IV. The NCAA And Power 5’s Institutional Lobbying
After the summer of 2021, the Power 5 and NCAA began acting as lobbyists independent of their lobbying firms, directly appealing to stakeholders, not Congress.
Examples of this fundamental shift in lobbying strategy are:
1. Former NCAA President Mark Emmert’s March 31st, 2022, press conference at the Final Four.
2. The new NCAA Board of Governors creation of the Subcommittee on Congressional Engagement and Action as its first item of business in August 2022.
3. Baylor University President and NCAA Board of Governors Chair Linda Livingstone’s “State of the Association” speech on January 12th, 2023, at the annual NCAA convention.
4. Notre Dame President Fr. John Jenkins and athletic director Jack Swarbrick’s March 23, 2023 op-ed in the New York Times.
5. The NCAA Office of Government Relations’ March 28th, 2023 “ALERT MEMO” directing member institutions to lobby Congress in advance of a March 29th hearing in the House.
6. NCAA President Charlie Baker’s May 5, 20203, op-ed in The Hill Congressional Blog.
7. The formation on November 1, 2023, of the Division I Coalition for the Future of College Sports, a nonprofit dedicated to lobbying for preemption, antitrust immunity, and non-employment status for athletes.
8. The Power 4 conference commissioners’ trip to Washington on December 3rd, 2023, and their joint appearance on CNN.
9. Charlie Baker’s “D-I Project”
10. Charlie Baker’s January 10, 2024, State of Association Speech.
11. The NCAA’s “featured program” at the January 2024 convention instructing institutional stakeholders on how to lobby Congress.
Emmert Presser
Mark Emmert talked more about Congress than basketball in his thirty-minute press conference at the 2022 Final Four. His comments amounted to stump speech for federal protections and immunities.
NCAA Board of Governors Subcommittee on Congressional Engagement and Action
On June 6th, 2022, the NCAA announced the new Board of Governors under the amended NCAA Constitution (January 2022). The new Constitution reduced the size of the Board of Governors from twenty-one voting members to nine.
The new Board began its first term on August 1st, 2022.
On August 2nd, 2022, the Board named Baylor University President Linda Livingstone its Chair.
Among its first action items, the Board created a seven-member Board of Governors Subcommittee on Congressional Engagement and Action, a new conduit for NCAA direct lobbying.
Linda Livingstone’s Speech at the 2023 NCAA Convention
In her twenty-six-minute presentation at the NCAA convention on January 12th, 2023, Livingstone flooded the zone with explicit requests for stakeholders to advocate for preemption, antitrust immunity, and no employee status for athletes.
She closed her appeal to stakeholders with lobbying instructions:
“There is much more about college sports that unites us than divides us. When our 1100 universities come together, we are powerful beyond measure, probably more powerful than we even realize.
However, when we allow our differences and divisions to be definitive, when we appear that we are fractured, we allow others to script our future. Believe me, if we don't do it, they will.
When you leave San Antonio, you will be provided with tools to help you better understand these issues as well as resources to be able to speak to how these subjects are affecting our campuses in our communities and with our contacts in government.
I hope you'll partner with us in this quest to modernize the NCAA.” (emphasis added)
New NCAA President and former Massachusetts Governor Charlie Baker also spoke at the Convention.
Baker’s brief speech channeled Livingstone’s plea for stakeholder action.
Jenkins and Swarbrick’s New York Times Op-Ed
On March 23rd, 2023, Notre Dame President Fr. John Jenkins and athletics director Jack Swarbrick published an op-ed in the New York Times titled “College Sports Are a Treasure. Don’t Turn Them into Minor Leagues.” Jenkins and Swarbrick invoked education, integrity, gender equity, the “thrill” of March Madness, and God Almighty to set against a “crisis” narrative in college sports borne of (1) “the growing patchwork of contradictory and confusing state laws”; (2) “the specter of crippling lawsuits”; (3) “dubious name, image, and likeness deals through which to funnel money to recruits”; and (4) “misguided attempts to classify student-athletes as employees.”
