No One Is Waiting

Everyone (in college sports) this week said they weren’t waiting. Only some of them meant it.

Charlie Baker sent an email to every NCAA member school on Thursday. Somewhere in it, he wrote: “The rapid evolution of the college sports landscape has created significant new pressures that require immediate, decisive solutions. NCAA membership is not waiting for others to act.”

The line is meant to project agency. It also sits inside a letter that asks member schools to spend the next several weeks lobbying Congress to pass the SCORE Act, which Senators Maria Cantwell and Eric Schmitt told thirty-plus university presidents last week will not pass as written.

There’s a generous read here. “Not waiting” could describe the NCAA’s internal-reform track (revenue sharing, pre-enrollment rules, administrative restructuring), while the lobbying ask describes a parallel external track. Two tracks running at once. That would resolve the tension in the line. The catch is that the body with authority over the internal track, the Division I Cabinet, declined this week to vote on the biggest proposed reform, which I’ll come back to. So the email announcing that NCAA membership is not waiting is, in practice, an email asking membership to help the one track actually moving, which is the track that waits on Congress.

I suspect whoever drafted the line didn’t notice that even the generous reading lands in the same place. The line is still useful, though. It divides the week’s cast into two groups: the ones who say they aren’t waiting, and the ones who actually aren’t.

---

The ones who say they’re not waiting.

Start with Baker himself. The SCORE Act he’s asking membership to lobby for is the bill Cantwell and Schmitt told university presidents on their April 7 call would not pass the Senate as currently drafted. That call was organized, documented, and attended by two of the senators most likely to write whatever bipartisan legislation eventually arrives. If you’re the NCAA president and you’re asking membership to lobby Congress for a bill you’ve been told won’t pass, you aren’t refusing to wait. You’re organizing the waiting.

Then Lee Roberts. The chancellor of UNC-Chapel Hill was named last week to one of the White House advisory committees tasked with recommending implementation for the April 3 executive order. Roberts told reporters the order “doesn’t change much by itself” and that executive orders “don’t have the force of law.” He thinks the order is “useful as a signal of intent.” He’s one voice on an advisory committee, not an agency lawyer writing implementing regulations. Still, a sitting chancellor advising the White House on EO implementation is telling reporters the thing he’s advising on doesn’t do what its supporters say it does. That’s a signal even if it isn’t structural.

Then ACE. The American Council on Education sent a letter to Senator Bill Cassidy this week, in his capacity as chair of the Senate HELP Committee, telling him that classifying college athletes as employees would be “potentially devastating” to the higher education system. That’s the broader university lobby, not the NCAA and not a conference, moving hard against the legal foundation collective bargaining would require.

The higher-ed argument isn’t one thing. It’s several, and they matter in different ways. The cost argument is the most concrete. Employment classification triggers minimum-wage and overtime obligations under the FLSA, workers’ compensation, unemployment insurance, the employer’s share of payroll taxes, and benefits. Scale that across hundreds of athletes at a single university. Football and men’s basketball are a minority of the bodies on the rolls, and the numbers get serious fast.

Then there’s the non-revenue-sports argument, which ACE has leaned on for two years. If football and basketball athletes are earning market-rate wages plus benefits, schools can’t run women’s lacrosse and men’s swimming at the same time without finding the money somewhere. Cuts to Olympic sports become inevitable, and that brings Title IX into the frame because most of those cuts fall on women’s programs. The higher-ed lobby isn’t wrong to flag this, though the legal picture is genuinely contested. Some scholars argue Title IX compliance is actually cleaner under a uniform employment regime. What’s not contested is that universities have no working template for managing both today, which is the problem ACE is flagging for Cassidy.

There’s also the graduate-worker spillover. Research universities have spent a decade fighting graduate-student unionization, and an employment finding for athletes would accelerate similar claims from TAs and RAs. The political economy inside research institutions runs on low-cost graduate labor, and that model is under pressure already. ACE’s constituents include the presidents who answer to the boards that worry about those numbers.

