Three big questions about the National College Players Association’s College Athlete Protection Guarantee

Yesterday was potentially a big day in the landscape of college athletes’ recruiting. The National College Players Association (NCPA) unveiled their College Athlete Protection (CAP) Guarantee, a legally binding contract between school and student that complies with NCAA rules.

As Streaking the Lawn reported yesterday:

Based on the draft of this agreement, the CAP Guarantee could be used to secure financial aid, all or a portion of medical expenses, disability insurance, graduate program scholarship, additional expense reimbursements, and family benefits. It could also be used to commit the school to agree to any transfer release requests, or to agree not to restrict the athlete’s ability to transfer to other schools.

In principal, that sounds great. Athletes would get protections from bad situations like Cameron Johnson went through trying to leave Pittsburgh, or what Corey Sutton dealt with from Bill Snyder at Kansas State.

But big questions remain about how the CAP Guarantee will work in practice. Here are my top three.

Will anyone actually use it?

College sports is fundamentally a system of inertia. There’s no reason for colleges to do anything differently until they’re forced to, which is the cycle of incremental reform we see over and over. And right now, the National Letter of Intent is a sweet deal for schools: they get a player’s talent inextricably bound to them, without having to give up any enforceable promise in return. (Enforceable in real court, not the court of public opinion.) So why would they give that up?

I would bet we’ll see the first CAP Guarantee agreements as a way for less established programs to lock in local talent that might otherwise leave. If I were a football coach at ODU, for instance, and a kid from Phoebus is being wooed by UVa and Tech and North Carolina and Florida State, I’m going to do whatever I can to land him. And if I’m the only school willing to offer the kid a four-year guaranteed scholarship, plus summer class living expenses, plus stipends to meet full cost of attendance, all of a sudden my Monarchs look a lot more attractive than they otherwise might. The CAP Guarantee can serve as a force-multiplier on my geographic advantage.

After all, this is how most college sports innovations take hold: small schools finding their competitive edge. Which means it’s only a matter of time until Alabama football and Kentucky basketball are offering CAP Guarantees to blue-chip recruits. Sorry, bag men.

What else might schools require players agree to?

The copy of the CAP Guarantee available through the NCPA is a template—sort of a contract Mad Libs, with the school and player negotiating to include or exclude various benefits. What’s in the template has, according to the NCPA, been vetted by both attorneys and NCAA rules experts. Adding extra benefits to the player could make the contract run afoul of NCAA amateurism rules.

But not much seems to stop the schools from adding language requiring more of the player. Would Stanford or Virginia premise any contractual scholarship promise on the player maintaining a certain GPA? Could a school insist that its athletes work at summer sports camps on campus?

As abstract principles of contract law, sure. The parties get what the parties bargain for. And this makes the CAP Guarantee start circling back to a power dynamic similar to what’s in place now. Very few seventeen year-olds have the training or experience to negotiate contractual language, especially against an institution that almost certainly has its own army of in-house counsel. If a kid really wants to go to a particular school, but also wants the benefits of a CAP Guarantee, the school is back in the driver’s seat for extracting concessions.

This does, however, raise probably the most important question:

Could this bring the NCAA Football video game back?

The reason we don’t have EA Sports’ NCAA Football franchise anymore is because players had a viable claim that EA Sports and the NCAA were profiting off the players’ likenesses without compensating the players.

But if a school adds a CAP Guarantee provision by which football players grant the school a license to use the players’ likenesses, that problem is solved.

This wouldn’t put the game back on shelves anytime soon. There would have to be near universal buy-in of not just the CAP Guarantee, but a CAP Guarantee with the likeness-license provision. Neither of those things is going to happen overnight.

So don’t bust out your LaDarryl Moser jersey or your Yovapai CCC national champs gear just yet. But maybe—just maybe—dare to dream.