III. Professional Lobbying
The Power 5 and NCAA have amassed an arsenal of professional lobbying firepower dedicated to the single purpose of eliminating external regulatory threats and, in the process, ending the athletes’ rights movement (see “Congress” Tab in Explore Menu and the Timeline showing the dates the Power 5 and NCAA hired professional lobbyists).
These lobbying firms are playing the long game, waiting for the optimal congressional environment to go in for the kill.
Notably and ironically, the Power 5 and NCAA pay all their lobbying expenses from the labor of the very athletes—Power 5 football and men’s basketball players—whose fundamental rights as Americans are at stake in federal legislation.
In a real sense, these athletes are paying for the weapons used against them in the Power 5’s and NCAA’s scorched earth campaign in Congress.
The list below shows the top 20 D.C. lobbying firms in 2023. The firms circled in red work for either the NCAA, a Power 5 conference(s), or the University of Notre Dame.
Brownstein Hyatt—the number 1 ranked lobbying firm—has lobbied for the NCAA since June 13, 2014. Like many lobbying firms in DC, Brownstein is a full-service, national law firm.
Akin Gump—ranked number 2—has lobbied for the Southeastern Conference since February 13th, 2020. Akin Gump is also a heavy-hitting national law firm.
Cornerstone Government Affairs—ranked number 6—lobbies for the University of Notre Dame, including college sports issues.
Cassidy & Associates—ranked number 14—has lobbied for the Pac-12 since March 20, 2020.
Subject Matter (f/k/a Elmendorf Ryan)—ranked number 17—has lobbied for all five Power 5 conferences since March 9, 2020.
Although not ranked, Marshall and Popp also has lobbied for all five Power 5 conferences since March 9, 2020. Hazen Marshall and Monica Popp have close connections to Senators Mitch McConnell (R-KY) and John Cornyn (R-TX).
Another big-time law/lobbying firm (not ranked)—DLA Piper LLP—has lobbied for the Atlantic Coast Conference since July 9, 2019.
FGS Global (f/k/a FGH Holdings, LLC) has lobbied for the Big Ten conference since May 18, 2020.
Kit Bond Strategies has lobbied for the Big 12 since July 20, 2015 (last report filed for 4th quarter 2022).
NCAA Office of Government Relations has lobbied for the NCAA since January 24, 2000.
Note: Lobbyists and firms must file quarterly “Lobbying Disclosure Reports” that provide basic information on lobbying activities. DYK has created an Excel Lobbying Facts Database (link below). At the bottom of the Excel page are links to materials for the NCAA and each of the Power 5 conferences.
See LOBBYING FACTS
These lobbying firms are the best in the business. They are working in concert to manipulate the political process and the legal/regulatory environment to achieve the Power 5’s and NCAA’s goals in Congress.
This is influence-peddling of the highest order. The system is based on access to the inner sanctums of Washington, D.C.’s political and legal elite, who conduct their business in America’s most exclusive golf and tennis clubhouses, social clubs, and dinner party circuits.
It is a game of power, connections, access, and money, money, money.
Athletes do not have professional lobbyists. You are unlikely to find Power 5 football and men’s basketball athletes or their families wining, dining, golfing, or skyboxing with United States Senators, Representatives, and silk-stocking lobbyists and lawyers.
The exclusion from the political process of athletes who disagree with NCAA and Power 5 congressional goals raises important fairness, process, and access issues.
The charts below show the NCAA’s and Power 5’s lobbying expenses.
In 2023, the NCAA and Power 5 spent $932,000 each quarter, $310,000 each month, $71,000 each week, and $10,000 each day on their lobbyists.
The monthly total is substantially more than the average Power 5 undergraduate full professor makes annually.
To be clear, we aren’t criticizing lobbying firms or individual lobbyists or suggesting they have any personal bias against revenue-producing athletes. As with lawyers, judges, Congress members, and institutional stakeholders, lobbyists are just doing their jobs. And they are very good at them.
However, just as most Power 5 football and men’s basketball players have no experiential understanding of Inside-the-Beltway power dynamics, most high-powered D.C. lobbyists have no experiential knowledge of the lives of athletes—particularly Power 5 football and men’s basketball players.
The policies and legislation promoted by the Power 5 and NCAA lobbyists reflect a massive disconnect between the lives and values of DC power brokers and profit athletes.
This rigged system has produced (1) four years of distorted congressional hearings, (2) the illusion of athlete and stakeholder consensus on NCAA/P5 congressional goals, and (3) dozens of bill proposals built primarily around foundational NCAA/Power 5 mythologies and fear-mongering.
