V. Predicate History/Patterns/Themes
The NCAA and Power 5’s congressional campaign is framed by historical milestones in college sports and crucial recurring patterns, themes, and realities that are rarely mentioned in the congressional hearings. These patterns, themes, and realities operate invisibly in the background of any discussion on the future of college sports and the role of Congress.
1. Power 5 Football is King
The story of college sports is the story of big-time football. Nearly every material structural change in college sports is the product of big-time football interests imposing their will on the college sports regulatory and business model.
From the earliest iterations of big-time football in the late 19th Century and early 20th Century to the TV era, to the creation of the College Football Association in 1977, to the Board of Regents lawsuit in 1984, to conference realignment and the creation of the Power 5 in the 1990s and 2000s, to the College Football Playoff in 2012, to the Autonomy classification in 2014, to the breathtaking windfall football revenues of the last three years, to the demise of the Pac-12 conference through conference realignment 2.0, to the audacious regulatory power grab outlined in the Timeline, football interests dominate.
The Power 5 have purposefully and aggressively emulated the NFL model to attract fans and market share. Power 5 football revenue dwarfs all other college sports revenues combined, but with a five-conference competition model, the overall college football market may be leaving money on the table.
The SEC and Power 5 are now openly competing with the NFL as much as they have been competing with what remains of the Power 5 conference structure.
The CFP’s expansion and the SEC and Big Ten’s imperial march through the territories of competing conferences will only accelerate the SEC and Big Ten’s grand aspirations.
On February 2, 2024, the SEC and Big Ten announced the formation of the “SEC-Big Ten Advisory Group.” The Group includes key stakeholders and decision-makers from both conferences. Proposed topics include pending litigation, specifically the House case, and governance issues.
The partnership could also enhance the SEC and Big Ten’s leverage in talks about the structure and payouts from the expanded CFP.
The Group was created without the knowledge of the Big 12 or ACC.
In response to criticism of the exclusion of other stakeholders—particularly the Big 12 and ACC—SEC Commissioner Greg Sankey said,
“Big problems are not solved in big rooms filled with people. You have to narrow the focus a bit. There may be raised eyebrows. We certainly called in advance to communicate what was going to be announced rather than do it in the shadows and have someone report on it. You might as well put things out there.”
The SEC and Big Ten’s arrogation of power and decision-making could have profound consequences, not just for big-time football but for the future of college sports.
The chart below (from Sportico) shows the top 100 most-watched TV broadcasts in the US in 2022. The NFL dominates the list with 82 broadcasts, including 23 of the top 25. Power 5 football ranks number 2 and outperformed the Olympics, World Cup, Kentucky Derby, March Madness, the Academy Awards, and most political programming.
Big-time football interests—particularly the SEC and Big Ten— and their media partners want the graphic above to show dozens of college football games among the top 100, not five.
2. Board of Regents Changed Everything
From 1952 to 1981, the NCAA had a monopoly over televised football. The NCAA negotiated broadcast media contracts, determined the televised football schedule, and kept the football money to itself.
In 1981, the University of Georgia and the University of Oklahoma—representing the College Football Association–filed a federal antitrust suit against the NCAA, claiming that the NCAA’s monopoly over televised football violated federal antitrust laws.
The federal district court agreed with the universities. It issued an injunction striking down the NCAA’s TV contracts as a violation of the Sherman Antitrust Act and leaving the future of big-time college football to the free markets. In 1984, the US Supreme Court upheld the injunction in a 7-2 opinion.
Board of Regents is the most consequential single event in college sports history. It marked a fundamental change in the business model and freed big-time football to control its economic destiny. The result has been exponential growth in the value of big-time football and the increasingly professionalized nature of nearly all college sports products.
The dominance of Power 5 football interests over all aspects of college sports directly results from Board of Regents.
Indeed, the new wave of conference realignment, CFP expansion, and the concentration of football might into the SEC and Big Ten are inevitable products of Board of Regents.
Board of Regents also provided the NCAA (and later the Power 5) benefits in litigation.
In some offhand language, the Supreme Court appeared to endorse the NCAA’s role as the guardian of amateurism.
The court pointed to amateurism’s “revered tradition” and said athletes should not be paid. It also said the NCAA should have “ample latitude” to regulate college sports and that “the preservation of the student-athlete in higher education adds richness and diversity to intercollegiate athletics and is entirely consistent with the goals of the Sherman Act.”
These comments fueled a 40-year pattern of judicial deference to the NCAA’s regulatory authority. Courts routinely cited the “magic” language from Board of Regents to prevent legal challenges to the NCAA’s regulatory model and compensation limits.
This created a practical form of antitrust immunity for the NCAA and later the Power 5.
Not until the 9th Circuit’s decision in O’Bannon in 2015 did a federal appeals court say the Supreme Court’s offhand comments in Board of Regents were “dicta,” meaning they had no legal effect.
In the Alston suit, the Supreme Court gave the magic dicta from Board of Regents a proper burial. The court rejected the NCAA’s and Power 5’s claims for judicially created antitrust immunity and held that the NCAA and Power 5 were subject to antitrust laws.
Another consequence of Board of Regents was that the NCAA and its national office bureaucracy had to find a replacement revenue source because it lost its football empire. It turned to the Division I men’s basketball tournament, now known as “March Madness.” The NCAA aggressively marketed that tournament because its bureaucratic life depended upon it.
Through long-term contracts with CBS and later with Turner Broadcasting, the NCAA guaranteed the perpetuation of its administrative state. In 1984, the broadcast media rights for the Division I men’s basketball tournament were worth approximately $15 million ($45 million today). Today, those rights are worth $ 1 billion.
The current CBS-Turner contract extends into 2032.
Board of Regents also changed the regulatory balance of power in college sports. Big-time football—not the NCAA—would control the regulation of college sports.
In essence, since Board of Regents, the NCAA and its executive leadership have been under the thumb of Power 5 football interests. The NCAA is ever fearful that if the Power 5 breaks entirely away from the NCAA (which the Power 5 has threatened to do several times), the Power 5 would disrupt or perhaps eliminate the NCAA’s March madness gravy train.
