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Notre Dame’s Swarbrick Unties Himself From NCAA’s Gordian Knot

daniel libit
·9 min read

Jack Swarbrick is leaving his job with Notre Dame in fine shape, and with college sports in chaos.

“I feel so bad about how it’s messed up right now,” the Fighting Irish athletic director told Sportico over Zoom this week, in the waning days before he retires after 15 years on the job. “I hope I can find a path that allows me to still play a role.”

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Based on his record under the Golden Dome, he’ll have that chance if he wants it.

In his decade-and-a-half at Notre Dame, Swarbrick rose to become one of the most powerful, longest-tenured and highest-compensated ($2.73 million in FY 2022) college ADs ever. Surveying a tenure that included a global pandemic, multiple bouts of conference realignment and a fundamental change to the financial rights of college athletes, Swarbrick mused: “I love dealing with knotty problems, and this has been one long, knotty problem.”

On Tuesday, Swarbrick turned 70, the triggering age for his retirement that was originally announced last June. He is being succeeded by Pete Bevacqua, the former chairman of NBC Sports, who has shadowed Swarbrick over the last eight months. In anticipation of the transition, Bevacqua took the lead the last two months in negotiating Notre Dame’s take from the new $7.8 billion College Football Playoff broadcast deal with ESPN. The Fighting Irish will reportedly earn around $12 million per season.

“I feel very good about the way Notre Dame came out of this,” Swarbrick said.

What he feels less good about—but not totally hopeless over—is the current era of uncertainty in college athletics, which he has previously deemed a “state of disaster.”

Over his tenure, Swarbick developed the reputation as an unconventional thinker, particularly when it came to matters of college athletes earning money. Last October, for example, Swarbrick made headlines following his testimony before a Congressional committee, when he voiced the “fairly radical notion” that it was time for schools to consider engaging in collective bargaining with college athletes. And he had expressed support, years before many of his counterparts, for the idea that college athletes should be able to earn name, image and likeness (NIL) money. Yet Swarbrick’s rhetoric, while notable, didn’t exactly make him a change agent. Nor does he sound so avant-garde in the face of today’s most pressing questions.

Swarbrick sidestepped a question about the potential for Notre Dame athletes to unionize like Dartmouth’s basketball players, but said he thinks the National Labor Relation Board’s 2015 decision in to reject the union bid of Northwestern football players was the right one. The NLRB didn’t rule on the merits of whether the athletes should be considered employees under the National Labor Relations Act, but reasoned that, as Swarbrick puts it, “you can’t run college sports with some of the programs unionized and some of them not.”

Swarbrick added: “You’re never going to get to a uniform status. And that’s sort of central to being able to compete and to having an environment where there’s competitive equity that allows you to have competition, and so I think on on that ground it doesn’t work.

A Notre Dame alumnus, Swarbrick was hired by his alma mater in July 2008, exactly one year before former UCLA basketball player Ed O’Bannon filed his groundbreaking antitrust lawsuit against the NCAA, Electronic Arts and Collegiate Licensing Company, seeking redress over the video game-maker’s unpaid use of athletes’ publicity rights.

“My reaction to it at the time was, why would we do this?” Swarbrick said. “Why would one group of students have that right [of NIL] and another group of students not have that right just because they participated in athletics? We were an early advocate for it, but that’s not to be confused with [advocating] for how it ultimately has wound up.”

Swarbrick said his views on NIL were of a piece with Notre Dame’s fundamental perspective on the value of integrating athletics with the rest of the campus, whether it be the school’s housing  policy—which insists athletes not live in separate residence halls from the rest of the body—or the breadth of the athletic director’s job description.

In his status as a university vice president, Swarbrick sits on the president’s leadership council and serves on school committees that have nothing to do with athletics.

“It had everything to do with what’s your guiding philosophy,” he said, “and ours has always been to try and minimize the distinctions that are drawn between students who are athletes and those who aren’t. And if you looked at it through that prism, (NIL) was a no-brainer.”

And yet, few big-time college sports leaders looked through Swarbrick’s prism, and especially not former NCAA president Mark Emmert.

Swarbrick recalled a 2019 meeting of Lead1 Association, the trade group representing FBS athletic directors, in which Emmert spoke about California’s first-in-the-nation NIL law being an “existential threat” to the collegiate model.

“Boy, I thought that was focused on the wrong thing,” Swarbrick said this week. “It wasn’t an existential threat—it never was. It was about how we implement it. And unfortunately, we passed on any sort of rational implementation.”

Beginning in 2015, Swarbrick led the rebranding and collectivization of Lead1, which was originally founded in 1986 as the Division I-A Directors Association.

