VII: The Congress Timeline
2019 (February 5th) – California State Senators Nancy Skinner and Steven Bradford introduce SB 206, “The Fair Pay to Play Act”; SB 206 is the first state-based NIL proposal and would conflict with NCAA’s NIL compensation prohibitions contained in NCAA By-Law 12; SB 206 seen as response to 9th Circuit’s O’Bannon ruling in 2015 that largely deferred to the NCAA’s conceptualization and use of amateurism and provided a limited NIL remedy
2019 (March 7th) – Rep. Mark Walker (R-NC) releases the “Student-Athlete Equity Act”; bill would strip the NCAA of nonprofit status unless it provides name, image, and likeness (NIL) benefits; the bill has bi-partisan, bi-racial sponsorship with five Democrats and three Republicans; co-sponsors represent states (California, Florida, Kentucky, Louisiana, North Carolina, Pennsylvania, and Texas) with high-profile Power 5 schools; NCAA pushes aggressively to halt bill’s momentum; Walker tries to schedule a meeting with NCAA President Mark Emmert but is rebuffed
2019 (March 8th) – District Court Judge Claudia Wilken issues opinion in Alston finding that the NCAA’s limits on education-related benefits violate federal antitrust laws; Judge Wilken issues an injunction permitting (but not requiring) certain education-related benefits; injunction order shifts authority to the conferences to regulate these benefits; NCAA issues statement saying it views the decision as beneficial to the NCAA because it adhered to O’Bannon’s education-non-education framework, saying “Although the court rejected the [athletes’] desire for a free market system, we will explore our next steps as appropriate. We believe the ruling is consistent with the decision by the 9th Circuit Court of Appeals in O’Bannon. That decision held that the rules governing college athletics would be better developed outside the courtroom.”
2019 (March 23rd) – NCAA announces it is appealing the district court’s Alston ruling to the 9th Circuit; in its brief press release, the NCAA states that it seeks a ruling that establishes the NCAA as the only authority that can regulate college athletics: “We believe, and the Supreme Court has recognized, that NCAA member schools and conferences are best positioned to strengthen and revise their rules to better support student-athletes, rather than forcing these issues into continuous litigation.”; statement closes by saying: “The NCAA and conference defendants unanimously agree to appeal the District Court’s decision.”; the NCAA statement is a disguised request for judicially created antitrust immunity
2019 (May 14th) – NCAA Board of Governors announces the formation of the Federal and State Legislation Working Group (Working Group); the Working Group is comprised of NCAA insiders and charged with exploring “whether the Association should maintain its opposition to the [Walker and California bills] and/or work to develop a process whereby a student-athletes's NIL could be monetized in a fashion that would be consistent with the NCAA’s core values, mission, and principles” (emphasis added); Working Group made clear that any such NIL policy must be consistent with the “collegiate model,” must not permit athletes to make money from their athletic skill, performance, or notoriety, and must not convert athletes into employees; “collegiate model” in this context is substitute for amateurism; Working Group becomes conduit through which the NCAA—in conjunction with the Power 5—commandeers the NIL debate and frames it around “guardrails” that would make it impossible for athletes to have meaningful NIL rights or compensation
2019 (June 4th) – Kevin Warren replaces Jim Delaney as Big Ten commissioner; Warren has an NFL background; no connection to higher education
2019 (June 17th) – NCAA President Mark Emmert sends a letter to committee chairs in the CA Assembly (copy to Nancy Skinner) asking them to “postpone further consideration of Senate Bill 206…while we review our rules.”; points to the creation of the Working Group and its study “of potential processes whereby a student-athletes’s NIL could be monetized in a fashion that would be consistent with the NCAA’s core values, mission, and principles.”
2019 (July 9th) - ACC hires lobbying and law firm DLA Piper to lobby for ACC/Power 5 interests in Washington
2019 (August) – ACC launches the ACC Network (ACCN); ACCN is 100 percent owned by ESPN; ACC and ESPN have pre-existing long-term contract for sports content on ESPN; ACC schools required to up-fit technological capabilities of campus athletics facilities to ESPN’s specifications; contracts—including ACC grant of rights contract tied to ESPN deals—not made public
2019 (August) – D-I Board of Directors implements the Independent Accountability Resolution Process (IARP) infrastructure; IARP follows recommendations of the Commission on College Basketball in 2018; IARP is designed for complex, high-stakes cases; critics of the independent process say it is inefficient and takes too long; SEC commissioner Greg Sankey is a key critic; only six cases ultimately referred to IARP (between March 2020 and February 2021), all men’s basketball
2019 (September 11th) – NCAA Board of Governors sends a letter to California Governor Gavin Newsome asking him not to sign SB 206 into law; NCAA threatens to declare NCAA universities and athletes in California ineligible if they enter into NIL deals under SB 206; Emmert also says SB 206 is unconstitutional, an implied threat of litigation under a Dormant Commerce Clause theory
2019 (September 12th)– California State Assembly passes SB 206; vote is unanimous; bill allows college athletes in California to make money from their NIL; NIL deals can be done only with third parties; universities cannot make NIL deals with athletes; bill would not go into effect until 2023; bill explicitly mentions NCAA Working Group and suggests that CA lawmakers are willing to give the NCAA time to change its NIL rules
2019 (September 30th) – California Governor Gavin Newsome signs SB 206 into law; NCAA releases “NCAA statement on Gov. Newsome signing SB 206”; statement says, “We will consider next steps in California while our members move forward with ongoing efforts to make adjustments to NCAA name, image, and likeness rules that are both realistic in modern society and tied to higher education.” (emphasis added)
2019 (October 23rd) – Working Group releases its “interim report” on NIL; vague principles, few details; loaded with “guardrails”; must comply with “collegiate model”; these threshold limitations make it impossible for athletes to receive meaningful NIL compensation; Working Group’s principles and guidance titled “PRINCIPLES AND ADDITIONAL GUIDANCE FOR THE DECISION-MAKING PROCESS RELATED TO POTENTIAL NAME, IMAGE, AND LIKENESS MODIFICATIONS;” (bold and full caps in original; italics added); Working Group justifies “guardrails” on belief that “…the commercial value of a student-athlete’s name, image, or likeness may be derived largely through the student-athletes association with his or her school and/or participation in athletics.”; report identifies the need for national uniformity in NIL rulemaking but says nothing specifically about federal preemption
2019 (October 29th) – NCAA Board of Governors reviews October 23 interim report and proclaims a desire to “modernize” NCAA rules consistent with the “collegiate model” through suggested “guardrails”; Board of Governors adopts Working Group’s language on “potential” modifications; mainstream media hail NCAA press release as actual NIL rules changes that permit NIL compensation; Wall Street Journal front page headline (October 30th, 2019) says “NCAA Alters Rules On Athlete Income” suggesting actual rules changes; similar inaccurate narratives published nationwide; inaccurate coverage gives NCAA/Power 5 credibility on “modernization” rhetoric
2019 (October 29th) – NCAA Division I Student-Athlete Advisory Committee issues open letter on proposed NIL changes titled “We are the 100%”; SAAC signatories comprised substantially of non-revenue sport athletes; letter parrots NCAA/P5 talking points: “No one is talking about how proposals for name, image and likeness reform — both state and federal — will affect sports other than football and men’s basketball or a handful of elite student-athletes in other sports. No one is talking about what the proposals will do for limited resource institutions, historically black colleges and universities, or international students…[w]hile name, image and likeness compensation carry many benefits, there are a plethora of potential unintended consequences that will inevitably erupt unless regulations are put into place to prevent them. Some of those consequences include unfair recruiting and competitive advantages, difficulty monitoring compensation and ethics, inequitable treatment of female athletes, and exploitation of athletes by professional and commercial enterprises. With the potential loss of revenue to athletics departments, the biggest impact could be on scholarships for equivalency sports, which are predominately women’s teams.”; SAAC letter receives favorable national press coverage; the letter is used to create false narrative of consensus among college athletes
2019 (November 16th) – NCAA Board of Governors Executive Committee quietly directs the formation of a Working Group subcommittee to report to the NCAA President and the BOG Chair “on potential assistance that the Association should seek from Congress to support any efforts to modernize the rules in NCAA sports while maintaining the latitude that the Association needs to further its mission to oversee and promote intercollegiate athletics on a national scale.”; the subcommittee is ultimately created under the name “Presidential Subcommittee on Congressional Action” (PSCA); NCAA does not announce the existence of the PSCA until the Working Group’s Final Report in April 2020; Ohio State President and NCAA Board of Governors Chair Michael Drake is key member of PSCA; Drake was also key figure in December 10th, 2019 secret meeting (see entry below); University of Georgia President and Division I Board of Directors member Jere Morehead also served on PSCA and participated in December 10th teleconference
2019 (December 5th) – Senators Chris Murphy (D-CT), Cory Booker (D-NJ), Mitt Romney (R-UT), Marco Rubio (R-FL), and David Perdue (R-GA) announce the formation of a bipartisan “working group” on athlete compensation
2019 (December 6th) - NCAA issues on its website “NCAA statement on Senate working group.” The statement reads, “The NCAA, its member schools, and conferences are committed to enhancing our rules while providing the best educational and athletic experience for our student-athletes. We know that continuing our modernization of rules will require some level of federal assistance, and we look forward to working with federal legislators as we drive improvements for the next decade.” (emphasis added)
2019 (December 10th) – Power 5 conference commissioners and university presidents/chancellors hold a secret meeting on congressional strategy; 15 attendees (all men); participants cite bipartisan Senate working group as a precipitating factor for meeting (“If we want to have influence, all major players in college sports and stakeholders need to be coordinated. Last week’s announcement by a group of bi-partisan Senators emphasizes this fact…[a]ll of us have spoken with different Senators and members of Congress interested in this issue, and with the formation last week of the bi-partisan group of Senators, we believe the time is now to get our act together.”); meeting provides Power 5 congressional playbook; group expresses concern with Mark Emmert’s leadership and NCAA taking the lead on congressional engagement; emphasizes the importance of controlling the NIL narrative in Congress and in public discourse; emphasizes the importance of not branding congressional engagement as a Power 5 initiative; meeting is the genesis for the Power 5 and NCAA seeking federal protections and immunities (preemption, antitrust immunity, no employee status for athletes) that will eliminate external regulatory threats and end the athletes’ rights movement; documents obtained by sports journalist Andy Wittry via public records requests; mainstream media largely ignores
Note: “Autonomy 5” means Power 5
This meeting establishes that the only interests driving protective federal legislation are Power 5 interests, particularly Power 5 football. No other interests—Group of 5 conferences, Division I FCS, non-football Division I, Division II, Division III—participated, had input into the Power 5’s secret congressional playbook, or hired lobbying firms to seek protective federal legislation.
2019 (December 12th) - A group of athletes from non-FBS schools (lower-level Division I) file a federal class-action lawsuit—Johnson v. NCAA—against the NCAA and schools claiming hourly wage benefits under the Fair Labor Standards Act (FLSA); athletes must first prove they are employees with the meaning of the FLSA; suit directly challenges the NCAA’s conceptualization and use of the “student-athlete”; athletes also allege that the NCAA is a “joint employer” with the schools making the NCAA liable under the Act
2019 (December 16th) - Working Group’s Presidential Subcommittee on Congressional Action begins its work behind the scenes; between 12/16/19 and 4/17/20 (the date the Working Group’s Final Report is complete), the PSCA conducts “seven meetings and teleconferences” and “received reports from NCAA legal and legislative affairs staff regarding potential legal impediments faced by the Association as it considers NIL modernization, as well as the effect those impediments may have on the Association’s ability to adopt and enforce its bylaws more generally.”
