OT: NIL - what takes precedence precedence - NCAA or State Laws - ESPN Article
There was an article on ESPN that caught my eye - it dealt with NIL and - specifically, what "takes precedence" - state laws or NCAA guidelines. As most of us know, or believe, the NIL has been a "Wild, Wild West" - with certain states creating laws which may conflict with the guidelines the NCAA created. Most of us would probably agree that NIL requires more definition and clarity - one example is the "pay for play" approach which certain schools, collectives, boosters, etc. - appear to be following which conflicts with the NCAA guideline.
The NCAA's position is - the NCAA guideline takes precedence and is what determines whether a school has violated policy - regardless of what a given state's law may state.
Here's the link to the article (not paywalled): https://www.espn.com/college-sports/story/_/id/37923337/new-ncaa-rules-conflict-some-state-laws-nil-deals
My view is that the NCAA is a mess - and, certain schools / collectives will basically say - "This is the law in our state, if the NCAA has a problem with our laws - the NCAA can sue us and our state." The NCAA, IMO, has demonstrated extreme incompetence in managing legal matters.
What do you think?
Personally, I think it's kind of a game of chicken. The NCAA is trying to force states to change their laws. If they don't and/or if schools don't comply, the NCAA is going to throw up its hands and say, "Look, we tried! Oh well! Now these giant schools won't be able to play for or win NCAA championships in your state, which is really going to piss off a bunch of your constituents."
Precedence kind of depends. Are you smoking pot, or violating any other federal law. If the latter, then federal law carries the day.
Greg Dooley talks a little bit about it with Sam this morning along with Mpower
I'm not sure its really that complicated. The NCAA as an organization has the power to promulgate rules that schools must follow in order to participate. If you don't follow the rules, then as an institution you can be sanctioned up to and including dismissal. It seems to me that a state would be over-reaching if they attempt to intervene and legislate around the rules. State laws that over-reach or give an unfair competitive advantage to some and not others have been repeatedly struck down, when the affect reaches across state lines. At the heart of the matter is, do schools have an alternative to the NCAA? The answer is yes. They don't have to be a part of the NCAA. There are other organizations they can join or they can create and compete in their own bubble.
I assure you that Texas, Alabama, Florida, Georgia and others will not lose appeal because they broke away from the NCAA. Those athletic programs would still garner as much appeal as they always have and the NCAA will continue to thrive with or without them. Someone called it a game of chicken and that assessment is correct. Will the NCAA sanction anyone for unfairly competing? Will these schools use this states' rights bull crap, to sue/defend against being sanctioned for running afoul of the rules? Individual states can't legislate how the NCAA governs it's membership. The NCAA has to balance equity and fairness for all members irrespective of their home state, especially when the effects reach across state lines. Individual states clearly don't, which is why these laws would assuredly be struck down.
I don't know if I'd go so far to say that these laws would "assuredly" be struck down, but they would at least be vulnerable to a constitutional challenges based on the dormant Commerce Clause. States have broad police powers, but they generally cannot pass laws that discriminate against out-of-state commerce or substantially burden interstate commerce. The judicial futurology is tricky though, because the Dormant Commerce Clause has always been a murky doctrine and the SCOTUS justices are very divided on the doctrine's meaning, with conservatives generally more skeptical of the doctrine. There was an interesting SCOTUS case in this term that upheld a California animal cruelty law against a dormant Commerce Clause challenge, but it was a 5-4 decision with an unusual split among the justices.
My guess is that if states actually started passing laws that directly challenge the NCAA's authority, Congress will finally step in and preempt the field with federal NIL legislation.
But right now, this is all still very hypothetical. As I've heard it explained (haven't read the text of the statute), the Texas law simply permits schools to do NIL things that are against NCAA rules. There's no inherent conflict there. Just because an activity is permissible under state law doesn't mean private organizations have to permit its members to participate in the activity. The issue only arises if the state prohibits the private organization from restricting the activity.
