If the NCAA has its way, Congress will pass legislation to nationalize NIL rules, declare that college athletes aren’t employees and insulate amateurism from antitrust scrutiny.
It’s an audacious wish list at a time when the NCAA has been on a losing streak in courts and state legislatures, and when neither Democrats nor Republicans appear to be on their team.
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To state the obvious, the last decade wasn’t kind to the NCAA. Judges and politicians openly rebuked legal doctrine that had long treated amateurism as protected. Ed O’Bannon and Shawne Alston proved that colleges illegally restrained college athletes’ rights. State governments crafted NIL statutes making it illegal to deny endorsement and sponsorship opportunities.
The next decade doesn’t look much better.
In House v. NCAA—a case before the same judge who sided with O’Bannon and Alston—the association is accused of violating antitrust law by denying college athletes NIL and broadcasting revenue. The NCAA is also playing defense on employment law. In Johnson v. NCAA, the U.S. Court of Appeals for the Third Circuit could rule that college athletes are employees under the Fair Labor Standards Act (FLSA) while the NLRB is weighing if they’re employees under the National Labor Relations Act (NLRA).
There’s an old strategy in D.C.: When courts say “no,” ask Congress to say “yes.” It’s a strategy with which the NFL, NBA, NHL and MLB are all familiar. After a federal judge found the NFL’s national TV deals violated antitrust law because the competing businesses (that is, NFL teams) conspired to restrict how each competes, the leagues lobbied Congress to pass the Sports Broadcasting Act of 1961. The Act declared national TV contracts for football, basketball, hockey and baseball leagues (but not other sports leagues) exempt from antitrust scrutiny.
More recently, the NCAA has lobbied members of Congress to advocate for legislation that would rescue amateurism. At last week’s NCAA conference, board chair Linda Livingstone said, “Congress is really the only entity that can affirm student-athletes unique status … we need a safe harbor to a certain degree from antitrust complaints.” Livingstone, who is president of Baylor, added the NCAA needs “the ability to make common sense rules without limitless threats of litigation.”
It’s not obvious from where the NCAA expects to draw political support. Democrats such as Sen. Chris Murphy (Conn.), Sen. Cory Booker (N.J.) and Rep. Lori Trahan (Mass.) have introduced bills that contemplate college athletes as employees who can unionize and share in revenue and health benefits. Meanwhile, Sen. Roger Wicker (Miss.), Sen. Marsha Blackburn (Tenn.), Sen. Mike Lee (Utah) and other Republican lawmakers have pushed for NIL bills that lack an antitrust exemption or express skepticism about the NCAA’s motives. The NCAA’s harshest critic in D.C. might be Supreme Court Justice Brett Kavanaugh, a conservative. In an era when Democrats and Republicans are often on opposite ends of the spectrum, support for the NCAA doesn’t seem to hold a place.
Maybe incoming NCAA president Charlie Baker, known to unite Republicans and Democrats while serving as Massachusetts governor, will thread a political needle. He’ll start in March and will need to act quickly.
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