2020 (February 11th) – First congressional hearing ostensibly on “NIL compensation” held in Senate Commerce Subcommittee on Manufacturing, Trade, and Consumer Protection (“Name, Image, and Likeness: The State of Intercollegiate Athlete Compensation”); Subcommittee chaired by Jerry Moran (R-KS); Commerce Committee has original jurisdiction over sports matters; NCAA President Mark Emmert emphasizes the NCAA’s need for “help” from Congress; NCAA-dominated witness list; five NCAA/Power 5 witnesses, only one athlete-friendly witness; Rep. Anthony Gonzalez (R-OH) is first witness to testify; NCAA/Power 5 witnesses flood the hearing with talking points that frame the debate for protective federal legislation going forward
The Power 5 and NCAA GO ON OFFENSE to eliminate all external regulatory threats in one fell swoop. After this hearing, the Power 5 and NCAA have successfully commandeered the NIL “compensation” debate.
Hearing Summary
February 11th, 2020, Senate Commerce Subcommittee on Manufacturing, Trade, and Consumer Protection (“Name, Image, and Likeness: The State of Intercollegiate Athlete Compensation”)
Subcommittee Chair: Jerry Moran (R-KS)
Ranking Member: Maria Cantwell (D-WA)
Attendance: 15 Subcommittee members; eight attendees; six of eight are Republicans
Purpose: NCAA tells Senators “we need your help”; NCAA and Power 5 get their foot in the door on congressional campaign; NIL “guardrails”
Witnesses:
NCAA/P5
Anthony Gonzalez (R-OH; House)
Mark Emmert (NCAA President)
Bob Bowlsby (Commissioner Big 12)
Douglas Girod (Chancellor, University of Kansas)
Kendall Spencer (New Mexico track athlete; former Chair of NCAA Student Athlete Advisory Committee)
Athlete
Ramogi Huma (National College Players Association)
Pro-NCAA/Power 5 v Pro-Athlete Witnesses: 5-1
Power 5 Football/Men’s Basketball/Women’s Basketball Witnesses: 0
2020 (February 13th) – SEC hires Akin Gump to lobby for SEC interests; Akin Gump is a full-service national law firm and the #2 ranked lobbying firm in Washington
2020 (February 19th) – In response to the 9th Circuit’s request for briefing on the impact of California’s NIL law in the Alston appeal and the law’s deference to the work of the NCAA’s Working Group, the NCAA files its brief in which it makes clear that it has not committed to any NIL rules changes or benefits; this admission is inconsistent with the NCAA’s public relations campaign leading stakeholders and the public to believe the NCAA has committed to voluntary rules changes on NIL
2020 (March 9th) – 9th Circuit hears oral argument in Alston; NCAA attorney renews suggestion that state NIL laws could be challenged under a Dormant Commerce Clause theory
2020 (March 9th) – All Power 5 conferences hire lobbying firms Subject Matter (f/k/a Elmendorf Ryan) and Marshall and Popp; Subject Matter is a top 20 lobbying firm, and Marshall and Popp has important ties to Senators Mitch McConnell (R-KY) and John Cornyn (R-TX)
2020 (March) – COVID lockdowns begin; most professional and college sports products cancel seasons; universities send students and faculty home and limit campus access to “essential” workers; world economy in peril; NCAA and Power 5 continue their aggressive campaign in the Senate to eliminate the athletes’ rights movement; the Senate would conduct three more hearings in the summer of 2020 and the NCAA Working Group pressed forward with its final work product
2020 (March 12th) – NCAA cancels NCAA Division I men’s basketball tournament
2020 (March 20th) – Pac-12 hires Cassidy & Associates as lobbyist; Cassidy is a top 20 lobbying firm
2020 (April 17th) - Working Group completes its Final Report; pages 26 and 27 (see images below) contextualize the work of the Presidential Subcommittee on Congressional Action (PSCA) and reveal the NCAA’s true intentions in Congress; the NCAA seeks absolute regulatory authority on the belief that it “…is the most appropriate and experienced entity to oversee intercollegiate athletics.”; Working Group says “[u]nfortunately, the evolving legal landscape surrounding NIL and related issues threatens to undermine the intercollegiate athletics model and significantly limit our ability to meet the needs of student-athletes moving forward. Specific modernization reforms that the working group believes are in the best interests of student-athletes and consistent with the collegiate model might prove infeasible as a practical matter due solely to the legal risk that they might create for the Association.” (emphasis added); “In light of the above…” Report says NCAA should “immediately'' engage Congress to obtain preemption of state laws, federal antitrust immunity, and athletes can’t be employees (emphasis added); misleading narrative because NCAA/Power 5 had already engaged Congress; Report does not mention the February 11th, 2020 hearing in Senate Commerce
2020 (May 18th) – 9th Circuit issues Alston decision; affirms district court; Judge Milan Smith's concurring opinion criticizes Ninth Circuit’s O’Bannon analysis as undermining athletes’ protections under antitrust laws; Smith also questions the use of a consumer-facing market analysis (from O’Bannon) and suggests a labor-facing analysis is appropriate
2020 – (May 18th) – Big Ten hires FGS Global as lobbyist
2020 (May 23rd) – P5 conference commissioners (Swofford, Bowlsby, Sankey, Warren, Scott) send a letter to both chambers of Congress asking for an immediate bill on NIL; they emphasize “time is of the essence”; the letter attachment identifies “Consensus Principles” that contains preemption, antitrust immunity, and athletes can’t be employees; “NIL only” bill; the manufactured sense of urgency aligns with enactment Florida NIL law and Rubio NIL bill in Congress (see June 12 and June 18 entries below)
2020 (June 12th) – FL legislature enacts NIL law; set to go into effect on July 1st, 2021; bill promotes amateurism; contains numerous amateurism-based protective “guardrails”; those guardrails are pitched as values-based and necessary to preserve the integrity of college sports; effective date of bill substantially accelerates Congressional timeline from 2023 (CA’s SB 206) and creates a sense of manufactured urgency for federal legislation
2020 (mid-June) – Uniform Law Commission votes to go ahead with voluntary uniform NIL legislation; Commission member and former University of Nebraska Harvey Perlman issues statement to Committee expressing his “profound” opposition to NIL and the ULC’s NIL legislation; Perlman would become a dominant voice in Committee discussions; Lead1/Bubba Cunningham/Kevin White articulate “displacement” theory; under “displacement,” any NIL money that goes to profit athletes in football and men’s basketball will necessarily be money that is taken from athletics departments and “Olympic” sport athletes; assumes a zero-sum NIL market and a zero-sum equity world; Lead1 becomes increasingly involved in formulating Power 5 strategy to suppress revenue-producing athletes’ rights; Lead1 is a 501(c)(6) trade association for FBS athletics directors and promotes only the interests of those members; Tom McMillan (former House member and famous basketball player) is Lead1 President; McMillan becomes a staple on the speaking/webinar/symposium circuit strategically advocating for policies designed to preserve the Power 5 status quo
2020 (June 15th) – House v NCAA antitrust filed in CA; NIL case similar to O’Bannon
2020 (June 18th) – FL Senator Marco Rubio introduces Fairness in Collegiate Athletics Act that is a naked NCAA/P5 power grab; short bill gives NCAA antitrust immunity, preemption, and no employee status; NCAA praises bill on its website; Rubio bill would nullify Florida NIL law passed just six days earlier; bill offers little in terms of NIL benefits, but its preemption, antitrust immunity, and “no employee” provisions would effectively end the athletes’ rights movement; Rubio’s bill has no co-sponsors; NCAA praises Rubio bill on its website
2020 (July 1st) – Senate hearing in Commerce Committee (“Exploring a Compensation Framework for Intercollegiate Athletics”); chaired by Sen. Roger Wicker (R-MS); Wicker opens by promoting preservation of status quo saying “first do no harm”; Wicker says he approaches NIL compensation and hearing “with abundance of caution and reluctance, even skepticism and trepidation”; ranking member Maria Cantwell (D-WA) says she is “certainly one that sides with wanting to have amateur athleticism and to make sure we are keeping amateur athleticism, if anything I think we should be doing more as a committee in our oversight of the violations of that athleticism and amateurism that occur all the time”; SEC commissioner Greg Sankey testifies and offers panoply of anti-NIL, amateurism-based talking points; Sankey points to Florida NIL bill passed June 12th as accelerating timeline but does not mention the Rubio bill introduced on June 18th that would nullify the Florida NIL law; urgency on preemption because state laws set to go into effect July 2021; NCAA and P5 present their own bills; bills are discussed but not made public; SI publishes partial copy of NCAA bill; NCAA bill proposal contains no meaningful NIL benefits but has preemption, antitrust immunity, and no employee status for athletes; pro-athlete witness Prof. Dionne Koller (University of Baltimore Law School) offers comprehensive rebuttal to NCAA/Power 5 narratives
Hearing Summary
July 1st, 2020, Senate Commerce Committee (“Exploring a Compensation Framework for Intercollegiate Athletes”)
Committee Chair: Roger Wicker (R-MS)
Ranking Member: Maria Cantwell (D-WA)
Purpose: Unintended consequences of NIL market; speed up timeline for Congressional intervention; “national standard” (preemption); endless litigation (antitrust immunity); “student-athlete” is opposite of employee (no employee status); Cantwell shows clear deference to NCAA/Power 5 conceptualization of amateurism
Witnesses:
NCAA/P5
Michael Drake (President Ohio State; Chair NCAA Board of Governors; NCAA Division I Board of Directors)
Greg Sankey (SEC Commissioner)
Keith Carter (Vice Chancellor for Intercollegiate Athletics University of Mississippi)
Athlete
Dionne Koller (professor, University of Baltimore School of law)
Eric Winston (former NFL player and former President NFL Players Association)
Pro-NCAA/Power 5 v Pro-Athlete Witnesses: 3-2
Power 5 Football/Men’s Basketball/Women’s Basketball Witnesses: 0
2020 (July 22nd) – Hearing in Senate Judiciary Committee (“Protecting the Integrity of College Athletics”) chaired by Lindsey Graham (R-SC); Judiciary Committee has jurisdiction over antitrust matters and is the Committee through which the NCAA/Power 5 would get antitrust immunity; Graham opens hearing by saying “I see the destruction of college sports as we know it unless we put a rein on it [athlete compensation, state NIL laws, and antitrust litigation]….[t]he one thing I’m convinced of is that the federal government—through the Congress—needs to get control of this before we allow the Wild West to take over.”; disagreement between Graham and Sens. Richard Blumenthal (D-CT) and Cory Booker (D-NJ) over scope of federal legislation; Graham/NCAA/P5 want NIL-only bill; Booker/Blumenthal ask for broader bill including health and safety, athlete representation and revenue sharing; Graham instructs Blumenthal and Booker to “get me something by September”; discussion forms the predicate for Blumenthal/Booker Athletes’ Bill of Rights introduced in December 2020
Hearing Summary
July 22nd, 2020, Senate Judiciary Committee (“Protecting the Integrity of College Sports”)
Committee Chair: Lindsey Graham (R-SC)
Ranking Member: Maria Cantwell (D-WA)
Purpose: Lay the foundation for antitrust immunity to eliminate federal courts as external regulators; Judiciary Committee has jurisdiction over antitrust matters
Witnesses:
NCAA/P5
Mark Emmert (NCAA President)
Dan Radakovich (Clemson University athletics director)
Matt Mitten (Professor, Marquette University Law School)
Athlete
George Wrighster (former National Football Players Assn. Board)
Ramogi Huma (NCPA)
Pro-NCAA/Power 5 v Pro-Athlete Witnesses: 3-2
Power 5 Football/Men’s Basketball/Women’s Basketball Witnesses: 0
2020 (August 10th) – Players groups #WeAreUnited and #WeWantToPlay join forces to call for a voice in the decisions over fall football during COVID; star quarterbacks Trevor Lawrence (Clemson) and Justin Fields (Ohio State) become the face of the group; group demands input on health and safety protocols with athlete protections; they also support a players association to advocate for athlete interests
2020 (August 11th) – P5 make decisions on fall football; rest of NCAA shut down; Emmert says the NCAA has no authority over FBS postseason; Big Ten/Pac-12 hold off; SEC/ACC/Big 12 go forward
2020 (August 20th) – NCAA BOG suspends its strategic planning because of uncertainty in the college sports regulatory environment; will continue to pursue protective federal legislation
2020 (September 15th) – Hearing in Senate Health, Education, Labor, and Pensions Committee (“Compensating College Athletes: Examining the Potential Impact on Athletes and Institutions”); HELP Committee has jurisdiction over labor issues and is the committee through which the NCAA/Power 5 would get a “no employee” provision; Committee Chair Lamar Alexander (R-TN) argues in favor of the amateurism-based status quo; Alexander opens hearing saying “The question for the hearing today is whether the tradition of the intercollegiate student-athlete is worth preserving.”; Alexander invokes the Knight Commission’s 1991 Report “Keeping Faith With the Student Athlete” saying “I hope those words from the Knight Commission 30 years ago will guide how this Congress deals with the newest issues threatening the concept of student-athletes: allowing commercial interests to pay athletes for the use of their name, image, and likeness.”; Wisconsin-Madison Chancellor and NCAA governing board member Rebecca Blank invokes the wealth transfer elements of the “collegiate model” to justify preserving the status quo business model; Sens. Tim Scott (R-SC) and Rand Paul (R-KY) ask Blank if she supports a two-phase approach where the NCAA and Power 5 get federal protections and immunities first, then the NCAA and Power 5 can offer NIL benefits later; Blank agrees with two-phase approach; two-phase approach would allow NCAA to do nothing on NIL
Hearing Summary
September 15th, 2020, Senate Health, Education, Labor, and Pensions Committee (“Compensating College Athletes: Examining the Potential Impact on Athletes and Institutions”)
Committee Chair: Lamar Alexander (R-TN)
Ranking Member: Patty Murray (D-WA)
Purpose: Lay foundation for “no employee” provision; HELP has jurisdiction over labor matters
Witnesses:
NCAA/P5
Rebecca Blank (Chancellor Wisconsin-Madison; NCAA Board of Governors; NCAA Division I Board of Directors)
Karen Dennis (Director Track and Field/Cross Country, Ohio State)
John Hartwell (Utah State University athletics director)
Athlete
Ramogi Huma (NCPA)
Pro-NCAA/Power 5 v Pro-Athlete Witnesses: 3-1
Power 5 Football/Men’s Basketball/Women’s Basketball Witnesses: 0
2020 (September 16th) – Big Ten and Pac-12 reverse course and go forward with fall football
2020 (September 20th) – Rep. Anthony Gonzalez (R-OH) and Emmanuel Cleaver (D-MO) introduce” the “Student-Athlete Level Playing Field Act”; bill praised by NCAA; bill contains preemption, antitrust immunity, and no employee status for athletes
Like the Rubio bill in the Senate, the Gonzalez-Cleaver bill would end the athletes’ rights movement.