Perhaps assuredly struck down is on the extreme side of the spectrum. I like vulnerable to constitutional challenge as you put it. Obviously not all of the state laws enacted will be be in direct opposition to the NCAA regulations. As I said before, it doesn't seem that complicated. The NCAA could say, "no giving jobs to the immediate family of a recruit who eventually signs" because state law says they can (hypothetical). If the school does it anyway, They knowingly take the risk that the NCAA might sanction them for it and they risk whatever prestige or stigma that comes with the decision.
They can always go and compete in another organization that allows that behavior. Schools don't have an absolute right to be in the NCAA and not follow the regulations nor does the NCAA have the absolute right to do business within a particular state, and not follow the state laws. My guess is despite the newly enacted laws, schools will continue to maintain compliance with the NCAA.
Oh boy, nothing like a set of "guidelines" to keep people in line!
One thing I've learned over the last 10 years of college fandom is the NCAA is the most pointless, toothless, useless organization in the history of man. They don't do much of anything besides collect money, especially not policing their member institutions.
Correction they police USC, OSU, UM, and Penn St. Certain teams that have dominated recruiting for a decade plus are squeaky clean though.
The Pirate Code isn't really a code as much as a set of guidelines.
I think the NCAA has a fetish for getting their ass kicked in federal court.
To the point where they slip and call judges "mommy" or "daddy" rather than "your honor."
Federal law supersedes any state law. State law supersedes any organizational rule. If the NCAA tries to enforce a rule that is illegal per state or federal law, their enforcement can be blocked. If a school tried to follow an NCAA rule that is illegal in their state, then they can be sued to stop compliance with that NCAA rule.
In my understanding, what states are actually doing is making any punishment that the NCAA tries to hand down be illegal. Schools can be in compliance with both state and NCAA regulations by following NCAA regs, but if they decide to ignore the NCAA then any punishment would be considered illegal and would be blocked.
What I'm unclear on is if the NCAA says something like "Texas you violated our regulations, so any games against member institutions are void", how would the state of Texas have any jurisdiction against games that UT may play vs UM given that they may occur outside of Texas. The state of Texas could probably block any punishment that involved reduction in scholarships or practice time or fines, but I don't know what would happen if the NCAA tried to punish OTHER schools for playing Texas.
What if the punishment is that they cannot participate in the NCAA and its championship games? It seems to me that that states can't restrict a private institution from denying participation in the benefits and privileges that it provides its members.
Oops - didn't see your last paragraph. Never mind.
I added the last paragraph as an edit. And a state can definitely limit what a private entity offers to it's members within the borders of it's own state. But it's authority outside it's state is very limited.
They can say Texas isn't allowed to participate, but the NCAA doesn't own the games or championship for FBS football. So they can only punish Texas if they participate, but how would they punish them? Any punishment against Texas would be blocked by state law, so they would have to punish the schools that are outside of Texas but played Texas. Very messy.
it all depends if schools outside Texas are for or against them. No school has to play them. There are enough schools in Texas to form their own conferences.
The NCAA has absolutely shown an ability to limit things that are allowed under state law. How many players have been busted for using various substances that are 100% legal to have? If a state passes a law that schools can have 150 scholarships for football, does that really stop the NCAA from going "yeah, no."
There is a difference between a state saying weed is legal and a state saying punishing someone who has THC in their system is illegal.
If a state just says it's legal, that doesn't make it illegal to punish someone for using it. They actually need to make it illegal to punish someone for using it.
Same thing here, my understanding is that Texas passed a law making it illegal to punish a school for NIL related things.
Let’s say Texas passed law saying athletes cannot be punished for using performance enhancing substances, would any national and international sports authority care?
Lets say Michigan passes a law that says athletes cannot be punished for their race, why would any national and international sports authority care?
Answer: Because they are legally required to care.
Many companies have different HR policies in different states due to local laws, this is no different.
There's already a precedent for this. I was at the University of North Dakota during the whole nickname stuff with the NCAA. The Sioux tribe voted for the school to keep the name, and the State of North Dakota enacted a law to keep the name. The NCAA came back and basically said, "fine, keep the name but you're ineligible to participate in any postseason of championship events." For the most part, State law does not supersede rules and regulations for participating in a private organization. The NCAA can generally put whatever parameters it wants to put in place for access to the events they operate.
a bit off track on the OP, but how do Illinois and Florida State keep their names, and Central Michigan?
