There are few higher education associations or institutions as unalterable as the National Collegiate Athletic Association (NCAA). And there are valid reasons to be so. A massive organization, NCAA generated nearly a billion dollars in 2019 from media rights fees, ticket sales and corporate sponsorship during the three-week long basketball tournament called March Madness.

NCAA’s profits go up every year (up 23% from 2018 and 2019, alone). Yet, NCAA has firmly resisted paying the student-athletes that drive that revenue. The NCAA has used the term “amateurism” (which is part of their bylaws) to justify in courtrooms their policy of prohibiting NCAA athletes from profiting off of their name, image or likeness. It is the only argument they have been making over the years since NCAA can’t cry poverty with revenue climbing every year. There seems to be a big enough pot to share the wealth. Still, no amount of revenue seemed to be able to change the NCAA’s mind and let college athletes share in that revenue.

But the times, they are changing. And although the changes are slow, they are being pushed at the state and local level. In February of this year, New Hampshire colleges and universities received word that they would be allowed to pay athletes under a bill approved by House lawmakers. The legislation is modeled after language signed into law in California last year called “Fair Pay for Play” and introduced in a dozen other states. It would enable schools to compensate athletes and would allow college athletes to seek compensation for their name, image and likeness.

Following California’s lead, Colorado lawmakers also advanced a bill that would allow college student-athletes to profit from their names and images. The bill was unanimously passed on a bipartisan basis. The bill would allow college athletes to be compensated without surrendering scholarships – an argument that opponents of the “Fair Pay for Play” made – and to hire attorneys or others to negotiate with outside parties on their behalf. Any commercial or endorsement contracts could not conflict with deals already reached by students’ university or college teams. The bill also made it clear that schools could not use this bill to permit paying any recruiting prospects.

Faced with a tidal wave of support for athlete compensation – something that the NCAA has resisted for years – the mega sports association released a plan to structure athlete pay without turning student-athletes into “employees” with a radically different experience from the average college student. The release also stopped the stampede toward the “Fair Pay to Play” California plan with a phased in approach that requires comprehensive and time-consuming changes made to individual bylaws and rules of member organizations. They did this through directing each of the NCAA’s three divisions to immediately consider updates to relevant bylaws and policies for the 21st century, said Michael V. Drake, chair of the board and president of The Ohio State University.

All of that will take time, but the NCAA’s top governing board did vote unanimously to permit students participating in athletics the opportunity to benefit from the use of their name, image and likeness in a manner consistent with the collegiate model. That was progress.

“We must embrace change to provide the best possible experience for college athletes,” Drake said, putting the best face on the NCAA retreat. “Additional flexibility in this area can and must continue to support college sports as a part of higher education. This modernization for the future is a natural extension of the numerous steps NCAA members have taken in recent years to improve support for student-athletes, including full cost of attendance and guaranteed scholarships.”

Specifically, the board said modernization should occur within the following principles and guidelines:

• Assure student-athletes are treated similarly to non-athlete students unless a compelling reason exists to differentiate.

• Maintain the priorities of education and the collegiate experience to provide opportunities for student-athlete success.

• Ensure rules are transparent, focused and enforceable and facilitate fair and balanced competition.

• Make clear the distinction between collegiate and professional opportunities.

• Make clear that compensation for athletics performance or participation is impermissible.

• Reaffirm that student-athletes are students first and not employees of the university.

• Enhance principles of diversity, inclusion and gender equity.

• Protect the recruiting environment and prohibit inducements to select, remain at, or transfer to a specific institution.

The board’s action was based on comprehensive recommendations from the NCAA Board of Governors Federal and State Legislation Working Group, which includes presidents, commissioners, athletics directors, administrators and student-athletes. The group gathered input over the past several months from numerous stakeholders, including current and former student-athletes, coaches, presidents, faculty and commissioners across all three divisions. The board also directed continued and productive engagement with legislators.

The working group is planning to continue to gather feedback through April on how best to respond to the state and federal legislative environment and to refine its recommendations on the principles and regulatory framework. The board asked each division to create any new rules beginning immediately, but no later than January 2021.

“As a national governing body, the NCAA is uniquely positioned to modify its rules to ensure fairness and a level playing field for student-athletes,” NCAA President Mark Emmert said. “The board’s action today creates a path to enhance opportunities for student-athletes while ensuring they compete against students and not professionals.”

States are seeing this move by NCAA as an olive branch in this contentious argument and seem willing to slow walk their Fair Pay policies. New Mexico voted to allow its college athletes to profit financially from their fame as the NCAA looks into possibly removing a longstanding prohibition on student earnings from sports. Colorado’s act would become law in 2023. If it becomes law in New Hampshire, its Fair Pay bill would take effect in July 2022, after new NCAA rules are in place. A similar timetable has been proposed in Florida to give NCAA some breathing room to set guidelines and limits to this new policy. Only time will tell if the NCAA is serious about student-athlete compensation or trying to run out the shot clock to preserve the status quo. •