2020 (October 15th) – NCAA appeals Alston to US Supreme Court; antitrust immunity strategy becomes clear; NCAA denies it is seeking antitrust immunity; NCAA attacks District Court Judge Claudia Wilken and characterizes her as an outlier judge with an agenda against the NCAA
2020 (November) – D-I Council finalizes NCAA voluntary rulemaking proposal on NIL and transfers in anticipation of voluntary rules changes on NIL set to be introduced at the NCAA’s January 2021 convention
2020 (November 3rd) – General election; U.S. Senate hangs in the balance with GA special elections
2020 (December 10th) – Senator Roger Wicker (R-MS) introduces “Collegiate Athlete and Compensation Rights Act”; amateurism-based; has broad federal preemption, antitrust immunity, and no employee status; preemption is not limited to name, image, and likeness and antitrust immunity is as broad as possible; no employee provision (“Classification of Student Athletes”) is cleverly disguised in the definitions section; no employee provision would nullify state laws that relate to an athlete’s “employment status”; employee status is irrelevant to name, image, and likeness because NIL deals can only be done with third parties and universities are prohibited from entering into NIL deals with athletes; inclusion of “no employee” provision is evidence that Power 5/NCAA use “NIL compensation” as Trojan Horse for non-NIL protections and immunities; Wicker bill would eliminate most legal and regulatory pathways for athletes to protect their fundamental rights as Americans; bill has burdensome credentialing and reporting requirements targeted to athletes, agents, boosters, and NIL companies
2020 (December 14th) – Jim Phillips replaces John Swofford as ACC commissioner
2020 (December 16th) – US Supreme Court accepts Alston appeal for review
2020 (December 17th) – Senators Cory Booker (D-NJ) and Richard Blumenthal (D-CT) introduce “Athletes Bill of Rights”’ in response to July 22 exchange with Lindsey Graham; broad-based bill includes health and safety standards, athlete representation, and revenue sharing; current and former NCAA/Power 5 insiders would be prohibited from sitting on board of federal corporation tasked to oversee college sports; bill does not prodive NCAA/Power 5 with antitrust immunity or non-employee status for athletes
2021 (January 5th) – GA special elections flip Senate from Republican to Democrat
2021 (January 8th, 9th) – NCAA abruptly ceases voluntary rulemaking on NIL; NCAA blames “pressure” from Makan Delharim, head of DOJ Antitrust Division; Mark Emmert and media create narrative that DOJ instructed the NCAA to stand down on voluntary rulemaking due to alleged antitrust concerns over NIL and transfer rules changes; Delharim would later (see June 24th, 2021 entry) dispute NCAA’s portrayal saying he did not interfere with the NCAA’s voluntary rulemaking on NIL or transfers
2021 (January 11th) – NCAA announces it is indefinitely suspending voluntary rulemaking on NIL/transfers; DI Council rules tabled; NCAA cites Justice Dept. pressure as primary reason
2021 (January 13th) - NCAA Board of Governors issues statement saying it supports postponement of NIL rule changes
2021 (February 4th) – Rep. Lori Trahan (D-MA) and Senator Chris Murphy (D-CT) introduce companion bills titled “College Athlete Economic Freedom Act” granting NIL rights; bills include preemption provision limited to NIL
2021 (February 24th) – Senator Jerry Moran (R-KS) introduces the “Amateur Athletes Protection and Compensation Act of 2021”; praised in media as a “middle of the road” compromise; bill contains preemption, antitrust immunity, and no employee status; like the Wicker and Rubio bills, Moran’s bill would end athletes’ rights movement; bill has burdensome credentialing reporting requirements targeted to athletes, agents, boosters and NIL companies; bill is identified in many NCAA/Power 5 lobbyists’ disclosure reports as a bill that NCAA/Power 5 are promoting through lobbying activity; federalized NIL market would be overseen by a federal corporation run by Power 5/NCAA insiders; federal corporation would have subpoena power to compel witnesses and documents in sports-related investigations; subpoenas could be issued by the federal corporation “at the request of a national amateur athletic association,” (the NCAA)
2021 (March 1st) – Newly created Infractions Process Committee holds its first meeting; Committee has nine members and only five voting members, including SEC commissioner Greg Sankey; no athlete among initial members (athlete later added); Infractions Process Committee plays an important role in making recommendations to the D-I Board of Director’s Transformation Committee formed in October 2021; Greg Sankey is Co-Chair the Transformation Committee
2021 (March 18th) – Oregon women’s basketball player Sedona Prince posts Instagram photos of NCAA tournament facilities disparities between the men’s and women’s venues; posts go viral and embarrass NCAA
2021 (March 18th) – On eve of March Madness played under COVID protocols in empty arenas, Division I men’s basketball players Isaiah Livers (Michigan), Geo Baker (Rutgers), and Jordan Bohannon (Iowa) launch #NotNCAAProperty; group seeks to raise awareness of NCAA indifference to athletes’ economic rights; 2021 Tournament—with many COVID dropouts—viewed by many as play-at-all-costs endeavor by NCAA whose sole source of revenue is the CBS/Turner March Madness contract; players ask for a meeting with Mark Emmert to voice their concerns; Emmert initially rebuffs players
2021 (March 25th) – Mark Emmert agrees to meet with #NotNCAAProperty players but suggests NCAA Student Athlete Advisory Committee should be involved as well; players later meet with Emmert and describe him as indifferent; no meaningful progress comes from the meeting
2021 (March 25th) – NCAA hires Kaplan law firm to evaluate gender issues regarding basketball tournaments in response to Sedona Prince’s social media posts
2021 (March 31st) – Supreme Court holds oral argument in Alston; Court is less deferential to the NCAA’s amateurism-based defenses than many expected
2021 (April 14th) – NCAA Division I Council approves changes to transfer rules that will permit athletes in football, men’s basketball, women’s basketball, baseball, and ice hockey to transfer once without penalty; prior rules required athletes in these sports to sit out a year after transferring
2021 (April 15th) – Alabama legislature passes state NIL law; bill is among the most restrictive in the nation; like the Florida bill, it is built on amateurism-based “values”; law includes substantial credentialing and reporting requirements targeted to athletes, agents, boosters, and NIL companies; bill makes a violation of the law by an agent, booster, or NIL company a Class C felony under Alabama criminal laws; prior version of bill targeted athletes for criminal liability; athletes who violated the law would be guilty of a Class A misdemeanor
2021 (April 21st) – NCAA BOG extends Emmert’s contract to 2025; announces the departure of Donald Remy, the NCAA’s Chief Legal Officer, to Biden admin.; BOG refuses to explain to media its’ decision on Emmert’s contract extension
2021 (April 27th) – Gonzalez/Cleaver rerelease “Level Playing Field Act”
2021 (May 25th) – Rep. Steve Chabot (R-OH) introduces “Modernizing the Collegiate Athlete Experience Act”; effectively the House version of the Moran bill; contains preemption, antitrust immunity, and no employee status for athletes; like the Rubio, Gonzalez-Cleaver, Wicker, and Moran bills, Chabot’s bill would end the athletes’ rights movement
2021 (May 27th) – Senators Bernie Sanders (I-VT) and Chris Murphy (D-CT) introduce the “College Athletes Right to Organize Act”; bill would make scholarship athletes employees with rights under the National Labor Relations Act; NCAA immediately condemns bill
2021 (June 9th) – As July 1st, 2021 deadline approaches when state NIL laws go into effect, Senate Commerce Committee holds hearing (“NCAA Athlete NIL Rights”) as last-ditch attempt to obtain federal preemption to nullify state laws; broad agreement on preemption; stacked witness panel on issue of preemption with 5-1 ratio of witness in favor of preemption; Maria Cantwell (D-WA) Chairs; Senator Marsha Blackburn (R-TN) openly questions Mark Emmert’s leadership and fitness to continue as NCAA President; Senator Brian Schatz (D-HI) for first time in any congressional hearing challenges the audacity and scope of the NCAA’s “asks”, partucilarly with repsect to a no-employee provision; Schatz challenges the NCAA’s and Mark Emmert’s assertion that the NCAA simply wants to “clarify” in federal legislation that athletes are not employees; Schatz says the no employee request is a “massively consequential choice here, and again separate from the question of NIL”; Schatz asks law professor to weigh in on that point; professor says “I don’t view that as a clarification, I view that as a massive change”; Roger Wicker (R-MS) employs “isolate and attack” strategy against Rod Gilmore, the only witness testifying against preemption; on question of preemption and one national NIL standard, Wicker says “Mr. Gilmore, you seem to be outnumbered on this panel 5-1…I want to give you an opportunity since five members of the panel have another view, would you like to weigh in and respond to their testimony in that regard.”; Senator Richard Blumenthal (D-CT) and witness Rod Gilmore point to the absence of athlete input in hearings; Cantwell says there will be an athlete-centered hearing “in the future”
Hearing Summary
June 9th, 2021, Senate Commerce Committee (“NCAA Athlete NIL Rights”)
Committee Chair: Maria Cantwell (D-WA)
Ranking Member: Roger Wicker (R-MS)
Purpose: Emergency nullification (through preemption) of state NIL laws set to go into effect July 1st, 2021
Witnesses:
NCAA/P5 (supporting preemption)
Mark Emmert (NCAA President)
Mark Few (Gonzaga University men’s basketball coach)
Dr. Wayne Frederick (President, Howard University; Chair, Mid-Eastern Athletic Conference)
Michael McCann (University New Hampshire Franklin Pierce law professor)
Matt Mitten (Marquette University Law School professor)
Athlete (opposing preemption)
Rod Gilmore (attorney, ESPN college football analyst)
Senator Cory Booker (D-NJ)
Pro-NCAA/Power 5 on preemption v Pro-Athlete: 5-1
Power 5 Football/Men’s Basketball/Women’s Basketball Witnesses: 0
2021 (June 14th) – Jerry Moran (R-KS) makes impassioned plea on Senate floor for emergency preemption of state NIL laws
2021 (June 14th) – Texas Governor Greg Abbott (R) signs NIL bill (SB 1385) into law; law effective July 1st, 2021 and includes standard amateurism-based “guardrails” (no pay-for-play, no recruiting inducements, no NIL activity during team activities, no employee status, contract disclosures, no conflict with institutional/team contracts or athletics department policies); preamble to bill calls for Congressional action
2021 (June 17th) – Senate Commerce Committee holds hearing (“NCAA Student Athletes and NIL Rights”); three athletes (female) and the father of a University of Maryland football player whose son died from heat stroke offer forceful testimony on inequities in college sports; Roger Wicker leads Republican snub of hearing over concerns about the “timing and manner” in which the hearing was organized; in lieu of listening to the athletes who testified, Wicker said “Student athletes are the essence of college sports, and their voices should be heard in this NIL debate…[w]hile we have had ongoing discussions with student athletes, I am now reaching out to athletes across the nation to solicit their views on what they would like to see in NIL legislation.”; Jerry Moran only Republican to attend
