Michael Arace: Emmert's lack of leadership on NIL rights will lead to a year of NCAA chaos

Michael Arace
The Columbus Dispatch
NCAA president Mark Emmert

On Monday, state Sen. Niraj Antani (R-Miamisburg) and Ohio State athletic director Gene Smith (G-Money) had a news conference to drum up support for legislation that would allow college athletes in Ohio to be paid for any use of their name, image or likeness.  

You know, just like anyone else in the student body. 

Could Ohio be the next state to legalize college athletes profiting from name, image and likeness?

Antani is hoping, and Smith is praying, that this NIL legislation can be rammed through the Statehouse and signed by the governor on or before July 1. Why so fast? Essentially, so Smith can keep up with the Joneses: More than 40 states have introduced NIL legislation, and 16 states have passed NIL bills. Including Alabama. And Michigan. 

NCAA president Mark Emmert has lost control of what may be the biggest issue ever faced by the organization. It strikes at amateurism, the core concept of the business model. 

Emmert now faces a situation where 50 states can, and probably will, enact 50 different NIL laws, thus sowing chaos across the landscape of big-time college sports. And the only chance of relief will have to come from the federal government. 

Ohio State: Buckeyes find partner to help athletes take advantage of NIL opportunities

What we have here is a soaring failure of leadership. From the time that NIL became an issue for the courts — when Ed O’Bannon, et al, filed suit against the NCAA in 2009 — the idea of what constitutes fair compensation for college athletes was bound to change.  

The quaint idea of using unpaid labor to prop up a multimillion-dollar organization was destined to be reconstituted, to one degree or another. O’Bannon led to cost-of-attendance compensation. NIL was next, and Emmert had to know it. He still blew it. 

Former UCLA basketball player Ed O'Bannon Jr. long ago claimed the NCAA and its member schools and conferences had been inappropriately profiting from athletes. names, images and likenesses without compensating them.

Six states (Alabama, Florida, Georgia, Mississippi and New Mexico) will see their NIL laws take effect July 1 — and gain a major advantage in recruiting. (“We got Nick Saban AND you can cut your own deal with Nike.”) Arizona’s NIL law will kick in July 23.  

Ten more states (Arkansas, California, Colorado, Maryland, Michigan, Montana, Nebraska, New Jersey, South Carolina and Tennessee) come online with NIL laws within the next four years. 

Emmert recently made a screeching, 180-degree turn and proclaimed he was pushing his organization to come up with a plan. To that end, Smith was involved with an NCAA study group with proposed a package of NIL rules late last year. 

The NCAA was hoping to adopt these rules in January, but put it off after the U.S. Department of Justice raised questions about antitrust problems. Another vote on NIL rules was put off earlier this month, ostensibly because of a pending case (Alston vs. NCAA) before the Supreme Court.

Emmert has been hoping, beyond hope, that the latest legal challenge to the NCAA's notion of amateurism might somehow save him. A ruling is expected sometime this summer. It's already too late.

State governments — many in SEC country, where they’ve been pitching for NIL since California passed its Fair Pay to Play Act in 2019 — have assumed control. The NCAA can pass whatever rules it wants to before July 1, but it must cede to state laws. Indeed, the hope of Emmert — and every conference commissioner in the land — is federal intervention. 

Oh, the irony. The NCAA has for decades fought federal control of college athletics. Now, Emmert is counting on Congressman Anthony Gonzalez (R-OH, great hands) and Senators Richard Blumenthal (D-CT), Cory Booker (D-NJ) and Maria Cantwell (D-WA) to legislate NIL uniformity into federal law. 

By most accounts, that can’t be done by the end of the year. The states will rule in the interim. Which is why Smith’s newest best friend is Sen. Antani. 

Ohio State athletic director Gene Smith.

Emmert’s lust for litigation is proving to be his flaw. He could have seized the moment, anytime over the past two, five or 10 years, and gotten in front of the NIL issue. He could have laid out a vision for the future as a creative leader. Instead, he hired lawyers to fight to preserve an increasingly hypocritical notion of the “student-athlete.” 

Even Smith — whose four-year contract extension pays more than $2 million a year, not including bonuses (such as the $12,000 stipend for his wife to travel to games) — has figured out that it might be OK for the quarterback to collect advertising money from social-media accounts. 

Michael Arace

But, then, Emmert is an institutionalist, and his institution has been waging court battles to protect “amateurism” for seven decades.  

It was in the 1950s the NCAA invented and began marketing the term “student-athlete” as part of a court case: The widow of a football player who died from injuries sustained on the field sued for workman’s compensation; the NCAA whipped her in court with the argument that “student-athletes” are not “employees.”  

In the third decade of a new century, the hyphen is beginning to disappear. Big-time college sports are played by athletes who may or may not be students, but in any event have the right to monetize their talent — like anyone else, on or off campus. It's the latest wave in a sea change for college sports.