Fixing NCAA’s problems doesn't appear to be at forefront for U.S. Congress — 'These are big, thorny, tough issues'

Boston, MA - September 20: NCAA president and former Massachusetts governor Charlie Baker is interviewed by Boston Globe Sports writer Chris Gasper at the Globe Summit 2023. (Photo by Pat Greenhouse/The Boston Globe via Getty Images)
NCAA president Charlie Baker appeared at a congressional hearing Thursday. (Pat Greenhouse/The Boston Globe via Getty Images)

WASHINGTON — Minutes after the completion of the 11th congressional hearing on college athletics, the event’s two star witnesses, NCAA president Charlie Baker and UCLA quarterback Chase Griffin, shook hands, exchanged pleasantries and posed for a photograph.

The two men, having espoused drastically different views on the future of college athletics, came together, fittingly, within the marbled walls of Capitol Hill, where disagreements among lawmakers usually devolve into divisive spats.

In many ways, Baker and Griffin represent a view from each of the parties of Congress over legislation around college athletics: One is against athletes becoming employees (Republicans), and the other seems somewhat fine with it (Democrats).

Therein lies the impasse at which two parties, unlike Baker and Griffin, will not come together in harmony, one prominent lawmaker said.

“It’s hard to imagine this Congress getting to an agreement on antitrust exemption and on employment,” Rep. Lori Trahan (D-Mass.) said. “I think this hearing surfaced that there is a wide gap between where we are and where we need to go to get to consensus, not just here in the House but also in the Senate.”

Perhaps the most noteworthy item from the 3.5-hour hearing was what was said afterward, when Trahan proclaimed dead the NCAA’s requests of Congress to both exempt college athletes from employment status and grant it an antitrust exemption.

The concepts are the two most significant asks from Baker, the NCAA and high-ranking conference leadership of Congress. They are at the center of a more than four-year-old lobbying effort that has evolved from requesting NIL guardrails to, now, seeking legal protections and employment exemptions in an effort to preempt rulings from ongoing court battles that could deem athletes employees.

“This Congress just doesn’t seem like the Congress where we’re going to have a lot of bipartisan wins,” Trahan said. “These are big, thorny, tough issues. I’m not optimistic that this is going to be a Congress where we figure out college athletics at large.”

While the comments are a blow to NCAA hopes, they should be taken in context: They emerge from one Democratic lawmaker from one chamber of Congress. In the Senate, Sens. Ted Cruz (R-Texas) and Cory Booker (D-NJ) have been engrossed in negotiations over a compromise piece of legislation. In fact, in September, Cruz himself proclaimed that there was a 60% chance that a bill passes this Congress.

However, Thursday’s hearing before a subcommittee of the House Energy and Commerce committee illustrated the widening gap between the right and left over the future of both college athletics legislation and compensation.

For instance, one Republican, Georgia’s Rick Allen, suggested that college football needs to return to “some normalcy,” which, he said, means regaining amateurism. Another swore off any idea of “pay-for-play” and a third believes that college sports needs “saving.”

There is then the other side.

“The sky is obviously not falling. Athletes are better off today than they were yesterday,” said Trahan, a former Georgetown volleyball player who is one of the most knowledgeable about the subject.

The six witnesses, likely selected to represent equally the views of each congressional party, argued one side or the other. Even the college athletes disagreed with one another. For instance, while Griffin proclaimed multiple times that he and other football players “operate” already as employees, Radford volleyball player Meredith Page disagreed. She doesn’t feel like an employee. After all, she said, this is “voluntary.”

It was another stark showing of differences in the answers to a vexing question: Should college athletes be employees?

“If you convert all of college sports into employment, there is simply no doubt, based on math, that you will lose an enormous number of student-athlete opportunities,” Baker told lawmakers. “The money is just not there. Most schools lose money on sports.”

Thursday’s hearing was held in response to a draft bill from Rep. Gus Bilirakis (R-Fla.), the Republican who began the hearing by saying, “we need to save college sports as we know it.” His bill, which does not yet have bipartisan support, would both grant the NCAA a limited antitrust protection and exempt athletes as employees while also implementing guardrails on NIL.

However, in light of legal pressures, the NCAA’s campaign for congressional help has turned away from NIL and is now focused on protecting itself from court rulings that could drastically alter the college sports landscape, college leaders say.

There exist at least three routes in which college athletes could be deemed employees over the coming months: the Johnson case in Pennsylvania seeks minimum wage, and two complaints filed with the National Labor Relations Board could grant athletes the ability to unionize and earn salaries.

If the NCAA loses the Johnson case, Baker told lawmakers on Thursday that two-thirds of NCAA athletic teams would be discontinued. Paul McDonald, a lawyer representing the plaintiffs in the Johnson case, argues against such a notion, pointing toward work-study programs in which regular students participate now.

Trahan, meanwhile, is cautious of preempting the courts.

If the courts rule college athletes as employees, there will be an “adjustment” in college sports, just as there was when the NCAA lost the Alston Supreme Court case. Most high-level Division I programs now offer annual Alston stipends to athletes as a result.

College sports leaders better prepare themselves for employment, Trahan warned.

“Shame on them if they aren’t because any good leader does a lot of scenario-planning, and that is a scenario where the courts might actually deem athletes employees,” she said. “You’re just going to see an adjustment around college athletics. I don’t think the sky is falling in college athletics as a result of any of these decisions. We want more athletes at the table. We want them to have a voice in college sports just like they would in any other industry.”

The highest body of college athletics leadership, the Division I Board of Directors, is indeed preparing for the moment. During the NCAA convention last week in Phoenix, board members met for several hours. At the center of much of the discussion was the topic of employment, those with knowledge of the talks told Yahoo Sports.

Baker began Thursday’s hearing by imploring lawmakers to deem athletes as students and not employees. Such a move is “critically important” to implementing a proposal he introduced last month, Project DI, which would grant schools the ability to strike NIL deals directly with their athletes. He told lawmakers that schools having “the ability to buy the NIL rights [of athletes]” is a better alternative than employment.

Yet a few minutes later, Griffin used Baker’s own proposal to point to the employment cause.

Project DI, he said, “acknowledges that college athletes should be paid.”