Hearing Summary
June 17th, 2021, Senate Commerce Committee (“NCAA Student Athletes and NIL Rights”)
Committee Chair: Maria Cantwell (D-WA)
Ranking Member: Roger Wicker (R-MS)
Purpose: Allow athletes to speak on their experiences as college athletes
Witnesses:
Athletes
Christina Chenault (former track athlete at UCLA)
Sari Cureton (former women’s basketball player at Georgetown University)
Kiara Brown (track athlete, Vanderbilt University)
Martin McNair (father of former University of Maryland football player Jordan McNair who died from heat stroke after a football workout)
Pro-NCAA/Power 5 v Pro-Athlete: 0-4
Power 5 Football/Men’s Basketball/Women’s Basketball: 0
2021 (June 21st) – US Supreme Court issues 9-0 ruling in Alston rejecting NCAA/Power 5 claim for judicially-created antitrust immunity; NCAA cannot cap limited category of education-related benefits; NCAA has to defend its anticompetitive compensation limits under traditional rule of reason antitrust analysis; narrow ruling b/c athletes abandoned main claim on appeal to strike down all NCAA compensation limits and permit a free market for athletes’ services; ruling operated within O’Bannon education-noneducation framework because of the way the case was framed on appeal; Kavanaugh concurring opinion suggested that all NCAA amateurism-based compensation limits were vulnerable; Alston ruling becomes misinterpreted as name, image, and likeness case; facts of Alston had nothing specifically to do with NIL, although athletes’ original claims to strike down all NCAA compensation limits would have encompassed NIL limits; similarly, the NCAA’s antitrust immunity claims, if successful, would have encompassed immunity for NIL limits; however, timing of decision (with the July 1st deadline nearing) and the NCAA’s/Power 5’s attempt to use the Alston decision as a justification for refusing to enforce their NIL rules leads many—including members of Congress—to believe that Alston was a “NIL case”
2021 (June 24th) – Makan Delharim, former head of the DOJ Antitrust Division, says in a podcast interview that neither he nor the DOJ instructed the NCAA to abandon its voluntary rulemaking on NIL in January 2021; Delharim said the real reason the NCAA ceased voluntary rulemaking was that it received a “free shot in the goal” in its quest for antitrust immunity when the US Supreme Court agreed to hear the NCAA’s appeal in Alston on December 16th, 2020; Delharim observed that if the NCAA had received judicially-created antitrust immunity in Alston, it would have been granted the legal the authority to do nothing on NIL
2021 (June 24th) – As July 1st NIL deadline approaching when six state NIL laws go into effect, Kentucky Governor Andy Beshear signs Executive Order 2021-418 which permits certain NIL activity; the Executive Order says “postsecondary educational institutions in Kentucky will suffer a significant competitive disadvantage” relative to schools in states that have NIL laws that allow compensation
2021 (June 28th) – Ohio Governor Mike DeWine signs Executive Order 2021-10D citing “significant competitive disadvantage” unless NIL compensation is available to athletes in Ohio
2021 (June 30th) – Seven hours before the July 1st deadline, NCAA announces its “Interim NIL Policy”; prohibits pay-for-play and recruiting inducements; “interim” until either (1) NCAA voluntarily makes NIL rules changes; or (2) Congress provides protective legislation; suspends regulatory enforcement of certain NIL rules; institutions adopt their own NIL policies consistent with the NCAA Interim Policy
2021 (July 1st) – State NIL laws—including FL and TX—go into effect
2021 (July 1st) – Pac-12 hires George Klaivkoff to replace Larry Scott as Pac-12 commissioner; Klaivkoff came from MGM Resorts; has no experience in higher education
2021 (July 2nd) – NC Governor Roy Cooper signs Executive Order No. 223 citing competitive disadvantage and also racial implications of failure to provide NIL compensation; Cooper says NIL compensation will be “particularly beneficial to student-athletes of color and may help alleviate racial inequity in intercollegiate sports”;
2021 (July 21st) – Texas and Oklahoma announce their intentions to leave the Big 12 for the SEC; this begins what would become one of the most consequential structural changes in the college football market in history; defections evolve into “realignment 2.0” and destroy the Pac-12 conference (see entries for July and August 2023)
2021 (July 23rd) – Rescheduled 2020 Summer Olympics begin in Tokyo; NCAA propagandizes its role; makes argument to Congress that NCAA is principal Olympic development pipeline; NCAA claims revenue from Power 5 football and men’s basketball is necessary to underwrite Olympic development; college football and men’s basketball players do not compete in Olympics
2021 (July 29th) – in response to losing Texas and Oklahoma to the SEC, Big 12 Commissioner Bob Bowlsby sends cease and desist letter to ESPN alleging that ESPN tortiously interfered with the Big 12 conference contracts in collusion with the SEC
2021 (July 30th) – NCAA BOG member Robert Gates announces the formation of the NCAA Constitution Committee tasked to fundamentally overhaul NCAA governance; Gates says NCAA is in a battle for “relevance” and must align authorities and responsibilities; new Constitution to be in place by January 2022
2021 (August 3rd) – NCAA releases Kaplan Report; report acknowledges NCAA’s historic neglect of gender equity issues; companion Dresser Report shows discrepancy between potential value of women’s tournament and realized value under existing contract structure; Dresser also identifies sports betting/data collection market as potential revenue stream for women’s sports
2021 (August 5th) – Rescheduled 2020 Paralympics begin in Tokyo; NCAA propagandizes; suggests that NCAA has primary role in producing Paralympic athletes; NCAA does not officially sponsor paralympic sports
2021 (August 10th) – NCAA announces roster of Constitution Committee members; all NCAA insiders; three hand-selected athletes, one from each Division; no Power 5 football, men’s basketball or women’s basketball athletes selected
2021 (August 11th) – NCAA releases decision on Baylor football case involving violence against women and alleged cover-up; no action on main allegations because NCAA legislation does not have rules that address the conduct at issue
2021 (August 24th) – ACC, Big Ten, and Pac-12 announce an “alliance” in effort to stabilize their conference structures in response to the SEC’s acquisition of Texas and Oklahoma
2021 (September 22nd) - NCAA Constitution Committee releases results of a membership survey sent to stakeholders across all three Divisions; survery was designed by NCAA’s in-house Research Center; survey asked for feedback on Association and Division-specific priorities the Committee should emphasize; survey was designed to take approximately 20-30 minutes to complete; response rate for Division I university presidents and chancellors was 37%; under the “Principle of Institutional Control” (in both the old and new NCAA Constitutions), university presidents and chancellors have ultimate, non-assignable responsibility for athletics; athlete surveys ran through a “Student-Athlete Leader Survey” sent only to “leaders’ of the NCAA authorized and controlled Student Athlete Advisory Committee structure; in Division I, 543 of 192,000 athletes responded
2021 (September 29th) – NLRB General Counsel Jennifer Abruzzo issues a policy memorandum that college athletes have been misclassified as “student-athletes” rather than employees; memo also raises the possibility that the NCAA and conferences may be “joint employers” with institutions
2021 (September 30) – House Commerce Subcommittee hearing (“A Level Playing Field: College Athletes Rights to Their Name, Image, and Likeness”); Democrat controlled committee, but NCAA/Power 5-friendly witness list; Linda Livingstone and Mark Emmert testify; important shift in strategy to equity themes emphasizing women’s and “Olympic” sports and athletes; use of collegiate model as justification for business model and transfer of wealth from profit athletes in Power 5 football and men’s basketball to non-revenue sports; non-revenue athletes portrayed as victims; promotes zero-sum financial and zero-sum equity narratives; Gus Bilirakis (R-FL) holds up letter from ACC Student Athlete Advisory Committee as authoritative consensus on what athletes want; ACC letter aligns with NCAA/Power 5 goals and talking points; ACC Letter is dated 9/23 and signed by 16 athletes; 2 other athletes identified in letter as “primary contacts”; of the 18 ACC athletes, 15 (83%) are non-revenue athletes and 15 (83%) are white
Hearing Summary
September 30, 2021, House Energy and Commerce Subcommittee on Consumer Protection and Commerce (“A Level Playing Field: College Athletes’ Rights to Their Name, Image, and Likeness”)
Subcommittee Chair: Jan Schakowsky (D-IL)
Subcommittee Ranking Member: Gus Bilirakis (R-FL)
Purpose: Ostensible: to give Gonzalez-Cleaver bill its day in Congress; Actual: to set equity-based narratives opposing the Athletes’ Bill of Rights and the California revenue-sharing bill and to seek federal protections and immunities (preemption, antitrust immunity, no employee status)
Witnesses:
NCAA/P5
Mark Emmert (NCAA President)
Linda Livingstone (President, Baylor University; Vice-Chair Big 12 Conference Board of Directors; NCAA Board of Governors; NCAA Division I Board of Directors)
Jacquie McWilliams (Commissioner, Central Intercollegiate Athletic Association)
Cami March (women’s golfer, Washington State University)
Athlete
Ramogi Huma (NCPA)
Pro-NCAA/Power 5 v Pro-Athlete: 4-1
Power 5 Football/Men’s Basketball/Women’s Basketball: 0
2021 (October 28th) – NCAA D-I BOD announces the formation of the D-I BOD’s Transformation Committee tasked to implement D-I changes consistent with, and in anticipation of, new constitution; SEC commissioner Greg Sankey is co-chair with Ohio University athletics director Julie Cromer; roster comprised of NCAA insiders; majority P5 members; no current or recently graduated athlete on Committee
2021 (November 2nd) – Rep David Kustoff (R-TN)—with bipartisan co-sponsorship— introduces NCAA Accountability Act of 2021; bill requires due process in NCAA infractions/enforcement and DOJ oversight; bill limited to infractions and enforcement
2021 (November 8, December 7, December 14) – Constitution Committee releases drafts of new Const.; largely cut and paste from prior constitution; sends regulatory authority to Divisions including infractions/enforcement; P5 now officially controls NCAA regulatory apparatus; completion of Autonomy goals from 2014; role of NCAA President curtailed; role of university presidents/chancellors minimized; NCAA propagandizes the “student-athlete voice” and promises of meaningful health and safety standards emphasizing mental health; final draft contains no enforceable health/safety/mental health standards; Committee removes all language from initial drafts that could be read to place a legal duty of care on institutions or Faculty Athletics Representatives (FAR); athletes have no meaningful, enforceable way to raise concerns/grievances; NCAA Board of Governors reduced to nine members; very small number of decision-makers hold key positions on boards, committees, and subcommittees (see the NCAA Governance Tab in the Explore Menu)
