Instead of Lobbying Congress, the NCAA’s Charlie Baker Needs to Lead
Today’s guest columnist is Joe Moglia, chair of athletics and executive advisor to the president at Coastal Carolina University.
NCAA President Charlie Baker has been pounding the pavement in Washington D.C. in recent weeks, and it’s pretty clear why: He wants Congress to solve the NCAA’s problems for him.
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Baker, who says he’ll announce a new “roadmap” for the NCAA in July, is pushing for Congress to step in and grant the organization new antitrust protections and engage the Federal Trade Commission to regulate name, image & likeness (NIL) deals. He also reportedly wants Congress to enact restrictions on pay-for-play by collectives, revenue sharing with athletes, and the potential classification of student athletes as employees.
Part of the problem lies in the fact that when the legal system and the government paved the way for NIL, the most significant development in the recent history of college sports, the NCAA was nowhere to be found. Baker’s strategy of going to Capitol Hill for help makes sense for a politician (and maybe the government can help), but it puzzles me, because I can’t imagine any business seeking out government to solve its problems.
There are several challenges with Baker’s approach. For one thing, as Sportico’s Michael McCann recently noted, the “NCAA is a private and voluntary membership organization that, like other organizations of its kind, can craft rules for members.” Simply put, the NCAA doesn’t need Congress; it needs leadership. The NCAA is already empowered to solve its own problems!
Indeed, Baker, speaking to the National Association of Collegiate Directors of Athletics earlier this month, outlined what he sees as the most important reforms for the NCAA, including a common NIL contract and total NIL deal transparency. These are good ideas.
However, if Baker and the broader NCAA leadership can’t exercise their authority in a meaningful way, that’s on them, and universities can choose to follow the NCAA’s rules or not. In essence, Baker—by virtue of being the president of the NCAA—has the titular authority to institute rules and enforce them as necessary, but he lacks the credibility to do so. This crisis of confidence among member schools speaks to the basic weakness of the NCAA and the failure of its leadership over a matter of decades.
This is nothing new. But three developments deepened the crisis.
First, in 2018, the NCAA instituted the transfer portal, which allowed coaches to recruit players who publicly declared a desire to change schools. Three years later, the NCAA rescinded its rule stating that transfers had to sit out a year. Head coaches didn’t like this, because we previously had possessed a lot of control over where the player could go. I initially had that feeling as well, but when you really think about it, the transfer portal was fairer to the student athletes.
Meanwhile, as revenue continued to surge in college football, particularly for the Power Five schools, pressure grew to share the riches with players who generate the bulk of the money. NIL entered the picture in 2021, after the passage of a California law and other state statutes that allow players to be compensated for their publicity rights. It upended 100 years of NCAA rules banning such payments. This is when the NCAA should have stepped up and been part of the discussion. Remaining silent during the advent of NIL significantly damaged the association’s credibility and influence.
NIL, coupled with the transfer freedom, changed everything. Now, there are no rules or guidelines. Those people who follow college football history may recall when SMU had so many violations that the NCAA stepped in and enforced the death penalty against the school, canceling its 1987 football season. Today, nearly everything SMU did in the 1980s would be allowed.
Now, Baker is trying to make a big deal that athletes don’t want to be designated as “employees.” This is an absurd obfuscation of the real issue: Student athletes who are getting money are professionals, and they want to be paid for what they do, regardless of whether they’re categorized as employees or some other term. By the way, I wouldn’t appreciate being called “an employee” if I were a student athlete, but I would love to be called a PSA—a professional student athlete—because that’s what they are. Getting the deals done right, transparently, and on an even playing field should be the NCAA’s only concern.
Baker is trying to make sure there is transparency and a common format for all NIL deals, something I very much agree with. Whether he’s able to get this done will be a function of whether he gets buy-in from the universities and administrators. But it looks like he’s trying to get Congress to mandate this. Of course, lots of organizations lobby Congress for lots of things, but they typically advocate for less restrictive rules, lower taxes, subsidies, etc. Successful organizations don’t go around asking the government to take over. It puzzles me why anybody believes that more government involvement will make us more productive or efficient.
Even if Baker succeeds in getting Congress to act, if the NCAA is seen to do anything to adversely affect the Power Five’s revenue or power, it could drive those conferences to break away in a messy and dramatic fashion.
I still think it’s very likely that the Power Five will eventually break away from the NCAA, at least in football. (I’ve previously written about why this makes sense.) If Baker were to drive this spin-off, he would not only demonstrate leadership, but he’ll also remove the greatest challenge to the NCAA’s authority right now—giving him more respect and influence with all the rest of college athletics.
Going forward, the NCAA needs to fix its approach to governance. Any rules it institutes need to be actually enforceable. For instance, this idea that coaches can’t tell collectives which players they want to receive NIL deals is ridiculous. It’s clearly happening all the time.
With this in mind, there are specific realities that should appear in his new roadmap for the NCAA.
Acknowledge players are professionals. This is the right thing to do and a key element of making sure they are paid fairly and that athletics programs and booster collectives work in the open. It doesn’t matter whether they are called employees, Professional Student Athletes, or something else entirely.
Create NIL transparency. Everybody should be able to see what others are doing. Right now this doesn’t exist, and it’s too easy to make deals under the table.
Universal NIL contracts. Common NIL contracts will help ensure deals are fair to both the professional student athletes and the group paying for their services.
Institute enforceable rules. Athletics programs should be able to coordinate with collectives however they like (which is exactly what they’re doing now), so long as it’s transparent.
Reinstate the transfer rule. The current situation creates an auction. If a player must sit out a year, there’s an opportunity cost to consider for both the player and the school recruiting them. This will help bring some control and common sense to the mad portal rush that exists today.
We recognize that President Baker of the NCAA used to be Gov. Baker of Massachusetts, and he did a good job there. But a politician spends half his time making sure he gets reelected. Now, Baker needs to spend all his time making sure he has a positive impact on college athletics. I don’t believe running to Congress is the best way to do that.
Moglia is the former CEO and Chairman of TD Ameritrade, and current Chairman of Fundamental Global LLC and Capital Wealth Advisors. In 2012, he became Coastal Carolina University’s head football coach, leading the team to four conference championships and an overall record of 56-22. He is now the Executive Director for Football and Executive Advisor to the President at Coastal Carolina. You can find him on his website, on his LinkedIn page and on Twitter.
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