IV. The December 2022 Documents
On December 13th, 2022, nearly three years to the day after the 2019 meeting, an Atlantic Coast Conference attorney—distinguished UNC alumni Jon Barrett who used to work with former Big Ten conference commissioner Jim Delaney —circulated a “Privileged and Confidential” Memo to conference and institutional stakeholders that lays out the Power 5’s new strategy in Congress.
Wittry did not make the documents available for review, but on February 28th, 2023, he wrote a detailed article describing their content and crucial themes.
Wittry’s article can be found here: “ACC memo: Power 5 reach consensus on what ACC calls ‘must haves’ with federal legislation”
The ACC Memo reassesses the Power 5’s legislative campaign after the Republicans failed to reclaim the Senate in the 2022 midterms.
In many ways, the priorities outlined in the Memo are indistinguishable from what the Power 5 wanted from Congress in 2019.
The Memo identifies several non-negotiable “Must Haves” and several “no consensus” issues that the Power 5 have not “discussed in detail.”
A. “Must Haves”
1. Preemption of state laws that conflict with NCAA/Power 5 amateurism-based compensation limits or eligibility rules;
2. Broad federal antitrust immunity;
3. “No employee” status for athletes, which would eliminate athletes’ ability to seek the protections and benefits of federal and state labor laws;
4. NIL cannot be a recruiting inducement; and
5. Athletes cannot receive publicity rights compensation from the Power 5’s multi-billion-dollar broadcast media deals.
The Power 5’s “Must Have” list is revealing for two reasons. First, it shows the uncanny persistence of the Power 5’s lobbying campaign. Despite skepticism in the commentariat on the prospects of federal legislation, the Power 5 continues to roll along unfazed, waiting for just the right legislative environment to go in for the kill with a bill that will end the athletes’ rights movement.
Second, the “Must Haves” shows how little the Power 5 and NCAA have moved from their militant opposition to any athlete market governed by principles of free and fair competition and fundamental American liberties. The “Must Haves,” if granted, would make the Power 5 and NCAA untouchable and turn athletes into second-class citizens.
B. “No Consensus” Items
On the “no consensus” list were three vague items that have been floated since 2019 as potential “shiny objects” to persuade congressional decision-makers that the Power 5 is serious about athlete interests.
The Memo essentially concedes this point, saying, “These three items are what we consider, and what the Senate will consider, the price to obtain our “Must Haves” above…in other words, we must be prepared to negotiate and possibly compromise on items…to arrive at a bill that can pass the Senate and be signed by the President.” (emphasis added).
The “no consensus” items are:
1. Additional student-athlete support potentially in the form of “revenue sharing, direct payments to athletes, all from the institution,” which the Memo admits would be a form of “pay-for-play.” However, if the Power 5 receives the “Must Haves,” they would have the authority to impose their amateurism-based compensation limits without any legal consequence (on NIL or any other form of “compensation.”). As with the NCAA’s NIL “guardrails” from 2019, the Power 5 suggest athletes can be “compensated,” but only within restrictions (“amateurism”, the “collegiate model”, the “student-athlete”) that make compensation almost impossible;
2. Health benefits for student-athletes that “could include establishing a minimum standard of healthcare benefits, including providing portable healthcare insurance policies that would cover a period of post-eligibility, and providing healthcare subsidy payments for the institutions outside the [P5];” and
3. A federal enforcement mechanism possibly including “…the NCAA, a federal department or agency, or an existing or newly established independent entity.”
The timing here is important with respect to all of these potential “benefits.” The ACC memo came out three weeks before the NCAA Division I Board of Directors Transformation Committee released its Final Report (January 3rd, 2023).
The Transformation Committee’s final recommendations substantially align with the ACC Memo. Both used recycled “athlete benefits” from Autonomy legislation in 2014 and presented them as “new” and “transformative.”
This is a worn-out parlor trick for the Power 5: promise what already exists for the richest schools and propose (or threaten, depending on your point of view) an “extension” of benefits to a new class of stakeholders.
Does anyone really believe the NCAA is going to impose and enforce health-related “mandates” against Division I schools that generate no net revenue?
While the Memo suggests that “Power 5” money could provide “subsidies” to schools and conferences that cannot pay for any new (vaguely defined) healthcare “benefits,” it’s unlikely these subsidies will come out of Power 5 football bank accounts.
Moreover, as a practical matter, every legislative proposal in Congress that contains “health and safety” requirements—like post-eligibility medical care for 2 – 4 years—sets financial thresholds for those benefits to prevent financially strapped athletics departments from absorbing the potential costs of those “benefits.”
The enforcement issue is a continuing embarrassment to the NCAA and Power 5. Their refusal to enforce their own rules is a primary cause of the “chaos” they attribute to less restrictive NIL and transfer markets.
C. New Decision-makers
Perhaps the most consequential difference between the 2019 documents and the 2022 Memo is who has a seat at the decision-making tables.
In 2019, Power 5 conference commissioners and university presidents/chancellors called the shots.
In 2022, each Power 5 conference used a four-person “working team” comprised of (1) its commissioner, (2) a conference staff member responsible for “governance,” (3) legal counsel, and (4) a “government relations consultant” (lobbyist).
At the institutional level, twenty people are now deciding the future of college sports in clandestine meetings.
Half are lawyers and lobbyists.
None are university presidents or athletes.