2021 (November 12th) – College Basketball Players Association files a “misclassification” charge with NLRB; misclassification is labeling athletes as student-athletes rather than employees, which is meant to lead athletes to believe they have no rights under federal labor laws
2021 (December 28th) – District court judge in Johnson v NCAA certifies a rare emergency appeal to 3rd Circuit on question of whether athletes can be employees under the Fair Labor Standards Act
2022 (January 14th) - ACC announces opposition to CFP expansion; Commissioner Jim Phillips emphasizes athlete well-being concerns and focus on bigger picture issues in college sports; calls for 365-day pause on expansion talks to conduct a holistic review of college sports
2022 (January 20th) – New NCAA Constitution ratified at NCAA annual convention
2022 (January 25th) – D-I Board of Directors Transformation Committee holds introductory meeting; no substantive issues addressed
2022 (February 1st) – Transformation Committee holds second meeting; prioritizes “Meaningful Solutions to Infractions and Enforcement Issues”; will rely on D-I Board of Directors Infractions Process Committee; Transformation Committee co-chair and SEC Commissioner Greg Sankey sits on small Infractions Process Committee; no disclosure of Sankey’s dual role; Committee reveals the existence of a “comprehensive communications plan” that was developed by the NCAA’s public relations firm Bully Pulpit Interactive, Inc.; since 2015 the NCAA has paid Bully Pulpit at least $40 million to shape its public messaging
2022 (February 3rd) – State of Alabama repeals its NIL law because it placed schools in Alabama at perceived competitive disadvantage in recruiting with states that had no NIL law; Alabama operates under NCAA Interim Policy
2022 (February 4th) – Winter Olympics begin in Beijing; NCAA propagandizes its role; supports argument made to Congress that NCAA is principal Olympic development pipeline; NCAA claims revenue from Power 5 football and men’s basketball necessary to underwrite Olympic development; football and men’s basketball players cannot compete in Olympics; American football is not an Olympic sport; since 1992, men’s basketball Olympic roster made up of NBA players
2022 (February 7th – 8th) Transformation Committee describes “Examination Student-Athlete Benefits and Support”; says: “The Transformation Committee received a privileged and confidential presentation from outside legal counsel that will serve as a foundation for discussions related to modernizing the collegiate sports model and improving student-athlete support through the Division.”; after first three meetings, Committee demonstrates intent to defer to legal and public relations experts to guide Committee’s work
2022 (February 8th) – National College Players’ Association (NCPA) files misclassification charge with NLRB against USC, Pac-12, and NCAA; alleges violation of NLRA; alleges “joint employer” status for Pac-12 and NCAA
2022 (February 24th) – CA Senator Steve Bradford introduces “California Race and Gender Equity Act”; bill provides for revenue-sharing in sports that have net revenue; money would be put into trust fund each year; athletes could receive distributions only after completing their degree requirements
2022 (March 1st) - NCAA forms the “1910 Collective” to accumulate funds for risk management purposes; 1910 is a self-insurance mechanism that will allow NCAA to fund liabilities; account initially funded with $100 million; NCAA 2021-2022 consolidated financial statements describe 1910 as a “captive insurance company” as an “alternative risk financing platform issuing “Director and Officer and Event Cancellation/Loss of Revenue insurance policies in its inaugural year”; in 2023, NCAA adds another $100 million to fund
2022 (March 9th) – Mid-American Conference announces sports data/betting deal with Genius Sports; Genuis operates in the sports gambling space as a data collection company that purchases data for resale to casinos and sportsbooks; NCAA already in a long-term (10-year) deal with Genius that was inked in 2018 after the US Supreme Court struck down the Professional and Amateur Sports Protection Act of 1992 (a federal law regulating sports gambling)
2022 (March 22nd) – NCPA files complaint with Office of Civil Rights alleging race discrimination
2022 (March 29th) – Senators Marsha Blackburn (R-TN) and Cory Booker (D-NJ) introduce Senate version of NCAA Accountability Act that would regulate the NCAA’s infractions and enforcement process
2022 (March 31st) – NCAA President Mark Emmert uses Final Four press conference as a stump speech for congressional intervention; implies that products like March Madness and Final Four are in existential threat (See Emmert video below)
2022 (April 18th, 19th) – NCAA Division I Infractions Process Committee makes recommendations to the Transformation Committee; in section titled “Investigation” the ICP recommends additional “tools” be made available to the NCAA enforcement staff including the exploration of “expanded access to electronic devices and other accounts, including accounts of family members and associates, and/or legislate a negative inference if a device and/or account held by family/associate is not made available, or disappearing messaging applications are used.”; ICP also recommended expanding NCAA’s “cooperation” rules to boosters and parents/guardians/associates of athletes
2022 (April 26th) – NCAA president Mark Emmert announces his resignation; the following week, Senator Marsha Blackburn (R-TN) says removing Emmert is a step in the right direction; Blackburn had been critical of Emmert’s leadership in Senate hearings
2022 (April 27th) – NCAA’s Interpretations Committee approves Mid-American Conference sports data/betting deal as consistent with NCAA rules and values; Committee opinion not disclosed
2022 (May 5th) – George Klaivkoff (Pac-12 Commissioner), Greg Sankey (SEC Commissioner), and Sarah Hirshland (CEO Olympic Committee) meet with Sens. Maria Cantwell and Marsha Blackburn to lobby for protective federal legislation; emphasis on no employee status; suggest they are waiting for midterms; Cantwell and Klaivkoff are friends and former colleagues; Hirshland’s presence plays into narrative that status quo business model is necessary for Olympic development
2022 (May 9th) – NCAA D-I Board of Directors issues updated “guidance” on NIL regulations; targets NIL collectives and identifies existing rules relating to booster activity as relevant to collectives; suggests more aggressive enforcement stance despite fact that NCAA/Division I have not pursued a NIL-related infractions case post-Interim Policy
2022 (May 9th) – CA Senate tables California revenue-sharing bill; gender equity prime concern; bill sponsor Sen. Steve Bradford says misleading gender equity narratives promoted by UCLA and USC; Bradford points to “fears and disinformation” and “fear-mongering” by UCLA /USC
2022 (May 17th) – Transformation Committee reviews results of April 2022 Membership Engagement Survey; total of 666 “conference administrators, coaches, and affiliate organization representatives completed the survey. The survey included requests for feedback on big-picture issues and on more specific concepts in the areas of transfers, infractions, and rules modernization.”; 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.”
2022 (May 19th) - Cory Booker announces at Drake Group symposium that revenue-sharing component of Athletes’ Bill of Rights will be removed and replaced with beefed-up gender equity provision(s); suggests gender equity advocacy as reason for eliminating revenue-sharing component because it is not politically viable
2022 (June 3rd) – NCAA begins a year-long public relations campaign to commemorate the 50th anniversary of Title IX; NCAA and Power 5 lobbyists use gender equity as a wedge issue to justify protective federal legislation; they argue that any change to the financial or regulatory model that recognizes the value of Power 5 football and men’s basketball players is an existential threat to women’s sports; Title IX and Title IX anniversary frequently invoked in March 29th, 2023 hearing in House
2022 (June 22nd) – NCAA announces new (post-constitution) Board of Governors members; nine members; BOG has limited power under new Constitution
2022 (June 29th) – Big 12 hires Brett Yormark to replace Bob Bowlsby as Commissioner; Yormark came from Roc Nation and has no experience in higher education; sports-entertainment search firm used
2022 (June 30th) – UCLA and USC announce they are leaving the Pac-12 for the Big Ten; beginning of conference realignment 2.0; marks a fundamental change in conference geography; Big Ten footprint spans three time zones
2022 (July 22nd) – News breaks that the College Football Players Association (CFBPA) and its Executive Director Jason Stahl have 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; Penn State quarterback Sean Clifford acts as players’ spokesman; Big Ten Commissioner Kevin Warren intervenes and initially agrees to allow Stahl to attend Big Ten media day; Warren withdraws offer and says the Big Ten Student Athlete Advisory Committee (SAAC) will create a special SAAC subcommittee to address athlete concerns; Clifford walks back initial comments and distances himself from the CFBPA
2022 (August 1st) - New NCAA BOG announces that Baylor University President Linda Livingstone (also a member of old BOG and current member of Division I BOD) will serve as BOG Chair
2022 (August 2nd) – New NCAA Board of Governors takes first formal actions; creates a presidential search committee and a Subcommittee on Congressional Engagement and Action (SCEA); the SCEA has eight members, including SEC commissioner Greg Sankey
2022 (August 3rd) – Sens. Booker and Blumenthal reintroduce “Athletes Bill of Rights”; sponsors remove revenue sharing provisions contained in original bill
2022 (August 3rd) - Sens. Tommy Tuberville and Joe Manchin (D-WV) announce they are working on a bi-partisan NIL law; they send letter to SEC and other stakeholders asking for feedback on proposed legislation; letter emphasizes role of NIL collectives
2022 (August 17th) – NCAA announces the elimination of the Independent Accountability Resolution Process; decision recommended by the IARP Accountability Oversight Committee and the Infractions Process Committee; NCAA press release including IARP demise titled “D-I Council reviews transfer proposals”
2022 (August 18th) – Big Ten announces seven-year multi-billion-dollar, multi-network media rights contract; deal pays Big Ten over $1 billion per year; annual payout per year per team estimated at over $70 million
2022 (August 31st) – Power 5 conference commissioners send joint letter to Senators Tuberville and Manchin; under the guise of NIL regulation, commissioners seek preemption, antitrust immunity, and no employee status for athletes
2022 (September 2nd) – CFP announces expansion from 4 teams to 12 teams; new revenues estimated at $500 million; ACC commissioner Jim Phillips praises expansion after opposing it; ACC only 8 months into its 12 month “holistic” review of college sports that was precondition to ACC support for CFP expansion
2022 (September 11th) – Outgoing NCAA President Mark Emmert says in an interview that the Student Athlete Advisory Committee structure does not adequately represent the interests of 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 SAC 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.”; Emmert also invoked the narrative that the NCAA had no choice when it abandoned voluntary rulemaking on NIL in January 2021 because the DOJ Antitrust Division had instructed the NCAA stand down due to antitrust concerns over NIL and transfers