And there’s the mission argument, which is softer but which ACE actually means. Universities are academic institutions. Treating students as employees in their primary campus role, the argument goes, changes what the institution is. You can read that as a genuine philosophical commitment or as the rhetoric of institutions that would prefer not to pay workers market rate. It’s probably both.

None of this makes employment classification wrong on the merits. It makes employment classification a reform that the higher-education lobby has structural reasons to resist independent of the NCAA’s preferences. Both Senate committees with jurisdiction over college sports governance (Commerce under Cruz and Cantwell, HELP under Cassidy) now have institutional opposition to the two things federal legislation could plausibly do: provide an antitrust exemption, or resolve the employment question. The political machinery isn’t stuck because nobody wants to move. It’s stuck because the constituencies on each side have vetoes pointed at each other.

Then the document. Baker’s email attached a three-page draft titled “NCAA Division I Proposal – Eligibility – Athletics Eligibility – Changes to NCAA Bylaw 12.6.” It lays out an age-based, five-year eligibility framework with ten numbered questions and answers. It’s worth reading slowly. Two things are happening in the text at once: substantive policy (the three bullet points of the framework are a real proposal) and strategic hedging (the answers to several of the questions are drafted with an eye on future plaintiffs). Both are normal for an NCAA rulemaking document. What’s notable is how much of the text the second register occupies.

The preamble opens with the NCAA reminding readers that the current eligibility framework “has well served these values for many years, as evidenced by the many thousands of student-athletes who experience the life-changing benefits of Division I participation year over year, as well as the NCAA’s significant success in defending these rules against a flood of incoming lawsuits.” One paragraph later, the same document explains that the reason for changing the rules is in part “the current litigation environment, such as redshirt and waiver processes.” The NCAA brags about winning the lawsuits and, in the same document, justifies changing the rules because of the lawsuits. That’s only a contradiction if you think the rules are being changed because they’re wrong. If you think the rules are being changed because defending each individual case has gotten too expensive, it’s just honest.

Question 6 tells you who drafted the document, and for what audience. An AD asks whether the rule is unfair to injured athletes. The answer: injured athletes can “sit out for that season while retaining four additional seasons to participate.” Read that closely. An athlete on a medical redshirt today is looking at up to five seasons of competition across six years, because the redshirt season doesn’t count toward the four-season limit. Under the new rule, that same athlete gets four seasons across five years, sitting out one to heal. The medical-waiver sixth year is, by design, gone. That’s the year that gave Noah Blythe, Jimmori Robinson, and a whole class of athletes grounds to sue the NCAA last fall. The rule eliminates the category of athlete that generated the most litigation pressure in 2025: medical-waiver sixth-year cases that moved through federal district courts across at least four circuits. Those athletes lost at the appellate level this spring, but they didn’t lose cheaply, and the next cohort will file on new facts. Eric Blevins and Mit Winter spent Wednesday mapping the plaintiff archetypes the new rule would generate; the Q&A reads like it was drafted to foreclose exactly those archetypes.

Question 9 is the grandfathering question. Every athletic director reading this document wanted to know what happens to the athletes already on their rosters under the old rules. The answer: “We are evaluating all options to ensure a smooth transition to the new eligibility framework, including for current student-athletes who matriculated under the current framework.” You can read that sentence five times and not find a rule. A generous read is that the NCAA genuinely hasn’t decided because the Cabinet hasn’t voted. A less generous read is that the language is calibrated on purpose: the Association’s lawyers prefer not to hand plaintiffs a grandfathering commitment that could later be cited in cases about whether current athletes had reliance interests. Both reads can hold at once, and for Question 9 specifically, they probably do.

Question 8 is the line the NCAA will regret. Does the rule change mean the current rules are unfair to athletes in the NIL era? The NCAA’s answer: “No. The NCAA acknowledges that college sports have changed significantly with the ability of student-athletes to receive payments for their names, images, and likenesses and the House Settlement, all of which the NCAA has supported and led. The current rules remain workable and defensible even in that changed environment.” That paragraph is going to surface in litigation. Future plaintiffs already have Alston, the House settlement, and three circuit rulings holding eligibility rules subject to antitrust review, so the Q8 language doesn’t win cases by itself. What it does is add one more adverse admission in a discovery environment that’s already crowded with them, a sentence the NCAA wrote in its own document, circulated by its own president, saying the rules under challenge are workable and legally defensible. It’s one line. It will get cited.

