The person some consider most powerful man in college athletics paused to take a call last week from a reporter. International antitrust attorney Jeffrey Kessler was in Japan. It didn’t matter. The connection was clear, and so was his vision of the future.
“I’ve been doing stuff for athletes since 1977,” Kessler told CBS Sports. “I’ve been working in the college space since we filed the Alston [v. NCAA] litigation back in 2015. I said then it was going to be a long road. … Well, now we’re near the end.”
Recent events have further clarified that vision. For the first time, we can see a horizon of sorts — the dawning of an age where college sports will change forever.
The current way — the old way — now has an expiration date … or perhaps a series of them. The courts, the lawyers, the NCAA, the athletes themselves have put a timestamp on it.
By this time next year, the NCAA will be defending its very existence against Kessler as House v. NCAA goes to trial.
By the end of this week, due to recent court rulings, it is likely there will be neither restrictions on transfers nor restrictions on NIL benefits (at least until the end of the current semester).
A breakaway, in some form, of college football’s powers from the NCAA itself seems destined given last week’s announcement by the SEC and Big Ten.
For the first time, NCAA athletes (Dartmouth men’s basketball) can formally unionize (subject to appeal). How long until a Power Five college football team does the same thing?
“We felt, coming into this year, this was going to be our breakthrough year — this was going to be the year we would successfully organize college football players,” said Jason Stahl, executive director of the College Football Players Association. “[The Dartmouth ruling] is obviously a harbinger of that.”
Tennessee’s athletics administration is now in open conflict with the NCAA over an investigation centering on its NIL collective. Last week, the attorneys general of Tennessee, Virginia and other states filed a federal antitrust lawsuit against the association challenging the legalities of its NIL guidelines.
A Tennessee judge on Tuesday denied a temporary restraining order with a preliminary injunction hearing set for June 13.
“It’s probably the biggest case so far — of all the various cases out there — about the NCAA’s power,” sports attorney Daniel Lust told the Knoxville News Sentinel.
At least four antitrust lawsuits have been filed against the NCAA since early November. That’s a lot, even for the embattled national governing body.
You want to see the future? We’re experiencing it. We’re at that tipping point.
The likes of Kessler, his peers, state government officials and union organizers like Stahl are becoming more important — if not yet more powerful — than the NCAA.
Oh, and don’t forget the players. This is their fight, too, even if others may be fighting on their behalf.
“The public doesn’t give a damn,” said Leonard Simon, litigation attorney and adjunct sports law professor at Duke. “All the arguments the NCAA has been making in courts, which is, ‘We need to have an amateurism model because the public likes those college boys and college girls playing for the honor of their alma mater,’ it’s just not true in 2024. If it ever was.
“That’s why I think compensation is here to stay.”
That’s the nut of this discussion — pay for play, or whatever you want to call it. The common refrain has been: College athletes should not/could not/cannot earn as much as possible like normal students. Much of the short 2.5-year history of NIL has been awkward and contentious, but it has revealed another side to the discussion.
“Let’s move everything out of the courts,” Stahl said. “Do we really have to move to the courts for every damn thing?”
As Simon suggested, the average fan doesn’t care whether Colorado’s Shedeur Sanders drives a Maybach or USC’s Caleb Williams appears in Dr. Pepper commercials. College football TV ratings were near record levels in 2023. Attendance in 2022 was up for the first time in eight years.
Iowa’s Caitlin Clark is selling out road arenas; college basketball’s biggest star, regardless of gender, is chasing the all-time scoring record. She is already a millionaire based on her current NIL deals. That compensation might be enough to convince her to return for one final season with the Hawkeyes. How is that a bad thing?
Last month, now-former Michigan coach Jim Harbaugh doubled down saying he’d surrender part of his salary if it meant revenue sharing with players.
“Let the talent share in the ever-increasing revenues,” Harbaugh said the day after Michigan’s win over Washington in the College Football Playoff National Championship. “We’re all robbing the same train. And the ones that are in the position to do the heavy lifting — the ones that risk life and limb out there on the football field — are the players.”
