VI. Where the Power 5’s and NCAA’s Congressional Campaign is Likely Heading
Congress has demonstrated a long-standing reluctance to legislate substantively in college sports.
Because of that, many believe that Congress is unlikely to do so now.
However, the Power 5’s and NCAA’s current four-year campaign for congressional relief is unique in the historical relationship between Congress and college sports.
The nature and scope of the Power 5’s and NCAA’s current campaign to eliminate threats to their regulatory authority is unprecedented. So, too, is the firepower the Power 5 and NCAA bring to this fight.
Their roster includes (1) Senators and Representatives from Power 5 states, (2) the most powerful lobbyists and lawyers in DC, (3) one of DC’s most prestigious public relations firms, (4) the entire NCAA administrative state, (5) Power 5 conference commissioners, university presidents, athletics directors, and coaches, (6) the most powerful corporations in the sports-entertainment industry, (7) influential segments of the mainstream and sports media.
These are among the most influential power structures in American history. They have joined forces to persuade Congress that unless it accedes to the Power 5’s and NCAA’s demands, college sports will come to a fatal collapse.
They are playing an exceptionally sophisticated, well-coordinated long game. There is scant evidence that the Power 5 and NCAA will lay down their arms and voluntarily change their regulatory or business models without assistance from Congress.
A. A Partisan Quagmire?
Unfortunately, the debate in Congress has devolved into a partisan battle. Republicans, in the aggregate, support the NCAA and Power 5’s legislative goals. Democrats, in the aggregate, support some athlete-friendly features of proposed legislation.
Republicans supporting the Power 5 and NCAA have proven far more motivated and persistent on these issues than Democrats supporting athletes.
The NCAA, Power 5, and their allies in a Republican-controlled Senate went on offense when they launched their congressional campaign in late 2019 and early 2020.
The very first hearing on February 11, 2020, in a subcommittee of Senate Commerce chaired by Jerry Moran (R-KS) set an indelible template around NCAA/Power 5 talking points and narratives.
The witness panel was loaded with NCAA/Power 5 insiders of the highest order, including NCAA President Mark Emmert, Big 12 conference commissioner Bob Bowlsby, and University of Kansas Chancellor Doug Girod.
Three additional hearings in the Senate in 2020 (Commerce, Judiciary, and HELP) cemented the NCAA/Power 5 foundational narratives and legislative aims.
Ever since then, the Democrats have been on the defensive, with NCAA/Power 5 narratives largely framing the debate.
Even after Democrats took control of the Senate after the 2020 general election and the January 5, 2021, Georgia special elections, they allowed Republicans such as Roger Wicker (R-MS), Jerry Moran (R-KS), Lindsey Graham (R-SC), Tommy Tuberville (R-AL), and Ted Cruz (R-TX) to dictate the terms of the debate and the composition of witness panels.
B. An Extreme Power Imbalance
However, there is a more practical problem for athletes in Congress: a massive power discrepancy between the states that have Senators on the front lines of the debate.
The map below illustrates this power imbalance. 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 blue-state lawmakers come from states with no Power 5 schools (or Power 5 schools that are not at the top of the Power 5 food chain), and all are Democrats.
For example, Senators Richard Blumenthal (D-CT), Chris Murphy (D-CT), and Brian Schatz (D-HI) have been among the most vocal voices on athletes’ rights.
Blumenthal and Schatz are co-sponsors of both versions of the Athletes Bill of Rights discussed below (introduced on December 17th, 2020, and August 3rd, 2022), and Murphy is a co-sponsor with Bernie Sanders (I-VT) of the College Athletes Right to Organize Act which would confer employee status for certain athletes.
None of these Senators have a Power 5 school in their state.
Similarly, Cory Booker (D-NJ) has been outspoken on athletes’ rights and also 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.
On the House side, Lori Trahan (D-MA) has become a prominent voice on possible college sports legislation. She has teamed up with Chris Murphy on several bills, including the “College Athlete Economic Freedom Act” (introduced July 26, 2023).
The bill addresses NIL compensation and facilitates “collective representation” (e.g., players’ associations) for athletes but does not confer employee status.
The bill also requires disclosure of group licensing deals and permission from athletes but does not explicitly require group license holders to compensate athletes. The bill also provides NIL rights and visa status protections for international athletes.
Importantly, the bill also includes preemption of state laws, ostensibly limited to NIL issues.
Trahan and Murphy have also introduced companion bills (three releases, the most recent on February 7, 2024) that would hold the NCAA responsible under Title IX.
In addition to preemption, Trahan has suggested she is open to a “limited” antitrust exemption for the NCAA.
The only Power 5 school in Massachusetts is Boston College, not among Power 5 heavyweights.