That's a very good question. If you ask the people of North Dakota, the NCAA used the University of North Dakota as a sacrificial lamb to show everyone how serious they were taking the nickname stuff. North Dakota happened to be the perfect candidate. A medium/small division I program that happens to be a major player in a minor sport. Enough to make headlines for the NCAA to pound their chest but a small enough school/sport that other schools throughout the country wouldn't care.
"In 2008, the NCAA and UND agreed to retire the university's Fighting Sioux name unless UND received approval from both the Standing Rock and Spirit Lake Sioux tribes by the end of 2010. The Spirit Lake tribe approved retaining the name, but the Standing Rock tribe did not."
Correct, but the NCAA's deal given to the University of North Dakota was different than that of Florida State for example. Florida State had to get permission from the nearest Seminole tribe. North Dakota had to receive permission from multiple tribes. The nearest tribe (80 miles away), the Spirit Lake Sioux, voted and approved using the nickname by over a 2-1 margin. The Standing Rock Sioux's (300 miles away and primarily in South Dakota) tribal leader would not allow the community to vote on the name.
Why was Florida State allowed to get approval from only one tribe (the tribe closest to campus) and North Dakota had to get multiple tribes, including one predominately in a different state? Additionally, for those that may think the Sioux logo was offensive, it was designed and created by Bennett Brien whom happens to be a Native American artist from North Dakota.
To this day, if you go to the reservations in North Dakota there is UND Sioux memorabilia all over the place. They overwhelmingly loved the representation of the name and logo. It boiled down to politics and activist groups and attorneys that had never stepped foot in North Dakota telling the people of North Dakota and Sioux Nation what was best for them and what they should be offended by.
Still boils our blood when we think about it and most people in the State hope that the NCAA burns to the ground in the most brutal and embarrassingly way possible.
They cannot put "whatever parameters" in place. There are many federal and state laws that limit the rights of voluntary organizations to establish membership rules. An obvious example is that limiting particpation by race is not allowed. Clearly federal and (and often state) laws prevent that. Think of country clubs as an example. They are voluntary organizations and they cannot put "whatever" membership rules they want in place. The law and precedents are quite clear; they cannot establish membership rules based upon race.
The NCAA impacts inter-state commerce and that absolutely is the purview of federal law. Generating rules that impact the flow of goods or services across state lines gets complicated quickly. My (not a lawyer) understanding is that the NCAA got around this for years by avoiding athletes being classified as employees... and by having no one challenge them in court. That cat seems to be out of the bag. I don't pretend to be any sort of expert in labor law, inter-state trade law or any of the other many areas of law that impact what the NCAA is trying to do. My only point is that everything the NCAA tries to do with NIL will be heavily scrutinized under the law and some of it will not withstand that scrutiny. My guess is ten years from now, the NCAA will look more like one of the professional leagues than it looks like the NCAA of even just 10 years ago. That could very well include an athlete's union.
You make a really good point. What if the NCAA decided to expel or vacate wins of member schools for violating the NIL policy?
I'm not sure how the state can make the NCAA recognize those wins, if they chose not to. The state could say, "forget what the NCAA said, Texas is the National Champ". would that have the same weight to the sports world as if the NCAA said it?
obviously, ncaa rules overrule state laws. that's the way it's always been. the question is whether they will enforce those rules, as it's always been. or just be selective as to who and how severe a school gets punished.
If NCAA ban certain schools from post seasons, what can the state can do? ban all NCAA events in that state?
I think there should be selective enforcement with a focus on non-vegan lunches and clear memories of said lunch. Nuke these offenders and cease interest in blatant buying of talent which is the current hotness of champions. Vaunted coaches have spoken and fealty is to be shown.
My take is that the person writing the article is asking the wrong question. While certain NIL activities may not run counter to state law, they may still violate the more restrictive NCAA guidelines, and thus, run the risk of NCAA punishment.
