The NCAA’s Division I Council is set to consider a host of rule proposals that, if adopted, would remove additional barriers against athlete compensation, Yahoo! Sports’ Ross Dellenger reported Sunday. The NCAA has defended these barriers in antitrust litigations and Congressional testimonies over the years, but they could soon become artifacts of a college sports system undergoing tectonic changes.
The Council includes athletic directors and oversees day-to-day operations of D1 sports.
One reported change is the elimination of the National Letter of Intent, a document that binds recruits to programs. Critics have labeled the NLI as “contract of adhesion” in that it is a take-it-or-leave-it model without meaningful opportunities for recruits to negotiate terms.
Another change would allow athletes to earn prize money before college. That move would drop a longstanding NCAA practice that receipt of payment before college renders an athlete ineligible for amateur status. Undermining the necessity of this rule, the NCAA has long carved out an exception for tennis players to earn up to $10,000 in prize money plus necessary expenses prior to college. The cap on tennis players has spawned antitrust litigation, including Brantmeier v. NCAA—a federal case that began this year and argues that the NCAA and its member schools and conferences have illegally conspired to price fix what tennis players can earn.
A third change would expand the scope of permissible activities of agents to advise college athletes and recruits on professional opportunities without forfeiting eligibility. Currently the NCAA allows agents to advise on NIL deals and has carved out other exceptions, such as allowing baseball and hockey recruits—some of whom are drafted as teenagers—to hire an attorney or agent to negotiate a potential contract with an MLB or NHL franchise, respectively.
The agent change is noteworthy given that, as Sportico recently detailed, the NCAA faces antitrust claims for “boycotting” Canadian Hockey League (junior league) players. To the extent the NCAA permits a greater role for agents, the more likely major agencies that serve pro athletes will eye expansions of their practices into college and even high school sports.
A fourth change would concern redshirt eligibility, which grants athletes a chance of having five years of collegiate eligibility instead of four. The NCAA currently allows football players and wrestlers to play a limited amount during their redshirt season without forgoing that status (for example, a football player can up to four games in a season without burning their redshirt status). As described, the change would allow athletes in sports to play a certain number of games in their seasons without losing their redshirt status. The NCAA has faced lawsuits over caps on how long a player can play, including a case this year, Clayton v. NCAA, which concerned a 26-year-old college basketball player winning an injunction against the NCAA to play in his eighth season and for his fourth university.
These changes are being considered while the NCAA urges U.S. District Judge Claudia Wilken to approve a multibillion-dollar settlement to resolve the House, Carter and Hubbard antitrust litigations. If approved the settlement would reconfigure D-I so that schools can opt into a system where they share revenue with players and, subject to a $22 million payment cap that resembles a salary cap, pay them for media rights, ticket sales sponsorships and NIL.
One legal risk for the NCAA in reimagining college sports so that it resembles pro sports—at least in the power conferences—is that the players will increasingly resemble employees. They’ll be paid in reflection of their athletic activities, which could look more and more like “labor” as that term is understood in labor and employment laws. Given ongoing employment recognition efforts on behalf of Dartmouth College men’s basketball players, USC football and men’s and women’s basketball players and thousands of athletes who could become part of Johnson v. NCAA, the NCAA appears willing to roll the dice. We’ll find out how it lands.