In congressional hearings on college sports since the 1990s, NCAA Presidents (Cedric Dempsey, Myles Brand, and Mark Emmert) have heeled to Power 5 football interests.
In 1997, big-time football interests dispatched NCAA Dempsey to a Senate Judiciary Committee hearing to address concerns that the post-season bowl market unlawfully froze out successful teams that were not in a major conference. The issues were framed as potential antitrust violations by the “haves” in big-time football.
Dempsey dutifully sat behind a microphone and endured a barrage of questions from Senators representing the “have nots” in college football (what are now the Group of 5 conferences).
No big-time football university presidents testified.
Senator Mitch McConnell (R-KY) appeared at the hearing both as a witness and a Senator-inquisitor. McConnell had skin in the game because he was a graduate of Louisville, and Louisville was in the “have not” category at the time (Louisville would join the ACC in 2014). McConnell believed Louisville—which had a successful season that year—had been improperly relegated to a lower-level bowl game.
McConnell’s exchange with Dempsey (see Audio Clips from McConnell 1997; clip includes introductory comments from Judiciary Subcommittee Chair Sen. Mike DeWine [R-OH]) highlights the extent to which the NCAA has acted as a surrogate for Power 5 football interests. McConnell’s exchange also zeros in on the fundamental unfairness of the NCAA regulatory model, where the interests that benefit most from the status quo—Power 5 football—have iron-fisted control over regulatory decision-making. (see Big Am Episode 96)
In McConnell’s view, the decision-making structure was rigged in favor of big-time football interests and didn’t pass “the smell test.” The power imbalance that McConnell described in 1997 is far worse now.
In 2003, the Senate held hearings on the same issue because the tension between the “haves” and “have nots” in post-season football had worsened since 1997.
Brand and then-Nebraska Chancellor Harvey Perlman vigorously defended the BCS system in place at the time and spoke in bold terms of free markets, economic independence, and self-determination for big-time football market participants.
In the 1997 and 2003 Senate hearings, reformists (the “have nots”) suggested a true football playoff to level the playing field. Big-time football interests and the NCAA rejected that possibility out of hand, claiming a football playoff would destroy the coveted bowl system and college football as a whole.
Now, with an expanding and maturing CFP playoff format, big-time football is poised to generate billions and billions of dollars.
In 2014, it was Mark Emmert’s turn to run interference for the Power 5. Under pressure from external regulatory threats (O’Bannon and the Northwestern football team’s unionization effort), Power 5 football wanted to further segregate their interests from the rest of the NCAA. It lobbied for an “Autonomy” classification applicable to only the Power 5.
Autonomy would give the Power 5 the prerogative to craft legislation—ostensibly to enhance benefits for athletes—in several defined areas.
One Autonomy prerogative was raising the cap on the NCAA’s athletic scholarship to include the full cost of attendance scholarship. Ordinarily, such a change would require the approval of the entire association. Autonomy legislation would give the Power 5 independent authority on that and other athlete “benefit” issues.
In a Senate Commerce hearing in July 2014, Emmert made the Power 5’s case for Autonomy. No Power 5 conference commissioner or university president appeared to testify.
In perhaps the most clear-eyed portrayal of the business model in all of the congressional hearings on college sports issues over the years, Senator Claire McCaskill (D-MO) asked Emmert:
“I feel for you because part of me thinks you’re captured by those that you’re supposed to regulate [the Power 5]. But then you’re supposed to regulate those that you’re captured by. And I can’t tell whether you’re in charge or whether you’re a minion to them.
I don’t sense that you feel like you have any control of the situation. And if you’re merely a monetary pass-through, why should you even exist?”
McCaskill’s observations and questions are even more relevant today.
3. Only Two Sports Matter to the Power 5 and NCAA
The Timeline demonstrates that the Power 5 and NCAA have tried to conflate the interests of Power 5 football and men’s basketball with non-revenue sports, women’s sports, lower-level Division I products, and even Division II and III products.
However, only two sports matter to the Power 5 and NCAA: football and men’s basketball.
Those two sports underwrite the entire college sports entertainment industry.
And while football revenues dominate college sports’ overall balance sheet, March Madness money supports and perpetuates the NCAA bureaucratic state.
4. NCAA’s and Power 5’s Amateurism-Based Compensation Limits and the Protections They Seek From Congress Are Designed to Control the Labor Force in Football and Men’s Basketball
The bloated NCAA rulebook emphasizes two things: (1) limits on athlete compensation and (2) regulations on talent acquisition (recruiting). These are the lifeblood of the college sports regulatory framework. Both are purposefully designed to control the labor force in Power 5 football and men’s basketball.
Walter Byers, the NCAA’s first and longest-serving NCAA CEO (1951-1987), was the architect of the modern NCAA regulatory and business model.
In his 1995 book, Byers described amateurism as “camouflage for monopoly practice.”
That camouflage is the primary vehicle through which the Power 5 and NCAA have exerted iron-fisted control over the labor force.
The federal protections and immunities the Power 5 and NCAA now seek from Congress would make their absolute control over the labor force a matter of federal law.
5. Some Version of Myles Brand’s “Collegiate Model” is Embedded in Nearly Every False Equity-Based Scare Tactic
In 2003, the NCAA hired former Indiana University President Myles Brand as NCAA president. Brand was viewed in academic circles as a guardian of the values of higher education. Brand had spoken provocatively on the need to align big-time college sports values with higher education values.
In 2001, Brand fired legendary IU basketball coach Bob Knight. Critics of big-time college sports hailed Brand’s decision as a needed course correction in the increasingly professionalized college sports marketplace and the influence at the institutional level of imperial coaches like Knight.
During Brand’s tenure as NCAA president, he began conceptualizing a values-based framework to justify having professional football and men’s basketball under the umbrella of higher education.
At the 2006 NCAA annual convention, which celebrated the 100th anniversary of the NCAA, Brand outlined the “collegiate model” for college sports.