The Hearings
Congress has held twelve hearings since February 11, 2020, most ostensibly on “NIL compensation.”
That’s one hearing nearly every four months.
Through COVID-19, political turmoil, foreign crises, and economic instability, Congress has found time and resources to provide the NCAA and Power 5 an audience on demand in their quest to end the athletes’ rights movement.
The NCAA and Power 5’s masterful lobbyists carefully orchestrated and scripted eleven of the hearings.
These hearings were dominated by witnesses who were NCAA and Power 5 friendly, including two NCAA presidents, three Power 5 conference commissioners, and multiple Power 5 athletics directors.
Each of these witnesses operated under profound financial and institutional conflicts of interest, yet their testimony was largely well-received. Indeed, they were treated as unimpeachable “experts” on labor and antitrust issues, federal preemption, sports economics, NIL, and Title IX.
In the only hearing comprised of a majority of athlete witnesses (June 17, 2021, Senate Commerce Committee), ranking member Senator Roger Wicker (R-MS) led a Republican boycott.
Wicker and all but one Republican member of the Committee—Jerry Moran (KS)—skipped the hearing because, according to Wicker, Republicans did not have sufficient notice of the hearing or control of the witness list.
The hearing/witness summary below demonstrates that 71% of all witness slots (gold cells) have been assigned to NCAA/Power 5-friendly witnesses.
Only one athlete-friendly witness has testified in eight of the twelve hearings (identified by blue cells and red circles).
This imbalance creates the false impression of consensus on crucial NCAA/Power 5 narratives.
It’s also noteworthy that in four of the eight hearings with only one athlete-friendly witness, the same witness (Ramogi Huma) testified.
1. Flooding the Zone with Lobbyist-Manufactured Talking Points
Throughout these hearings, not one NCAA or Power 5 witness even acknowledged the existence of their lobbying campaign.
To the outside world, the uncanny similarity of NCAA/Power 5 witness testimony suggested principled agreement on every issue that has been raised in Congress.
NCAA and Power 5 witnesses ritualistically and effortlessly repeat lobbyist-inspired buzz phrases and narratives in perfect harmony.
On preemption, the hearings are littered with concerns over the “patchwork” of state NIL laws and “races to the bottom,” the need for a “single uniform standard,” and a “national framework.”
On antitrust immunity, witnesses call for a “safe harbor” from vexing litigation so the NCAA can engage in “sensible” rulemaking to enhance “athlete well-being.”
On their no-employee campaign, NCAA and Power 5 witnesses merely seek to “clarify,” “codify,” and “affirm” that athletes are students, not employees; the NCAA and Power 5 simply want to preserve athletes’ “special status” as “student-athletes.”
They use the same coordinated, repetitive approach to their scare tactics, repeatedly invoking gender equity, Title IX, our Olympic pipeline, HBCUs, and Divisions II and III as inevitable casualties of any change to the status quo regulatory and business models.
2. The October 17, 2023 Hearing
The October 17, 2023, hearing in the Senate Commerce Committee illustrates how stacked witness lists falsely convey consensus.
That hearing emphasized the NCAA/Power 5 campaign for a federal law making it impossible for athletes to be employees.
While the hearing was titled and framed through the lens of name, image, and likeness (“Name, Image, and Likeness and the Future of College Sports”), a primary purpose was to push anti-employee narratives.
Employee status is irrelevant to NIL in its current form. The existing NIL market is a third-party market. Universities cannot enter into NIL deals with athletes or pay athletes for their NIL without violating NCAA pay-for-play prohibitions.
While NIL was a prominent part of the hearing, it was primarily discussed in the context of the harm NIL is causing college sports. NCAA/Power 5 witnesses and NCAA/Power 5-friendly Senators flooded the hearing with anti-NIL narratives, including:
1. NIL as disguised pay-for-play and recruiting inducements.
2. NIL collectives as rogue market actors.
3. NIL is unfair to female athletes.
4. State NIL regulation is chaotic in the absence of a single federal standard.
However, the hearing was primarily a frontal attack on athletes as employees.
NCAA President Charlie Baker opened the hearing with appeals for no employee status.
Other witnesses declaring their opposition to employee status included Big Ten conference commissioner Tony Petitti, Notre Dame athletic director Jack Swarbrick, and St. Joseph’s athletics director Jill Bodensteiner.
Baker, Petitti, and Swarbrick earn millions each year in the existing business model, yet they were accorded respect as neutral commentators offering their “objective” opinions on employee status.