C. Maria Cantwell’s Role
The state in yellow—Washington—is consequential because Maria Cantwell (D-WA) is the chair of the Senate Commerce Committee.
Senate Commerce is the most consequential committee in either chamber. It is where the NCAA and Power 5 launched their congressional campaign in 2020, and it is where the fate of any college sports legislation will likely be determined.
Although a Democrat, Cantwell has endorsed the NCAA’s conceptualization of amateurism (July 1, 2020, Senate Commerce hearing) and demonstrated a desire to achieve a “bipartisan” solution that may include one or more federal protections and immunities the NCAA and Power 5 seek.
Moreover, with the University of Washington now in the Big Ten, the pressure on Cantwell to adopt and pursue the Big Ten/SEC agenda may increase.
The most pressing external regulatory threats (federal litigation, NLRB actions) to the Power 5 and NCAA are unlikely to be resolved before the 2024 elections. Some may extend well into 2025 or even 2026.
With discussions in play on an “omnibus” settlement of pending litigation that could be portrayed as a victory for athletes on compensation issues followed by a request from the Power 4 for a preemption and no-employee bill from Congress, Cantwell’s role may be even more important.
The timeline for these possibilities is uncertain, and the composition of Congress may change after the 2024 elections. Cantwell is up for re-election, but her seat appears to be safe.
However, even if the Republicans retake the Senate or run the table and control both chambers and the White House, Cantwell will still be an influential voice as a female Democrat.
In any political scenario, the Republicans will likely need some bi-partisan support for universal buy-in to congressional action.
Having Cantwell’s vote would go a long way to accomplishing that goal.
D. Shifting Momentum, the Baker Effect, and the Numbers Game
The NCAA, Power 5, and their formidable army of lobbyists have made more progress in Congress than is apparent to the public.
Proposed legislation has consistently moved towards NCAA and Power 5 values and goals.
Momentum
For example, Blumenthal and Booker have moved away from civil rights and towards a NIL-centric focus that serves institutional interests as much as athletes’ interests.
Blumenthal and Booker framed the 2020 version of the Athletes Bill of Rights around civil rights values and the need to recognize the contributions of African American profit athletes.
The bill contained a revenue sharing component that would permit profit athletes in football and men’s basketball to receive a portion of the fruits of their labor but did not grant athletes employee status.
The bill also included non-compensation benefits such as health and safety standards/protections, medical benefits, degree completion programs, and educational services,
Importantly, the bill also created a private right of action for athletes against institutions for violations of the law.
The bill’s requirements would be implemented and overseen by a federal corporation.
The corporation’s governing board qualification criteria explicitly excluded current and former NCAA/Power 5 insiders.
The corporation had the ability to serve subpoenas on institutions for enforcement purposes.
When Booker and Blumenthal rereleased the bill in 2022, they removed the revenue sharing component. This fundamental change in the bill’s philosophy received very little coverage.
In their press statements lauding the rerelease, neither Blumenthal nor Booker mentioned the deletion of the revenue sharing component.
Neither version of the Athletes Bill of Rights provided the NCAA and Power 5 antitrust immunity or a no-employee provision, and neither had a Republican co-sponsor.
In July 2023, Blumenthal, Booker, and Senator Jerry Moran (R-KS) announced the release of a discussion draft proposal titled “College Athletes Protection and Compensation Act of 2023.”
The bill was hailed as a potential bipartisan compromise.
The bill’s title came from Moran’s February 2021 bill, the “Amateur College Athletes Protection and Compensation Act of 2021.”
Moran has been a reliable NCAA/Power 5 ally throughout the congressional debate, and his 2021 bill gave the NCAA and Power 5 everything they wanted to obtain regulatory supremacy in college sports.
Moran’s 2021 bill contained sweeping preemption, antitrust immunity, and no-employee status provisions that went far beyond “NIL compensation” and would have ended the athletes’ rights movement.
Like the Athletes Bill of Rights, Moran’s bill used a federal corporation to oversee the bill’s requirements.
However, in Moran’s bill, the governing board qualification criteria required NCAA and Power 5 insiders, who would dominate the board’s composition.
Moran’s bill would have essentially replicated the NCAA bureaucracy at the federal level.
Athletes would have no meaningful recourse for institutional violations, and the bill contained only symbolic “benefits” for athletes that either already existed in Power 5 Autonomy legislation (e.g., extended medical coverage post-eligibility) or were scheduled to come into existence independently of the bill (one-time transfer).
Importantly, Moran’s bill would permit the federal corporation to issue subpoenas for documents and testimony at the request of the NCAA.