Marsha Lycan, who works in athletic administration, circulated the Q&A Thursday evening and called the answers “zero clarity.” Mit Winter followed her with a sharper read: the document “was just created for legal purposes (to try and help win the inevitable lawsuits that will come with this rule change), not to actually answer school and athlete questions.” An AD-community voice and a sports lawyer, from different professional ecosystems, landed on the same read of the same document within an hour. That’s not proof of anything structural. It’s a data point worth noticing.

There’s one more detail that reframes the whole rollout. The Division I Cabinet, which is the body with authority to advance the rule, met Tuesday and Wednesday this week. Per the NCAA’s own release, the Cabinet “did not take a formal position on the topic or the concept itself” and asked NCAA staff to keep gathering stakeholder input. Next Cabinet meeting: May 22. Baker’s letter and Q&A went out Thursday.

There are two ways to read the timing. The coordinated read: the Cabinet asked staff to gather stakeholder feedback, and Baker’s letter to membership is part of that feedback-gathering process. The conflicted read: the Cabinet declined to endorse, so Baker is running an internal lobbying campaign to build member-school pressure for the May 22 vote. I’d want more information to settle between them. Either way, the operational fact is the same: the rule the NCAA’s president is selling to membership is a rule the NCAA’s governing body has not voted on.

The next morning, in an SI interview with Pat Forde, Baker said the NCAA is “ready to fight.” Forty-eight hours, two postures in tension if not strict contradiction: we’re acting on our own, and we need Congress to protect us.

Four signals, one week. One admission: Baker’s letter acknowledging that internal governance is insufficient. One candid skeptic: Roberts saying the EO has no force of law. One lobbying letter marking the employment path as hostile territory: ACE to Cassidy. One document that reads as both a governance rollout and a litigation brief: the Q&A. The four actors don’t share a strategy. They share a reading of the terrain: the federal path isn’t arriving, and the internal path isn’t moving on any timeline that matters.

---

The ones who actually aren’t waiting.

At 3:08 p.m. Thursday, Cleveland County District Judge Thad Balkman granted Oklahoma linebacker Owen Heinecke a preliminary injunction against the NCAA and ordered him immediately eligible to play for the Sooners. Ross Dellenger had posted Baker’s email and the Q&A eighty-two minutes earlier. Balkman’s reasoning, from the bench: the NCAA “failed to consider the totality of the case.” Winter added a detail from the filings that deserves its own investigation: “It appears the NCAA intentionally tried to hide a prior eligibility decision that would have helped the athlete’s case, by not uploading it for view.”

Heinecke isn’t the first state-court injunction this spring, and he probably isn’t the last. Ole Miss quarterback Trinidad Chambliss won a preliminary injunction in Mississippi Chancery Court in March. Judge Robert Whitwell ruled that the NCAA had “operated in bad faith” and “disregarded Chambliss’ medical issues” when it refused his waiver. The NCAA filed a 658-page interlocutory appeal arguing “substantial and irreparable injury.” The Mississippi Supreme Court denied the appeal. Two state courts, Oklahoma and Mississippi, have now issued rulings this spring with explicit findings that the NCAA either acted in bad faith or failed to consider a case’s totality. A state supreme court has co-signed one of those findings.

Whether that pattern feeds a future state-AG coalition depends on three things. First, whether AG offices track these findings closely enough to aggregate them. In the rev-share era, most do. Second, whether the bad-faith framing reads as actionable under state-law theories. Ohio v. NCAA and Tennessee v. NCAA show it has, and both consent decrees are in place as templates. Third, whether there’s political appetite for a third coordinated action, which is the open question. The preconditions for one are closer than they were a month ago. Whether it materializes is a different question.

The federal appellate trend has been kinder to the NCAA. The Fourth Circuit vacated Robinson’s injunction on market-definition grounds; the Seventh Circuit reversed Fourqurean’s; the Ninth Circuit vacated Blythe’s. But the Fourth Circuit also held, explicitly, that eligibility rules are subject to antitrust review.