Ms. Bodensteiner represented St Joseph’s, a smaller Division I school outside the big-time football sweepstakes. Contrary to her “sky is falling” predictions of calamity if athletes at her school petition for employee status, St. Joseph’s and Ms. Bodensteiner have very little skin in the game.
Moreover, while Ms. Bodensteiner’s salary is modest compared to Baker, Petitti, and Swarbrick, she is one of the highest-paid employees at St. Joseph’s.
Ms. Bodensteiner was useful to Power 5 football (and their lobbyists) because (1) she is a woman, which made her an effective conduit for the narrative that employee status would devastate women’s sports, and (2) she is an attorney who once practiced labor law.
Ms. Bodensteiner was presented as a neutral “expert” on gender equity and labor law/employee issues.
Senator Ted Cruz (R-TX), a reliable NCAA/Power 5 ally, asked all seven witnesses whether they believed athletes should be employees (not whether they are, in fact, employees).
Six witnesses emphatically said “no,” and the only athlete-centered witness, Ramogi Huma, gave a qualified “yes.”
Below is a montage of clips from the hearing on employee status.
The Cruz clip is particularly compelling on the false consensus issue.
So, too, were comments from Senators Lindsey Graham (R-SC) and Richard Blumenthal (D-CT).
Graham, who has been a reliable NCAA/Power 5 ally, repeatedly invoked the parade of horribles that would ensue if athletes were employees.
Blumenthal—ostensibly an athlete advocate—gave credibility to the perception of consensus on the employee issue in his wrap-up comments without acknowledging the stacked witness list and the obvious conflicts of interest of Baker, Petitti, Bodensteiner, and Swarbrick.
Notably, since co-sponsoring the first Athletes Bill of Rights in 2020, which had a revenue sharing component, Blumenthal has slowly moved toward NCAA/Power 5 interests.
The rerelease of the Athletes Bill of Rights in 2022 removed the revenue sharing provisions, and in 2023, Blumenthal joined Cory Booker (D-NJ) and Jerry Moran (R-KS) in a discussion draft bill modeled in large measure after Moran’s 2021 bill that was NCAA/Power 5 all the way.
None of these bills would confer upon athletes employee status, and the Moran bill from 2021 expressly prohibited it (see discussion of Moran bill below).
People watching the hearing could reasonably conclude that anyone who believes athletes are, or should be, employees is an extreme outlier.
And that is precisely the point.
3. Where Are the Real Experts?
Throughout the four-year congressional hearing process, the NCAA and Power 5 have insinuated into the debate issues that require input from neutral experts, including:
1. The economics of college sports
2. Labor law
3. Intellectual property law
4. Title IX and other civil rights issues
5. Health and safety
6. Federal preemption
7. Antitrust law
8. Tax law
9. Consumer protection through the powers of the Federal Trade Commission
However, as the Summary of All Hearings below demonstrates, not a single, neutral expert in any of these crucial subject matter areas has testified.
The absence of federal agency witnesses is particularly revealing. Washington D.C. is teeming with experts on all of the issues identified above.
Yet the committees conducting these hearings couldn’t find a single one to share their expertise?
For example, many of the bills proposed in Congress would invoke the powers of the FTC to oversee and enforce a federalized NIL and college sports market.
Why hasn’t a representative from the FTC testified?
Shouldn’t we know whether the FTC believes it should use its formidable regulatory and law enforcement authorities to protect the business interests of private education nonprofits?
Why hasn’t a National Labor Relations Board representative testified on the employee issue?
Perhaps an NLRB expert could explain how employee status might work in college sports rather than why it can’t.
As the Cruz clip illustrates, all we have heard in the hearings is “no, no, no, maybe, no, no, no.”
Title IX and gender equity issues have been a central theme in the hearings.
Why haven’t we heard from a representative of the Department of Education’s Office of Civil Rights, which is responsible for Title IX oversight and enforcement?
These crucial premise questions have gone unanswered in large measure because the hearings have not been designed to educate lawmakers on the details of federal intervention.
Instead, they have been staged by lobbyists to presuppose the legitimacy of NCAA/Power 5 narratives and the illegitimacy of any changes to the status quo business model.
