NCAA Reform on Capitol Hill: 6 Questions on the Prospects of Passage
Congress has increasingly indicated an interest in helping the college sports industry deal with multiple issues, from name, image and likeness to antitrust clarification to athletes’ health and labor rights. Frequently, at least over the last decade, NCAA president Mark Emmert has been portrayed as the stumbling block to those efforts.
Former Rep. Mark Walker, a North Carolina Republican who became one of the House’s most active college sports reformers while in office (2016 to 2021), puts the failure of passing federal legislation “100% at the feet of the outgoing president.”
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In a telephone interview last week, Walker recalled one of his earliest meetings with Emmert, around the time he and then-Rep. Cedric Richmond (D-La.) introduced bipartisan federal NIL legislation in March 2019.
Emmert, according to Walker, was ever recalcitrant, insisting college athletes would never profit from athletic endorsement deals during his lifetime. Walker says that when the NCAA Board of Governors voted in the spring of 2021 to extend Emmert’s contract, it effectively meant the death knell of any legislation passing the 117th Congress.
What about the 118th? As announced last week, current Massachusetts Gov. Charlie Baker will succeed Emmert on March 1, and Walker believes Baker will be a more intentionally unifying force.
“He is not an Alabama or Texas football guy, but I think he is somebody who I think you could work with, which was really the biggest complaint about Mark Emmett,” said Walker. “The guy just wouldn’t budge.”
Among the chorus of politicians singing Baker’s pre-presidency praises is Massachusetts Democratic Rep. Lori Trahan, a former collegiate volleyball player, who introduced the House version of the College Athlete Economic Freedom Act in early 2021.
Trahan, an outspoken NCAA critic, hailed the association’s hiring of her fellow Bay Stater as a “pleasant surprise,” one that may foreshadow federal legislation actually passing next Congress.
“There aren’t many areas where I am optimistic about bipartisanship over the next couple years, but getting something done on college athletics I am optimistic about,” said Trahan, who has been part of a bipartisan informal college sport reform working group in the House.
Including the companion bills by Trahan and Murphy, Congress has seen the introduction of at least 17 pieces of legislation addressing college athlete welfare since 2019, according to Julie Sommer, the Drake Group’s president-elect, who tracks the federal activity on behalf of her college sports reform organization.
In addition to athlete economic rights, the bills have also tried to tackle health and safety, and gender equity within college sports. Yet none of them received so much as a floor vote. Despite multitudes of hearings over the past several decades, no substantive, college sports-specific legislation has passed Congress since the Equity in Athletics Disclosure Act in 1994. Nevertheless, almost three decades later, Sommer is also optimistic.
“I have real hope for sound, viable bills to work their way through committee in both the House and the Senate,” Sommer said. “There are members of Congress taking strong leadership roles in all of these areas, we just need the clarity and urgency—applied internally or externally, or both—to get them through.”
With Emmert’s departure, Baker’s arrival, and the present, state-driven NIL system driving the NCAA mad, have the stars finally aligned to enact a new law? Here are six questions that will need to be answered.
Can the Gang of 4 find common ground?
If reform legislation has its best springboard in the Senate—and that’s an open question—then it will almost assuredly come down to the collaborative efforts of Sens. Corey Booker (D-N.J.), Richard Blumenthal (D-Conn.), Joe Manchin (D-W.V.) and Tommy Tuberville (R-Ala.). The four, according to sources, held a meeting last week to discuss their competing college sports reform bills.
Booker, a former Stanford football player, and Blumenthal represent the college athlete-rights wing that has previously pushed for the dismantling of amateurism.
In 2020, they and two other Democratic senators sponsored the College Athlete Bill of Rights, which called for NCAA football and basketball players to receive 50% of the revenue generated by their sports. Direct compensation of athletes has been an automatic nonstarter for the NCAA and the college sports establishment. Booker and company introduced a more restrained version of their bill this past August, which ditched the revenue-sharing portion to focus on NIL and athlete health and safety.
Around the same time, Tuberville—the former head football coach at Auburn University—and Manchin announced their plans to create federal NIL legislation that would stabilize the athlete endorsement market, rein in collectives, and hold the line against pay-for-play.
How much are Booker and his fellow athlete-rights Democrats willing to yield to amateurism in order to “get something done” on NIL?
“Many of the Republicans would be happy to have a national NIL bill and that is it, harmonize it, and let’s go home,” said Tom McMillen, a former Democratic Congressman who is now president of the Lead1 Association, which represents college athletic directors. “So, that is the delta which has been hard to bridge.”
How many balls are in play?
NIL may be top of mind, but it isn’t the only college sports-related concern that has attracted Congress’ attention. Booker’s latest athlete bill of rights legislation, for example, calls for new health and safety standards, an athlete medical trust fund, and increased enforcement over Title IX’s gender equity requirements. That latter issue could be particularly complicated if it becomes part of an NIL-reform grand bargain.
In March, Rep. Carolyn Maloney (D-N.Y.), introduced a bill to establish a commission that would examine and ultimately make recommendations to improve the state of opportunities for female collegiate athletes. Meanwhile, Republican Sen. Mike Lee (Utah) and Florida GOP Rep. Greg Steube put forward bills aimed at preventing transgender women from competing in female sports.
Can these other issues be tabled in lieu of legislating NIL? Sommer thinks not. “To have staying power, yes, we need to address all of it,” she said.
