Let's not make Tennessee some NCAA martyr

Good morning, and thanks for spending part of your day with Extra Points.

It feels like somebody files another lawsuit against the NCAA every couple of days, so you’ll be forgiven if this legal battle somehow slipped under your radar. But while Johnson, House, Carter, and others may pose more existential challenges to college athletics as we know it…the case that has captured the hearts and minds of College Football right now caries slightly lower stakes.

Last week (it was last week, even though it feels like this was seven months ago), the New York Times, SI, and several others reported that the NCAA was investigating Tennessee for various recruiting and NIL violations. The NYT reported:

The initial SI report added that the investigation included potential “NIL violations in multiple sports”, and that such violations “were ‘major’ in nature”, but did not elaborate. Both stories reported that Tennessee had not yet received a notice of allegations.

The response from the university was swift and uncommonly forceful. University of Tennessee chancellor Donde Plowman wrote NCAA president Charlie Baker a scathing letter, accusing the organization of “failing”, and of creating vague and unenforceable guidelines, all while proclaiming the innocence of her institution. Athletic director Danny White accused the NCAA of selectively leaking information during other investigations, and proclaimed that he will “refuse to allow the NCAA to irrationally use Tennessee as an example for their own agenda.” Tom Mars, fulfilling the requirement for him to be involved in every single college sports legal event by representing the Spyre Sports Group, also proclaimed the NCAA to be the villains and the major collective supporting Tennessee to be innocent.

Some of the language in these statements is uncommonly pointed and strong, but schools making a big public push against the NCAA over potential violations is not uncommon.

But what happened next is uncommon. The Attorneys General of Tennessee and Virginia have filed a lawsuit against the NCAA, claiming that the NCAA NIL regulations are themselves a violation of antitrust law. The NCAA has since responded.

There are a lot of things reasonable people can think about the legal and administrative drama between the NCAA and Tennessee. But one take I don’t have any sympathy for is the idea that Tennessee is some sort of innocent martyr

Let us consider the following hypothetical.

Let’s say there is a rural county highway somewhere with a posted speed limit of 50 MPH. Nobody has ever seen a police car anywhere near the highway. Nobody can remember anybody being pulled over or ticketed for speeding on the highway. Folks remember the sign being installed, and may vaguely remember who set that speed limit (the city manager, appointed by an elected city council), but that’s it.

Eventually, believing that there are no consequences for exceeding the speed limit, everybody starts to speed. Some cars go 60 MPH. Some cars go 75 MPH. Some even go 90 MPH. One could argue that if the flow of traffic far exceeds 50 MPH, not speeding is dangerous, or at least, puts one at a major disadvantage while trying to use the road.

One car… let’s say, a very splashy orange sportscar, decides to not only drive 100 MPH down the road, but livestream themselves doing it, maybe even giving multiple interviews to local newspapers about how fast they can go on that road, how they’re revolutionizing commuting as we know it, and it isn’t it absolutely cool that they can drive super fast?

Then, several months later, the owner of that sports car gets a letter in the mail. Turns out, the speed limit on that road was enforced by aircraft, he’s been caught doing 100 in a 50, and now he has to pay a fine. Another car going 65 in a 50 was also ticketed, and potentially tickets could be on the way.

Now, the owner of that sports car could decide to make a principled, legal objection to this fine. After all, we have a constitutional right to face our accusers in court, do we not? Some reasonable thinkers believe that automated speed cameras are actually unconstitutional, and perhaps judges could be persuaded to agree.

But suppose that sports car owner decides instead to complain that the rules are dumb, the enforcement team is out to get them specifically, and that maybe the town should think about dissolving and maybe reincorporating as a municipality somewhere else…would you feel sorry for them, or think they’re at least partly at fault for all of this?

To me…that’s Tennessee.

