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Clemson must continue to adapt

Despite being portrayed as unwilling to adapt, Dabo Swinney and Clemson football have done just that.

Coach Swinney and the Clemson football program are hosting one of their biggest recruiting events ever this weekend. They are playing host to over two dozen rising high school seniors from the Class of 2023 who are making official visits to Clemson. This represents the latest move by the Tigers to adapt to an ever-changing recruiting landscape. Previously, the Tigers would not host official visits during the summer, preferring recruits to visit in the fall for a home game so they could see the spectacle that is Death Valley. This strategy worked well for a few years, but recently recruits have preferred to wind down their recruitments earlier, often before their senior seasons start, which meant Clemson was missing out on talent that wasn’t willing to wait for a fall visit.

Another exciting development for Clemson this past week was the announcement of another NIL collective, called Dear Old Clemson. This collective, along with the previously announced TigerImpact, has been created to support Clemson student NIL opportunities and to help fund the many sports programs that the university sponsors, not just football.

These collectives are another way that Clemson is continuing to adapt to a changing environment. The Tigers have not been an early adopter of NIL, at least not to the degree many other competing fanbases have embraced it. Some of that has to do with resources, as it does with many schools. Much of it also has to do with initiative. In many ways, Clemson’s culture has been very conservative regarding the advent of NIL. Many fans have voiced their concerns that it is destroying the fabric of college athletics. As such, there are some fans who aren’t thrilled that Clemson is becoming more involved with collectives & NIL in general.

I view these changes to adapt to the current landscape, both in recruiting and NIL, as a positive for the university and it’s sports programs. I think it is critical that the Tigers continue to take the initiative to be innovative, and hopefully become a leader in embracing a new way of operating in college athletics.

To a lot of my fellow friends in Tiger Nation, this may seem like a very uncomfortable position that I support. I understand many are reluctant to take a lead position on change. I know many Clemson fans love the history of college athletics, and feel we are losing something special by embracing a new era in the industry.

I have always enjoyed the college level above the professional level in almost every sport, so I understand the affection many have for the way things have been. I am eager to see Clemson embrace change because I don’t think they have any other choice if they want to remain relevant in high-level college athletics. This is because the NCAA, which for decades has been the protector of the status-quo, has lost the ability to keep change at bay.

Unfortunately for the NCAA, the foundation on which they have been built is legally on shaky ground. They have always been challenged to enforce their own rules because they do not have subpoena power, which means they can’t put people under oath to require them to testify under threat of legal action if they lie or refuse to testify. They must rely on sloppy cover-ups, whistle blowers or admissions of guilt, and even then they have often been challenged with the threat of lawsuits by their own constituent institutions if they attempt to sanction them.

Things have now gotten worse for the NCAA, and the source is the Supreme Court of the United States. They recently reviewed a case called Alston vs NCAA, and the results have put the NCAA on notice that they don’t stand a chance if anyone decides to challenge their business model.

Alston vs NCAA didn’t directly relate to NIL. The premise of the case was a student who challenged the NCAA’s practice of placing limits on academic benefits. For example, the NCAA could allow schools to provide student athletes with laptop computers, but they could put a limit on the cost of the computer. For this example, we’ll say the limit was $1,000.

The Alston case challenged that practice of limiting academic benefits, and the Supreme Court decided unanimously that those limits violated Section 1 of the Sherman Act.

Now, moving forward, NCAA schools can choose to provide their students with computers well above any previous restrictions. If they want to get their athletes $2,000 laptops, and use that as a recruiting point, they can. The ruling also made it possible for schools to reward students with bonuses for academic performance, a practice that Clemson has already introduced.

While NIL doesn’t fall into the category of academic benefits, the real impact of Alston vs NCAA is to the big picture of the NCAA’s business model. The NCAA tried to defend their practice of restricting academic benefits by arguing that they should be exempt from antitrust legislation, like the Sherman Act, because their business model was reliant on limiting the compensation of the student athletes. In other words, they tried to argue that fans like college sports better than professional sports because they were turned off by the salaries of pro athletes, and that fans wouldn’t support college athletics if the student athletes were compensated with anything more than a scholarship .

The Supreme Court was not swayed by this argument. In one of the opinions written for the case by Justice Brett Kavanaugh, I have stated:

“Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate, and under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.”

He further criticized the NCAA’s assertion that amateurism was the most critical component of college sports with the statement that the NCAA:

“cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America.”

And it got worse for the NCAA:

“All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that ‘customers prefer’ to eat food from low-paid cooks. Law firms cannot conspire to cabin lawyers’ salaries in the name of providing legal services out of a ‘love of the law.’ Hospitals cannot agree to cap nurses’ income in order to create a ‘purer’ form of helping the sick. News organizations cannot join forces to curtail pay to reporters to preserve a ‘tradition’ of public-minded journalism. Movie studios cannot collude to slash benefits to camera crews to kindle a ‘spirit of amateurism’ in Hollywood. Price-fixing labor is price-fixing labor. And price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work.”

The Supreme Court, in no uncertain terms, rejected any argument that student athletes weren’t working. While Alston vs NCAA was specifically about academic benefits, and thus did not give the justices the ability to take action outside the limits of that subject, they made their opinions regarding the legality of the traditional business model of college athletics very clear: it isn’t t legal, and if it were challenged via lawsuit and reached the Supreme Court, the NCAA would be finished as we know it.

This perspective brings why the NCAA relented on NIL as quickly as they did when this ruling was announced – they know they have zero ability to stand up to any school, student or booster who filed a lawsuit against them. If they attempt to defend themselves claiming that amateurism is the foundation of their industry, the whole house of cards will come tumbling down.

This is why I have differed so strongly with others who take a more traditional viewpoint when it comes to NIL. Traditionalists believe that NIL will need to adapt to the NCAA. I see clearly that the NCAA will have to adapt to NIL, because they have no other choice.

Some in college sports, including conference commissioners Greg Sankey and George Kliavkoff, have been lobbying the federal government for laws codifying consistent rules for NIL. Even though the NCAA just announced guidelines for NIL that clarify that it can’t violate pre-existing rules regarding the recruitment of athletes, they know attempts to sanction parties for violating those recruitment rules could lead to lawsuits against the NCAA that could trigger the end of college sports as we know them. Even then, they must create new codes that fit into existing antitrust law. Otherwise, the new laws will just be thrown out by the courts as well.

Clemson football adapting to changes in the changing landscape should be viewed as a positive

Thus why Clemson must remain dynamic with adapting to the changes that will continue to come for college sports: NCAA doesn’t have a means to stop the changes. Changes aren’t potentially going to happen – they are inevitably going to happen. Clemson can remain progressive in adapting, or they will fall behind the competition that is willing to adapt.

I am encouraged by Clemson’s recent efforts to adjust to the new reality of college sports. Coach Swinney sets the standards & leadership for the Clemson brand, and I understand he has principles & preferences, but I think he has also demonstrated a desire to be successful. He has commented that the challenges of the 2021 season & the subsequent turnover on the staff have reinvigorated his drive to achieve at a high level. I think Dabo understands that success moving forward will require a willingness to adapt to the inevitable changes that are coming. They are adapting in recruiting, adapting with NIL & adapting with academic bonuses. I hope there will be more adaptations & innovations to come.

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