“Jack wanted to really focus on issues and policy and to try to have the ADs come together on things where their voice could be louder,” Tom McMillen, the former college basketball player and congressman who serves as Lead1’s president and CEO, said. “At our meetings, he was always sought out, and his views were very well-reasoned. You could tell he thought them out; they were not off the cuff.”

McMillen, in a phone interview, noted of Swarbrick: “He didn’t tackle everything. He picked his issues, but when he spoke people listened and respected his perspective, which was generally different from most other ADs.”

The present state of affairs in intercollegiate athletics has led to many recent thought experiments about counterfactuals. For example, what if the NCAA and its member institutions had, years before July 2021, conceded on allowing college athletes to earn endorsement money? Would that have stemmed the tide of state-based laws, NLRB actions and antitrust cases that now threaten to drown college sports’ governing body?

“I don’t think there was a reasonable chance to create that alternative history,” Swarbrick told Sportico. “The [public] sentiment was clearly otherwise.”

Nevertheless, Swarbrick, a Stanford Law graduate, says the NCAA would have been in a far better position to defend itself, publicly and in the courts, had it rooted its arguments in extolling the financial value of a college scholarship.

“What unifies all of those [antitrust] cases is an absolutely absurd insistence of trying to defend them on the principle of amateurism,” Swarbrick said. “I always thought that was the most illogical form of defense you could possibly try and articulate in those cases.”

Swarbrick argued that the Olympic movement had already provided “great foreshadowing” for the fallacy of amateurism, which went unheeded.

“They had clung to the notion of amateurism for, I don’t know, 80 years, back to [International Olympic Committee president] Avery Brundage and Pierre de Coubertin before that,” Swarbrick said. “And eventually, they had to abandon that for all the right reasons. And we didn’t learn anything from that impulse. I always found it just impossible to understand how America’s best educational institutions thought that there was some value associated with amateurism.”

Prior to taking the job at Notre Dame, Swarbrick had his own involvement in the Olympic movement, having served as outside counsel for USA Gymnastics while an attorney for the Indianapolis-based firm of Baker & Daniels (now Faegre Drinker), between 1984 and 2008. Swarbrick’s work for USA Gymnastics, and his role in the organization’s policies and procedures for addressing sex-abuse allegations, would come under media scrutiny in 2016, when the Larry Nassar scandal became public. Swarbrick defended himself for, over the years, pushing the governing body to be a leader among NGBs in handling claims of abuse.

In addition to his legal work, Swarbrick had also served for many years as chairman of Indiana Sports Corp, where he successfully convinced the NCAA to relocate its headquarters from Kansas City to Indianapolis in 1999. Swarbrick was reportedly a finalist for the job of NCAA president in 2002, but the gig ultimately went to another Hoosier resident, Myles Brand.

“At the end of the day, the quality of jobs in college athletics is directly proportional to your distance to the student-athlete,” Swarbrick said. “The coaches have the best jobs; the ADs are next; the commissioners, less so. And God bless the president of the NCAA: even less so.”

Swarbrick argued that the modern trend of short-tenured ADs and university presidents was detrimental to both higher education and intercollegiate athletics.

“You don’t create the relationships that help guide you through tough times and reach consensus,” Swarbrick said. “Frankly, the same thing is true in Congress.”

Last week, Swarbrick visited Capitol Hill for the final time as AD, where he joined others, like recently retired Alabama football coach Nick Saban, in advocating for Congressional intervention in college sports. It’s been nearly three years since the NCAA was forced to adopt its interim NIL policy, and despite numerous hearings and legislation proposals, no federal bill has made its way out of committee.

Is lobbying lawmakers on NIL reform now an act of futility? Swarbrick doesn’t think so.

“Congress has a lot on its plate, and appropriately, college athletics is not at the top of that list,” Swarbrick said. “We recognize that, and there are special challenges in a presidential year to move things forward. And so patience was always going to have to be part of this. But there is no long-term solution without Congressional assistance. There just isn’t. And we can muddle along for a while, but not forever.”

In the end, however, he believes that Congress will come through and college sports will survive.

“I think it’s too important not to continue in some form,” he said. “It may look different than it does today, but it’ll still be college athletics.”

After this week, Swarbrick will continue on with the title of athletic director emeritus through the end of June, after which he will base himself out of Indianapolis—close enough to Notre Dame’s campus in South Bend, Ind., but not too close.

“I don’t want to be one of those former coaches or ADs that just hangs around,” he said. “So I’ll try and make myself scarce unless I’m requested.”

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