2022 (September 14th) – Sen. Roger Wicker (R-MS) re-releases his “Collegiate Athlete Compensation Rights Act”; bill has preemption, no employee status for athletes and new retroactive antitrust immunity provision; retroactive immunity would, in theory, nullify the House v NCAA federal antitrust action on name, image, and likeness pending in California
2022 (September 28th) - Senators John Thune (R-SD) and Ben Cardin (D-MD) introduce the “Athlete Opportunity and Taxpayer Integrity Act”; bipartisan bill has narrow focus and would regulate nonprofit NIL collectives through IRS nonprofit tax rules and regulations
2022 (October 3rd) – In an interview, Wicker suggests that he will filibuster any legislation that grants athletes employee status
2022 (November 1st) – Senator Ben Sasse (R-NE) selected as president of the University of Florida
2022 (November 8th) – Midterm elections; Republican take House, Democrats retain Senate; dashes P5/NCAA hopes for Republican control of both chambers and an easy pathway to protective federal legislation; Senator Ted Cruz (R-TX) to assume Ranking Member seat on Commerce Committee from Roger Wicker (R-MS)
2022 (December 13th) – ACC attorney circulates “Privileged and Confidential” memo to conference and institutional stakeholders that lays out Power 5’s new strategy in Congress; memo identifies P5 legislative “must haves” that include preemption, antitrust immunity, and no employee status for athletes; each P5 conference has a four-member working group; half of working group members are lawyers and lobbyists; P5 want narrow NIL-only bill modeled after the Roger Wicker bill rereleased on September 14, 2022; they want engagement to begin in the House where Republicans control the legislative agenda; all communications are to run through Jim Phillips, ACC conference commissioner; nothing is to be put in writing - no texts or emails; ACC memo obtained by Andry Wittry through public records requests; story is not picked up in broader media; DYK summary of document(s) set forth below (see Secret Meetings Tab in Explore Menu)
2022 (December 15th) – NLRB regional Director in Los Angeles allows “charge” to go forward against USC, the Pac-12, and the NCAA for violations of NLRA
2022 (December 15th) – NCAA announces that Massachusetts Governor Charlie Baker will become the next NCAA President
2022 (December 20th) - House members Alma Adams (D-NC), Suzanne Bonamici (D-OR), and Lori Trahan (D-MA) introduce the Fair Play for Women Act that would hold the NCAA accountable under Title IX and provide athletes a private right of action; the bill makes Title IX applicable to the NCAA, which cures a defect in Title IX coverage from the 1999 U.S. Supreme Court decision in NCAA v Smith in which the Court held that Title IX did not apply to the NCAA because it does not receive federal education money; Senator Chris Murphy (D-CT) introduces a companion bill in the Senate
2023 (January 3rd) – Transformation Committee releases its Final Report; very little transformation; recommendations offer only modest enhancement of existing athlete benefits; identifies for the first time the “Holistic Student Athlete Model” as a term of art; report and co-chair’s public comments emphasize “student-athlete” input in process; no current or recently graduated athlete was on the Committee; Report takes “athlete benefits” already available to Power 5 through Autonomy legislation authorities (2014) and applies those benefits to the rest of Division I (ex., out-of-pocket medical coverage for athletically-related injuries for two years post-eligibility; degree completion programs); Committee’s Final report does not align with actual work of Committee; infractions and enforcement was central to Committee’s work, but received limited discussion in Final Report
2023 (January 12th) – Mark Emmert, Linda Livingstone, and Charlie Baker deliver NCAA State of the Association speeches at NCAA annual convention; Livingstone makes a direct appeal to stakeholders for support in seeking preemption, antitrust immunity, and no employee status for athletes
2023 (January 12th) – Big Ten conference commissioner Kevin Warren announces he is leaving to take a job in the NFL
2023 (January 27th) – NCAA issues a memo titled “Standard of Review for Violations Related to Name, Image, and Likeness Activities”; memo creates a presumption that an institution or individual has violated NCAA rules or the NIL Interim Policy when “available evidence supports the behaviors” alleged; information can be from media articles, hearsay reports, or confidential informants
2023 (February 15th) – Third Circuit hears oral argument in Johnson v NCAA case on question of whether athletes can be employees under the Fair Labor Standards Act; panel appears uncomfortable with NCAA’s amateurism-based justifications for its business model and arguments against employee status
2023 (February 16th) – Florida Governor Ron DeSantis signs HB 7B which substantially amends Florida’s NIL law; bill removes nearly all amateurism-based “guardrail” restrictions and defaults to NCAA Interim Policy; bill makes modest enhancements to NIL education provisions; bill provides legal immunity to institutions/employees for claims arising from information/advice provided to athletes on NIL
2023 (March 21st) – House Energy and Commerce Committee’s Subcommittee on Innovation, Data, and Commerce announces hearing for March 29th ostensibly on NIL titled “Taking the Buzzer Beater to the Bank: Protecting College Athletes’ NIL Dealmaking Rights”
2023 (March 28th) – NCAA Office of Government Relations issues an “ALERT” memo to all member institutions in advance of House hearing with talking points; preps institutional stakeholders on how to advocate for the Power 5/NCAA legislative agenda; talking points memo has little to do with NIL and instead emphasize the necessity of obtaining from Congress preemption, antitrust immunity, and no employee status for athletes; “ALERT” materials include contact information for all Subcommittee members and instructions for NCAA schools in the Subcommittee members’ districts to directly lobby their representative(s)
2023 (March 27th, 28th) - Multiple NCAA university presidents, conference commissioners, and athletics directors send letters to Subcommittee parroting the “ALERT” memo talking points; letters virtually identical
2023 (March 28th) - ACC athletes send a letter on ACC/SAAC letterhead to the Subcommittee suggesting they are speaking for all 10,000 ACC athletes; ACC letter aligns with the “ALERT” memo and the letters from institutional leaders; ACC letter purports to speak for all 10,000 ACC athletes
2023 (March 29th) – Innovation, Data, and Commerce Subcommittee chaired by Rep. Gus Bilirakis (R-FL) holds hearing; six witnesses testify; five are pro-Power 5/NCAA, only one athlete advocate; Power 5/NCAA-friendly witnesses use talking points aligned with the “ALERT” memo; substance of witness testimony has little to do with NIL; many Subcommittee members demonstrate lack of understanding of issues; Rep. Jeff Duncan (R-SC) holds up the letter from ACC athletes as the consensus athlete view on what athletes want and the need for protective federal legislation; Duncan employs “isolate and attack” strategy against Jason Stahl, the only pro-athlete witness; same tactic that Roger Wicker (R-MS) used against Rod Gilmore in the June 9th, 2021 hearing in Senate Commerce; Duncan uses ACC letter to suggest that Stahl and athlete advocates are out of the mainstream
Hearing Summary
March 29th, 2023, House Energy and Commerce Subcommittee on Innovation, Data, and Commerce (“Taking the Buzzer Beater to the Bank: Protecting College Athletes’ NIL Dealmaking Rights”)
Subcommittee Chair: Gus Bilirakis (R-FL)
Subcommittee Ranking Member: Jan Schakowsky (D-IL)
Purpose: equity-based appeals for federal protections and immunities (preemption, antitrust immunity, no employee status)
Witnesses:
NCAA/P5
Jennifer Heppel (Commissioner Patriot League)
Dr. Makola M. Abdullah (President, Virginia State University)
Pat Chun (Washington State University athletics director)
Trey Burton (former University of Florida and NFL player)
Kaley Mudge (Florida state softball player)
Athlete
Jason Stahl (Executive Director College Football Players Association)
Pro-NCAA/Power 5 v Pro-Athlete: 5-1
Power 5 Football/Men’s Basketball/Women’s Basketball Witnesses: 0
2023 (April 4th) - Hubbard v NCAA federal class-action antitrust lawsuit filed against NCAA and Power 5 for “back” Alston education benefits; athletes seek damages and injunctive relief; suit filed in Northern District of California before Judge Claudia Wilken, who heard O’Bannon and Alston suits; athletes jointly represented by Steve Berman and Jeffrey Kessler who teamed up in Alston and House
2023 (April 12th) – Big Ten hires TV and MLB executive Tony Pettiti as new commissioner; continues trend of hiring from the entertainment-sports industry rather than higher education
2023 (May 18th) - NLRB Regional Director in Los Angeles issues formal complaint against USC, Pac-12, and NCAA; demands that institutions “cease and desist” from misclassifying athletes as non-employees; complaint alleges that Pac-12 and NCAA are “joint employers” with USC
2023 (May 19th) - Sen. Lindsey Graham (R-SC) circulates draft legislation titled the “College Sport NIL Clearinghouse Act of 2023.”; Act would create a “NIL Clearinghouse” for a standardized, national framework for oversight of NIL contracts; built around amateurism-based compensation limits; no pay-for-play or recruiting inducements; Clearinghouse to be “establish[ed]” by “[i]nstitutions and conferences”; provides Clearinghouse “limited” antitrust immunity
2023 (May 23rd) - IRS issues policy memo that nonprofit NIL collectives do not further a tax-exempt purpose under 501(c)(3); says “This document may not be used or cited as precedent.”; memo supports NCAA-friendly themes (“...this Office also finds significant the numerous statements by athletics directors, boosters, and others on the importance of NIL collectives, including nonprofit collectives, to the retention and recruitment of student-athletes.”); to set framework for analysis, memo cites to Hearing Memo from March 29th, 2023 House hearing; House memo is partisan advocacy
2023 (May 24th) - Representative Gus Bilirakis (R-FL) circulates a “Discussion Draft” of a bill titled “Fairness, Accountability, and Integrity in Representation of College Sports Act,” or “FAIR College Sports Act.” FAIR would regulate the NIL marketplace through a federal, nonprofit corporation; the Department of Commerce’s Office of the Inspector General would have oversight authority over the federal corporation; the Federal Trade Commission, state attorneys general, and other state entities have enforcement authorities; bill includes NCAA/Power 5-friendly limitations that defer to institutional interests; bill has burdensome registration and disclosure requirements for athletes, agents, boosters, NIL companies, and collectives; bill’s preemption provision is not limited to NIL and would prohibit states from establishing or continuing in effect “any law, regulation, rule, requirement, or standard that governs or regulates the compensation or publicity rights of student athletes, including any provision that governs or regulates the commercial use of the NIL of a student athlete.”
