Here's the actually interesting thing about that Notre Dame NYT op-ed

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

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On Friday morning, Notre Dame athletic director Jack B. Swarbrick and university president John I. Jenkins wrote an editorial in the New York Times and then followed up with an interview with SI. The two leaders called for congressional action on NIL, antitrust and athlete employment designation, and laid out what they believe could be potential consequences of inaction.

Many of the arguments presented in these stories are not new, and if you’re looking for somebody to re-litigate those, I could happily direct you to virtually every sportswriter on Twitter (I think Andy Staples at The Athletic did a particularly good job). I probably have another 2,000-word missive on the shifting definition of amateurism, the collective dishonesty about NIL and collectives, blah blah blah. I just don’t have that in me right this second. I’m still supposed to be on vacation, after all.

Instead, I’d like to quickly highlight a few other things that I think are noteworthy.

I think we’re getting a better idea of what NCAA leaders are willing to “give up” in exchange for congressional action

In their interview with SI, the Notre Dame leaders say they are only asking for “limited” federal legislation. I strongly disagree with that sentiment. Asking Congress to declare a group of individuals as non-employees, when you believe that the courts are likely to treat that question differently, is a very significant ask, in my humble opinion, one that would impact college athletes for years in the future…as well as potentially other labor disputes. I could probably be persuaded that asking for a standard NIL law to supersede state legislation is a relatively limited ask…but that’s not what Notre Dame and other college programs are asking for.

When the NCAA tried asking Congress for those things last year, they went nowhere. Even as Republicans now control the US House, almost all the lawmakers most invested in this issue in the US Senate are Democrats, and they’re all individuals pushing for more expansive reforms. Joe Biden is not going to sign a college sports bill that gives the NCAA everything they’re asking for without a single concession. That would be (correctly, in my view) seen as a massive loss for Labor.

In the editorial, we can start to see where the NCAA may try to offer some concessions. Per the NYT editorial:

Seems like a pretty good idea to me, especially given that many casual college sports observers would look at recent moves like USC and UCLA moving to the Big Ten as very clearly against any notion that class time is of primary importance. It’s difficult to constantly argue that college sports, at its core, are an educational vehicle when travel and training obligations limit how much of a college experience athletes can get.

It’s not a completely new idea, either. I recently obtained a batch of Big Ten meeting agendas and memos from the early 1990s via the Ohio State University Archives and found a proposal in the early 1990s, where leaders in the Big Ten, Pac-10, ACC, Big East and Notre Dame proposed limiting when practice time and team travel could occur.

and

But lo and behold, it’s 2023, the basketball season is long, and athletes are still spending too much time on sports. Reform is messy and has rarely won out over money and winning.

The Notre Dame leaders also offered another ‘concession’:

This also lines up with a memo my pal Andy Wittry over at ON3 found on the legislative strategy from the P5, which listed medical care as an area where colleges could ‘compromise.’ I’d expect that to continue to be a talking point in D.C.

I think it’s also worth reminding ourselves who this editorial and interview was for

Jenkins and Swarbrick didn’t publish this op-ed in Sportico or SBJ, where it would be read by sports industry professionals. They didn’t publish it here or elsewhere in the D1.ticker universe, where they would have reached a cross-section of fans, students, and college sports professionals. They didn’t publish it in USA TODAY or the South Bend Tribune or with a student paper or with the Chronicle of Higher Education. They published it in the New York Times. And not The Athletic side of the NYT, but on the op-ed pages.

I don’t think that’s just because the NYT is read by a lot of people. For good or for ill, the real future of college sports administration is more in the hands of lawmakers and the court system than it is among ADs and university presidents. Lawmawkers, judges, and their respective staffers, read the NYT. The kinds of people who have access to lawmakers, judges and their staffers also read the NYT. Jenkins and Swarbrick don’t care if college sports fans and reporters have written off many of these arguments already…they’re not talking to us right now.

When university presidents, conference commissioners and senior NCAA staffers give interviews or speak about NIL, regulation, etc…I think it would be wise for us to consider who they are really talking to, and why.

Finally, amateurism is dead, long live amateurism

This passage really stuck out to me, via the SI interview:

I personally agree! Of course, I doubt the NCAA wouldn’t have spent so much time and energy defending that exact concept if plenty of other university presidents and ADs didn’t, in fact, agree that the babysitter’s experience would be better if they weren’t paid.

But here we are in 2023, and that ship has sailed. But Swarbrick isn’t arguing to “pay” the babysitter in the op-ed or the interview. In fact, he’s asking Congress to make sure the government doesn’t make Notre Dame pay the babysitter. He’s asking for new regulations about how other people pay the babysitter…and he seems to be even complaining that some of those other people are paying the babysitter too much money for services that aren’t really about babysitting at all.

I wrote about this earlier this year…an honest reading of college sports history shows that “amateurism” has a very slippery definition. It’s expanded to include scholarships, laundry money, cost of attendance, and other benefits. Now, Swarbrick seems to want to retire the term completely…but, in my reading, is still arguing for some of its vestiges.

The solution to that, IMO, is just for Notre Dame to pay the dang athletes. But that’s not what they’re arguing for here, and that’s going to be a different newsletter.

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Here’s what else we wrote this week:

This was an unexpectedly NIL-heavy week.

• We can talk more about the antitrust implications and employment classifications later, but I tried to examine if Congress should get involved in NIL legislation at all, based on the most common arguments.

• Friend of the newsletter Katie Lever wrote an editorial about her takeaways from the NCAA/Miami WBB NIL case, and what it means for women’s basketball, and college athletes in general.

• I also did a reader mailbag, answering questions about how many students work in major athletic department roles, if other schools are likely to drop out of D-1, college sports fandom in Brazil, and more.

I also should be on the Paul Finebaum Show this afternoon at 4:15 ET/3:15 CT, talking about NIL and federal lawmakers. You can watch on the SEC Network.

I’ll be working to get all the jet lag out of my system and get back at it next week. I’ve got some interviews lined up and fun historical documents to share, including some on conference realignment that I don’t think have been widely shared before.

Thanks for sticking with me while I’ve been out. I’ll see you on Monday.

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