’s leadership vacuum — have been exposed in a single offseason.

At some point, the athletes were going to push back in force. And the most forceful came this weekend with the announcement that a group of Pac-12 players are threatening to opt out of playing until a number of economic, racial justice and safety issues are addressed. It appears that pushback has begun.

Last week, the Washington Post obtained audio of a Wednesday call between Southeastern Conference higher-ups and medical officials and the conference’s player leadership council. The call reaffirmed that the league’s best laid plans could only do so much to protect its athletes from coronavirus infection this fall and that the long-term health effects of the virus were still unknown. These are worries that every sport returning to action has had to face; the obvious difference: in professional sports, athletes are paid salaries and allowed to make money off of their name, image and likeness.

It was clear from the moment the coronavirus pandemic shut down sports last spring that a college football season, and the money it generates, was far too important to the budgets of too many athletic departments to lose unless there was no other option. The financial losses have already been damaging, and not being able to have full stadiums’ worth of fans will hurt even more, but anything that could be done to get games on the field, even in empty stadiums, would stave off some of the financial pain.

There doesn’t have to be any shame in acknowledging the amount of money involved in college sports — football in particular — and the countless jobs tied to the operation within the athletic departments, the schools and the communities that support both. There doesn’t have to be any shame in acknowledging the potential financial devastation from a lack of college football.

The shame comes when you bring back athletes without centralized, enforceable health-and-safety protocols. And it comes when, after you have acknowledged the desperate importance of athletes to your school’s well-being, you continue to actively and forcefully resist these athletes’ attempts to recognize their economic rights.

The NCAA has long insisted that college athletes are normal students taking in a normal student experience. But the fact they have been on campus at all proves they’re different from normal students. That they probably will remain on campus, working to represent their school and earn it money even if or when most of the student population is away, attending school remotely during this ongoing crisis, proves they’re different.

After giving schools permission to bring players back during a pandemic and asking them to take on physical risk in the name of their university’s financial health, the NCAA continues to restrict players’ ability to make money off of their time serving said university. And if anyone remained on the fence regarding whether this sport is fair enough to the athletes who will forever be the engine of all revenue and popularity, this great paradox of 2020 should have held sway.

It should also have definitively signified the NCAA cannot and will not solve its deep contradictions on its own. In the time of sports’ greatest disruption in 75 years, it is far past time to do something about this contradiction. There is no other choice, and there should be no more resistance.

As we wait to see what games can be played, when, and by whom, one thing is certain: The world of college athletics must change, and in three key ways — compensation, representation and oversight. Fairness can no longer wait.

Compensation

At the very least, college athletes must be granted restriction-free rights to profit off of their name, image and likeness.

College athletes are recognizing their leverage and their abilities to affect change like no time in memory. At Mississippi State, running back Kylin Hill helped ignite a final push to change the state flag. At Iowa, the nation’s highest-paid strength coach was fired after dozens of current and former Black players spoke out against a football culture they said demeaned their racial identity. A group of Texas players won a plan to “redefine campus symbolism,” including the building of a statue for the program’s first Black letterman.

This is all happening in a time of shifting public opinion toward the benefits athletes should receive for their role in college sports. An AP-NORC Center for Public Affairs Research poll last December showed that 66% of adults approve of college athletes earning money from endorsements and sponsorships — one of the main pillars of the current name, image and likeness (NIL) debate — while 52% thought athletes should receive a cut of media rights as well.

The increased money in the sport (the SEC generated $721 million in revenue in 2018-19) has changed the way a lot of people view athletes and athletes’ rights. “Money has corrupted the entire system,” says Tim Nevius, a former NCAA investigator and lawyer who changed sides, so to speak, and founded the College Athlete Advocacy Initiative and Nevius Legal, both athlete advocacy groups. “I say ‘corrupted’ because this is higher education, and the decisions that universities and college sports leaders have made have been antithetical to the values and the mission of higher education and have been detrimental to the rights and benefits of college athletes.

“Those decisions also have a disproportionate, negative impact on athletes of color and those from low-income backgrounds. It is simply unjustifiable.”

With shifts in public opinion, we have seen a push from state legislatures. In 2019, California passed legislation stating that, starting in 2023, colleges in the state could not prevent students from earning NIL compensation. Florida recently passed a bill with even cleaner language and an earlier start date: next summer. Lots of states followed California’s lead, and the NCAA had to ask Congress to get involved to avoid a “50 states with 50 sets of guidelines” scenario.

“I’ve been very surprised to the point of shocked that state legislatures have taken this on,” ESPN’s Jay Bilas, a former Duke basketball star and practicing attorney, told me. “I think it shows how many people outside of the structure view this as scandalously unfair. That should really be the shockwave of this, that politicians that are sticking their necks out there with regard to how they’re viewed by their constituents all view the NCAA as limiting the athlete unfairly.”

Said Nevius: “If the NCAA was acting as an honest broker and operating with the type of leadership and foresight that you would expect from a billion-dollar industry, then government intervention would be completely unnecessary.”