2023 (May 24th) - Representatives Mike Carey (R-OH) and Greg Landsman (D-OH) introduce the “Student Athlete Level Playing Field Act”; bill federalizes the NIL market and is similar to Representative Anthony Gonzalez’s (R-OH) previous proposals by the very same name (see Timeline entries for September 20th, 2020 and April 27th, 2021); regulation runs through a federally-created commission and a clearinghouse under the auspices of the FTC; bill contains registration and disclosure requirements for boosters and agents; bill has (1) preemption provision that appears to be limited to NIL; (2) antitrust immunity; and (3) provision that athletes can’t be employees
2023 (June 2nd) - NCAA, Pac-12, and USC respond to NLRB complaint; NCAA claims it is “frivolous” and “without foundation in law or fact”; NCAA raises First Amendment issue saying they are being compelled to speak of athletes as employees rather than “student-athletes”; Pac-12 says that NLRB has no jurisdiction in college sports-related matters and if the NLRB imposes employee status on institutions, Congress will need to step in to explicitly exclude athletes from the coverage of the NLRA
2023 (June 8th, 9th) - Power 5 and NCAA leaders descend on Congress; key leaders meet with Congress members to lobby for protective federal legislation; University of Arizona hosts “panel discussions” in D.C. on June 8th designed to complement lobbying campaign; panels are comprised mostly of Power 5/NCAA insiders including SEC commissioner Greg Sankey, ACC commissioner Jim Phillips, NCAA President Charlie Baker, Power 5 presidents and chancellors, Power 5 athletics directors, and a Power 5 head football coach; panels moderated by Power 5-friendly sports writers; Baker attempts to create sense of emergency, saying protective federal legislation must be in place before the 2024 election cycle; Baker says NCAA made a mistake by not voluntarily changing its NIL rules, but emphasizes protective Congressional action as preferable to rules changes; Baker says NCAA has not been aggressive enough in pursuing and increasing revenue streams; Baker promotes the sports betting market as a potential source of revenue
2023 (June 12th) - NCAA-controlled Divisional Student-Athlete Advisory Committees send letters to Congressional leaders supporting protective federal legislation; Division I SAAC letter has only one signatory and purports to speak for all 192,000 Division I athletes; letter emphasizes NCAA’s no-employee campaign; letter also asks for preemption of state laws and a “safe harbor” (antitrust immunity) from litigation threats
2023 (June 12th) - NCAA announces its first-ever “College Athlete Day”; in partnership with the White House; 52 national championship teams from all three Divisions make a trip to White House to celebrate college sports; all teams are from nonrevenue-producing sports; Vice President Kamala Harris presides; NCAA President Charlie Baker attends
2023 (June 12th) - In conjunction with “College Athlete Day,” NCAA honors former U.S. Presidents who played college sports; former Presidents are presented in reverse chronological order beginning with President Biden (football, University of Delaware 1961); each president has athlete bio; other Presidents on the list are Donald Trump (squash and Tennis, Fordham University 1965-66), George W. Bush (baseball, Yale, 1965), George H.W. Bush (baseball, Yale, 1945-48), Ronald Reagan (football/swimming and diving, Eureka College, 1932-34), Gerald Ford (football, Michigan, 1932-34), Richard Nixon (football, Whittier College, 1932-34), John F. Kennedy (football/swimming and diving/golf/sailing, Harvard, 1936-40), Dwight D. Eisenhower (football, Army, 1912), Woodrow Wilson (baseball, Davidson, 1874); celebration invokes patriotic themes
2023 (June 16th) - Senators Tommy Tuberville (R-AL) and Joe Manchin (D-WV) issue draft bill titled “Protecting Athletes, Schools, and Sports Act of 2023”; bill has preemption provision ostensibly limited to NIL; bill does not “...affect the employment status of a student athlete with respect to a conference or an institution of higher education.”; bill “requires” (1) educational resources re NIL developed by the NCAA, (2) financial literacy and life skills programming provided by the NCAA, (3) a “trust fund” for travel expenses for athletes’ families, out of pocket medical expenses until an athlete is 28 years old (and graduates), (4) scholarship protections; these benefits already exist in one form another across the Power 5; trust fund money for athlete benefits comes from “organizers of any revenue-generating collegiate-level tournament or playoff (not less than 1% of annual proceeds); trust fund to be “managed in a manner determined by the National Collegiate Athletic Association”; NCAA has first-line responsibility for regulatory oversight, investigations, reporting to Congress, and imposition of penalties; bill also substantially curtails the transfer market
2023 (July 1st) – Texas substantially amends its NIL law to provide schools in Texas more leeway in assisting athletes with NIL; law prohibits NCAA from enforcing “a rule, a regulation, a standard, or any other requirement that prohibits [institutions in Texas] from participating in intercollegiate athletics or otherwise penalizes the institution for NIL activity permitted by the law; law treats NIL-related information and documents as “confidential” and exempt from public records requests; law provides Texas schools legal immunity for any actions they take “relating” to an athlete’s NIL; anti-NCAA enforcement provision viewed as antagonistic to NCAA regulatory authority
2023 (July 12th) - a group of Power 5 NIL collectives form The Collective Association (TCA) to assert their interests in the political debate; TCA’s platform largely aligns with Power 5 institutional interests, including no pay-for-play and no employee status for athletes; The Grove Collective (Ole Miss-connected) is member of TCA; Grove’s Executive Director Walker Jones would testify at a Senate Judiciary Committee hearing on October 17th, 2023; Jones’ testifies against employee status for athletes (see October 17th entry below)
2023 (July 20th) – Sens. Richard Blumenthal (D-CT), Cory Booker (D-NJ), and Jerry Moran (R-KS) release discussion draft bill “College Athletes Protection and Compensation Act of 2023”; bill draws substantially from Moran’s 2021 bill “Amateur College Athletes Protection and Compensation Act of 2021”; also includes portions of Booker/Blumenthal “College Athletes Bill of Rights” (12/17/2020; rereleased 8/3/22); CAPCA is built around NIL uniformity, not civil rights as was the Athletes Bill of Rights; CAPCA creates federal corporation that could permit NCAA/P5 insiders to control the CAPCA’s Board of Directors; bill grants NCAA indirect subpoena power for investigations; “benefits” in bill include several (one-time transfer, out-of-pocket medical expenses, scholarship protection, limited degree completion program, and financial literacy and financial skills program) that already exist for Power 5 schools through Autonomy legislation; medical benefits are means tested and would apply almost exclusively to the Power 5; bill includes health and safety standards, but penalties for violations are modest; bill contains preemption and provision that its terms cannot create federal or state liability for institutions prior to bill’s enactment; does not address athlete employee status
2023 (July 21st) – Senator Ted Cruz (R-TX) releases discussion draft bill that is naked power grab; proposal includes sweeping preemption, antitrust immunity, and non-employee status provision; bill is similar in structure to Sen. Marco Rubio’s bill released June 18th, 2020; NCAA would be the sole regulator in college sports; preemption provision in Cruz bill would nullify the Texas anti-NCAA enforcement NIL bill signed by Texas Governor Greg Abbott (R) just six weeks earlier
2023 (July 25th) – Sens. Tommy Tuberville (R-AL) and Joe Manchin (D-WV) release official version of “Protecting, Athletes, Schools, and Sports Act of 2023”; bill substantially curtails transfer market and includes broad preemption that would nullify/prevent all state laws that relate in any way to athlete compensation/eligibility including revenue sharing laws; bill turns the clock back on athletes’ rights to pre-Alston/transfer/NIL status quo; bill wholesale incorporates NCAA infractions/enforcement apparatus as rulemaking and enforcement authority; bill also puts NCAA in charge of medical “trust fund”; NCAA’s role guarantees relevance and perpetuation of NCAA administrative state; NCAA President Charlie Baker applauds the bill
2023 (July 26th) - Sen. Chris Murphy (D-CT) and Rep. Lori Trahan (D-MA) rerelease “College Athlete Economic Freedom Act”; bill focuses on NIL; facilitates “collective representation” (players’ associations) for athletes but does not confer employee status; requires disclosure of group licensing deals and permission from athletes, but does not explicitly require group license holders to compensate athletes; provides NIL rights and visa status protections for international athletes; includes preemption of state laws (limited to NIL)
2023 (July 27th) - the University of Colorado Board of Regents votes unanimously to approve Colorado’s departure from the Pac-12 Conference to join the Big 12 as of the summer of 2024
2023 (August 2nd) – Ted Cruz issues a press release to tout his bill; release cites a “groundswell of support from key stakeholders” and has testimonials from the SEC, Big 12, NCAA President Charlie Baker, Baylor University and NCAA Board of Governors Chair Linda Livingstone; Notre Dame President Fr. John Jenkins, UT-Austin, Texas A&M, Baylor, Houston, TCU, Texas Tech, West Texas A&M, and Tarleton State
2023 (August 3rd) - in an emergency meeting, the nine remaining Pac-12 schools agree to sign a grant of rights agreement to keep the conference together; the agreement is to be signed on August 4th
2023 (August 4th) - before the grant of rights agreement is signed, the universities of Oregon and Washington announce they are leaving the Pac-12 to join the Big Ten; the universities of Arizona, Arizona State, and Utah announce they are leaving the Pac-12 for the Big 12; decisions mark the death knell for the Pac-12
2023 (September 1st) – The Austin American-Statesman publishes an op-ed by Ted Cruz titled “College Sports Are Bigger in Texas. Here’s How We Keep Them That Way”; Cruz portrays his bill as consistent with American and Texan values; Cruz’s bill would federalize and protect NCAA compensation limits, prevent athletes from access to federal courts, and prevent athletes from being employees; under his bill, the NCAA would have unchallengeable authority to regulate the NIL marketplace; Cruz channels Teddy Roosevelt to falsely suggest that his bill “preserves the self-governance model and provides limited federal involvement”; Cruz says, “[a]s a matter of first principle, a man or woman is entitled to profit from their own labor and success, ”yet his bill prevents that; Cruz and Baylor University President/NCAA Board of Governors Chair Linda Livingstone hold joint press conference to promote Cruz’s bill; Cruz says federal intervention to provide health and safety standards is “heavy-handed” and would harm small schools
2023 (September 6th) – Texas Congressman Roger Williams (R) announces that the House Committee on Small Business will conduct a hearing on September 23rd titled “Athletes and Innovators: Analyzing NIL’s Impact on Entrepreneurial Collegiate Athletes”; Williams is Chair of the Committee
2023 (September 13th) - Dartmouth College men’s basketball players file a petition with the National Labor Relations Board seeking to form a union; Dartmouth is a member of the Ivy Leagues, which does not offer athletics scholarships; as with the Northwestern University football team’s unionization attempt in 2014, Dartmouth athletes must first establish they are employees
2023 (September 14th) – Ohio State AD Gene Smith appears on the “Gene Smith Podcast” along with Ohio State lobbyist Stan Skocki (one of sixteen Ohio State lobbyists) to discuss upcoming trip to Washington to meet with congressional leaders and testify at House hearing; Smith was key member of NCAA Board of Governors Federal and State Legislation Working Group that commandeered the NIL debate in Congress and advocated for federal preemption, antitrust immunity, and provision that athletes cannot be employees; during the interview Smith leans into NCAA/Power5 talking points on “bad actors” and NIL chaos; says obtaining an anti-employee provision from Congress would be “the Holy Grail” (“…hopefully we can get some protection that student-athletes are not employees. If we can get that, that would kind of be the Holy Grail. I just feel like we should always strive to find ways to provide additional resources to our student-athletes but turning them into employees would be problematic in my view.”); Smith admits the extent to which lobbyists are influencing the direction of college sports, saying: “I rarely do anything without the expert help of a person like Stan [Ohio State lobbyist]. I would never try to go to the Hill without Stan’s guidance and support. You have to be willing to say, I’m going to take advantage of all of the talents and skills around me in order to help position the issues…”; Skocki acknowledges that only three congressional committees are relevant to what the NCAA and Power 5 want, commerce (preemption), judiciary (antitrust immunity), and education (no employee provision); Skocki says Ohio State had input into Gus Bilirakis (R-FL) bill and Tommy Tuberville (R-MS) and Joe Manchin (D-WV) bill; says there is “growing sense of urgency” to get something passed
2023 (September 18th, 19th) – Power 5 leaders return to Washington to persuade congress members to pass protective federal legislation; LEAD1, a 501(c)(6) trade association for Power 5 (and Group of 5) athletics directors holds a meeting in Washington to coincide with the congressional push; Lead1’s president is a former basketball star and Maryland congressman Tom McMillan who has been a key lobbying figure and spokesman for Power 5 interests and Power 5-friendly protective federal legislation; at LEAD1 meeting, Sens. Ted Cruz (R-TX), Chris Murphy (D-CT), and Joe Manchin (D-WV) appear; Cruz says there is 60% chance that Congress passes “NIL legislation” in this session; Murphy says chances are less than 50%; this is a substantial departure from previous estimates by congress members and pundits that there is less than a ten percent chance
2023 (September 20th) – House Small Business Committee holds hearing titled “Athletes and Innovators: Analyzing NIL’s Impact on Entrepreneurial Collegiate Athletes”; Committee Chair is Roger Williams (R-TX); sixteen of twenty-six Committee members attend (eight Republican, eight Democrats); no college athletes testify; 4 witnesses are Gene Smith (OSU AD), Jeremiah Donati (TCU AD), Gino Toretta (former college football star), Maddie Salamone (VP College Football Players Association); Williams introduces into the record Sen. Ted Cruz’s September 1st, 2023 op-ed in the Austin American Statesman signaling his support for the Cruz bill; Committee members and NCAA/Power 5 witnesses emphasize “predatory agents and bad actors,” the “patchwork” of conflicting state NIL laws, the “Wild West” of NIL activity, “national standard,” “uniformity,”; several Committee members suggest hearing demonstrates a “bipartisan” approach to legislation
Hearing Summary
September 20th, 2023, House Small Business Committee (“Athletes and Innovators: Analyzing NIL’s Impact on Entrepreneurial Collegiate Athletes”)
Committee Chair: Roger Williams (R-TX)
Ranking Member: Nydia Velazquez (D-NY)
Attendance: 16 of 26 members; eight from each party
Purpose: Power 5 try to gain momentum toward “bipartisan” legislation on NIL; Committee disguises preemption, antitrust immunity, and athletes can’t be employees; built around same rhetoric and scare tactics employed at the beginning of congressional engagement in 2019.
