Power Five document: 'We don’t think Mark [Emmert] or the NCAA should be taking the lead in Washington'

The Power Five leaders prefer not to use the phrase 'NIL rights' and they want to present them as an opportunity 'and not some inherent natural right'

Memos written by the conference offices of 19 Division I conferences in the summer of 2019 showed that the Big Ten, Pac-12 and SEC are among the conferences that are most resistant to potential liberalized name, image and likeness (NIL) rules, and additional emails and documents obtained by Out of Bounds show that the Power Five conferences – the three aforementioned conferences, plus the ACC and Big 12 – believe they have the most at stake, which is why they’re attempting to lead the rest of college athletics, including the NCAA itself, to collaborative federal NIL legislation.

Last December, there was a Power Five NIL strategy call, which included at least two representatives from every conference, including every conference’s commissioner. Part of the Power Five’s strategy includes a pivot away from even using the phrase “NIL rights,” according to a draft of the speaking notes that Pac-12 Commissioner Larry Scott had written for former Ohio State President Michael Drake, who’s now the president of the University of California system.

The phrase “student-athlete” originated from the defense against a workers’ comp lawsuit filed by the widow of Fort Lewis A&M football player Ray Dennison, who died from a head injury sustained in a game in 1955, and leaders in college athletics are again working to establish the accepted phrasing around another critical issue.

Included among the five pages of notes drafted by Scott, which also included messaging bullet points for his fellow Power Five commissioners, one bullet point under “Foundational Principles and Messaging” expressed that rather than saying “NIL rights,” Power Five leaders should instead call them “collegiate licensing opportunities.”

“This change in messaging is important because no one really knows the term NIL,” the notes state, “and we believe it is important to frame it as licensing opportunities for student-athletes within the college system, and not some inherent natural right.”

A copy of the notes are available at the bottom of this newsletter.

The belief among leaders in the Power Five that NIL rights aren’t an “inherent natural right” could be seen in an NIL model proposed to the NCAA’s NIL working group last year by Iowa State Athletic Director Jamie Pollard, whose athletic department suggested that athletes could choose to receive either tuition, room, board and books, or the freedom to monetize their NIL rights – but not both.

Based on emails obtained by Out of Bounds, it appears the other Power Five commissioners were in agreement with the notes Scott sent to the group.

“If anything changes I’ll let you know but to date none of the 5 commissioners have offered any changes to Larry’s draft which resulted from 2 earlier planning calls last week,” former Big Ten Commissioner Jim Delany wrote to Drake and Maryland President Wallace Loh.

The Power Five commissioners proposed that the ACC, Big 12, Big Ten, Pac-12 and SEC jointly select a Washington, D.C.-based PR firm to manage the Power Five’s efforts and to serve as conferences’ campaign manager as the Power Five attempts to lead the rest of college athletics through potential federal NIL legislation.

“First, it is our 65 universities in the Autonomy Five that have the most significant stake in the outcome of any legislation,” reads one bullet point on the agenda notes. “The NCAA represents so many different interests and as we’ve seen through autonomy, it is best for the 65 universities to lead. Second, there is a real concern about the image and brand of the NCAA in Washington. Given all the debates and issues over the last few years, the Blue Disc is not well received by members of Congress and Senators.”

The Power Five’s messaging suggests that the conferences could be attempting to thread the needle by suggesting that its conferences have more at stake than the rest of the member conferences in the NCAA, but at the same time, the notes state that the Power Five doesn’t want to brand its efforts as a “Power Five” movement. The notes also state the Power Five wants the NCAA and NCAA President Mark Emmert to take a backseat to the Power Five without making the NCAA feel “threatened.” The Power Five will still seek support from the NCAA and the rest of its membership.

One messaging bullet point for the Power Five, whose official name is the Autonomy 5 (A5), states, “We think the 65 schools that make up our conferences should take the lead in this effort. But we don’t think that it is advisable to brand this as an A5 effort – rather, we think it is very important to chart a course so that schools in other conferences could support us, and that the NCAA could support us.”

“But notably, we don’t think Mark [Emmert] or the NCAA should be taking the lead in Washington.”

The reasoning was three-pronged. Power Five schools believe they have the most at stake in regards to any NIL legislation and the feedback the Power Five has received from Washington, D.C. was that “the NCAA does not have a good reputation with Senators or Members of Congress.” Another bullet point stressed that university presidents and the universities’ government affairs representatives have working relationships with Senators and Congressmen and Congresswomen, which is part of the reason why the Power Five wants to be the group that leads NIL legislation in Washington.

“These are the relationships that matter, and the Members and Senators care about their state universities and what they bring to their states and constituents much more than they care about our national trade association,” the notes state. “But we don’t want the NCAA to feel threatened or sidelined – this will require diplomatic discussions, and at some point, this will require a group of presidents and commissioners sitting down with Mark.”