The shift in college sports’ proverbial tectonic plates has been obvious and considerable. That made what Greg Sankey said at a July 1 Senate NIL hearing so frustrating. The SEC commissioner laid out the same slippery-slope-style arguments the NCAA and its representatives have been using for years.

Sankey warned in a written statement of the “potential unintended consequences” of changes in the NIL realm and preached without irony of the need to “protect the integrity of the college recruitment process.” He expressed concern about women’s sports being negatively affected by NIL advancements (evidently because if athletes are getting more money from boosters and supporters, schools might get less and might therefore choose to limit support of women’s sports), and when asked if he believed student athletes should be, like any other student at their school — and like those who didn’t have to report to campus in the middle of a pandemic — allowed to profit from their NIL, he could only say that “I’m working on moving to a ‘yes.'”

Sankey also correctly acknowledged that any developments regarding NIL were coming only “as a result of both the enactment of state laws and the consideration of ‘Name, Image and Likeness’ laws in many other states.” The NCAA has fought to maintain what it calls the collegiate model — a term that, along with “student athlete” was created long ago to both assure athletes remained unpaid and avoid dealing with liability and workers compensation issues among athletes — and was prepared to keep fighting it until state legislatures forced its hand.

It’s a curiosity, then, why the NCAA has been as disproportionately involved as it has in the first three hearings. NCAA president Mark Emmert has made two appearances, and board of governors chair Michael Drake and conference commissioners Sankey and Bob Bowlsby (Big 12) have each made one. No current players have been invited.

As Ramogi Huma, executive director of the National College Players Association, said in a written statement in February’s hearing, “Why should those who break laws be allowed to design new laws? Why should those who victimize college athletes be appointed stewards of college athlete well-being? The NCAA and its colleges’ assertion that college athlete NIL reform has been too complicated to address is further evidence that they are both unwilling and ill-equipped to do so.”

In a July phone call, Huma added, “I’m not saying the SEC commissioner shouldn’t be in there. But the members of Congress need to incorporate current players who are vocal and outspoken on these issues. If they’re not putting a face to it … it’s easier to take away your rights when you’re not looking them in the eye.”

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Will Congress end up producing something akin to the athlete-friendly state bills? It’s hard to say. Senators such as Cory Booker of New Jersey, a former Stanford tight end, and Chris Murphy of Connecticut, have come down hard on the NCAA in hearings, and Marsha Blackburn of football-crazed Tennessee told the early-July panel, “This is an issue that has gotten away from you.” Legislation crafted by Florida Sen. Marco Rubio, however, amounts to a “blank check,” in Nevius’ words, to the NCAA to create whatever guardrails it wants.

The NCAA’s own proposed NIL guidelines, as first reported by Sports Illustrated, include restrictions barring athletes from signing endorsement deals until after they complete a semester in school and require them to make all deals public. An NCAA that was more dedicated to the athlete than a 60-year-old definition of “student athlete” or “collegiate model” could simply agree to deploy the California or Florida legislation nationwide. The Florida bill even includes stipulations that athletes couldn’t enter into a contract that “conflicts with a term of the intercollegiate athlete’s team contract” and requires athletes to take a pair of “financial literacy and life skill workshops,” which seems to address a couple of the NCAA’s other concerns. And as issues arise — as they inevitably do — you can adjust guidelines accordingly. But since the NCAA will never enact this itself, the mandate must at this point come from Congress.

The NIL fight, by the way, is the precursor to a larger fight down the line: if we acknowledge that athletes should be allowed to make money off of their likeness, what about making money for their labor? Among the demands the Pac-12 player group made were a 50% share of conference revenues. It is a tall ask, but it is not without merit or logic.

Representation

College athletes must be granted negotiation power and basic rights regarding health care and educational opportunity.

In early 2014, a group of Northwestern football players led by quarterback Kain Colter attempted to unionize. Predictably, the response to this quickly devolved into a fight over “pay for play” and athlete compensation, even though that wasn’t even mentioned among the Northwestern players’ goals.

That list of goals, by the way, is worth revisiting. Though the unionization attempt was felled in 2015, the list has only become more relevant this year.

  • Prevent players from being stuck paying sports-related medical expenses

  • Prohibit universities from using a permanent injury suffered during athletics as a reason to reduce/eliminate a scholarship

  • Establish and enforce uniform safety guidelines in all sports to help prevent serious injuries and avoidable deaths

Other goals, from “Minimize college athletes’ brain trauma risks” to “Increase graduation rates” to “Protect educational opportunities for student-athletes in good standing” seem incredibly reasonable, yes? Rights that athletes should have had for decades now, perhaps?

“These shouldn’t be framed as demands by athletes because they simply represent basic rights and fundamental fairness,” Nevius says. And to be sure, plenty of schools have shown respect to these rights.

And other items on their list either have been or are being addressed to varying degrees. “Eliminate restrictions on legitimate employment and players’ ability to directly benefit from commercial opportunities,” for instance hints at NIL. “Raise the scholarship amount” was addressed when schools were allowed to increase cost-of-attendance figures. We have seen progress on “Guarantee that college athletes are granted an athletic release from their university if they wish to transfer schools” and “Allow college athletes of all sports the ability to transfer schools one time without punishment” in recent years, and the NCAA probably will revisit the topic in a calmer time, but they do not get check marks just yet.