Under Brand’s collegiate model as a financial framework, universities have a mandate to maximize revenue in football and men’s basketball, then to spend that money on nonrevenue sports that could not pay for themselves.
Brand distinguished the “input” revenue-generating side of the big-time college sports economy from the “output” side. On the “input” side, it was entirely appropriate—indeed imperative—to maximize revenue in football and men’s basketball so long as that money was spent on the “output” side in ways consistent with a university’s nonprofit mission. Brand measured the output benefit as “participation opportunities'' for nonrevenue sports athletes.
This seminal quote from Brand’s 2006 “State of the Association” speech perfectly describes the hypocrisy in the big-time college sports business model :
Amateur defines the participants, not the enterprise.
The unstated, practical truth of Brand’s collegiate model is that a labor force composed disproportionately of African-American laborers is underwriting benefits that accrue to a disproportionately white and comparatively well-off class of stakeholders.
Moreover, the “collegiate model” assumes that athletics departments must be self-sufficient, using only football and men’s basketball revenues to pay all expenses.
This aspect of the collegiate model has been used by Power 5 interests to argue that any money paid to athletes in football and men’s basketball will necessarily result in a corresponding reduction in money available to non-revenue sports and athletes.
This equity-based narrative is the product of false zero-sum financial and zero-sum equity thinking. It signals that if profit athletes in football and men’s basketball can’t pay for non-revenue sports, then Power 5 universities will refuse to do so.
Such a financial framework can only exist among the wealthiest athletics departments in the NCAA. Over 95% of NCAA schools across the three Divisions fund their athletics departments and all sports with general university funds or student fees, not revenue from football and men’s basketball.
The self-sustaining athletics department assumption embedded in Brand’s collegiate model is an extreme outlier in college sports. Still, it has been used by the Power 5 and NCAA to suggest that any change to the flow of money will be catastrophic to women’s and non-revenue sports.
The Power 5 and NCAA want Congress, federal courts, and the public to believe that if Power 5 profit athletes receive more than they do now, the wealthiest universities in America will have to cut non-revenue scholarships or entire sports programs.
What does that say about these institutions’ commitment to gender equity and Olympic sports? (see Big Am Episode 70 below: “Massive Redistribution of Revenue” and “Participation Opportunities” More on the “Collegiate Model”)
Brand’s financial framework for the collegiate model has been embedded in the culture and values of big-time college sports and Power 5 universities. While it is no longer associated with Myles Brand or his 2006 speech, it is alive and well in the narratives the Power 5 and NCAA are currently using to justify protective federal legislation.
In the eleven congressional hearings conducted since February 11th, 2020, the collegiate model as a financial framework for big-time college sports is everywhere. The Power 5, the NCAA, and their lawyers and lobbyists shamelessly argue that if profit athletes in football and men’s basketball can benefit from the fruits of their labor under free market principles, universities must eliminate non-revenue scholarships or even entire sports.
These false narratives are divisive and attempt to pit the interests of profit athletes in football and men’s basketball against the interests of female and non-revenue sports athletes. The Power 5 and NCAA have portrayed the actual beneficiaries of the collegiate model as victims. (See video)
The Power 5’s and NCAA’s arguments in Congress have focused on the harm a less restrictive NIL market may have on athletics department revenues.
However, after nearly two and a half years of free market principles operating in the NIL marketplace, no evidence exists that schools are cutting scholarships or sports programs because of NIL.
In the March 29th, 2023, hearing in the House Energy and Commerce Committee’s Subcommittee on Data, Innovation, and Commerce (see Timeline entry for March 29th, 2023), the collegiate model was on full display with Power 5 and NCAA-friendly witnesses predicting the death of women’s and non-revenue sports unless the Power 5 and NCAA get protective federal legislation.
One of the witnesses was a university president from a Division II HBCU whose interests are irrelevant to the Power 5’s and NCAA’s campaign in Congress. The Subcommittee tried to portray his school as a potential victim of the current NIL market and any other efforts to treat profit athletes in football and men’s basketball as free Americans.
Yet in his opening statement to the Subcommittee, the president proudly pointed out that his institution had just added four sports: men’s and women’s soccer and men’s and women’s lacrosse!
6. The Power 5 and NCAA Control and Manipulate the “Athlete Voice” to Create an Appearance of Athlete “Consensus” on Status Quo Regulatory and Business Interests
Athletes are not members of the NCAA.
Did you know that?
Few people, notably athletes, are aware of this fundamental flaw in the NCAA regulatory model.
The membership of the NCAA comprises 1,100 colleges and universities that pay modest annual membership dues. As non-members, athletes have no standing within the NCAA to demand a seat at the table in discussions regarding their interests and welfare.
Athlete interests are presumed to be protected by institutional representatives serving on NCAA boards and committees or holding some NCAA-sanctioned status at the institutional level, such as the Faculty Athletics Representative (FAR).
The only athlete-led representation body recognized by the NCAA is the Student Athlete Advisory Committee (SAAC). SAAC groups exist at the pleasure of the NCAA, conference, or member institution.
While other athlete advocacy groups have sprung up organically, often in response to flashpoint event(s) (e.g., George Floyd murder, fall football during COVID), they have been excluded from NCAA decision-making tables, and few have been granted even an audience with NCAA leaders. (see Timeline entry for August 10th, 2020).
SAAC groups exist at the institutional, conference, and NCAA levels (by Division). The only SAAC group with meaningful contact with NCAA decision-makers is the Division I National SAAC, which has thirty members. National SAAC members are “nominated” for national service and historically have been disproportionately white, non-revenue athletes.
To be clear, we are not criticizing the athletes who serve on the various SAAC committees. We criticize the NCAA’s use of those structures to control and manipulate the “athlete voice.”
a. Division I and Atlantic Coast Conference SAAC Letters
In connection with the NCAA’s claimed voluntary rulemaking on NIL in 2019, the NCAA Division I SAAC issued an open letter titled “We are the 100%.” The letter advanced Power 5 and NCAA talking points on NIL “guardrails” necessary to protect the interests of female and non-revenue sports and athletes. The signatories were disproportionately white, non-revenue sports athletes. (see second Timeline entry for October 29th, 2019).
