NCAA’s Baker Asks Congress for ‘Limited Liability Protection’
Charlie Baker, the former Republican governor of Massachusetts, was hired earlier this year by the NCAA in the hopes he could marshal his skills at establishing bipartisan consensus to convince a historically polarized Congress to come together for the purpose of sparing college sports’ increasingly beleaguered model of amateurism.
On Tuesday, Baker testified on Capitol Hill for the first time as NCAA president. And while there were signs that he was received as a much-welcomed change from his much-maligned predecessor, Congressional intervention still appears no more likely now than when Mark Emmert was in the hot seat.
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In a hearing of the Senate Judiciary Committee, Baker hailed the association’s recent proposed changes in addressing athlete welfare, while warning Congress that without granting it an antitrust exemption—or, as he euphemized it, “limited liability protection”—the mounting legal threats to college sports governance have pushed the enterprise to the brink of relevance.
“I learned while serving as governor that the legislative branch has immense power and yields it sparingly,” Baker told the committee, but argued that this was a that demanded policy action. Deploying a new rhetorical playbook, Baker phrased his big ask in the arguably paradoxical terms of giving college athletes a “special status that would affirm they are not employees.”
Despite the recent union push by Dartmouth men’s basketball players—among other efforts to gain athletes employee status—Baker suggested that there is near unanimous opposition among college athletes for the move. During his opening remarks, Baker claimed that in his first seven-and-a-half months on the job, he personally spoke to at least 1,000 college athletes on the issue of employee status, and not a single one was in favor.
If true, this would put Baker’s cohort of interviewees well outside the mainstream of even American society. As Sportico/Harris Poll survey in August found 64% of U.S. adults in support of worker protections for college athletes.
Since July 2021, when the NCAA was forced to adopt provisional rules allowing college athletes to profit from their rights of publicity, there have been no less than 10 Congressional hearings seeking to solve what is now by default called the “Wild West.” So far, all this deliberating has failed to lead to a single bill being passed out of committee—and the legislative terrain has only gotten more treacherous.
At the exact same time the Senate Judiciary Committee was in session, a fractious House of Representatives was in the process of deciding whether Rep. Jim Jordan (R-Ohio), a former Ohio State wrestling coach, would become Speaker, nearly two weeks after a handful of Republicans took the unprecedented action of ousting Rep. Kevin McCarthy (R-Calif.) from the job. (Jordan had lost the first roll call vote by the time the NIL hearing concluded.)
While Senate Judiciary members evidenced the continued Congressional interest in college sports—and showed consensus around certain issues, such as athlete health and safety—the session offered little new hope that Congress will be coming to the NCAA’s rescue to stave off amateurism’s more existential threats.
Joining Baker at the table was Big Ten commissioner Tony Petitti; Notre Dame athletic director Jack Swarbrick; Saint Joseph’s athletic director Jill Bodensteiner; college athlete advocate Ramogi Huma; former Florida gymnast Trinity Thomas; and Walker Jones, the executive director of the Grove Collective, an Ole Miss-exclusive NIL program.
Of the witnesses, only Huma, the executive director of the National College Players Association, argued in defense of athletes’ employee status and against any Congressional action that would preempt it.
“The NCAA is a chronic antitrust violator and a glaring example of why antitrust laws are needed in this country,” Huma said, in advancing the case that Congress should not try and shield the governing body from its recent string of adverse court and administrate rulings.
Bodensteiner, on the other hand, told the committee that athletic departments like hers would at best be skeletonized if they were made to pay their athletes like employees and that this would ultimately be to the detriment of the athletes.
“They don’t want to apply for a posted position when what they’re really going for is an education,” she said.
While a number of the committee members at least tacitly signed on to the idea that the college sports system of the last half-century was worth preserving—including Ted Cruz (R-TX), who also serves as ranking member on the Senate Commerce Committee, and who has proposed legislation that would effectively grant the NCAA its long-coveted antitrust exemption—others suggested that they would rather table those larger issues in favor of less controversial ones.
Then there was Sen. Josh Hawley and Sen. John Kennedy, two Republicans not typically identified as champions of college athlete pocketbook issues, who were the most aggressive Tuesday in confronting the NCAA’s position on amateurism.
Kennedy, of Louisiana, who recently passed a resolution acknowledging LSU’s college baseball world series championship, expressed his suspicion about the NCAA’s underlying motivations following the Supreme Court’s unanimous 2021 ruling in Alston v. NCAA, which allowed schools to provide additional educational-related benefits to their athletes.
“Isn’t this fight over the fact that the kids are now getting some of the money that the adults were getting before?” Kennedy asked the witnesses. “I have got a lot of sympathy for the kids. The adults seem to be able to take care of themselves, but it is the kids that make all of this possible.”
Baker, for the record, said that he supported Alston benefits.
Kennedy warned the NCAA that if Congress were to intervene, it might not ultimately like the results. The senator suggested that the association and its members would best be served by coming together on their own to create a “new system that looks like somebody designed it on purpose.”
Hawley, for his part, specifically pressed Baker on the question of whether college athletes should have the right to unionize, offering that this might be the only way in which athletes could advance their rights within the current power structure.
Swarbrick, when asked by Sen. Lindsey Graham (R-S.C.) where things were headed without Congressional intervention, predicted that athletes would discrepantly become employees through a series of NLRB decisions.
And if that were the case, Baker said, Division II, Division III and even some D-I schools would “get out of the interscholastic sports business,” due to what he claimed would be a 4x increase in annual budgets. If athletes become employees, Baker argued, there could be challenges to other NCAA regulations, including minimum educational standards necessary to compete.
Graham agreed, saying that if Congress doesn’t act within the next 12 months, “this thing is going to be an absolute mess and you are going to destroy college athletics as we know it.”
Tuesday’s hearing came more than three years after Emmert testified before the same committee in July 2020, where he railed against the “history of antitrust lawsuits” against the NCAA, arguing that they and state-based NIL laws had been responsible for stymieing college sports reform and modernization.
“While these lawsuits have, for the most part, been unsuccessful, the Association has been required to devote valuable resources to defending them, resources that could have been far better spent on supporting student-athletes,” Emmert said. “Without appropriate protections, these antitrust challenges will continue—as evidenced by the most recent NIL class-action lawsuit filed against the Association just last month—and will interfere with the Association’s ability to effectively and efficiently support the evolving needs of student-athletes.”