The federal and state tracks aren’t answering the same question. Federal appellate is running rule-of-reason antitrust analysis with a stricter standard for plaintiffs. State trial courts in Mississippi and Oklahoma are applying state-law contract, good-faith-and-fair-dealing, and waiver-denial scrutiny. Different frameworks, different evidentiary bars. The NCAA isn’t losing on the same ground it’s winning on. It’s winning the antitrust standard and losing on state-law scrutiny of its own conduct. Two separate tracks, two separate headaches. The scoreboard says protected from the antitrust frame; the schedule says the rules don’t hold when a state court looks at individual NCAA conduct in a specific case.

Which is exactly what Blevins and Winter mapped out on Wednesday. A flat five-year rule moots a lot of today’s lawsuits. It also generates a new plaintiff class: athletes who planned for a medical-waiver sixth year under the old rule, athletes whose non-traditional path would have given them another season before the age-at-19 cutoff, anyone who would have been worse off under the new rule “especially if they’d earn serious NIL $ with continued eligibility.” The rule solves last year’s cases at the cost of next year’s. And Michael McCann at Sportico did the same exercise for the Cabinet’s other move this week, the pre-enrollment draft-withdrawal rule that was adopted. McCann wrote, nine days before the vote, that the rule would make prospects who declare for a draft permanently ineligible while former G-League players and European pros can still compete in college. “Distinctions that seem without a difference are problematic in court proceedings. They can appear arbitrary.” If the NCAA moved forward, McCann wrote, the courtroom and not the rulebook would be the final arbiter. The NCAA moved forward.

So now you have two rules from the NCAA’s April governance package with publicly pre-mapped plaintiff surfaces. One is a draft. The other is operative as of Tuesday. Both are unilateral restraints written without bargaining. This isn’t true of every NCAA rule. Plenty don’t generate new suits. It’s the rules that touch compensation, eligibility, or mobility, the three domains where the cost-of-being-cut is now material enough to support damages. Which is to say, the rules the NCAA most needs to write right now are the ones most likely to generate their own litigation.

This is what it looks like when governance is, in practice, case-by-case. The institution that used to define the rules now writes them knowing they’ll be tested, with documents drafted for future judges rather than present administrators. Federal and state courts set the operative standards in specific cases. State attorneys general already have two consent decrees constraining NCAA rulemaking on transfers and NIL. The litigation-as-governance pattern isn’t a prediction. It’s the system as it currently functions. The only people still narrating it as temporary are the NCAA and its most committed defenders.

---

Probability update.

Last update was April 10. These are my best estimates working off what’s publicly available. Anyone inside the rooms is welcome to push back.

A note on how to read these. The six pathways are not mutually exclusive. More than one can land at once. Narrow/hybrid legislation can happen alongside continued litigation-as-governance; collective bargaining can emerge while conference-level governance also develops; SCORE as written can die while a stripped-down antitrust provision survives as part of a compromise bill. The numbers represent my estimate of each pathway arriving as a material force over the relevant horizon, not a distribution where the probabilities sum to one. That’s why they don’t.

Definitions for this table: Broad antitrust exemption (SCORE as-is) is Congress passing SCORE substantially as written, granting the NCAA a broad antitrust exemption close to pre-Alston regulatory authority. Executive order (standalone) is the April 3 EO producing durable governance changes without legislation. Narrow/hybrid legislation is some college sports bill that isn’t SCORE: a narrower vehicle, a compromise framework, or a hybrid that addresses revenue sharing, NIL, or athlete protections without a blanket antitrust exemption. Conference-level governance is the Power 4 and/or the NCAA building a workable internal framework that holds without federal legislation. Collective bargaining is athletes gaining formal bargaining rights, through NLRB recognition, federal legislation, state action, or court rulings establishing employment. Litigation-as-governance is courts remaining the de facto governing body through injunctions, settlements, and precedent.

