...as soon as it can after inking its new media rights deal?
Tom made some comments on the G&B Saturday Simulcast about what seems to be an "inevitable" course toward pay for play, i.e., paying athletes salaries as employees, and the "charade" and "ruse" that NIL is. I think Brian seemed to suggest the possibility of breaking away from the NCAA and seizing a potential advantage until the rest of the teams in the current college landscape catch up. If I understood Tom and Brian correctly, I tend to agree. So why not seize the initiative?
Now, there are a lot of logistics here, such as ensuring that the Big Ten media rights deal does not require NCAA participation, such that breaking away from the NCAA to pay for play could trigger contract termination rights. But I think the Big Ten should be considering options that moves it to the forefront of high school and college athletes minds. We were behind on getting back to playing during COVID, and we seem to be behind in maximizing the use of NIL (albeit due to many Big Ten school's risk-averse approach). If we create a collective bargaining agreement with Big Ten players and allow Big Ten schools to contract with players individually, we will be able to offer significant advantages that teams in other conferences, like the SEC, won't be able to offer, such as a salary. You can then create more legally sustainable guardrails, such as limits on transferring via contract terms and caps on salaries via collective bargaining terms.
To be clear, I'm not talking about the whether pay for play is good or bad, right or wrong. I'm simply commenting on the suggestion that it seems to be inevitable under the current collegiate athletics landscape and trends. Also, for those who are still hung up on the "sanctity of amateurism" and "tradition of college football," I would strongly encourage you to read the history section of the NCAA v. Alston opinion. The early days of college sports were rife with compensating players beyond educational benefits, including salaries for certain athletes. See, e.g., NCAA v. Alston (stating, among other things, that "Yale reportedly lured a tackle named James Hogan with free meals and tuition, a trip to Cuba, the exclusive right to sell scorecards from his games—and a job as a cigarette agent for the American Tobacco Company," ... and that "n 1939, freshmen at the University of Pittsburgh went on strike because upperclassmen were reportedly earning more money" ... and that "n the 1940s, Hugh McElhenny, a halfback at the University of Washington, 'became known as the first college player ‘ever to take a cut in salary to play pro football.'").
The writing also seems to be on the wall, as Justice Kavanaugh wrote in his concurrence of Alston that the Alston opinion did not address antitrust laws permitted the NCAA's rules restricting non-education-related compensation, and that "[n]owhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. ... The NCAA is not above the law."
So my question to you is this: Should the Big Ten take a conservative approach and follow the NCAA until it ends--by self-dissolution, by other defections (e.g., SEC), or by judicial/legislative action--or should the Big Ten take the risk of defecting and trying to create a better mouse trap that other conferences can follow?
Tom made some comments on the G&B Saturday Simulcast about what seems to be an "inevitable" course toward pay for play, i.e., paying athletes salaries as employees, and the "charade" and "ruse" that NIL is. I think Brian seemed to suggest the possibility of breaking away from the NCAA and seizing a potential advantage until the rest of the teams in the current college landscape catch up. If I understood Tom and Brian correctly, I tend to agree. So why not seize the initiative?
Now, there are a lot of logistics here, such as ensuring that the Big Ten media rights deal does not require NCAA participation, such that breaking away from the NCAA to pay for play could trigger contract termination rights. But I think the Big Ten should be considering options that moves it to the forefront of high school and college athletes minds. We were behind on getting back to playing during COVID, and we seem to be behind in maximizing the use of NIL (albeit due to many Big Ten school's risk-averse approach). If we create a collective bargaining agreement with Big Ten players and allow Big Ten schools to contract with players individually, we will be able to offer significant advantages that teams in other conferences, like the SEC, won't be able to offer, such as a salary. You can then create more legally sustainable guardrails, such as limits on transferring via contract terms and caps on salaries via collective bargaining terms.
To be clear, I'm not talking about the whether pay for play is good or bad, right or wrong. I'm simply commenting on the suggestion that it seems to be inevitable under the current collegiate athletics landscape and trends. Also, for those who are still hung up on the "sanctity of amateurism" and "tradition of college football," I would strongly encourage you to read the history section of the NCAA v. Alston opinion. The early days of college sports were rife with compensating players beyond educational benefits, including salaries for certain athletes. See, e.g., NCAA v. Alston (stating, among other things, that "Yale reportedly lured a tackle named James Hogan with free meals and tuition, a trip to Cuba, the exclusive right to sell scorecards from his games—and a job as a cigarette agent for the American Tobacco Company," ... and that "n 1939, freshmen at the University of Pittsburgh went on strike because upperclassmen were reportedly earning more money" ... and that "n the 1940s, Hugh McElhenny, a halfback at the University of Washington, 'became known as the first college player ‘ever to take a cut in salary to play pro football.'").
The writing also seems to be on the wall, as Justice Kavanaugh wrote in his concurrence of Alston that the Alston opinion did not address antitrust laws permitted the NCAA's rules restricting non-education-related compensation, and that "[n]owhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. ... The NCAA is not above the law."
So my question to you is this: Should the Big Ten take a conservative approach and follow the NCAA until it ends--by self-dissolution, by other defections (e.g., SEC), or by judicial/legislative action--or should the Big Ten take the risk of defecting and trying to create a better mouse trap that other conferences can follow?
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