Enforcement is another matter.
I asked ChatGPT its opinion, asking it to include Holiday Inn Express.
Schools mysteriously decide to join forces with the NCAA, blindly pledging their allegiance to an organization that dictates their every move. They obediently follow a laundry list of rules and regulations imposed by the NCAA, subjecting themselves to punishment or even expulsion from the association, without any consideration for pesky state laws. And let's not forget the mind-boggling antitrust dilemma, where these poor schools, seemingly trapped with no alternative, must navigate treacherous legal waters that even the most seasoned legal minds struggle to comprehend. As much as I'd like to pretend that my countless nights spent at a Holiday Inn Express have bestowed upon me an unfathomable wisdom, I must admit that I'm far from a legal expert capable of unraveling this enigmatic puzzle.
Even ChatGPT has nothing nice to say about the NCAA.
The NCAA is toothless by choice, and also extremely lazy. State governments employ attorneys general, police forces, and prison systems.
"What takes precedence" isn't really a question here.
I'm no lawyer, don't play one on TV, and I won't proclaim to know all the intricacies of NIL, but my issue with siding with state law is inconsistent experience from school to school.
If the state of Alabama or the state of Texas sign extremely favorable laws (which I believe they just did) for reducing NIL regulations, while states like California and Michigan don't, then you are giving schools like UT, Alabama, Auburn, and A&M extremely unfair advantages over schools like Michigan and USC. And the crappy part then is that Michigan and USC can do absolutely nothing about it until their states pass legislation addressing those regulations. Which....depending on the state you're in, may not happen for a very long time, if ever. So you're once again dealing with an uneven playing field.
Even if the NCAA tried to enforce some kind of uniform rule (which it won't, because that organization is full of spineless cowards from top to bottom), I'm guessing that any state, and especially federal law, will override their rule immediately.
Federal law regarding NIL might be the most effective way to enforce a fair, uniform NIL experience across the country, but I have a hard time seeing enough of Congress voting in favor of such a law, seeing as how they can barely agree on anything these days. So we're probably eff'd on that front.
The only way you might be able to enforce some kind of federal law for NIL is if foreign entities (like the Saudis) decide to start entering into the NIL sphere. I imagine at that point you could probably get enough of Congress to act on a uniform rule, but even then, I think the only thing enough of them would agree on is restrictions against NIL coming from international partners. I doubt they'd do anything to address inequalities from domestic NIL sources.
Just a note that the blanket condemnation and mockery of the NCAA is silly. The organization does a lot of things we all appreciate/value, including hosting/organizing the NCAA basketball tournament and the college football playoffs. Such that the threat of kicking a school out of the organization for failure to comply with its guidelines/bylaws/whatever is a pretty significant one.
Yes, its enforcement arm could use significantly more transparency, in that its choice of whom to punish and for what infractions often seems arbitrary, And in my personal opinion it needs more teeth, and more willingness to use them.
But it's silly to focus only on that particular aspect of the NCAA, and not on the many other things it does pretty well.
Could another organization do such things too? Probably. But right now the various member schools have decided that working within the NCAA makes sense for them. We all know that -- we're just happy to ignore it in venting our displeasure by calling them "crooks" and the organization "a mess." But if it were somehow only an organization that arbitrarily punished certain schools, while letting others off, what would be the point?
(In response to the OP: That's the threat that the NCAA holds over the head of members. You don't comply with our rules, we kick you out of the organization, and you don't get to compete against those members who stay within it. (Think of kicking MSU out of the Big Ten, for instance — which would have a similar effect on their ability to play in the Big Ten tournament in basketball or championship game in football). That's how it imposes postseason bans, for example.)
The NCAA rarely exercises that power ... but it can.
The NCAA very conspicuously does NOT host nor organize the College Football Playoff. It is it's own entity, a creation of the Power 5 conferences and Notre Dame. The NCAA has little to do with it.
There are man's laws, God's laws, and NCAA laws.
I forgot where I was going with that...