In short, the Athletes Bill of Rights and Moran’s bill were on opposite ends of the earth in their fundamental structure, purpose, and consequence.
Moran’s bill had no co-sponsors.
The Booker/Blumenthal/Moran 2023 “compromise” bill was a confusing cut-and-paste from both versions of the Athletes Bill of Rights and Moran’s 2021 bill.
Moran got the better of the cutting and pasting.
The draft bill has no revenue sharing, dilutes athlete benefits from the Athletes Bill of Rights, provides limited recourse for athletes, and defers to the NCAA/Power 5’s NIL-centric view of federal legislation.
It is not a civil rights bill.
While the bill does not contain antitrust immunity or address the employee issue (it does contain a preemption provision), its governance structure places the NCAA and Power 5 in control of decision-making seats.
Indeed, the bill adopts verbatim Moran’s federal corporation governance structure from his 2021 bill. The corporation would be dominated by NCAA/Power 5 insiders.
Importantly, like the 2021 Moran bill, the new “compromise” bill contains the subpoena provision that permits the NCAA, and only the NCAA, to initiate subpoenas.
These subtle momentum shifts in Congress toward NCAA/Power 5 legislative goals that run through a narrower NIL-centric lens are significant because they allow NCAA and Power 5 lobbyists to focus their efforts on a smaller group of lawmakers and issues.
The Baker Effect
Another subtle but important shift in the Congressional debate is the public relations push to portray former Massachusetts Governor and NCAA President Charlie Baker as a forward-thinking, independent-minded leader who is trying to align NCAA policies with the realities of the big-time college sports business model.
In congressional hearings and NCAA public relations, lawmakers, witnesses, and the sports media repeatedly describe Baker as a new kind of NCAA CEO who brings fresh thinking to the job.
Fellow Massachusetts product Lori Trahan has been effusive in her praise of Baker.
These types of credibility boosts for Baker have the effect of legitimizing the NCAA as an institution and its campaign in Congress for protective federal legislation.
That is precisely why the NCAA hired Baker.
It wanted a skilled politician to make the NCAA’s case in Congress to obtain the federal protections and immunities it has sought since 2019.
In many ways, Baker was hired to be the opposite of Mark Emmert, who had alienated so many lawmakers that he became a liability.
Power 5 decision-makers in 2019 certainly felt that as they were conceiving their plan for congressional engagement, saying of Emmert, “we don’t think Mark should be taking the lead in Congress” and “the feedback we hear in Washington is that the NCAA does not have a good reputation with Senators or members of Congress.”
Their fears came true as Emmert’s engagement with Congress alienated key lawmakers like Senator Marsha Blackburn (R-TN), who openly questioned in hearings Emmert’s fitness to lead the NCAA.
While Baker’s relationship with lawmakers seems to be cordial, is being the anti-Mark Emmert enough to influence the direction of the congressional debate?
A careful examination of Baker’s policies and “asks” suggests he is using many of the same tactics the NCAA used under Emmert.
Baker’s vaguely defined “DI-Project” is portrayed by many as a game-changer and a fundamental shift away from amateurism.
But it remains to be how it will be presented to NCAA governance bodies and whether it will have universal support.
It also remains to be seen whether Baker’s proposal is nothing more than a new shiny object that suggests the NCAA can solve its own problems under new leadership while the NCAA remains focused on its goal of sweeping federal protections and immunities.
From 2020 to 2023, the NCAA and Power 5 used promises of “NIL compensation” as a shiny object to justify federal protections and immunities.
They employed a promise and delay strategy, claiming they wanted to provide “NIL compensation,” but only if they received protective federal legislation that would allow them to do nothing on NIL.
Ultimately, after the NCAA and Power 5 failed in their last-ditch attempt in June 2021 to nullify state NIL laws set to go into effect on July 1, 2021, they instituted the NIL “Interim Policy.”
The NCAA and Power 5 never intended the existing NIL market to be a permanent fixture in college sports. Indeed, the primary “interim” condition of the Interim Policy was federal legislation that would put the NCAA and Power 5 in charge of a federalized NIL marketplace.
Now, almost three years into the new, less regulated NIL marketplace that has not caused any of the harms the NCAA and Power 5 predicted it would, promises of “NIL compensation” aren’t going to cut it.
The NCAA (and Power 5) needs something new, bold, and meaningful to change its approach to athletes’ interests.
The “D-I Project” appears to fit the bill, with Baker consistently using the same conditional tactics and thinking as his predecessor.
In Baker’s testimony to Congress, his State of the Association speech at the January 2024 NCAA convention, and his comments to the media, he makes clear any new changes to athlete benefits—like those envisioned by the “D-I Project”—are only possible with “help'“ from Congress.