The letter received favorable national media coverage.
Similarly, at hearings in the House on September 30th, 2021, and March 29th, 2023, Congress members held up letters from the Atlantic Coast Conference SAAC as a consensus on how all athletes view NIL issues and congressional intervention.
Predictably, the national Division I and ACC SAAC letters fully align with the NCAA and Power 5’s congressional wish list.
Sixteen athletes signed the September 2021 ACC letter (dated September 23rd, 2021). The letter identified two other athletes as “primary contacts.” Of the eighteen ACC athletes, fifteen (83%) were non-revenue athletes, and fifteen (83%) were white.
On June 12th, 2023, national SAACs from each NCAA Division sent letters to congressional leaders in both chambers asking for the federal protections and immunities the Power 5 and NCAA have been lobbying for since 2019.
The letters were sent to Senators and House chairs/ranking members on commerce, judiciary, and health, education, labor, and pensions committees. These are the three committee structures through which the Power 5 and NCAA would obtain preemption of state laws, antitrust immunity, and a provision that athletes can’t be employees of their universities
The letters purported to speak for all 520,000 NCAA athletes.
The NCAA championed the letters on its website.
The Division I SAAC letter had only one signatory identified as the Chair of the Committee.
b. NCAA and Power 5 Response to non-SAAC Athlete Groups
The NCAA and Power 5 have also used the SAAC structure to deflect efforts by other athlete groups to assert their interests.
On March 18th, 2021, a nascent athlete group of men’s basketball players named #NotNCAAProperty sought to raise awareness of the NCAA’s indifference to athletes’ economic interests. Three players, Isaiah Livers (Michigan), Geo Baker (Rutgers), and Jordan Bohannon (Iowa) requested a meeting with NCAA President Mark Emmert to discuss their concerns.
Emmert was initially cold to the idea, then he agreed to a meeting by letter dated March 25th, 2021. Emmert sought to include in the meeting “student representatives from our Student-Athlete Advisory Committee.” The players met with Emmert but came away believing he didn’t take their concerns seriously.
Similarly, on July 22nd, 2022, news broke that the College Football Players Association (CFBPA) and its Executive Director Jason Stahl had been in talks with the Penn State football team regarding the possibility of forming a voluntary association (not necessarily a union) to negotiate with Penn State on player issues, including independent medical care, post-football health benefits and protections, and revenue sharing on broadcast media rights deals. (see Timeline entry on July 22nd, 2022)
Penn State quarterback Sean Clifford acted as the players’ spokesman. Clifford initially suggested support for the team’s discussions with the CFBPA. Soon after, Big Ten Commissioner Kevin Warren intervened and agreed to allow Stahl to attend Big Ten’s media day. Several days later, Warren withdrew the invitation.
Warren suggested that discussions on athlete concerns should be run through the Big Ten’s SAAC organization.
Clifford walked back his earlier comments and distanced himself from the CFBPA.
In an interview on September 11th, 2022, five months after announcing his resignation, Mark Emmert acknowledged that the SAAC structure did not adequately represent football, basketball, and minority athletes:
“How are you going to make this all work where you've got a strong voice for students? You've got the Student Athlete Advisory Committees—that’s great— and I love our SAAC committees, but you need more football representation, you need more basketball representation, you need more minority student representation. It's not as representative as it should be. And getting that done has been a real thorny problem.”
c. Athlete Witnesses in Congress
Congress has conducted twelve hearings on college sports issues since February 2020, approximately one hearing every 4 months.
There have been sixty-two witness slots over the eleven hearings. Forty-four (71%) of those slots have gone to witnesses who testified favorably to NCAA/Power 5 interests within the purpose of each hearing.
NCAA and Power 5 institutional witnesses have dominated eleven of the hearings, and seven of the hearings had only one athlete-friendly witness (see chart below; gold entries for NCAA/P5-friendly and blue for athlete-friendly).
In those twelve hearings, seven athletes have testified: (1) a track athlete from the University of New Mexico (February 11th, 2020 Senate hearing), (2) a women’s golfer from the University of Washington (September 30th, 2021 House hearing), and (3) softball player from Florida State University (March 29th, 2023 House hearing), (4) a gymnast from the University of Florida (October 17th, 2023 Senate hearing, (5) a volleyball player from Radford University (January 18th, 2024 House hearing), (6) a softball player from the University of Michigan (January 18th 2024 House hearing), and (7) a football player from UCLA (January 18th, 2024 House hearing).
Six of the seven athlete witnesses were nonrevenue, “Olympic sport” athletes, and five were women.
With the exception of the UCLA football player, these athletes' testimony aligned with Power 5/NCAA objectives. The five female athlete witnesses were portrayed as potential victims of any change to the business model (see discussion of the collegiate model above) that recognized the unique value of Power 5 profit athletes in football and men’s basketball.
The only hearing that had more athlete witnesses than institutional witnesses occurred on June 17th, 2021, in the Senate Commerce Committee. Three female athletes—all African American—painted a picture of the business model and the relationship between athletes and institutions that starkly contrasted with the Power 5 and NCAA party lines.
A fourth witness, the father of a Maryland football player who died from heat stroke after an abusive conditioning workout in 2015, described in heart-wrenching testimony the behavior of the football staff during the training and the inexplicable delay in getting his son appropriate medical care.
Notably, Senator Roger Wicker (R-MS) led what amounted to a Republican boycott of that hearing. Wicker cited concerns over how the witness list was composed. Only one Republican—Jerry Moran (R-KS)—showed up, and his appearance was brief. (see Timeline entry for June 17th, 2021, for a description of the hearing and video clips of the witness’ testimony)
As illustrated in the Timeline, the imbalance in the overall witness profile speaks to the power and persistence of the NCAA and Power 5’s sophisticated lobbying and public relations campaigns.
d. The “Athlete Voice” on the NCAA Constitution Committee and the Division I Transformation Committee
The NCAA also disingenuously championed the “athlete voice” in connection with the work of the NCAA Constitution Committee and the Division I Board of Directors Transformation Committee.
