I. Introduction
Note: How to use the LOBBYING FACTS information. The link will take you to an Excel sheet with detailed lobbying information for the NCAA and each Power 5 conference. You can navigate the spreadsheet for each client (NCAA, each Power 5 conference) by clicking on the tabs at the bottom of the Excel sheet. To access the information identified in an individual cell, click the blue hyperlink, and a small box will appear. Inside the box is another hyperlink that will take you to the underlying document. Under “Lobbying Activity,” you will see how each lobbying firm characterizes the nature of their lobbying. These can be misleading and are often crafted to disguise the true nature of the lobbying activity. Also in the Excel sheet is a tab that identifies the bills referenced in the various lobbying reports. That tab provides links to the text of each proposed bill mentioned.
Note: This Tab should be read together with the “Congress” Tab (and Timeline) in the Explore Menu
In 2019, the Power 5 and NCAA—under the guise of name, image, and likeness “compensation”—launched one of the most audacious regulatory power grabs in American sports history.
They seek three extraordinary federal protections and immunities from Congress to eliminate federal courts, federal agencies, state legislatures, and free markets from the college sports regulatory field:
(1) Preemption of state laws that conflict with NCAA compensation limits or eligibility rules.
(2) Immunity from America’s free competition laws.
(3) No-employee status for athletes.
These protections and immunities would grant the Power 5 and NCAA permanent, absolute, and unchallengeable control over the Power 5 football and men’s basketball products and the athlete-laborers who give them value.
The NCAA and Power 5’s congressional campaign is telling. Rather than conform their behavior and business model to comply with valid state laws, federal free competition laws, or long-standing federal labor laws, the Power 5 and NCAA seek to change or operate above those laws.
While the Power 5’s and NCAA’s justifications for federal protections and immunities have changed considerably since 2019, their quest for preemption, antitrust immunity, and non-employee status has not.
These unprecedented “asks” don’t come quickly, easily, or cheaply.
The Power 5 and NCAA have crafted a sophisticated, multi-faceted Congressional strategy to impose their will on the college sports’ legal and legislative landscape.
A cornerstone of this strategy is a wide-ranging, breathtaking lobbying campaign.
The NCAA and Power 5’s initial phases of their Congressional lobbying (in 2019, 2020, and the first half of 2021) were shrouded in secrecy (see “Congress” Tab in Explore Menu).
The Power 5 and NCAA had their professional lobbyists and the NCAA Office of Government Relations working double-time behind the scenes to manipulate Congress toward protective federal legislation.
The events of the summer of 2021 altered the Power 5’s and NCAA’s lobbying strategy.
On June 21st, 2021, the U.S. Supreme Court in Alston rejected the NCAA’s request for judicially created antitrust immunity. Alston was a symbolic body blow to the NCAA’s construction and use of amateurism to justify violating federal free competition laws (see “Federal Courts” Tab in Explore Menu).
Similarly, the Power 5’s and NCAA’s quest in the Senate for last-minute nullification of state NIL laws that were set to go into effect on July 1st, 2021, failed. Just hours before the July 1st deadline, the NCAA dumped its NIL garbage on member institutions through the “Interim Policy.”
That policy was “interim” until one of two things occurred: (1) the NCAA changed its NIL rules to lessen the NIL restrictions contained in NCAA Bylaw 12.5 (“Promotional Activities”), or (2) the NCAA obtained from Congress the federal protections and immunities discussed above, which would allow the NCAA to do nothing on NIL.
The NCAA hasn’t changed a word of Bylaw 12, despite promises to do so dating back to 2019.
After the summer of 2021 and the maturation of the NIL and transfer markets, the Power 5’s and NCAA’s campaigns in Congress came out of the shadows and into full view.
As discussed below, Power 5 and NCAA leaders began an unprecedented “grassroots” lobbying campaign to rally stakeholders to support protective federal legislation.
The current multi-faceted lobbying campaign raises important legal issues and provides a window into the Power 5’s and NCAA’s scorched earth approach to eliminating all external threats to their regulatory supremacy.
This discussion is divided into the following Sections:
1. The Power 5’s and NCAA’s professional lobbying campaign.
2. The Power 5’s and NCAA’s institutional (“grassroots”) lobbying campaign.
3. The legal limitations on lobbying.
4. Where the Power 5’s and NCAA’s Congressional campaign is heading.
