Why 2023 has all the makings of college sports’ wildest, most significant year yet

INDIANAPOLIS, INDIANA - JANUARY 10: Georgia Bulldogs captains and Alabama Crimson Tide players gather at the center of the field for the coin toss before the 2022 CFP National Championship Game at Lucas Oil Stadium on January 10, 2022 in Indianapolis, Indiana. (Photo by Dylan Buell/Getty Images)
By Nicole Auerbach
Dec 30, 2022

It feels like the walls are closing in on the NCAA, or at the very least like the end is nigh for the antiquated ideals that have propped up college sports for decades. And the year 2023 is shaping up to be a pivotal one, with more than one domino poised to fall and each capable of toppling the business model entirely.

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What will the college sports enterprise look like five years from now — and who gets to decide that? The upcoming calendar year will begin to answer that question.

Multiple lawsuits aimed at the economic structure of college athletics are working their way through the courts in a legal environment that appears more supportive of athletes’ rights than ever before. The National Labor Relations Board is proceeding with an unfair labor practice charge filed against USC, the Pac-12 and the NCAA in a push to categorize athletes as employees, a process that could take months if not years to reach a resolution. There’s also a new Congress set to be sworn in next month, a new NCAA president with a background in politics set to take over in March and, perhaps, a new Big Ten commissioner coming in the new year.

It will also be the final year of a four-team College Football Playoff before the bracket expands to 12, the first and perhaps only school year for a bloated 14-member Big 12 still stuck with Texas and Oklahoma, and other leagues in transition due to conference realignment, too. There is uncertainty around every corner.

“2023 is a year of setting the table or setting things up for next steps,” said Mit Winter, an attorney for Kennyhertz Perry and a former Division I college basketball player. “We aren’t going to have any huge decisions come down besides maybe the (Johnson v. NCAA) case. I’m not sure anything else is going to reach resolution in 2023.

“But depending on how all of these different things progress, it may be time for sports leaders to get more serious with their thinking about a new model and how to address everything hanging out there in a holistic way as opposed to trying to play whack-a-mole as issues pop up.”

That’s the, uh, PG way to describe how the NCAA has handled the last decade or so. But the best example of the NCAA’s failures was its handling of name, image and likeness (NIL) reform. The NCAA created multiple working groups, drafted legislation and wasted years of administrators’ time, all while president Mark Emmert fought an unpopular p.r. battle against the push for change. State lawmakers pressured the NCAA to allow athletes to monetize their NIL, and in June 2021 the U.S. Supreme Court ruled unanimously in favor of student athletes in Alston v. NCAA, preventing the NCAA from limiting the education-related compensation its athletes can receive. That 9-0 loss, coupled with Justice Brett Kavanaugh’s scathing concurring opinion all but welcoming more antitrust challenges spooked NCAA leaders, who essentially threw their hands up and decided not to implement a policy with meaningful NIL regulations so to lessen their legal risk. Now it’s a largely unregulated space that is messy and frustrating for all involved, and the ripple effects were impossible to avoid for followers of college sports in 2022.

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The NCAA just hired Massachusetts Gov. Charlie Baker to replace Emmert because it hopes to lean on his political experience and past bipartisan work to actually get help from Washington, D.C. ­— whether through a narrow antitrust exemption or through actual federal legislation related to athlete compensation (and perhaps medical coverage). SEC commissioner Greg Sankey and Ohio University athletic director Julie Cromer, the co-chairs of the Division I Transformation Committee, have both taken multiple trips to the nation’s capital in efforts to better explain how college sports work right now. Athletic directors and other commissioners have also made trips to D.C. in efforts to educate the people who may shape the future of college athletics if they choose to get involved.

“I don’t think it’s a very good strategy to let all of these outside forces, whether it’s a court or the NLRB or state legislators, be the ones to sort of dictate what you’re doing — and then you have to respond,” Winter said.

Weaving through the courts now is Johnson v. NCAA, a case that focuses on the question of whether student-athletes should be recognized as employees under the Fair Labor Standards Act. The next step in this case should come early in 2023. If the Third Circuit Court of Appeals rules student-athletes are employees, the case will go back to trial court for a determination on whether the FLSA was violated. A decision at the trial court level (which could then be appealed) may be possible before the end of 2023.

Meanwhile, House vs. NCAA seeks damages for NIL money that athletes were not able to earn before the rules changed in 2021. The House plaintiffs filed their motion for class certification back in October, so this case is still in the relatively early stages, but if the classes are certified, the case would bring into play billions of dollars in potential damages. “It’s almost like the most direct attack on the collegiate model,” Winter said.

Also coming in 2023 are changes to NCAA governance structure and the minimum expectations and experiences schools must meet to be considered Division I, per the final recommendations from Sankey and Cromer’s Transformation Committee. Those changes may not feel as transformative as the group’s name once promised, but they will impact how the NCAA moves forward, too.

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Winter thinks it feels inevitable that the collegiate sports model will change into a system in which athletes receive direct payment from schools, conferences and/or the national governing body. The framework for a new financial model would depend on which of the outside stressors is the tipping point. If the Johnson case is first to the finish line, then the first change to be addressed would bring athletes closer to employees being paid hourly wages. If it’s the NLRB effort that is successful, then we could see certain athletes across schools unionize. It all depends.

Which is why 2023 is such a pivotal year for college sports. It’s time for proactivity and preparation, lawyers and legalese. It may not be the happiest of new years for those working in college athletics, but it’s the reality of this one.

“It’s going to be a year where more administrators — whether that’s schools, conferences, the NCAA — kind of wake up to the fact that model that they’ve operated under for as long as they’ve been involved in college athletics is probably not going to be the model that’s around much longer,” Winter said. “They’re going to have to start doing the work, the thinking on what the new model is going to look like.”

(Photo: Dylan Buell / Getty Images)

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Nicole Auerbach

Nicole Auerbach covers college football and college basketball for The Athletic. A leading voice in college sports, she also serves as a studio analyst for the Big Ten Network and a radio host for SiriusXM. Nicole was named the 2020 National Sports Writer of the Year by the National Sports Media Association, becoming the youngest national winner of the prestigious award. Before joining The Athletic, she covered college football and college basketball for USA Today. Follow Nicole on Twitter @NicoleAuerbach