Better Fortune in the New Year? The NCAA’s Fate Depends on [March] Madness

By: Kyle Tatich

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Future historians and scholars will not lack substance when writing about 2020: the year dominated by the COVID-19 pandemic, a wave of protests against racial injustice, and a complete alteration to the American way of life. Similarly, in the realm of collegiate athletics, the year 2020 will amount to a significance of equal magnitude as it epitomized the most transformative year in the 114-year history of the National Collegiate Athletic Association (“NCAA”). Unfortunately for the NCAA, the challenges of 2020 will roll over into the new year, and the governing body’s viability will be tested in the first few months of 2021 as it attempts to conduct its lucrative men’s basketball tournament.Over the past year, the landscape of collegiate athletics has experienced a collision of (1) the Supreme Court of the United States granting certiorari to hear the NCAA’s appeal in the most recent example of litigation on antitrust law and student-athlete compensation; (2) the evolution of NCAA and public opinion on the acceptance of college athlete compensation; (3) conflicting state legislation allowing athlete compensation for name, image, and likeness (“NIL”) activities; (4) imminent Congressional legislation that would unify new rules; and (5) increased power held by college athletes, never enjoyed before at their current levels. To further compound the impact these existential threats have on the NCAA’s viability, the governing body has assumed the burden of managing each point while simultaneously balancing the economic, legal, and social consequences of its actions during a global pandemic.

When COVID-19 effectively shut down the 2020 NCAA Tournament, not only did the governing body forfeit a majority of its annual revenue, but it established an unspoken understanding that it could not afford to miss out again in 2021. The men’s basketball tournament generates $800 million each year with 85% of the governing body’s operating revenue coming from the sale of television rights to the tournament. When the NCAA canceled last year’s March Madness, it had just $225 million available to distribute to its member schools as a part of its business interruption insurance policy connected to the tournament. In a normal year, it would distribute $600 million to Division I schools and conferences.

The NCAA is desperate to complete a successful college basketball season because without it there is no men’s basketball tournament and there are no lucrative television rights to sell to CBS and Turner. If the governing body is unable to conduct its annual tournament, its financial standing will become of greater concern than the pending decision by the Supreme Court or any piece of legislation introduced by Congress.

Member schools and conferences have a financial interest in completing the season as well, but frequent cancelations in non-conference play have created concern among some of college basketball’s strongest voices. Duke’s Mike Krzyzewski told reporters on December 9 that he does not believe playing college basketball feels right to anyone right now. Krzyzewski questions whether college basketball teams should be playing amid a national coronavirus spike that is causing games to be canceled and teams to scramble on a daily basis. Jay Bilas of ESPN and Moore & Van Allen, PLLC, says that it might be time to consider whether the season should be paused until the virus is under control. Iona’s Rick Pitino agrees and has petitioned the NCAA to delay the continuation of the season until the spring.

If the leading names in the sport continue to make such statements, the NCAA could succumb to the pressure and make the difficult decision to pause the season, with no guarantee that trends in COVID-19 cases will improve to a degree that enables the resumption of competition. Anticipating a possible disruption in the season’s annual “March Madness,” the NCAA has been active with the United States Patent and Trademark Office (“USPTO”), seeking registration for the mark “Battle in the Bubble” and “Mask Madness” through its August 26 and December 23 applications, respecitvely.

It has been 27 years since the NCAA received registration for its mark “March Madness” in connection with entertainment in the nature of basketball tournaments between college teams. For nearly three decades, the mark “March Madness” has been a constant synonym for the NCAA’s men’s basketball tournament, emerging as one of the strongest brands in American sport. If there is an interruption in the college basketball season, the NCAA may be on the cusp of replacing its most cherished trademark—at least for this unique moment in history—substituting its esteemed “March Madness” for “Battle in the Bubble.”

Given the success of the bubble-type environment created in recent months by the NBA, WNBA, and NHL, the NCAA was wise in its forward thinking that a similar setting may be necessary to host its men’s basketball tournament. Just as the WNBA filed for registration of the mark “Wubble” in connection with its bubble—the NCAA seeks a certification of its own in an effort to (potentially) sustain itself through the monetization of this moment. If successful, registration for the mark “Mask Madness” in connection with the production of knit face masks could also contribute as a financial bandage for the governing body. The stage is already taking form for a bubble-type environment. On January 4, the NCAA announced that the entirety of the 67-game men’s basketball tournament will take place in the city of Indianapolis which, for now, is slated to begin the week of March 14.

If the NCAA’s engagement with the USPTO is any indication, there is realistic concern that the college basketball season could experience a delay, which would impede the timing of the all-important men’s basketball tournament. So long as the tournament is played at some point in 2021, the NCAA will worry less about its financial viability and more about its appeal before the Supreme Court and any legislation introduced by Congress, both of which could disrupt the standing of the 114-year-old governing body.

As entities across many industries look to 2021 with hope for better fortune, the NCAA likely holds its breath, praying the ball continues to bounce so “madness” can, at some point, commence.