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What the Aspen’s Insitute’s Panel on NIL Legislation and a 1974 Chart-Topper by America Have in Common

On Tuesday, Dec. 17, some of the most notable voices in college athletics came together to discuss NIL legislation at the Aspen Institute in Washington, D.C. The whole conversation misses the mark in a big way, however, that is perhaps prophetically interpreted by the band America in their 1974 hit, “Tin Man.”

Those lyrics speak to the fact that Oz never gave anything to the Tin Man that wasn’t already his, the trap of endless debate, the posturing of self-proclaimed saints and a realization that all along, the entire enterprise is more capitulation to injustice.

As America sang, the hour is late. For about half of a century, the NCAA and its member institutions have profited off a plantation system that it convinced the general population was not only legal but actually of benefit to the indentured. Public confidence has eroded in the NCAA and its members, however, as time has passed because of the institution that Mark Emmert said on Tuesday during the panel that his employer has a greater amount of pubic trust than: journalism. The commentary and reporting of journalists who have refused to act as mouthpieces for the NCAA and its members have played a pivotal part in exposing the injustices of the system.

Much of the scripted conversation at the Aspen Institute on Tuesday centered around college athletes’ publicity rights being part of the foundations of what it means to participate in society in the United States, whether from a free-market or equal rights perspective. Again as America sang, some have been quick to take the bait.

The reality is that even if ideal NIL rights reform, protecting athletes’ full publicity rights unhampered by any governmental or institutional restraints, takes place among NCAA-member institutions, it’s a capitulation rather than a wholesale victory. It’s the prize that those who are holding power in the status quo have placed on the shelf like a carnival game operator.

Like Oz and the Tin Man, the university presidents and athletic directors would simply be “giving” athletes what’s already theirs in that situation. The legal adults who perform labor for these institutions own their publicity rights and the NCAA-member institutions are currently committing theft in using them without equitable compensation.

The subject of equitable compensation is much larger than publicity rights, however. Another part of the foundational doctrine of American capitalism is that labor is worthy of just compensation. In lengthier but perhaps more clear terms, if one’s labor produces revenue, then the individual(s) providing that labor deserve(s) a share of that revenue equitable with the part her/his/their labor played in the production of that revenue.

Under that premise, publicity rights are a mere shadow of economic justice for these laborers. They put on the show. CBS isn’t paying the Southeastern Conference millions of dollars to broadcast Nick Saban walking up and down the sidelines talking into a headset, nor is Turner paying millions to show John Calipari wearing a suit. Without the athletes’ labor, there is no product to buy or sell.

These laborers won’t get real economic justice until not only are they free to exercise their publicity rights but also receive a cut of all athletic department revenues that they have collectively bargained for. Just like with publicity rights, however, this would only result in the institutions merely reversing their current course of action of stealing from athletes what is rightfully theirs. Publicity rights could be a step in the right direction, but at this point, it’s a concession that Oz is willing to make to keep up his charade because he gets to stay behind the curtain pulling the levers and cranking the wheels in that scenario.

Economic rights are just one part of how the current landscape of college athletics robs these men and women of their dignity. The system’s inability to protect athletes from the exploitation of their bodies in other ways has been evident in the death of Jordan McNair, the protection of sexual predators like Larry Nassar and Jerry Sandusky and various lawsuits like Melissa Martin’s, which depicts an environment in which performance is prioritized over athlete well-being.

While the NCAA and its member institutions have exploited laborers, American society has skipped merrily along down that yellow brick road because those parties asked that society to believe in it. It’s spinning round of a narrative and installation of stained glass windows to its own “virtues” have relied on one premise, the tethering of the product to education.

That image is going down, down, down, like how soapsud bubbles break down over time, however. Even if you put aside the paper-class situations like those at North Carolina and academic fraud at Mississippi State and Missouri, the graduation rates of revenue-sport athletes are lower than non-athletes. Graduation is no guarantee that the athlete actually got a quality education as well.

Putting even further into question education as a real value is the fact that athletes often have to choose their majors based on how well the class load fits around their athletic schedule. If this poor educational experience is the “value” that athletes receive in return for their labor, then they are getting far less than their labor merits.

Yet all these other points were missing from the conversation at the Aspen Institute, and that was all by design. The NCAA and its members don’t fear NIL legislation as long as the conversation stops there. Limiting the focus to publicity rights is just another in a long string of capitulations to a criminal organization that American society has made.

Despite a federal court finding the NCAA in violation of Article 1 of the Sherman Act on two separate occasions, no one in the employ of the NCAA or any of its member institutions has ever been indicted for what the United States code lists as a felony. On the morning of the Aspen Panel, US Senators like Chris Murphy and Mitt Romney met with the public face of the NCAA to hear its perspective on how to continue to allow itself and its members to maintain the status quo they have built, if not codify protections for it into federal law. Perhaps the greatest signal of a broken system is when a criminal organization gets a seat at negotiations over the framing of the very laws they are breaking.

The NCAA and its members are asking everyone to believe in them, just because, for no other reason than they say you should. All the tangible circumstances show that the current system of college athletics provides very little return on the investment of athletes’ effort and time, leaves them vulnerable to attack and robs them blind.

If the reforms on these issues amount to nothing but codifying athletes’ publicity rights, that’s a Pyrrhic victory. It could delay a real win, signaled by these athletic department employees having full rights to bargain the circumstances under which they will agree to provide their labor, by another fifty years perhaps. In the meantime, exploitation and theft would continue.

NIL rights are no more a win for college athletes than Oz awarding the Tin Man the heart he already had was a “gift.” It’s smoke glass stained bright color.


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Freelance journalist

Derek Helling is a journalist out of Kansas City, Mo., who covers the intersections of entertainment and sports with business, law, media and technology. He publishes a newsletter, "The Ninth Circle of Helling," that focuses on the intersection of business, culture, politics, and the law with sports.

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