Three athletes (one from each Division) sat on the Constitution Committee. They were among a pool of candidates nominated by the Divisional SAACs. NCAA bureaucrats made the final decision. No Power 5 football, men’s, or women’s basketball players were selected.
Similarly, the Transformation Committee (co-chaired by SEC commissioner Greg Sankey) led stakeholders and the public to believe that the “athlete voice” was central to their work. Yet no current or recently graduated “student-athlete” sat on the Committee.
The Committee identified one member as an “athlete representative” (the same person who was the Division I representative on the Constitution Committee, pictured above at top).
However, the new Constitution prohibits an athlete who is more than four years removed from graduation from holding a position on an NCAA board.
The “student-athlete” representative on the Transformation Committee graduated from college in 2014 and did not meet the threshold eligibility criteria to represent the “athlete voice” under the new Constitution.
When the TC released its Final Report in December 2022, co-chair and SEC commissioner Greg Sankey championed the contributions of its sole “student-athlete” representative.
In April 2022, the Transformation Committee sent a Membership Engagement Survey to stakeholders—including athletes.
A total of 666 “conference administrators, coaches, and affiliate organization representatives completed the survey. The survey included requests for feedback on big-picture issues and more specific concepts in the areas of transfers, infractions, and rules modernization.”
In its May 17th, 2022, meeting minutes, the Transformation Committee noted the “limited engagement of student-athletes in this survey and committed to engaging student-athletes more broadly as concepts are being finalized, particularly in areas that directly impact student-athletes.”
The Power 5’s and NCAA’s historic refusal to grant athletes a meaningful voice or a seat at decision-making tables has important consequences for athletes and the future of college sports.
Because of their systematic exclusion from decision-making tables within the NCAA, athletes use external regulatory pathways to force the Power 5 and NCAA to grant them a seat at the table.
The current case before the National Labor Relations Board targets that very goal.
The Power 5 and NCAA are fighting to prevent that from happening through their “athletes can’t be employees” campaign.
Properly understood, the Power 5/NCAA anti-employee strategy has nothing to do with sentimental values that protect the concept of the “student-athlete.”
Instead, the “no employee” campaign is a blunt force instrument to prevent athletes from seeking the protections of federal and state labor laws that may provide a pathway to having a meaningful voice in defining their relationship to institutional beneficiaries of the status quo.
The NCAA and Power 5 have propagandized the concept of the “student-athlete” to mean the opposite of employee.
In short, there can’t be a legitimate labor dispute without legitimate laborers.
In discussions on the future of college sports, some athlete advocates suggest using nonunion athlete associations to “bargain” with institutional stakeholders.
While appealing, that approach misses one of the central purposes of the college sports regulatory model—absolute control by the institutional interests who benefit from the current system.
That mentality precludes the possibility of a meaningful, voluntary athlete voice. Resolving labor issues requires a good faith willingness to bargain and equality of bargaining power.
The Power 5 and NCAA have shown no desire to bargain with athletes voluntarily and have little incentive to do so.
Instead, the Power 5 and NCAA are engaging in their version of “collective bargaining” with Congress, not athletes.
The Power 5 and NCAA have the best lawyers, lobbyists, and public relations experts at their “bargaining” table. The athletes have no coordinated response through Congress to get their issues on the congressional bargaining table.
For Power 5 and NCAA powerbrokers, it’s “our way or the highway.”
7. The NCAA and Power 5’s Prophecies of Doom are Always Wrong
Over the last seventy years, the NCAA and big-time football interests have resisted nearly every consequential change in the college sports regulations and business model.
Even changes that turned out to be financial windfalls were initially met with “sky is falling” predictions of the end of college sports as we know them.
Several notable examples include:
a. The Television Era (1950s)
Some of the most prominent stakeholders in college sports—including NCAA leadership—believed that TV would kill college football. Many believed that if fans could watch football on TV, they would not attend games, and gate receipts—the primary source of revenue—would evaporate. The NCAA approached televised football with caution and skepticism. It had an experimental phase-in beginning in the early 1950s, then slowly transitioned into a full television schedule.
Can you imagine college sports today without television?
b. The Full Athletics Scholarship (1956)
In the late 1940s, the NCAA membership tried to formulate a uniform scholarship for recruited athletes that balanced academics and athletics. Midwest and West Coast schools wanted to emphasize amateurism and academic standards aligned with the general student population. Southern schools wanted a scholarship that could emphasize athletics—essentially what is now the full athletic scholarship.
Many believed the full athletic scholarship was outright pay-for-play and would lead to fatal corruption in college sports and higher education. In the late 1940s and early 1950s, the membership devised and approved a compromise scholarship through principles known as the “Sanity Code.”
Because of push-back from Southern schools, the Sanity Code scholarship failed to be implemented.
In 1956, the membership capitulated to the full athletic scholarship, which has survived essentially unchanged.
Now, few stakeholders view the full athletic scholarship as pay-for-play, but instead a “grant-in-aid,” which is primarily an education-based award.
c. Title IX Phase-In (1972-1978)
When Congress enacted Title IX in 1972, the NCAA and powerful football interests viewed it as an existential threat to the then-existing big-time sports business model, particularly big-time football. During Title IX’s phase-in period from 1972-1978, status quo stakeholders tried to remove college sports or at least big-time football from Title IX requirements.
Those efforts ultimately failed.
Despite the NCAA and big-time football’s claims that Title IX would be the death knell for big-time sports, Title IX hasn’t put a dent in the college sports industry financially.
The NCAA has consistently shown it is not committed to Title IX and gender equity. The facilities disparities at the 2021 men’s and women’s Final Fours—which spawned the Kaplan Gender Equity Assessment—are a testament to the NCAA's indifference to true gender equity.
Despite the NCAA membership’s terrible track record on Title IX compliance, the NCAA holds up Title IX in college sports as a seminal civil rights milestone to which it has been fully committed.
d. The Board of Regents Lawsuit (1981-1984)
As discussed above, Board of Regents was a defining event in the evolution of big-time college sports.
