Big Changes on the Horizon for College Sports?

Kollman & Saucier
Kollman & Saucier

Charlie Baker’s tenure as NCAA President, being the first person to hold the office without first serving as an athletic director or college president, was always certain to bring a big shakeup to the college sports landscape. But change may be closer than many expected.

The NCAA’s Division I (DI) Board of Directors assigned a recent revolutionary proposal, written by Baker, to the DI Council for evaluation. Although a small step in the NCAA’s legislative process, it marks the beginning of the NCAA working out the details of Baker’s plan—an indication that the NCAA is taking his proposal seriously.

In a December letter to more than 350 Division I schools, Baker outlined a vision for a “subdivision” of DI institutions comprised of the NCAA’s wealthiest members. Baker’s proposal contains three changes that, if approved, would redefine the relationship between student-athletes and their educational institutions.

First, institutions in the newly created subdivision would be permitted to enter name, image, and likeness (NIL) deals directly with their student-athletes. Currently, institutions are prohibited from these arrangements. Several DI athletic departments are associated with NIL collectives, which under current NCAA regulations, must operate independently of institutions. Baker’s proposal would allow individual athletic departments to serve the role that NIL collectives currently must fill; pooling donation money to provide NIL deals directly to student-athletes.

Second, the proposal would allow all DI institutions, even those who are not members of the newly created subdivision, to provide unlimited education benefits to student-athletes. Presently, education-related cash-benefits are limited by NCAA rules. Institutions are permitted, but not compelled, to provide student-athletes up to $5,980 per year for educational benefits.

Third, and perhaps most interestingly, institutions in the new subdivision would be required to invest at least $30,000 per year into an “enhanced educational trust fund” for at least half of their eligible student-athletes (in compliance with Title IX). The fund is designed to allow student-athletes to pursue education during the summer or after they have completed their playing careers. Baker’s proposal, however, does not outline any restrictions on how student-athletes could use the trust fund money. It is also reported that the NCAA does not intend to require student-athletes to complete their playing careers to gain access to the money. This marks a monumental shift from current NCAA rules, which strictly prohibit institutions directly paying student-athletes.

Baker’s proposal comes during a time of mounting pressure on the NCAA. The National Labor Relations Board (NLRB) is currently considering testimony over whether student-athletes are employees of their institutions, conferences, and the NCAA under the National Labor Relations Act. NCAA v. Univ. S. Cal., No. 31-CA-290326. Additionally, the Third Circuit is currently considering whether student-athletes are employees under the Fair Labor Standards Act. Order-Memorandum, Johnson v. NCAA, No. 19-5230 (3rd Cir. interlocutory appeal granted Dec. 28 2021). Baker testified last week before the House Energy and Commerce Committee concerning legislation that would declare student-athletes are not employees of their schools, conferences, or the NCAA.

It may be “too little, too late” for Baker’s proposal to quell the ongoing and incoming litigation. But Baker’s proposal is evidence that the NCAA feels the pressure to modernize their policies. It is worth monitoring how the proposal evolves and is eventually implemented (if it is) in the coming months and years.

Written by Christina Charikofsky.  Christina is a legal intern at Kollman & Saucier and a second year student at the University of Baltimore School of Law.

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