The timing of the op-ed was not coincidental. It was published during March Madness and days before a March 29, 2023, congressional hearing in the House Energy and Commerce Committee’s Subcommittee on Innovation, Data, and Commerce chaired by NCAA/Power 5 ally Gus Bilirakis titled (R-FL).
The hearing was titled “Taking the Buzzer Beater to the Bank: Protecting College Athletes’ NIL Dealmaking Rights,” which likewise capitalized on March Madness energy when Americans are in love with college sports.
NCAA Office of Government Affairs “ALERT MEMO”
On March 28, 2023, the NCAA Office of Government Relations sent an “ALERT MEMO” to NCAA member institutions in connection with the March 29th, 2023, House hearing.
The Memo directed stakeholders from all 1,100 NCAA member institutions to accept as accurate a litany of talking points devised by Power 5/NCAA lawyers and lobbyists.
The Memo further instructed stakeholders to lobby members of Congress for preemption, antitrust immunity, and no employee status for athletes:
“Division-specific information about the Association’s need for congressional action and the topic of name, image, and likeness and other issues may be found below, as well as a list of NCAA schools in the districts of the subcommittee members. As you engage with your congressional delegations, we encourage you to discuss this important issue and share the urgency and need for federal action.” (emphasis added)
Charlie Baker’s Op-Ed in The Hill’s Congress Blog
NCAA President Charlie Baker hired for his political acumen, joined the lobbying tour as well, making appeals to stakeholders for protective federal legislation.
On May 5th, 2023, The Hill’s Congress Blog published an op-ed penned by Baker titled “A leap forward in the modernization of college sports.” Baker recycled the flimsy work of the Division I Board of Directors Transformation Committee as evidence of “modernization,” then pivoted to the parade of horribles in the NIL market.
Baker landed with the urgent need for protective federal legislation.
The NCAA and Power 5’s Assault on Washington
In June 2023, the NCAA and Power 5 launched a breathtaking assault on Washington to lobby for the elimination of external regulatory threats and the end of the athletes’ rights movement. This wide-ranging campaign included (1) meetings with key Senators and Representatives; (2) a staged symposium with “experts” comprised primarily of Power 5 and NCAA insiders; (3) letters from NCAA Student-Athlete Advisory Committees to key Senators and representatives asking for protective federal legislation aligned perfectly with Power 5/NCAA interests; (4) the debut of the NCAA’s first-ever “College Athlete Day” with a visit by NCAA championship teams to the White House; (5) a celebration of US Presidents who competed as athletes in college.
Division I Coalition for the Future of College Sports
On November 1, 2023, twenty-eight Division I conferences announced the formation of the Coalition for the Future of College Athletics (C4FCA). Formed in September 2023 as a District of Columbia nonprofit, C4FCA’s stated purpose is to present “a unified front working diligently with members of Congress to ensure that the rights of college athletes are upheld through fair and forward-looking federal legislation on name, image, and likeness (NIL).
C4FCA is dedicated to the mission of forging a balanced pathway that respects the rights of college athletes while preserving the integrity and tradition of collegiate sports. We believe that by collaborating with Congress, we can create preemptive federal legislation that benefits all stakeholders.” (emphasis added)
C4FCA’s platform goes far beyond NIL-related preemption. It also seeks legislation that provides antitrust immunity under the guise of “protect[ing] the ability of [governing bodies] to regulate” and no-employee status couched as “preserv[ing] student status.”
C4FCA’s contact page provides an auto-email function that permits users to “send an email to your officials with one click!”
Beneath the email form is C4FCA’s call to action that employs a utilitarian approach, subtly pitting the interests of the many (“generations of student-athletes, fans, alumni, and supporters”) against the few (profit athletes in Power 5 football and men’s basketball who are the targets of federal “NIL” legislation):
“College sports are in jeopardy and we need you to act! Under the current system, a maze of various state laws is making it virtually impossible for athletes, coaches, and universities to navigate.