This is an athletic department that historically, operates as a habitual line-stepper. Part of the reason any NCAA investigation now would be especially damaging is because Tennessee football just settled hundreds of NCAA violations involving former football coach Jeremy Pruitt. Maybe the school was motivated to so willingly play ball with the NCAA because they were so deeply moved to attempt to preserve the amateur athletics ideal and the principles of fair play. Or maybe they wanted to make it a teensy bit easier to get rid of a plainly ineffective football coach and head off even worse NCAA penalties. Who can say?

And we have to be honest here. Nobody was exactly being subtle about the recruitment of one of the key prospects in the investigation, Tennessee quarterback Nico Lamaleava. The guy’s attorney shared his contract with The Athletic before he ever enrolled, allowing him to become the poster boy recruit for the Big Money NIL Era. If you go out of your way to attract attention to yourself conducting business that might not entirely line up with the spirit of regulatory practices, perhaps in the hopes of getting your name in lots of newspapers or finding new clients…don’t be surprised if the regulators start paying attention to you too!

Also conspicuously absent in all the very public huffing and puffing about this investigation….exactly what, beyond a collective maybe offering some sort of inducement to a recruit, is Tennessee even being accused of? WHATEVER IT IS YOU THINK WE DID, WE DIDN’T DO IT is certainly a defense one can offer, but it should warrant a raised eyebrow, no?

This, via Dan Wolken of USA TODAY, makes a lot of sense to me.

Dan is right. There are no good guys or bad guys here. Just a stupid, broken system.

I don’t want this newsletter to sound like I am caping for the NCAA’s investigations arm. Danny White is correct, the NCAA does leak stuff to friendly reporters while claiming they can’t comment on ongoing investigations, and sometimes the NCAA investigations process is capricious and unfair. In my view, many of the rules surrounding NIL are stupid, and I can certainly understand why several programs decided they were unenforceable and acted accordingly.

However, the NCAA NIL policies were not created by the Oberlin College Debating Society. They were not drafted by professors at Long Beach State, American University, and Stetson. NCAA regulatory policy comes from membership, even specific regulations that originate in Indianapolis. The suits at HQ are only doing the stuff the individual schools ask them to do.

You know who spent a lot of 2022 and 2023 criticizing the NCAA for not enforcing any of these policies? Out-of-touch academics? No. Coaches! The idea that the NCAA planned to enforce some of these rules should not be a surprise…they were telling everybody this last year. Presidents and ADs of big-time athletic departments had plenty of opportunities to denounce this policy direction or propose other solutions…but nobody did.

Do you know why? Because many of them were hoping the NCAA would go after their rivals. Well, now that the leopards-eating-faces party is eating some faces, should we feel sorry for the people who voted for them?

I don’t!

The legal case warrants more careful analysis, and no matter how it ends, there will be more of these lawsuits until we get to wherever college sports are going

I’ve been wrong before, but I don’t look at this particular lawsuit as the proverbial Big One that could obliterate the college sports status quo once and for all. For one, I think there’s a legitimate chance the NCAA could win. Even if they don’t, the scope of this particular complaint also isn’t as far-reaching as the implications in Johnson (potential widespread reclassification of athletes as employees) or House (essentially bankrupting the NCAA and maybe even a few conferences).

It’s fun to root against the NCAA, and I don’t blame any of the loudest voices in the Recruiting and NIL Industrial Complex for cheerleading the Tennessee AG. But I don’t believe this is the case that ENDS EVERYTHING.

But no matter who wins or loses, there will be more lawsuits like this until college sports lurches out of reform purgatory and settles on whatever The Next Thing is. Recruit compensation by fan crowdsourcing and Random Rich Guy Largesse is not legally, financially, or even morally tenable over an extended period. Until the courts (and/or Congress) clearly define who should be an employee, there will be more lawsuits. Every AG, lawmaker, mayor, or attorney who wants a politically popular piñata will line up to take a whack at the NCAA, no matter how dubious their cause.

If Tennessee’s outburst helps this world get to that final destination a little bit faster, that’s great.

I’m just not going to throw them a parade over it or anything. There are no innocent victims, outside of Nico and any other named athletes.

Just various hypocrites with public relations firms.

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