College sports leaders shouldn't get too excited about Trump NIL executive order
And yet that was the case Wednesday after CBS reported the night before that Trump intended to sign one 'establishing national standards for the NCAA's Name, Image and Likeness program' in the coming days.
What does that mean exactly? People who are generally informed on the interplay between college sports and the federal government didn't seem to know an executive order was imminent or what exactly would be in it – even folks with a direct line to Trump and who have engaged with about potential federal action that would bail college sports out of its current dysfunction.
So now we wait. For something – or maybe nothing. With the Trump Administration, you can never quite tell.
What we do know, however, is that the White House has, in fact, been working on something in the form of a likely executive order since Trump met with former Alabama coach Nick Saban at the school's graduation ceremony in May.
Regardless of what's ultimately in it, however, coaches and administrators should resist the temptation to get excited about the possibility of Trump saving the day for a few simple, but important reasons.
An executive order isn't a law. College sports and the NCAA do not operate under the purview of the executive branch of the federal government, thus any executive order compelling them to do anything would be legally questionable at best. And finally, any so-called 'fix' for college sports made with the stroke of one man's pen can be undone by the next one who occupies that office.
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Sorry, college sports executives. You're going to have to actually do the work on this one.
We know that's not easy, which makes the temptation to rely on Trump more tempting. It's been nearly six years since the NCAA pivoted toward begging Congress for relief from its never-ending string of lawsuits, and so far they've gotten no reward for their effort. Unless, of course, you consider it a reward to be dragged into more committee hearings to answer ridiculous, superficial questions from legislators who know as much about college sports as they do about the Finnish language.
Oh sure, there's another bill on the way. And this one apparently has bipartisan support in the House. But then there's the Senate, where the top Democrat on the Senate Commerce Committee, Sen. Maria Cantwell, D-Wash., last week called it 'the National Championship of all heists' because it is too favorable to the NCAA's interests. Remember, any bill must get 60 votes due to filibuster rules in the Senate, which means a minimum of seven Democrats will need to sign off on it. That's not going to be easy, especially if it puts hard caps on how much college athletes can earn and eliminates the potential to bargain collectively for their rights in the future.
Purely from a political standpoint, I'm not sure why Senate Democrats would cooperate at all here. If a bill finally passes that fixes some issues with the NCAA, they won't get credit – because Trump will take it. And he'll play it to the hilt, which doesn't seem particularly helpful to their electoral goals heading into the midterms next year.
That's just how stuff works in Washington, and both parties play that game on issues far more serious and important than the NCAA's ability to regulate the transfer portal. It's part of why the NCAA's 'let Congress fix our mess' strategy has been a complete failure thus far and may never pay off. At the end of the day, there's a lot more upside for Congress to use college sports as a political plaything than to make a law that will only impact a relatively small number of people and isn't an urgent matter of national interest.
But a 'let Trump fix it' strategy could be worse, particularly right now as institutions are scrambling to implement terms of the House vs. NCAA settlement that allow athletic departments to pay their athletes directly.
At the moment, the House settlement and the College Sports Commission – a regulatory body created by the power conferences to enforce the settlement rules – hold the key to how college sports will operate over the next several years.
Will the CSC get sued by athletes and booster collectives whose deals get denied because they aren't considered true NIL? Of course, but they already knew that. Unless Congress quickly grants college sports some type of antitrust exemption, the CSC will have to go in front of a judge and show that it follows the law to continue having regulatory power over college athletes' paychecks.
That's really the only issue worth talking about right now, regardless of what Trump may write in an executive order. And what can he possibly do anyway? Maybe he can decree that college athletes can't be made employees through some type of National Labor Relations Board policy -- but they already aren't.
So unless the NCAA is going to become a federal agency, where the president would have significant legal authority to regulate it, anything in an executive order is mostly going to be performative. And anything that touches actual NCAA business like the transfer portal or limiting how athletes earn money stands on far shakier legal ground than the guardrails that were already installed through the House settlement.
Regardless of which direction a president wants to take college sports – any president, for the record – the fundamental problem will not change no matter who's in the office or how many executive orders they write.
By refusing to engage in a true collective bargaining effort that mimics the relationship between the NFL/NBA/NHL/MLB and their respective players associations, the college sports industry left itself in a vulnerable position where any attempt to enforce its rules will face legal scrutiny.
For better or worse, that's the American Way. And at this point, the focus of college sports should be long-term stability through the appropriate legal and legislative means instead of a flimsy proclamation.
Colleges need to be especially careful right now. We've seen how the Trump Administration strongarms schools it has ideological disagreements with: Withholding federal grants, deporting international students, pressuring university presidents to resign. His involvement in college sports issues on behalf of the NCAA's immediate interests is going to inevitably create the appearance of long-term leverage.
As frustrated as college sports executives might be with Jeffrey Kessler and other sports attorneys who keep them in court, creating space for tussles with this White House might not be the best tradeoff.
Keep all that in mind when Trump issues his mysterious executive order. Because at the end of the day, only the people in charge of college sports can truly save it – no matter how much a president is itching to claim credit for doing so.
This article originally appeared on USA TODAY: Donald Trump NIL executive order shouldn't excited college leaders
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