The NCAA is appealing the preliminary injunction granted by a U.S. federal judge giving Vanderbilt quarterback Diego Pavia another year of eligibility.
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How many Pandora’s boxes has the NCAA opened?
Pavia v. NCAA is the latest box. This blockbuster antitrust decision ruled that Vanderbilt’s Diego Pavia, an excellent college quarterback, is eligible for one more year because the NCAA unlawfully counted his junior-college year against his eligibility.
Within days, reports suggested that other NCAA players with junior-college backgrounds were gearing up their own antitrust lawsuits.
The NCAA announced a hurried but necessary decision to waive enforcement of its one-year stripping of eligibility for athletes who are now playing in junior college.
But the NCAA believes the Pavia ruling threatens its collegiate model, which explains its decision to appeal the ruling to the Sixth Circuit.
Michael LeRoy
Where’s the Pandora’s box here?
Let’s begin with the players who spend two years in junior college. The NCAA’s rules count those years like years spent at an NCAA school. These players lose two years of eligibility if they transfer to an NCAA school.
That also means that NCAA rules take away two years of name, image and likeness money opportunities.
Courts across the country see NIL as just another kind of labor market, even though the NCAA prohibits employment and refuses to concede that its rules artificially regulate a $1 billion-a-year pay-to-play model.
But if a court grants Pavia one more year to play, why can’t the two-year junior-college player get two more years of NCAA eligibility?
‘It’s become professional’
Consider a hypothetical player who makes $400,000 in NIL money as a starter on a power conference football or men’s basketball team but isn’t a good prospect for the NFL or NBA.
He is in his fifth year and wants another NIL deal. So does his coach.
Academically, he is eligible to apply for a second graduate degree.
Why can’t the deal happen?
Many people earn two graduate and professional degrees. The University of Illinois lists over 50 joint-degree programs for professional and graduate programs.
The NCAA has no valid educational reason to deny this hypothetical player his sixth year.
And courts have ruled, time and time again, that college NIL markets are protected from unreasonable rules under the Sherman Antitrust Act.
So, the hypothetical player can likely have a sixth year of eligibility, if he sues under the Sherman Act.
And why can’t he have a seventh, or an eighth year?
In short, why can’t he have a professional career of many years as a college player?
This problem recently caused Jim Larranaga to suddenly resign his men’s basketball coaching position at Miami: “The opportunity to make money someplace else created a situation that you have to begin to ask yourself as a coach what is this all about. And the answer is it’s become professional.”
The NFL has only 1,696 players. By comparison, there are likely more than 6,500 power conference football players.
The NBA has about 560 players, while power conference schools have over 800 men’s basketball players.
The NCAA has developed an attractive labor market for excellent but not exceptional players to have long careers.
GOP, NCAA on same side
On top of these legal problems for the NCAA, gushers of NIL cash are flowing into collectives and individual NIL deals.
Power conference schools are hoping that the House settlement agreement will cap these gushers. They’ve agreed to a revenue sharing and NIL arrangement for players, annually capped at about $21 million per school.
But the recent signing of Bryce Underwood at Michigan for a reported $10.5 million and North Carolina’s massive new NIL program growing overnight from $4 million to $20 million, suggest the gushers will only grow.
Can the NCAA stop this?
Recently, Republican lawmakers proposed a bill to provide the NCAA with broad immunity from player lawsuits under the Sherman Act. Now that Republicans will be in control, this bill could become a law. The NCAA is lobbying hard for this to happen.
But that’s not the end of the career professional college athlete problem for the NCAA.
Suppose a state passes a law that prohibits the NCAA from enforcing any rule that shortens a college athlete’s eligibility beyond what a school does for its students.
Some programs require degree completion within a restricted time; others have specific limits but extend them for online or part-time students; and other degree programs don’t have formal time limits.
In other words, this type of state legislation would uncap any NCAA eligibility-by-years-attended rule.
Is ‘uncapped’ education next?
California modeled this blueprint in passing the nation’s first NIL law in 2019. The law prohibited the NCAA from enforcing any rule, or penalizing a player or institution, over NIL pay.
Within two years, California’s NIL wildfire spread to 24 other states.
The NCAA has been unable to find a defense for NIL chaos. Everyone sees this shadow labor market as just that.
Even if the NCAA gets a federal antitrust exemption, a state — perhaps Michigan — could find it advantageous for its NCAA schools to out-recruit rivals in Ohio, Pennsylvania and Oregon by passing an “uncapped” education law. Other states would likely follow.
This would clear a path for the professional college athlete who makes a long career that looks very much like a pro athlete — essentially, a longer version of Larranaga’s incisive critique.
Some athletes might stay at a school their whole career.
But now that courts have forced the NCAA to provide transfer portals and removed rules to limit the number of transfers — and now that the junior-college penalty is enjoined by a court — college athletes can seek new NIL deals in a frictionless labor market that offers more free agency than sports leagues with labor agreements.
This portends a destructive future for those athletic programs that cannot compete with ever-escalating NIL budgets. And more coaches are leaving this anarchy.
But it’s a fitting state of affairs for the NCAA and power conferences that insist like mules that their athletes can never be employees nor have collective bargaining rights — changes that would stabilize competition while paying athletes.