Many viewed its likely consequences as an existential threat to college sports.
Supreme Court Justice Byron White strongly dissented from the seven-Justice majority opinion. He would have allowed the NCAA to continue its monopoly over televised football, believing it would preserve the amateur nature of college sports.
Justice White said, “The NCAA ensures the continued availability of a unique and valuable product, the very existence of which might well be threatened by unbridled competition in the economic sphere.”
You are unlikely to find the current beneficiaries of Board of Regents—notably Power 5 university presidents, conference commissioners, athletics directors, and football/men’s basketball coaches—lament its impact.
e. A Football Playoff
Debates on the viability and wisdom of a college football playoff go back decades. They reached an apex in the late 1990s as the post-season football market transitioned from the Bowl Alliance to the Bowl Championship Series (BCS).
In 1997, the Senate conducted hearings on the antitrust implications of the then-existing post-season football market. It was essentially a fight between the “haves” in college football (what are now the Power 5) and the “have-nots” (what are now the Group of 5).
The “have nots” argued that the “haves” excluded them from the big-time post-season bowl games, raising antitrust concerns.
The “have-nots” suggested a football playoff as a possible solution. A playoff was enormously popular with college football fans.
However, the NCAA and big-time football representatives at the hearings argued with the certainty of an evangelical preacher that a football playoff would be the death of college football as we knew it.
Today, the College Football Playoff is on track to be one of the most popular and valuable sports products in American sports history.
f. Full Cost of Attendance Stipend (2006 – 2015)
The initial full athletics scholarship in 1956 included a component known as “laundry money.” This modest monthly stipend allowed scholarship athletes to have some spending money for the sundry expenses attendant to college life.
In 1975, the NCAA membership eliminated laundry money, ostensibly as a cost-cutting measure. This meant the scholarship limit was set below the full cost of attending college.
In the early 2000s, pressure mounted on the NCAA to reinstate a cost of attendance stipend. Advocates argued in part that the absence of a stipend was particularly unfair to athletes from challenging financial circumstances.
Like “laundry money” before it, the 21st-century version of the full cost of attendance stipend is quite modest, ranging from $1,500 to $4,500 per year.
However, the NCAA militantly opposed the full cost of attendance scholarship, not because it cost too much (as they claimed in 1975), but because the NCAA now viewed it as unauthorized “pay for play” and a violation of the principle of amateurism.
In 2006, a group of athletes filed an antitrust class action suit against the NCAA (White v NCAA), arguing that the scholarship set below the full cost of attendance violated federal antitrust laws.
At a speech to the National Press Club in October 2006, then-NCAA president Myles Brand said that if athletes received a full cost of attendance stipend, they would be transformed from amateurs to professionals.
The White case settled in 2008 with little to show for athletes. The NCAA preserved its scholarship limit set below the full cost of attendance.
In 2014, the district court judge in O’Bannon permitted (but did not require) universities to offer athletes full cost of attendance stipends as a remedy for the NCAA’s anticompetitive NIL compensation limits.
In 2015, the 9th Circuit Court of Appeals upheld the permissive cost of attendance payments and held that the Power 5 and NCAA could not set a scholarship limit below the full cost of attendance.
Throughout the O’Bannon litigation, the NCAA and Power 5 spent $140 million in legal fees and settlement to avoid paying athletes anything for NIL, including the full cost of attendance scholarship.
While the O’Bannon case was on appeal to the 9th Circuit in 2015, the Power 5, through their new Autonomy legislation prerogatives, “voluntarily” offered full cost of attendance scholarships.
The NCAA and Power 5 now claim credit for the full cost of attendance scholarship as an act of generosity in service of athlete well-being.
The full cost of attendance scholarship has yet to transform athletes into professionals and has not resulted in the fatal collapse of college sports.
g. Name, Image, and Likeness Compensation (2021)
As noted above, and as the Timeline demonstrates, the Power 5 and NCAA aggressively opposed NIL compensation until 2019, when they commandeered the NIL debate with promises of NIL “compensation.”
Throughout the NIL debate, the Power 5 and NCAA have argued (and continue to argue) that any NIL market they do not control will lead to catastrophe.
They claimed that athletics departments would go broke, schools would have to eliminate non-revenue sports scholarships or entire sports, and our NCAA-sponsored Olympic development program would be irreparably harmed.
In short, the Power 5 and NCAA argued that our “national treasure” was in existential peril.
After a series of desperate attempts to prevent a meaningful NIL market from coming into existence, the NCAA adopted its “Interim Policy” on June 30th, 2021, hours before six state NIL laws were to go into effect. The Interim Policy resulted in free market principles governing the NIL marketplace.
Nearly two and a half years into the new NIL market, college sports are experiencing a historic bull market.
Power 5 football money is falling from the sky, and schools are not eliminating non-revenue scholarships or non-revenue sports.
Indeed, Power 5 football is entering a gilded age of revenue. Conference commissioner and head football coach salaries are skyrocketing.
Many Power 5 schools have more “dead” money in head coach, assistant coach, and athletics director “buy-out” accounts than they spend on athletic scholarships for athletes.
h. One-Time Transfers Without Penalty for Football, Basketball (men’s and women’s), Baseball, and Ice Hockey (2021)
For decades, the NCAA punished athletes in only five sports who chose to transfer to another school. Division I athletes in football, men’s basketball, women’s basketball, baseball, and ice hockey were required to sit out a year or lose a year of eligibility if they transferred. Athletes in all other sports could transfer without penalty.
It is no coincidence that the five sports targeted for disparate treatment are the only sports that generate net revenue, with football and men’s basketball underwriting the entire college sports entertainment industry.
The NCAA and Power 5 defended their rules, claiming that freedom to transfer would result in chaos and open “free agency.” They pointed to their investments in these athletes in the recruiting process, fear of losing star athletes, which would make the school less competitive, and the prospect of coaches openly stealing athletes from another school.
These justifications go to one central purpose of NCAA rules: to control laborers in the most lucrative college sports products.