The speaker notes Scott provided to Drake included a comment that reads, “I know there are concerns about the NCAA’s ability to lead this effort in Washington.”

The Power Five planned to let the NCAA know that it plans to take the lead, while the notes acknowledge that it’s a delicate conversation, or series of conversations, to have.

“We also don’t want the NCAA to feel threatened, and we don’t want this to seem publicly or privately as a break away by the five conferences,” the notes state.

While that line clearly expresses that the Power Five isn’t trying to break away from the NCAA, it’s still an interesting phrasing of the bullet point, even if the idea of breaking away was only raised in order to shoot it down immediately. It at least acknowledges an idea that you’ll find deep on message boards or hear on morning drive-time radio in the dog days of the summer, when there aren’t games to discuss.

The final bullet point on the document addresses a potential federal NIL bill, stating, “Importantly, the bill will also have to give us and the NCAA the ability to enforce NCAA rules AND keep us from facing numerous antitrust lawsuits.”

The threat of the latter could theoretically be used to influence change in the former.

Ironically, while the Power Five said it wants federal NIL legislation that will prevent it from being the target of lawsuits, former Big Ten Commissioner Delany wrote in an email last December, “I’ve been under impression (sic) that NCAA is contemplating litigation v states on a interstate commerce basis but I don’t know that for sure.”

As noted by the Power Five commissioners’ desire to avoid antitrust lawsuits, additional emails obtained by Out of Bounds provide insight as to what some leaders in college athletics think of the opposition, whether it’s politicians who have introduced NIL legislation, or simply observers or critics of college athletics.

In an email sent in January, Big Ten Associate Commissioner Chad Hawley followed up with members of the Big Ten’s Council of Presidents/Chancellors Steering Committee after they held a call and the first item in Hawley’s email was about a bipartisan bill that Rep. Donna Shalala (D-FL), who’s the former president of the University of Miami, introduced with Rep. Ross Spano (R-FL) in Florida. The bill was called the Congressional Advisory Commission on Intercollegiate Athletics.

Hawley wrote to the Steering Committee that the bill “incidentally appears to have been drafted without a predetermined conclusion that college athletics is unmitigated evil fed by the unpaid labor of football and men’s basketball players.”

“It’s a bill worth thinking about,” Hawley wrote.

Then there’s Maryland President Loh, who responded to former Big Ten Commissioner Delany’s email that contained Larry Scott’s notes about the Power Five’s NIL messaging.

“Ideally, I agree that any proposed legislation ‘should stay narrow and focused,’” Loh wrote, regarding how broad or narrow potential federal NIL legislation should be. “But this is a political judgment that should take into account the current ‘woke’ climate, at least among Democratic members in the House of Representatives (and in state legislatures controlled by a Democratic majority).”

Loh also wrote that based on informal discussions he had with Maryland state legislators, his guess was that “they’ll go straight to the economic and racial justice issues of high pay for coaches, in contrast to capped stipends for student-athletes in FB and BB.”

Then there’s an email from Tom McMillen, the former Congressman-turned-president and CEO of LEAD1 Association, which represents athletic directors. McMillen wrote to Big East Commissioner Val Ackerman in June 2019, “My only comment is that we should avoid threatening legislators publicly – it will generally backfire.”

While that comment was directed to the Big East Commissioner and co-chair of the NCAA’s NIL working group, it sheds some light on why the Power Five may have planned to hire a Washington, D.C.-based P.R. firm to help with its public messaging and the conferences’ relationships in the nation’s capital.

On a state-by-state basis, there are different beliefs about the timing and level of NIL regulation that should be implemented, and there are also questions about whether a federal bill is the right answer to implementing liberalized NIL rights across all 50 states.

Likewise, within college athletics, a lot of the same can be said about which stakeholders should lead the charge, from the Power Five to the overall membership to the NCAA itself. But the Power Five has made its opinion clear: with the help of a Washington, D.C.-based P.R. firm, it wants to lead and it wants everyone else, including the NCAA, to fall in line.

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The Power Five’s NIL strategy and messaging

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Recap of the last newsletter

(Click the image below to read)

“The potential risks to the local community should be enough of a sell for schools to take their attendance restrictions and gameday protocols seriously, but if speaking ‘football’ is what’s required to get the point across to administrators, then the reality is that Notre Dame, which is now ranked No. 2 in the country and sits alone in first place in the ACC, potentially put its players, its next game and all that comes with an undefeated start to the season, in jeopardy.

And that’s because Notre Dame put the health of the local campus community in jeopardy.”

Read the full newsletter here.

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Thank you for reading this edition of Out of Bounds with Andy Wittry. If you enjoyed it, please consider sharing it on social media or sending it to a friend or colleague. Questions, comments and feedback are welcome at andrew.wittry@gmail.com or on Twitter.