When push came to shove, the Bayou bravado gave way to principled practicality.
Lane Kiffin was all bluster and brawn when he declared his intention to add NFL players to his roster at LSU, in blatant violation of longstanding NCAA rules prohibiting that very thing. Unlike previous fights around the country to allow last year’s seniors to be grandfathered into the new five-in-five rule, the public (at least, the one outside Kiffin’s home state) understood that this was a different category. Most fans approve of the notion that if you leave college to enter a professional draft and then sign with a pro team, you should not be allowed to return to campus.
Even so, LSU and Kiffin supported the legal efforts of Dae’Quan Wright and Zxavian Harris, two players who signed free agent contracts with NFL teams after going undrafted, to play for the Tigers this season. Legally, those players were allowed to do so, courtesy of a ruling on Sept. 3 from Baton Rouge judge William Jorden that granted a preliminary injunction against the NCAA’s rule. The judge bought the players’ argument that if they had known they might have a chance to play a fifth season, they would not have entered the draft. Yet, when it came time to actually place those guys on the roster for last Saturday’s home game against Clemson, Kiffin and LSU blinked. In doing so, they may have accidentally saved college sports.
Why? Because Kiffin and LSU weren’t folding to the NCAA. They were folding to the SEC, which responded to the school’s efforts by adopting penalties that included a half-season suspension for the head coach and hefty fines. LSU and Kiffin understood that Wright and Harris’ legal right to play is only temporary, and that their case moving forward is not nearly as strong as their lawyers’ macho words indicated. If that case falters — and many outside experts believe it will — then the coach and school would have likely paid a heavy price. For all their bluster, LSU and Kiffin understood all along they were playing a weak hand. They knew when to fold ’em.
In doing so, Kiffin and LSU unwittingly moved the entire enterprise one step closer towards a new and improved paradigm. Say it with me everyone: Conference governance. At some point we’ll have to come up with something catchier to call it, but in the meantime this notion could be a path out of the wilderness that is considerably more terra firma than the one college sports has traveled thus far.
All of this is coming just three months after the Big 12 pulled a similar power play on Texas Tech regarding quarterback Brendan Sorsby. That case involved another rule that has widespread public support — namely, that college athletes can’t gamble on sports, particularly on games involving their own teams. An NCAA investigation revealed that Sorsby had placed thousands of wagers when he was at Cincinnati and Indiana. Sorsby won a temporary injunction from a Lubbock County district judge (anyone noticing a pattern here?), which prompted the Big 12 to file a suit in a Texas federal court arguing that it should be able to enforce its rules against schools which have voluntarily joined the conference.
The Big 12’s effort was substantially strengthened by a major turnover by Texas Attorney General Ken Paxton, who wrote a letter (presumably at the behest of billionaire Texas Tech alum Cody Campbell, who donated $274,300 the day before to a committee supporting Paxton’s Senate campaign) threatening that the league could face more than $200 million in liability damages if it kept Sorsby from playing. That gave the Big 12 the injury standing it needed to sue Texas Tech in federal court. A messy fight was brewing, but much like Kiffin and LSU, Sorsby and Texas Tech took the practical route and decided to fold ’em before the judge could issue a ruling.
The SEC is trying to advance this ball even further by filing a separate case against LSU, this time in federal court in Alabama (where presumably the judge will be less biased). The league is arguing that it is a voluntary association that has a Constitutional right under the First Amendment to enforce its own rules. That’s a tenuous legal argument; beyond that this is a fairly straightforward contract dispute. Should the Big 12 prevail, it will discourage other schools from picking similar fights with their own leagues.
The conference governance model offers an important distinction from the way business has long been conducted by the NCAA. LSU might technically have a choice not to be a part of the NCAA, but leaving would cause it major harm. On the other hand, being part of a conference is very much voluntary — witness the Realignment Madness that has disrupted college sports the last two decades. If LSU doesn’t like the SEC’s rules, it can always leave. But the league believes it should have the legal option to make and enforce those rules. We don’t know enough yet to know how strong that argument is from a legal standpoint, but so far it is proving to be a very effective deterrent.
There are two considerations here: the legal and the practical. These athletes might win some injunctions in district courts, but there is a likelihood that many (if not most) will be stayed and then overturned on appeal. That is already starting to happen with many of the basketball players from the high school Class of 2022 challenging the five-in-five rule. Most notably, the U.S. Tenth Circuit of Appeals stayed an injunction that had granted nationwide relief to the entire class, not just the players who are a part of lawsuits. The court will hear oral arguments on Sept. 22, but the judges already indicated in their decision that the NCAA was likely to prevail on the merits.
It’s worth remembering that most of the legal wrangling to this point has been over the question of whether the NCAA is violating antitrust laws. There’s not much reason to believe conference governance would have more success on that front. But the point of conference governance is that its sanctions are aimed not at the athletes, but at the schools. Sure, the athletes are allowed to play under the law, but that doesn’t mean schools have to play them. If they do, the conferences are ready to lay down their collective hammers. The consequences could include attempted expulsion from the league. That may seem far fetched, but so far the threat alone is proving to be an effective deterrent.
The faster we get to conference governance, the better, because I’ve got news for everyone: Congress is not coming through that door. The Protect College Sports Act may have won the approval of the Big Ten and SEC and is scheduled to be taken up in the Senate later this month, but it is running up against a challenging calendar, especially with the November midterms fast approaching. Even if the Senate does pass this bill, it still has to clear the House of Representatives, then potentially go through a conference committee, and then be re-passed by both chambers and sent to President Trump’s desk. Given that the House will only be in session for four — count ’em, four — days between now and the election, does anyone think there is even a remote chance that all of that will get done?
A Congressional fix was always the preferred option, so I understand why the NCAA lobbied so extensively (and expensively) to try to get one. Shockingly enough, Congress has proven to be an unreliable partner. Now the NCAA needs to pivot quickly to what I would call a Post-Congress World. That requires acknowledging this reality and figuring out how it can pass and enforce rules under the laws as they are currently written. The NCAA may continue to get sued each time it tries to get something done, but if those moves are being made by conferences, they just might prove to have more staying power.
It has been a tough few years for college sports, but maybe, just maybe, there is a reasonable path forward through conference governance. If that proves to be the case, we can all thank Lane Kiffin for helping us get there a little more quickly.
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