Then there’s the question—made all the more pressing by the NCAA v. Alston Supreme Court ruling and last week’s developments within the National Labor Relations Board—of whether Congress should grant the association an antitrust exemption. In an interview with Sportico this week, Tuberville indicated there was little appetite for throwing this wrench into the mix.
Can the issue remain above the partisan fray?
Since 2016, it could be argued that no matter in Washington has proven as enduringly immune from the sectarianism of the Hill—or, for that matter, the entire country—as college sports reform. With perhaps the notable exception of the retiring Sen. Richard Burr (R-N.C.), a rock-ribbed traditionalist, most Democrats and Republicans who have taken up the issue have come from the shared view that the NCAA has too long trampled upon athletes’ financial freedoms.
Much of this gathering of the minds has to do with the unique, all-around appeal of the cause, which speaks to the concerns of both civil-rights liberals and free-market conservatives. The NCAA’s move in 2017 to pull its championships from North Carolina following the state’s passage of the so-called “bathroom bill” also served to galvanize a number of social conservatives against college sports’ governing body.
Nevertheless, American politics has produced no shortage of examples of once-unifying issues turning divisive. At some point, it would seem, the law of gravity will take hold here, too.
What will Congress’ roster changes mean?
While the 2022 midterms were not as politically disruptive as had been anticipated, they still led to a narrow Republican takeover of the House—a slim victory that, nevertheless, comes with committee gavels. Rep. Gus Bilirakis, a Florida Republican and UF alumnus, is due to become chair of the House Consumer Protection and Energy Subcommittee, where new NIL legislation would likely be introduced.
Walker is gone, having opted to mount an unsuccessful Senate bid, though he says he plans to continue engaging legislators on the issue. Another big departure is Rep. Anthony Gonzalez (R-Ohio), a former Ohio State football player who had introduced a bipartisan NIL reform bill in September 2020 with Democratic Rep. Emanuel Cleaver. A moderate Republican who voted to impeach Donald Trump, Gonzalez opted not to seek a third term, in which he would likely have been primaried. He had previously seemed like a natural fit to lead the legislative effort in the House.
In the Senate, which barely remained in Democrats’ hands, Republican Sen. Ted Cruz of Texas is slated to ascend to the seat of ranking member on the powerful Commerce Committee. Cruz’s predecessor in that role, Sen. Roger Wicker (R-Miss.), had sought to be a consensus-builder on NIL, introducing a bill in September geared at establishing “a uniform, national framework.” Given Cruz’s reputation, multiple Hill sources wondered whether Cruz would be able to abstain from turning any NIL bill mark-up session into a wedge issue debate over, say, transgender athletes.
As one senior GOP aide put it: “He is always a little bit of an iconoclast.” (Cruz did not respond to a request for comment sent to his spokesperson.)
Does Baker’s political acumen (and popularity) actually translate?
In two terms serving as a moderate Republican governor of a very blue state, Baker cemented a reputation for being a political bridge-builder. That he is finishing up his time in office with sky-high popularity—despite the political conundrums of COVID-19 and the Trump presidency—has given rise to the idea that the NCAA’s challenges are a relative piece of cake.
“Running a $50 billion state is a lot more complicated than running a billion-dollar association,” said McMillen.
Then again, Baker’s political career has always been confined to state government.
“Doing bipartisan legislation in Massachusetts is different than in Washington,” said Andrew Zimbalist, the Smith College economist and long-time college sports reform advocate.
Not only will Baker have to move fast to learn the complexities of college sports, but to forge relationships in Congress.
To that point, a since-deleted September tweet from Cruz falsely dinged Baker as a Democrat, while condemning his decision to activate the Massachusetts National Guard to assist in the handling of migrants that had been flown from Texas to Martha’s Vineyard at the behest of Florida Gov. Ron DeSantis.
Zimbalist also harkens to the governor’s handling of another fraught issue involving sports and politics: Boston’s bid to host the 2024 Summer Olympics. Public support for the city’s first-time bid, initiated prior to Baker taking office, precipitously dropped in the early months of his first term, as its problematic logistics became apparent. Nevertheless, Zimbalist noted that Baker’s approach was to resist piling on, instead commissioning an independent study that, in part, gave cover to Boston’s Democratic mayor, Marty Walsh, who had initially supported hosting the Games.
“I respected Charlie both because he was careful and cautious and also the very generous way—and this is my inference—he treated Marty,” said Zimbalist, who had informally discussed the Olympics with Baker on a few occasions at the time. (Not for nothing: Walsh is now the Secretary of Labor.)
Will California reset the goalposts … again?
The legislative body that made NIL the national norm—if not national law—was the California state senate, which passed the Fair Pay to Play Act in May 2019, a scant four months before Gov. Gavin Newsom signed it into law on Lebron James’ HBO show, The Shop. Since then, two other bills have been introduced that would mandate revenue-sharing between schools and athletes whose sports generate certain levels of proceeds.
The most recent of these efforts, the College Athlete Race and Gender Equity Act, was proposed in February by state Sen. Steven Bradford, which, in addition to its pay-for-play provisions, initially included strict new gender-equity enforcement provisions. Those were soon cut out from the legislation, with Bradford later blaming “fears and disinformation” for the bill getting snagged in committee.
Though nothing has been announced, it’s safe to assume a similar bill will be introduced in the new year, perhaps even before Baker is installed in Indianapolis. Depending on how that effort fares, solving NIL may soon be besides the point. Consider the prospects for continued bipartisanship if Newsom—DeSantis’ self-appointed left coast nemesis—ends up signing a college athlete pay-for-play bill in 2023.
Emily Caron contributed to this story.