Broad antitrust exemption (SCORE Act as-is): 2–4% → 1–3%. Down. Baker asking for SCORE doesn’t change Cantwell and Schmitt’s posture. The loud public ask, while the senators have privately told membership the bill is dead, raises the political cost of straight passage. Note this moves SCORE-as-is down, not SCORE’s underlying provisions out. Those can still survive in a compromise, which is where the narrow/hybrid line captures them.

Executive order (standalone): 2–4% → 2–4%. Hold. Roberts’s skepticism confirms rather than moves the estimate. The Ohio and Tennessee consent decrees still block implementation, and the Federal Register publication is procedural.

Narrow/hybrid legislation (compromise): 32–38% → 29–35%. Down marginally. ACE’s HELP letter formalizes a position the higher-ed lobby has held for years, but formalization matters at the margin. Cassidy now has a written institutional ask to answer against if he moves on employment. The pre-mapped litigation surface on both Cabinet moves makes any eligibility provision harder to draft. Cruz–Cantwell is still in negotiation. The move is real but smaller than I originally had it.

Conference-level governance: 3–6% → 2–5%. Down marginally. The Cabinet declined to vote on the biggest reform Baker is selling. Whether you read Baker’s Thursday letter as coordination with the Cabinet or pressure on it, both reads support a downward move: the coordinated read says staff-level feedback gathering is still required before action, and the pressure read says the Cabinet isn’t there yet.

Collective bargaining: 20–26% → 20–26%. Hold. Practitioner consensus continues to build. Blevins, Winter, and McCann all land on bargaining as the only durable fix. But practitioner consensus isn’t structural movement. The NLRB is frozen under the current administration. Johnson v. NCAA is stalled in settlement talks. ACE just told HELP that employment classification is unacceptable. The logic is getting stronger; the institutional path isn’t moving yet.

Litigation-as-governance default: 88–95% → 89–95%. Up marginally. Two state-court findings of NCAA misconduct plus a state supreme court affirmance, one evidence-hiding accusation in active filings, two pre-mapped plaintiff surfaces on the NCAA’s own April rollout. The direction is up. The magnitude is hard to calibrate on a range already this close to a ceiling. Think of the move as reinforcement of the prior more than fresh information.

---

Where this lands.

The “not waiting” line probably wasn’t meant to be the thesis of the week. It was meant to project institutional agency. Projecting agency requires having it, and what this week produced was the NCAA, on paper and in multiple independent statements, telling its own audiences that it doesn’t. The letter asks Congress to act. A chancellor advising on EO implementation says the order has no force of law. The higher-ed lobby tells HELP that employment reform is unacceptable. The Q&A says the current rules are workable and defensible and also need to change. The rule change forecloses specific lawsuits and invites new ones. The Cabinet declined to vote on the change its president is selling to membership. State trial courts keep granting injunctions and a state supreme court backed one up.

The states aren’t waiting either. That’s for tomorrow, because it deserves its own post. Wisconsin, Florida, Arkansas, Mississippi, Oklahoma — five different responses, none coordinated, filling the vacuum in five different ways. Heading into the probability table, you should know the state piece is coming and that it connects.

For today, the pattern is enough. The institutions that claim they aren’t waiting are. The ones actually doing governance are state-court judges in Cleveland County, Oklahoma, and Lafayette County, Mississippi. They aren’t writing rules. They’re issuing orders. And the orders keep the athletes on the field while the rules get redrafted above them by lawyers writing for the next case.

More tomorrow.

---

If you’re finding this analysis useful, share it with someone trying to make sense of the chaos. Tomorrow’s Saturday post takes the state-by-state view — Wisconsin, Florida, Arkansas, Mississippi, Oklahoma — and lands in your inbox if you subscribe.

---

This is an ongoing series applying political economy analysis to the college sports reform landscape. Recent entries:

How Collective Bargaining Could Stabilize College Football (flagship)

Five Roads Out and Why Most of Them Dead-End

Enforcement Is the Real Collective Action Problem

The Executive Order That Tells You Exactly What It Can’t Do

The Week Everyone Tried to Govern (last Friday)

---

NB: This essay is written in my capacity as a political scientist who studies institutions, incentives, and collective action, not as an institutional spokesperson.