The NCAA dropped another document from their name and image rights working group, which spawned the usual round of not-skeptical-enough headlines. These days, a lot of people react owlishly to anything the NCAA does, though, and there was a significant amount of pushback on those headlines. The NYT article linked has good content, but how many people bother to click through? 

The state of things follows.

1. Public relations comes first

We had Richard Hoeg on to talk about the previous edition of this working group's recommendations. Hoeg's general thrust was that certain weasel words in the list of recommendations looked like outs for the NCAA to change as little as possible while offering the appearance of something real. And repeatedly issuing these recommendations creates wave after wave of headlines about how the NCAA is really listening this time while nothing's happening underneath the hood:

Rep. Donna Shalala (former Miami prez and Wisconsin chancellor) said the NCAA's announcement today was too vague to understand or prompt any real action. "No one comes to Congress with vague ideas."

— Dan Murphy (@DanMurphyESPN) April 29, 2020

The NCAA is aware that their house of cards is in a strong wind and is hoping to present themselves as a trustworthy organization that should be in charge of how it collapses. Thus leading to…

[After THE JUMP: no, not Traveller]

2. The Trojan Horse

The NCAA is seeking various things in order to open up these name and image rights. This list is asking for a couple reasonable things and three ponies with wings:

Asking the federal government to supersede the emerging patchwork of conflicting state legislation is reasonable. The NCAA is an inter-state organization and having different rules apply to athletes in different states is a problem worth addressing.

The next three items are absurd. The NCAA wants to enshrine "athletes are not employees" into federal law and acquire an antitrust exemption that would shield them from the avalanche of lawsuits that keep chipping away at their exploitative business model. It says everything you need to know that the NCAA want to "safeguard" their athletes from employee status. As the ongoing NLRB battle between universities and grad students demonstrates, employees have rights. You don't safeguard people from rights.

This might have worked 20 years ago but these days dumping on the NCAA is a bipartisan endeavor, and congress isn't buying what the NCAA is selling. Republican rep Mark Walker:

“Truthfully, I am hopeful, but does it change the need for legislation? No,” Walker said. “Because to me federal legislation is a backstop to make sure the NCAA doesn’t come back and say of these proposed changes, these three don’t work, and they end up in a ditch.”

…the NCAA wants to be able to assess the market value of endorsement deals to ensure they’re not being abused for recruiting purposes. That process would almost certainly be an antitrust violation without a statutory exemption from Congress, the very idea of which made Walker chuckle.

“I’m not sure we’re ready to hand out free antitrust exemptions at this point,” Walker said.

Ross Dellinger reports that after talking to legislators the antitrust exemption is a "long, long shot."

3. The out

I share Andy Schwarz's skepticism about what happens when the NCAA doesn't get its ponies.

I *think* this means that this is all a dead letter unless Congress agrees to exempt the NCAA from antitrust laws. While Congress has done some dumb things before, I sure hope they don't fall for this okey-doke, but regardless, assuming Congress will act quickly is unlikely. https://t.co/r6thM96haP

— andyhre (@andyhre) April 29, 2020

The report attempts to paint group licensing—the variety necessary for the video games to come back—as a legal impossibility, because athletes can't organize as long as they're "safeguarded" from their rights.

More on why the working group considers group licensing such a problematic hurdle: pic.twitter.com/uwAIeLcAVz

— Max Olson (@max_olson) April 29, 2020

You can probably think up ways around this "hurdle" in 30 seconds. The NCAA chooses to emphasize it because it wants to paint a picture of a legally fraught landscape that prevents the NCAA from doing what it really wants to. The landscape is indeed legally fraught, but it's because the NCAA is a cartel that places restrictions on what schools can do.

This is unlikely to work.

4. Federal legislation is likely… at some point

The NCAA's right that Congress is going to have to step in and do something. They are also right that they have lost the name and image battle. This is a rear-guard action in which they're trying to establish a perimeter around amateurism. They are likely to be technically successful in this regard. Universities won't pay players directly for a period of time after NIL legislation goes into effect.

Earning caps and integrity checks aren't going to happen, which will turn NIL rights into an above-board booster slush fund for recruits. This is fine. It'll codify something that's already happening at most schools and it'll likely turn some athletic department donations into direct cash payments to athletes. This is also fine.