The absence of university presidents is particularly telling. Under the NCAA’s principle of “institutional control,” university presidents and chancellors bear the ultimate responsibility for the conduct and control of intercollegiate athletics at their institutions.
Their exclusion from decision-making tables and the substitution of lawyers and lobbyists is an exclamation point on the sad state of the voluntary regulation of college sports.
This marks a fundamental and disturbing trend in the regulation and future of college sports. After Board of Regents, the NCAA slowly became a puppet to the Power 5.
Since the December 2019 secret meeting, the Power 5 have become puppets to lawyers, lobbyists, public relations experts, and broadcast media executives.
As an example, in a podcast interview on September 15th, 2023, Ohio State athletics director Gene Smith appeared with one of Ohio State’s in-house lobbyists to discuss the college sports legislative landscape and Smith’s upcoming testimony before the House Small Business Committee.
Smith is an icon among Power 5 athletics directors and will retire this year. He has served on key NCAA Committees, including the NCAA Board of Governors Federal and State Legislation Working Group tasked to devise NIL policy.
In response to a question on what qualities were important for athletics directors in 2023, Smith highlighted the importance of deferring to expertise outside the athletics department, saying:
“I rarely do anything without the expert help of a person like Stan [Ohio State lobbyist]. I would never try to go to the Hill without Stan’s guidance and support. You have to be willing to say, I’m going to take advantage of all of the talents and skills around me in order to help position the issues…”
A similar dynamic played out in the work of the NCAA Division I Board of Directors Transformation Committee, co-chaired by SEC Commissioner Greg Sankey and Ohio University athletics director Julie Cromer.
At the Committee’s first substantive meetings in early February 2022, the top agenda items were: (1) receiving an “update” on the work of the NCAA’s public relations firm, Bully Pulpit Interactive, Inc., which devised a “comprehensive communications plan” for the Committee, and (2) receiving a “privileged and confidential presentation from outside legal counsel” to set the foundation for all discussions on “modernizing the collegiate sports model and improving student-athlete support throughout the Division.”
In early August 2022, the NCAA convened its new nine-member NCAA Board of Governors in accordance with the revised NCAA Constitution ratified in January 2022.
Among the new Board’s first formal actions was the creation of the NCAA Board of Governors Subcommittee on Congressional Engagement and Action.
Notably, Sankey was one of seven Subcommittee members.
The Subcommittee was tasked with (1) “providing guidance to the board on what actions the Association should take to seek congressional partnership in addressing legislative issues” and (2) “developing and implementing a strategic plan to effectively communicate and engage Congress about the Association’s legislative priorities and key areas of ongoing work.”
In October 2022, the Transformation Committee incorporated the work of the Subcommittee on Congressional Engagement and Action into its recommendations.
When the Transformation Committee released its Final Report on February 3, 2023, it tied its recommendations on athlete benefits to the Subcommittee’s engagement with Congress.
D. Ideal Legislative Proposal? Sen. Roger Wicker’s (R-MS) “Collegiate Athlete Compensation Rights Act”
The ACC memo identifies the second version of Wicker’s bill (released in September 2022) as an appropriate template for what the Power 5 want from Congress.
Wicker’s bill is the death star for athletes.
It contains sweeping preemption, antitrust immunity (retroactive for name, image, and likeness suits), and no-employee status provisions.
In less than 300 words, Wicker’s bill eliminates every legal and regulatory pathway athletes may have to protect their fundamental economic and labor rights as Americans.
E. Reengage in the House, Not the Senate
Another “tell” in the Power 5’s partisan approach to protective federal legislation is their choice to reengage Congress in the House, not the Senate.
Why would the Power 5 shift their focus to the House after the midterms?
Because the Republicans gained control of the House and while Democrats maintained control the Senate.
Congress has conducted two hearings since the midterm elections in 2022—both in the House. The Power 5 and NCAA will engage Congress wherever they have an advantage. And at least so far, they have sought a partisan advantage.
F. Communicate by Phone, “But Not Text or Email”
An insight into how Power 5 decision-makers see their authority and the rights of other stakeholders are the methods they use to communicate on the most critical issues facing college sports.
The Memo describes the role of ACC Commissioner Jim Phillips and how feedback from the ACC Board might be integrated into Phillips’ work.
The Memo identified Phillips as the point person for the ACC’s engagement with Congress.
Conference Board members (university presidents and chancellors) had several options for input into the Congressional campaign and reporting from Phillips, but granted Phillips substantial independence.
Feedback from conference decision-makers was due by December 20, 2022.
The Memo suggested that ACC representatives communicate with Phillips by phone “but not text or email.”
This admonition should have sounded alarms across the college sports world, but it received scant attention in the mainstream and sports media.
The Power 5’s secrecy tactics outlined in the Memo are reminiscent of the Big Ten’s discussions around fall football during COVID in August 2020.
The Washington Post obtained emails from Big Ten flagship state universities discussing the wisdom of email communications that might be discovered through public records requests.
The Presidents elected to move their communications out of the public arena and into the Big Ten’s sophisticated, highly secure communications portal.
The Big Ten, like all other conference entities, operates a private education nonprofit that is not subject to public records requests.
After a public mea culpa from two Big Ten presidents and promises of an internal review, the issue quietly went away without consequences.
These are communications instincts and tactics you would expect to find in covert intelligence agency operations, not higher education.