That sentiment is at the center of House with the plaintiffs (athletes) seeking NIL benefits back to 2016. A class-action designation means the NCAA could be on the hook for $4.2 billion in damages. The NCAA’s latest fiscal statement lists revenues of $1.3 billion.
Kessler has filed some of the most impactful lawsuits in history against the NCAA. The 69-year-old battle-hardened litigator should not be underestimated. After all, Kessler brought unrestricted free agency to the NFL for the first time. See the connection?
Meanwhile, nobody said the NCAA’s leadership has been particularly prescient. At times, it has made one bad legal decision after another. Even if the NCAA settles in House, the financial penalty could cripple the organization, and thus, the hopes, dreams and budgets of member schools.
There are already whispers of athletic departments preparing for that legal liability by cutting sports programs.
“[All of it] could change this whole system and make it fair for the athletes,” Kessler said. “Whether the NCAA goes through these verdicts and the courts are going to force them to change, that day is coming. The attorneys general know it. The Supreme Court knows it. The athletic directors know it. Jim Harbaugh knows it. Even [NCAA president] Charlie Baker sort of seems to know it. …
“It’s time for them to do something about it.”
Greg Clifton should know, too. The Phoenix-based sports attorney played basketball at Harvard at the same time as Baker. They are friends and have known each other for more than 40 years.
“Jeffrey Kessler knows he can win,” Clifton said. “He’s negotiating from a position of absolute strength. I don’t know how it doesn’t [impact the NCAA].”
That Alston litigation referred to by Kessler serves as the latest signpost. The Supreme Court slapped down the NCAA 9-0 in a case the association fought to the bitter end regarding limits on education-based benefits for athletes.
That was June 2021. Two-and-a-half years later, the timeline has sped up. NCAA bylaws adopted in the 1950s — when it became apparent there was revenue to be made from athletes and the games they played — are crumbling before our eyes.
Appeals and motions could delay legal proceedings for months or years. Still, we’re closer than ever to a new model where players have an equal say.
Stahl referenced Baker’s Project DI that would compensate players through a trust fund paying $30,000 annually. Stahl meshed that announcement to Friday’s release from the SEC and Big Ten.
“It opened up a new can of worms for those two commissioners,” Stahl said, interpreting the conferences’ release. “They want to pay more than $30,000.”
The possible implications are vast:
A collective bargaining agreement potentially becomes a recruiting tool. Think of Georgia players being able to advertise to recruits what they’ve accomplished in bargaining sessions, for example:
- Extended — lifetime? — medical coverage following graduation
- Four club seats guaranteed for all home games
- A share of revenue from the fifth-richest athletic department in the country
- Practice times — and lengths — negotiated by players
- Guaranteed two days off from all football-related activities per week, instead of the usual one
To that bitter end, the NCAA can’t seem to get on the same page. While its enforcement department appears to be on an NIL crusade against Florida, Florida State and Tennessee, Baker is advocating for direct contact between schools and athletes in working out NIL benefits.
Those are two opposing initiatives.
“The lesson in there is, if you’re not a good guardian of sports, maybe you shouldn’t be in charge anymore,” said Victoria Jackson, sports historian and associate professor at Arizona State.
All of it suggests the NCAA’s grip on the sports they oversee has been loosened. Tennessee committed some of the most heinous violations in the last 20 years during coach Jeremy Pruitt’s tenure. Its “penalties” last summer included a few lost scholarships and an $8 million fine.
It was under two years ago that Ohio State coach Ryan Day created a stir by saying he needed $13 million in NIL benefits to keep his roster together. Day recently remade his roster through recruiting, transfers and those NIL benefits adding up to one heck of a personnel flip.
Add it all up, and the total makeover may well have equaled that $13 million.
“That’s why I think compensation is here to stay,” Simon said. “You can’t get the toothpaste back in the tube. It turns out this gorilla at the door is not a gorilla, it’s just fair compensation to people that gives them an incentive to play and to stay around.”