And that “help” comes in the form of preemption, antitrust immunity, and no-employee status for athletes.
The Global Antitrust Settlement Strategy
Another pathway to federal legislation is the possibility that the NCAA and Power 5 could enter into global settlements of pending antitrust cases, particularly the athlete compensation cases (House, Hubbard, and Carter). If such a settlement occurs and the NCAA and Power 5 receive expansive releases from liability in return, the NCAA and Power 5 would likely then go to Congress and argue that because all athlete compensation issues have been resolved, Congress should grant the NCAA and Power 5 preemption of state laws and non-employee status for athletes.
The Numbers Game and Granular Lobbying
To evaluate the NCAA and Power 5’s congressional campaign, one must look at it the way NCAA/Power 5 lobbyists, lawyers, and public relations experts do.
They are counting votes, not necessarily worrying about headlines.
While public perception is important in any political discussion, the NCAA and Power 5 have successfully utilized powerful, intuitive equity-based narratives that have resonated with many congress members and the public.
One is focused on gender equity and the belief—unsupported by fact-finding and evidence—that any change to the business model that recognizes the economic value of profit athletes in Power 5 football and men’s basketball will have a correspondingly negative impact on female (and other Olympic sport) athletes.
Indeed, Booker and Blumenthal’s rerelease of the Athletes Bill of Rights substituted the revenue sharing component with a largely symbolic gender equity provision that restated existing Title IX requirements.
Another related and potent theme that operates quietly beneath the surface in the congressional debate is the belief that with the new NIL market and modest enhancements to athlete benefits packages, such as the full cost of attendance scholarship and Alston education payments, compensation issues for Power 5 profit athletes have been largely resolved.
NCAA and Power 5 lobbyists have capitalized on both of these narratives to position themselves to move on Congress when the political and public relations environments are ideal.
In the short run, the NCAA and Power 5 are concerned primarily with the 535 members of Congress.
Through successful gender equity-based and utilitarian messaging, they have effectively narrowed their list down to a small number of lawmakers—mostly female Democrats—who may be persuaded to support components of protective federal legislation if they are perceived as beneficial to female and other Olympic sports athletes.
Female senators on the Senate Commerce Committee are prize targets, notably including Maria Cantwell.
Regardless of the composition of Congress after the 2024 elections, if the NCAA and Power 5 can secure just a handful of Democrat votes, they can portray protective federal legislation as “bipartisan” and consistent with broader equity interests.
This is a lawmaker-by-lawmaker strategy, and the NCAA/Power 5 lobbyists are aggressively pursuing it.
As an example, House member Debbie Dingell (D-MI6) is in the NCAA/Power lobbying sights. Dingell sits on the House Energy and Commerce Subcommittee on Innovation, Data, and Commerce, which has held three of the twelve congressional hearings thus far.
Ms. Dingle is the wife of former representative John Dingell (1926 - 2019). Mr Dingell represented Michigan’s 12th and 15th Districts from 1955 - 2014, making him the longest-serving member of Congress in American history.
After Mr. Dingell’s retirement in 2014, Ms. Dingell successfully ran for her husband’s seat.
At the most recent congressional hearing on January 18, 2024, that promoted Gus Bilirakis’(R-FL) regressive proposal to roll back the existing NIL market, Ms. Dingell played a prominent role and leaned into NCAA/Power 5-friendly gender equity narratives.
According to the lobbying disclosure reports for the 3rd quarter of 2023, the NCAA’s lobbying firm Brownstein and Hyatt added Ms. Dingell’s former and long-time chief aid Greg Sunstrom to their lobbying team.
Sunstrom also served as legislative director for John Dingell.
Coincidence?
Unlikely.
That is how granular the NCAA/Power 5 lobbying strategy has become.
Importantly, Dingell is from a labor-friendly state and has built her political career in part on protecting workers’ rights and unions.
If she ultimately supports some form of protective federal legislation, it would be a huge victory for the NCAA and Power 5 and could influence the thinking of other Democrat women.
Many in the college sports punditry believe there is almost no chance of protective federal legislation for the NCAA and Power 5.
That view is contradicted by the NCAA and Power 5’s continued efforts in Congress and the very subtle ways the debate has evolved to align with NCAA/Power 5 interests.
It also fails to capture the nuanced, individualized lobbying strategy of NCAA/Power 5 lobbyists, as illustrated by their courting of female Democrats like Cantwell and Dingell.
NCAA/Power 5 lobbyists aren’t stupid.
They are working an increasingly sophisticated chessboard that operates so far outside the view of stakeholders and the public that only they know its true progress.
While NCAA/Power 5 lobbying themes have changed over the last four years, their endgame and motivations have not.