SUMMARY OF ALL HEARINGS
Total Number of Hearings: 12
Time Frame: 4 years (February 11th, 2020 – January 18th, 2024)
Total Witness Slots: 62
Total NCAA/P5-Friendly Witness Slots: 44 (71%)
Total Athlete-Friendly Witness Slots: 18 (29%)
Total Institutional Witness Slots (NCAA President, P5 university presidents, P5 conference commissioners, P5 athletics directors, G5 athletics director, HBCU university presidents/conf. commissioner, FCS conference commissioner): 30
Number of Hearings with More Pro-NCAA/Power 5 Witnesses than Pro-Athlete Witnesses: 11
Number of Hearings with Only One Athlete-Friendly Witness: 8
Number of current or recently graduated Power 5 Football, Men’s Basketball, or Women’s Basketball Witnesses: 1
Number of Expert Witnesses on Economics of College Sports: 0
Number of Non-NCAA Expert Witnesses on Labor Issues/Labor Law: 1
Number of Expert Witnesses on Intellectual Property/IP Law: 0
Number of Expert Witnesses on Title IX: 0
Number of Expert Witnesses on Health/Safety: 0
Number of Witnesses from Federal Agencies that Have Actual or Potential Jurisdiction Over College Sports Issues (NLRB, Labor Department Wage and Hour Division, OSHA, EEOC, FTC, DOJ Antitrust, DOJ Civil Rights, Education Department/Office of Civil Rights, IRS): 0
Number of Subpoenas Issued by Committees: 0
The Bills
Bills proposed by certain Congress members—and promoted by Power 5 lobbyists—illustrate institutional and congressional tone-deafness to athletes’ rights.
For example, a bill identified by several Power 5/NCAA lobbyists as one that has been the subject of their lobbying activity is Jerry Moran’s (R-KS) “Amateur Athletes Protection and Compensation Act of 2021.” (see NCAA’s 1st quarter 2023 Lobbying Disclosure Report below)
Moran introduced his bill on February 24, 2021.
The media has described the bill as “middle of the road,” suggesting that the bill has athlete-friendly elements.
The bill is approximately 36 pages long, with 5,000 words. It contains several “shiny objects” beyond NIL “compensation” (one-time transfer; out-of-pocket health care reimbursement for two years post-eligibility) advertised as meaningful new athlete benefits.
However, when Moran introduced the bill, these “benefits” already existed in one form or another (through Power 5 Autonomy legislation) or were scheduled to come into existence independently of the bill (one-time transfer).
Moran’s bill has draconian credentialing and reporting requirements targeted to athletes, agents, boosters, and NIL companies. It federalizes the NIL market through a federal corporation run by Power 5/NCAA insiders.
Moran’s federal corporation would have subpoena power to compel witnesses and documents in sports-related investigations. Subpoenas could be issued by the federal corporation “at the request of a national amateur athletic association” (i.e., the NCAA).
The Moran bill would turn NCAA infractions and enforcement into a federally-sanctioned police state.
Most importantly, Moran’s bill contains preemption, antitrust immunity, and no employee status provisions.
Like bills introduced by Marco Rubio (R-FL), Roger Wicker (R-MS), and Ted Cruz (R-TX), Moran’s bill would end the athletes’ rights movement.
The Moran bill is frighteningly efficient. It takes down the athletes’ rights movement in 200 words.
One thing Moran’s bill is not: “middle of the road.”
Ironically, Republican Senators have led the way with proposed legislation that would eliminate states from the regulatory field (through federal preemption of state laws), deny athletes access to free markets (through antitrust immunity), and prevent athletes from freely associating in the workplace (through no-employee status that would exclude athletes from the protections of the National Labor Relations Act and collective bargaining).
These senators built their political careers on states’ rights, free markets, free association, and economic self-determination.
Yet, when it comes to college sports and athletes, these same Senators advocate for a federal bail-out that makes a mockery of American freedoms.
The NCAA and Power 5 are four years into their intensive professional lobbying campaigns. They have made substantial—and largely invisible inroads—on critical narratives and with key congress members.
Right now, their target audience is comprised of 535 people—100 Senators and 435 House members. Most lawmakers have already chosen a side along party lines, and the debate has devolved into partisan gridlock.
However, NCAA and Power 5 lobbyists are aggressively targeting a small but critical mass of legislators—mostly Democrat women—to go along with protective federal legislation.
Prioritizing divisive and unproven gender equity and utilitarian arguments, the lobbyists hope to scare just enough female Democrats into a yes vote that will allow a bill to be sold to the White House and the public as “bipartisan” and a victory for female and other Olympic sport athletes.
There is a reason why NCAA and Power 5 lobbyists continue to work relentlessly behind the scenes to achieve their clients’ objectives: because it historically works for powerful corporate interests.
The NCAA and Power 5’s professional lobbyists will not lay down their weapons and walk away.
