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Union Decision One More Push of the NCAA Off Its Fence

Today’s victory for the College Athletes Players Association in front of Chicago’s regional labor relations board will take a long time before it becomes final. It will likely end either in the Supreme Court or the halls of Congress. It is still a coin-toss about how it ends up, with an appeal upcoming to the full National Labor Relations Board and possible judicial review.

But the ruling, much of its rationale, and other ongoing attacks on the NCAA are helping to make the NCAA’s position untenable. But not the position of amateurism and education as compensation. And not the position of commercial athletics on college campuses. What the NCAA is being forced to abandon is the assertion that it can straddle the fence between both those positions.

On the one hand, the NCAA is technically a private, non-profit corporation governed by its members. That status was enshrined in law by the Tarkanian Supreme Court decision. In many ways it was extended to the member schools by the Board of Regents and Law v. NCAA decisions which prevent the NCAA from regulating many aspects of the commercial business of college athletics.

On the other hand, the arguments for the NCAA’s status as a state actor or public institution are still strong. The NCAA receives a large public subsidy in the form of tax-exempt status. Many of its members are public universities, arms of state governments. Most athletic departments are subsidized, in many cases heavily so, by institutions which depend on state or federal aid for revenue. And in almost every other country in the world, one of the NCAA’s primary functions, preparing Olympic or national team athletes, is funded and overseen by the government.

Broadly speaking, the current legal assault on the NCAA system demands that it abandon pretenses of being a regulatory agency or charity and operate as a better corporate citizen. Even CAPA’s demands, which sound like they would be made of a more “public” NCAA, are being pushed through the creation of an employer/employee relationship and collective bargaining.

Barring a quick and at least slightly surprising reversal of their legal fortunes though, the NCAA’s only recourse might be to embrace their public, quasi-governmental side. That might mean accepting greater government regulation; expanded due process for athletes, staff members, and institutions; limits on salaries; more secure scholarships; and external enforcement investigations and decisions in exchange for a broad antitrust exemption, no employee status for athletes, and relief from the ongoing lawsuits.

If the NCAA were ever going to embrace that idea, now would be the time. The legal challenges make it more attractive (or at least palatable) than it has ever been. The reauthorization of the Higher Education Act makes it much more likely that Congress could be moved to action. Congress is already considering regulation of the NCAA, so the NCAA might as well adopt the strategy that the “enemy of my enemy is my friend” and try to get something in return.

A year ago, I called the O’Bannon legal strategy an all-in bet, which (mixing my gambling metaphors) was then doubled down on with the union case. If the NCAA does not look for other outs and decides to defend its middle ground between amateurism and professionalism, commercialism and education, it would essentially be calling that bet. The even bigger problem for the NCAA is that now its opponents have it covered.

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