Momentum is building for a uniform federal solution, and now is the time to pass federal legislation that can secure the future of college athletics for generations of student athletes, fans, alumni, and supporters. Please make passing federal NIL legislation a top priority and do your part to help support college sports.” (emphasis added)
Like the NCAA and Power 5’s congressional messaging, C4FCA uses a crisis mentality to support its agenda.
“Power 4” Conference Commissioners Historic Trip to Washington D.C.
On December 3, 2023, “Power 4” conference commissioners Greg Sankey (SEC), Tony Petitti (Big Ten), Brett Yormark (Big 12), and Jim Phillips (ACC) went to Washington to lobby congressional leaders for protective federal legislation.
Their trip marked the first time all Power conference commissioners joined forces in a public display of unity on the need for congressional intervention.
The commissioners met with Senator Mitch McConnell (R-KY) and House member Hakeem Jeffries (D-NY), among others. McConnell’s involvement is noteworthy. McConnell has not been a key figure—at least publicly—in congressional discussions on college sports, but has enormous influence in the Senate.
Since early 2020, all Power 4 conferences have used the lobbying firm Marshall and Popp. Hazen Marshall was a key aid to McConnell.
After meeting with congress members, the commissioners sat for a brief CNN interview and claimed that failure to obtain federal protections and immunities from Congress would result in “permanent damage” to college sports.
Charlie Baker’s “D-I Project”
Just two days later, on December 5, 2023, NCAA President Charlie Baker released a letter to Division I committee members suggesting the creation of a new Division for top-tier, “highest resource” schools. These schools could invest at least $30,000 per year (for at least half of the school’s eligible athletes) into an “enhanced educational trust fund” for equal distribution to athletes consistent with Title IX.
The letter also suggests that schools may be able to pay athletes directly for their NIL through group licensing deals (similar in theory to the remedy athletes seek in the House lawsuit). The letter was viewed as a ground-breaking shift in NCAA philosophy and policy on amateurism-based compensation limits. Baker did not address the timing of the letter.
Notably, the letter says the new benefits “provide an operating model the NCAA and its member institutions can incorporate into ongoing discussions with Congress about the future of college sports.”
Baker’s proposal is now referred to as the “D-I Project.”
Baker’s 2024 State of the Association Speech
On January 10, 2024, Baker delivered his “State of the Association” speech. Priority themes included (1) gender equity, (2) protective federal legislation, (3) increasing NCAA revenues, (4) sports betting guardrails, (5) mental health, and (6) NCAA legislation to move forward Baker’s “D-I Proposal.”
Baker’s discussion of the role of Congress centered on legislation that prohibits athletes from being employees.
NCAA’s “Featured Session” at the 2024 Convention Instructing Stakeholders How to Lobby Congress
As part of its Convention programming, the NCAA held a “Featured Session” titled “Safeguarding the Future of College Sports: Congressional Advocacy Tools for Campuses and Conferences.”
The session instructed stakeholders to lobby for protective federal legislation, including antitrust immunity. The program was led by Robert Gibbs, former Press Secretary under President Barack Obama.
Gibbs is a partner with Bully Pulpit International (f/k/a Bully Pulpit Interactive Inc.), a prominent public relations firm based in Washington, D.C. that has worked for the NCAA since 2015 to shape the NCAA’s public image and messaging.
Gibbs specializes in “corporate reputation” and “crisis response.”
Since 2015, the NCAA has paid Bully Pulpit at least $40 million (see NCAA Form 990 disclosures below).
As these examples demonstrate, the NCAA and Power 5 have woven their lobbying efforts into substantial components of their ordinary business operations and made lobbying top institutional priorities.
Importantly, these examples captured only what has made it into the public domain. The full extent of NCAA and Power 5 grassroots lobbying is unknown.
Even with this incomplete picture, the scope of the NCAA and Power 5’s institutional “grassroots” lobbying campaign is unprecedented in college sports, perhaps in American sports history.