Historically, the NCAA strictly enforced transfer restrictions. Athletes’ rights advocates have long called for athletes in the five restricted sports to have the ability to transfer at least once without consequence.
Finally, on April 14th, 2021, the NCAA relaxed its transfer rules to permit a one-time transfer without penalty.
The new transfer market—exacerbated by extra COVID-related eligibility years—is sorting itself out. Many prominent Power 5 football coaches are critical of the new transfer market while actively participating and benefiting from it.
These coaches are reluctant to acknowledge that the coaching carousel is a prime culprit in athletes’ decisions to transfer or that some coaches are now aggressively pushing players off the roster to bring in better talent (e.g., Deion Sanders at Colorado). They are doing so with the full support of their schools.
There is no evidence that the new transfer market has reduced consumer interest in revenue-generating sports or negatively impacted the value of those products.
Colorado’s near-complete roster turnover through the transfer portal has accelerated consumer demand for Colorado football. After a 1-11 record last year, season and individual tickets for the 2023-2024 season are sold out.
i. Education Benefits After Alston (2021)
In Alston, the NCAA—an education nonprofit—spent hundreds of millions of dollars in legal fees and settlements to prevent a modest category of permissive education-related benefits from being offered to athletes.
The NCAA and Power 5 masked their true intent—judicially created antitrust immunity—with “sky is falling” narratives of million-dollar internships and Lamborghinis disguised as “education benefits.”
The US Supreme Court summarily dismissed these overblown claims and emphasized the modesty of the injunction order at issue.
The Supreme Court unanimously upheld the limited education benefits in the district court’s order—valued at approximately $6,000—and rejected the NCAA’s quest for antitrust immunity.
In the aftermath of Alston, schools were slow to provide the permissive education benefits, and some offered much less than the maximum. There has not been an “arms race” in education benefits, and schools aren’t going broke providing them.
8. The College Sports Financial Market is Always Growing and Expanding Regardless of Changes in the Regulatory Model or the Relationship Between Institutions and Athlete-Laborers
We love college sports. It is among the most durable and resilient markets in American history. Even under dire circumstances threatening industries across the economic spectrum, college sports have survived and thrived.
One crucial factor that immunizes college sports from catastrophic economic events like COVID or severe economic downturns is that it provides the most valuable form of entertainment in the marketplace: truly live programming.
Live programming is gold to broadcast media outlets, and Americans can’t get enough of it. Forget “Survivor” live sports programming is king.
Moreover, as described above, changes to the relationship between college athletes and the institutional beneficiaries of athlete labor have yet to dent the popularity or value of college sports.
9. A Primary Motivation of Decision-Makers in Regulating College Sports is to Gain—or Avoid Losing—a Competitive Advantage in the Talent Acquisition Market
Much of the hand-wringing swirling around NIL or any other change to the business model is rooted in fears that some market participant(s) will either gain or lose a competitive advantage in the talent acquisition market.
These fears are particularly acute among the Power 5 top dogs who have created a built-in competitive advantage in acquiring the best football and men’s basketball talent in the college sports marketplace through manipulations of the NCAA regulatory model.
The Power 5’s creation of the Autonomy classification in 2014 is a good example. The Autonomy classification applies only to the Power 5. It permits the Power 5 to offer a limited set of benefits to athletes that would otherwise violate NCAA amateurism rules without getting permission from the entire Association.
The Power 5 sought Autonomy beginning in 2013 at a time when external regulatory forces (federal courts through O’Bannon and the beginning of the Northwestern football unionization attempt) highlighted the unfairness in the business model, particularly regarding the rights of profit athletes in football and men’s basketball.
Through Autonomy, the Power 5 offered modest enhancements of benefits such as the full cost of attendance scholarship, extra food, four-year scholarships, and additional administrative support. Once the Autonomy schools approve a permissible benefit, other non-Power 5 schools may follow suit.
Autonomy benefits had little impact on the athletics budgets of Power 5 schools, but they were cost-prohibitive for many lower-level competitors like the Group of 5 conferences and schools.
In essence, Autonomy legislation created a built-in—and in many cases insurmountable—advantage for the Power 5 in recruiting.
The Power 5’s competitive advantage through preferential regulatory treatment is carefully calibrated. It is the product of decades of manipulation by brute force. Much of the Power 5’s resistance to change—particularly on NIL, athlete compensation, and additional benefits—is the product of protecting or restoring their competitive advantage in the talent acquisition market.
At least theoretically, a less regulated NIL market, revenue sharing, or employee status for athletes imposed by external regulatory forces might give the “have nots” in the current system a way to level the playing field in perhaps the most critical factor in winning and losing: securing the best talent in the marketplace.
Competitive advantage-disadvantage concerns are so deeply baked into how Power 5 interests see the college sports world that they influence state lawmaking and regulation.
One need look no further than the NIL-related state executive orders issued by three states (Kentucky, Ohio, and North Carolina) just before or after July 1st, 2021, when six state NIL laws went into effect. In the absence of state NIL laws, governors in those states used their executive authority to issue emergency executive orders that offered NIL “compensation.”
Each executive order cited the fear of losing a competitive advantage in recruiting to schools in states that had a NIL law on the books. For example, North Carolina Governor Roy Cooper’s July 2nd, 2021, Order says:
“WHEREAS, enacting immediate measures that would allow student-athletes to seek and receive compensation for their name, image, and likeness will prevent the State of North Carolina from being at a competitive disadvantage regarding enrollment at postsecondary educational institutions within the state.”
Similarly, states that passed NIL laws in 2020 and 2021 built around “guardrails” preserving the “integrity” of college sports quickly jettisoned those laws when the NCAA’s more permissive June 30th, 2021, NIL “Interim Policy” went into effect.
Under the Interim Policy, schools in states that operated under a state NIL law or governor’s executive order were governed by those state requirements. The Interim Policy covered schools in states that had no NIL law or executive order.