This list could have also included plenty of other items. “That was one school,” Huma reminds us. He aided Colter and the players in their unionization efforts. “That list was written and developed specifically to make sure there were no NCAA violations because we knew that was going to be one criticism. ‘If we allow players to make money off of their name, image and likeness,’ for instance, ‘we’ll get kicked out of NCAA sports.’ Which would have been true. So it was particularly crafted in that way.” The recent demands from the current Pac-12 player group went much further.

As with the name, image and likeness issue, the NCAA has had decades to ensure that athletes are treated fairly and offered adequate rights. While unionization might never be politically or legally feasible, the general idea is representation and the further protection of rights. That could be accomplished through other means, like the establishment of a players association or the passing of further congressional legislation.

“You don’t need a union — you just need an organization that can negotiate on behalf of the players,” Bilas says. “And when there is an impasse and the players aren’t being treated fairly, they can organize and say, hey, we’re not playing.”

In theory, an organization like this could work to assure athletes have not only the long-term medical care and freedom from major health care expenses listed above, but also a coronavirus-specific list of guarantees, be it in regard to the frequency and uniformity of testing or influence regarding the decision-making processes for postponements and cancellations in the wake of positive tests.

Congress could also help in this regard. In July, Sen. Richard Blumenthal of Connecticut and Booker announced that in addition to crafting the “College Athlete Pandemic Safety Act” to assure that schools can’t force players to sign liability waivers, they are also looking into an Athletes’ Bill of Rights of sorts to assure both health and economic protection. They could cull straight from either the Northwestern or Pac-12 lists if they so choose.

Centralized leadership and oversight

College sports must provide proper centralized leadership that governs the sport and faces proper oversight.

When schools began asking athletes to return to campus for voluntary workouts — “voluntary” always belongs in air quotes in this context — the NCAA provided loose guidance for schools regarding testing and general safety.

Each school, with different levels of expertise and money, then established its own protocol. Some tested everybody when they returned to campus. Some found different information (or financial constraints) that led them to test only symptomatic athletes and personnel. Some established strict guidelines and punishment for what athletes could and couldn’t do when they weren’t in the athletic facilities, and others evidently didn’t get that message across quite as well. Most controversially, some schools required athletes to sign what could be construed as liability waivers upon their return to campus, which prompted the proposed and aforementioned Booker/Blumenthal legislation.

As we’ve seen with Major League Baseball this past week, properly executing a season under these circumstances is difficult even when you have both a commissioner atop the sport and a union negotiating on the players’ behalf. What happens when you’ve got neither? We’re evidently about to find out.

The total lack of homogeneity in college football — from the size of budget and support of schools, to cultural and geographical differences, to the simple existence of multiple divisions within the NCAA — has long been part of its perceived charm. Through the years, schools have ensured that the NCAA has only so much control over top-level college football.

Recent months have proven that while a lack of uniformity can be charming in many ways, there are times when more proper and concrete leadership is needed. Even if it had to create different protocols for sets of schools based on the money available for testing, a body with real governing power could have ensured that health standards (and the enforcement for violating those standards) were as stringent as they could be for guiding schools through this pandemic. It could have made sure athletes across the sport were all receiving the same information. It also could have taken charge in the scheduling process to ensure we didn’t waste a month waiting for each individual power conference to come up with its own plan for playing this fall. Some schools and conferences have done quite well given the circumstances, but they shouldn’t have had to take this on without firmer guidance.

There has long been talk of creating a commissioner type of position for college football. (I once even announced my candidacy for the nonexistent position.) Emmert’s own resistance to the idea — he recently told ESPN’s Heather Dinich that having a “czar of college football” is “utterly unrealistic” — isn’t surprising or convincing, especially with the way current circumstances have made the current system appear utterly unrealistic moving forward.

It is clear, however, that if a new leadership structure is created, be it with a commissioner or a commission (with student representation) atop the sport, it can’t be controlled by the NCAA.

“It needs to be a neutral third party with expertise, and it needs to be enforced,” Huma said.

The draw of a revised leadership structure would work in both directions. It would provide more proper leadership for the sport in key moments, and it would also open the sport to more proper oversight. Bilas references the Amateur Sports Act of 1978, which chartered a national governing body for each Olympic sport — track and field, swimming, figure skating, etc. — and gave athletes voting power. “That’s what the NCAA doesn’t want,” Bilas says. “I don’t think Mark Emmert and his merry band in Indianapolis want the federal government supervising their work because I’m not sure they’d necessarily like what they find. There’d probably be some hard conversations surrounding that.”

Centralized leadership could also be useful when it comes to helping schools work through financial hardship in the coming years. The idea of this piece is to create a structure of fairness for college football players, and making sure programs aren’t shut down permanently in the wake of the coronavirus, thus shrinking the number of opportunities for football players as a group, should fit into that construct as well. In Germany, richer soccer clubs helped to create a solidarity fund for smaller clubs in crisis; do you see that happening in college football with current leadership?

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