Alabama, for example, enacted one of the country’s most restrictive NIL laws on April 15th, 2021 (see Timeline entry for April 15th, 2021). The Interim Policy went into effect ten weeks later. On February 3rd, 2022, citing competitive disadvantage concerns, the Alabama state legislature repealed its NIL law so it could operate under the more permissive Interim Policy.
Alabama’s NIL law was in effect for less than ten months. It may be among the shortest-lived laws in Alabama’s history.
Similarly, on June 12th, 2020, the Florida state legislature passed its much-publicized NIL law loaded with amateurism-based “guardrails” designed to preserve the “integrity” of college sports.
On February 16th, 2023, Florida Governor Ron DeSantis signed a bill that essentially repealed Florida’s 2020 NIL law.
Notably, the Florida and Alabama NIL laws were built around and publicized through values designed to preserve the amateur nature of college sports. These bills expressed amateurism-based values through “guardrails” that made meaningful NIL compensation for athletes nearly impossible.
The Alabama law even criminalized NIL activity by agents, boosters, and NIL companies that did not conform to the law’s requirements. The law categorized violations as a Class C felony.
A prior version of the law made violations by athletes a Class A misdemeanor.
Yet, when Power 5 schools in Alabama and Florida perceived they were at a competitive disadvantage in recruiting, their state legislatures flushed those claimed integrity-based values down the memory hole faster than you can say Tuscaloosa or Tallahassee.
In Alabama, a NIL deal on February 2nd, 2022, violating the law was a criminal act. On February 4th, 2022, that same deal was not only completely legal but also essential to Alabama remaining competitive in the talent acquisition market.
The “chaotic Wild West” NIL and transfer markets (as perceived by the Power 5 and NCAA) are not the product of greedy and disloyal athletes in football and men’s basketball, but instead, Power 5 institutions’ inability to regulate their conduct.
10. Historically Congress Has Shown Little Interest in Regulating College Sports, But…
Since the 1950s, college sports stakeholders have sought congressional intervention on various issues relating to college sports. Congress has held numerous hearings, and members have introduced dozens of bills, but Congress has been reluctant to legislate on college sports substantively.
College sports topics Congress has discussed include:
a. the fairness of the NCAA’s infractions and enforcement system
b. post-Board of Regents attempt(s) to restore the NCAA’s monopoly over televised football through an antitrust exemption
c. health and safety issues (esp., concussions)
d. academic standards
e. inequities in post-season football structures as potential antitrust violations (esp., the transition from Bowl Alliance to Bowl Championship Series)
f. regulation of athlete agents
g. financial reporting requirements
h. potential unionization of Power 5 football players
i. gender (in)equity
However, legislation is sparse, and none goes to the NCAA’s or Power 5’s core regulatory authorities or the big-time college sports business model. In 1994, Congress passed the Equity in Athletics Disclosure Act (EADA), a financial disclosure law that tests Title IX compliance in intercollegiate athletics.
Universities that receive federal funding must file an annual report with the Department of Education on athletic participation, staffing, and revenues and expenses for men’s and women’s sports teams.
The EADA serves an essential transparency purpose, but many believe it should require additional disclosures and more aggressive oversight.
In 2004, Congress passed the Sports Agent Responsibility and Trust Act (SPARTA), designed to regulate the conduct of athlete agents. The Act imposed duties of care on agents and granted jurisdiction to the Federal Trade Commission to levy financial penalties for violations of the Act.
SPARTA has proven to be a toothless tiger. Whether the FTC has ever punished any athlete agents under the Act is unclear.
Many in the sports commentariat believe federal legislation is unlikely now because of Congress’ historical resistance.
However, the Power 5’s and NCAA’s current four-year campaign is unprecedented in the relationship between Congress and college sports.
Never before have the most influential stakeholders in college sports history joined forces and told Congress that unless it accedes to their demands, college sports will come to a fatal collapse.
The Power 5 and NCAA have embarked on a sustained, coordinated, win-at-all-costs strategy in Congress engineered by an army of the best lobbyists in Washington, DC.
They are playing the long game, and there is little evidence they intend to abandon their quest for federal protections and immunities that will place them on the Iron Throne of college sports regulation.
It is also important to note that Congressional advocates of a federal bail-out for the Power 5 and NCAA are far more motivated and assertive on these issues than Congressional advocates for athlete interests.
Power 5 interests are the driving force in Congress and are formidable.
The map below shows the power imbalance in the current debate in Congress. The states in red align with Senators and Representatives who have proposed Power 5/NCAA-friendly legislation, chaired key committees, or been actively involved in promoting Power 5/NCAA interests. Most come from states with top Power 5 schools, and most are Republicans.
The states in blue align with Senators and Representatives who have proposed athlete-friendly legislation or been actively involved in promoting athlete interests. Most come from states with no Power 5 schools or Power 5 schools not at the top of the Power 5 food chain.
All are Democrats, and few represent Power 5 interests.
For example, Senators Richard Blumenthal (D-CT), Chris Murphy (D-CT), and Brian Schatz (D-HI) are among the most effective lawmaker voices on athletes’ rights. Blumenthal and Schatz are co-sponsors of the Athletes Bill of Rights (see Timeline entries for December 17th, 2020, and August 3rd, 2022), and Murphy is a co-sponsor with Bernie Sanders (D-VT) of the College Athletes Right to Organize Act (see Timeline entry for May 27th, 2021).
None of these Senators have a Power 5 school in their state.
Similarly, Cory Booker (D-NJ) has been outspoken on athletes’ rights and co-sponsored both versions of the Athletes’ Bill of Rights. New Jersey has one Power 5 school, Rutgers. Few would consider Rutgers an influential player in the Power 5 landscape.
The state in yellow—Washington—is consequential because Maria Cantwell (D-WA) is the chair of the Senate Commerce Committee. Commerce is the most important committee in either chamber.
Although a Democrat, Cantwell has committed to the NCAA’s conceptualization of amateurism and demonstrated a desire to achieve a “bipartisan” solution that may include one or more federal protections and immunities the Power 5 and NCAA seek.
One thing we know for sure: when Congress is left to decide issues that should be resolved through free markets and non-governmental policy and decision-making, things may only get worse.