Witnesses:
NCAA/P5
Gene Smith (Ohio State Athletics Director)
Jeremiah Donati (TCU Athletics Director)
Gino Toretta (former college football star)
Athlete
Maddie Salamone (VP College Football Players Association)
Power 5 Football/Men’s Basketball/Women’s Basketball Witnesses: 0
2023 (October 17th) - Senate Judiciary Committee holds a hearing titled “Name, Image, and Likeness and the Future of College Sports”; Judiciary has jurisdiction over antitrust issues and would bless any antitrust immunity for the NCAA and Power 5; hearing marks congressional debut of NCAA President Charlie Baker; seven witness testify with six advocating NCAA/Power 5 issues (Baker, Big Ten Conference Commissioner Tony Petetti, Notre Dame athletics director Jack Swarbrick, St. Joseph’s athletics director Jill Bodensteiner, University of Florida gymnast Trinity Thomas, and Grove Collective’s Executive Director Walker Jones) and one witness advocating for athlete interests (NCPA Executive Director Ramogi Huma); NCAA/Power 5 witnesses urge preemption, antitrust immunity, and no-employee status for athletes; imbalanced panel suggests “consensus” on these issues; Baker observes that no one knows what’s actually going on in the NIL market; witnesses emphasize no employee issue; Senator Ted Cruz (R-TX) asks each witness if athletes should be employees (not whether they are in fact) and all six NCAA/P5 witnesses say no; Cruz enters into the record letters from HBCU presidents and the Chair of the Diviison I Student Athlete Advisory Committee advocating against employee status for athletes reinforcing the consensus theme
Hearing Summary
October 17th, 2023 Senate Judiciary Committee (“Name, Image, and Likeness and the Future of College Sports”)
Acting Committee Chair: Richard Blumenthal (D-CT) standing in for Dick Durbin (D-IL; absent)
Ranking Member: Lindsey Graham (R-SC)
Purpose: Renew Senate debate; provide momentum towards “bipartisan” legislation; provide a forum for Charlie Baker to enter the congressional debate; emphasize non-employment status for athletes; create the illusion of consensus on preemption, antitrust immunity, and no-employee status; promote Blumenthal/Booker/Moran bill
Witnesses:
NCAA/P5:
Charlie Baker (NCAA President)
Tony Petitti (Big Ten Conference Commissioner)
Jack Swarbrick (Notre Dame athletics director)
Jill Bodensteiner (St. Joseph’s athletics director)
Trinity Thomas (University of Florida gymnast/coach)
Walker Jones (Exec. Director The Grove Collective)
Athlete:
Ramogi Huma (Exec. Director National College Players Association)
Power 5 Football/Men’s Basketball/Women’s Basketball Witnesses: 0
2023 (November 1st) - in collaboration Power 5 conference commissioners, 28 Division I conferences form the lobbying organization “Coalition for the Future of College Athletics” (C4FCA) to lobby stakeholders to support legislation that would end the athletes’ rights movement; C4FCA’s “Principles” are disguised requests for federal preemption of state laws regulating college sports, antitrust immunity, and non-employment status for athletes; C4FCA’s website has an auto-email function where a user types in identifying information that is automatically sent to that person’s congressional representatives; source of C4FCA’s funding not disclosed; unclear whether athlete revenue subsidizes; C4FCA advertising appears on scoreboards at Power 5 football games
2023 (November 3rd) - in the House v NCAA NIL case, Judge Wilken issues an order granting the athletes’ motion to certify the damages class; this is a crucial ruling that permits the case to go forward on damages; order provides a framework for “Broadcast NIL” (through a group licensing approach), “video NIL,” and “third-party” NIL compensation to several “subclasses” of athletes: (1) Power 5 football and men’s basketball scholarship athletes (2) Power 5 women’s basketball athletes, and (3) “Additional Sports Class” (Division I nonrevenue athletes); allocations would be weighted according to the economic value of subclasses and paid in equal shares to members of each subclass; the framework does assign specific dollar amounts; payments would be made by conferences, not individual schools which minimizes Title IX implications because the Power 5 do not receive federal education funds and likely would not be responsible under Title IX; total damage estimates exceed $1 billion; under federal antitrust laws, an award of damages is automatically tripled
2023 (November 17th) - in House case, NCAA files a Petition for immediate (“interlocutory) Ninth Circuit review of Judge Wilken’s November 3rd order certifying the damages class; NCAA seeks to have the order reversed
2023 (November 20th) - former University of Colorado football player Alex Fontenot files a federal class action antitrust suit against the NCAA and Power 5 in Colorado, challenging all NCAA compensation limits; the suit is identical to the original purpose of the Alston suit; athletes seek damages and injunctive relief; another set of athletes represented by Steve Berman and Jeffrey Kessler file an identical case in the Northern District of California on December 7, 2023
2023 (December 1st) - Female athletes at the University of Oregon file a class-action Title IX lawsuit—Schroeder v NCAA—against the University, claiming multiple violations of Title IX; the suit targets Oregon’s NIL collective, its connection to the University, and unequal NIL payments; athletes co-represented by law firm Bailey & Glasser, the same law firm that represents the NCAA in a transfer-related antitrust suit filed on December 7th, 2023 by seven states (see December 7th, 2023 entry)
2023 (December 3rd) - “Power 4” conference commissioners Greg Sankey (SEC), Tony Petitti (Big Ten), Brett Yormark (Big 12), and Jim Phillips (ACC) go to Washington to lobby congressional leaders for protective federal legislation; commissioners meet with Senator Mitch McConnell (R-KY) and House member Hakeem Jeffries (D-NY) among others; all Power 4 conferences have lobbying firm Marshall and Popp working for them; Hazen Marshall is former key aid to McConnell; commissioners sit for brief CNN interview and claim that failure to obtain federal protections and immunities would result in “permanent damage” college sports
2023 (December 5th) - NCAA President releases 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 is 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; subsequent events suggest the NCAA and Power 5 needed to show Congress they were capable of making menaingful voluntary changes before receiving protections from Congress (see January 13th entry below); attorneys for athletes in the Carter suit filed on December 7th (see below) incorporate Baker’s letter into their complaint suggesting it is an admission that the NCAA has abandoned its amateurism-based compensation limits; notably, Baker’s letter says the new benefits “provides an operating model the NCAA and its member institutions can incorporate into ongoing discussions with Congress about the future of college sports”; Greg Sankey suggests he was not aware of the letter and expresses displeasure with Baker’s alleged exclusion of stakeholders (December 7th entry below)
2023 (December 5th/6th) - the Sports Business Journal holds it annual college sports forum in Las Vegas; speakers include NCAA President Charlie Baker, NCAA Board of Governors Chair and Baylor University president Linda Livingstone, NCAA D-I Board Chair and University of Georgia President Jere Morehead, SEC Commissioner Greg Sankey, Big 12 Commissioner Brett Yormark, and ACC Commissioner Jim Phillips; Morehead says Baker's December 5th letter is merely designed to “start a conversation” to consider a path forward; Morehead also says Congress has to be part of the discussion and, importantly, that the SEC and Big Ten conference commissioners have to be “on the same page”; Morehead’s comment on SEC-Big Ten cooperation foreshadows the February 2, 2024 announcement of the Big Ten-SEC “Advisory Group” (see entry for February 2, 2024); forum is dominated by NCAA and Power 4 insiders
2023 (December 7th) - in a Yahoo Sports article, SEC commissioner Greg Sankey suggests he was unaware of the “specifics of the proposal before its release,” creating the impression that Baker was acting independently of the NCAA Board of Governors and the Division-I Board of Directors
2023 (December 7th) - Carter v NCAA federal class-action antitrust lawsuit filed against NCAA and Power 5 challenging all NCAA amateurism-based compensation limits; suit is similar in purpose to Jenkins v NCAA (2014 - 2021; consolidated into Alston); athletes seek damages and injunctive relief; suit filed in Northern District of California and assigned to Chief Judge Richard Seeborg rather then Claudia Wilken; athletes jointly represented by Steve Berman and Jeffrey Kessler who teamed up in Alston, House, and Hubbard; complaint identifies Charlie Baker’s December 5th letter as evidence that the NCAA has abandoned its commitment to amateurism-based compensation limits
2023 (December 7th) - states of Ohio, Colorado, Illinois, New York, North Carolina, Tennessee, and West Virginia file federal class-action antitrust lawsuit in West Virginia against the NCAA seeking to strike down the NCAA’s transfer restrictions (one-time per rules revised in April 2021) and the NCAA’s “Restitution Rule” (that effectively prevents athletes from seeking temporary legal relief from courts regarding NCAA eligibility decisions); States and NCAA reach a stipulation on athlete eligibility; NCAA agrees not to declare athletes ineligible who were denied a second transfer via NCAA waiver; NCAA’s co-counsel is Baily and Glasser, the same firm that represents female athletes in Schroeder case (see entry for December 1st, 2023)
2023 (December 8th) - in a podcast interview with Tulane law professor Gabe Feldman, published the day after Carter was filed, Jeffrey Kessler while noting that Congress is unlikely to act on college sports legislation in this Congress and that Charlie Baker’s proposal is “moving in the right direction” but not yet sufficient to form the basis for settlement, addressed the impact a global settlement of House, Hubbard, and Carter may have on the NCAA and Power 5’s overall congressional campaign going forward:
Kessler: I think the one thing that might help [the NCAA] with Congress in the future is reaching an antitrust settlement with us…because if the antitrust claims are resolved and approved by the court as fair and reasonable to the classes, both the past damages and the going forward, then it's much easier for Congress to think about the rest of it, right?
Feldman: That's why, to me, the Baker proposal, if you consider a multi-step process to get a settlement, which is difficult with all the different lawsuits out there and the employment cases, but if it's, we will provide a better system going forward, that's more fair—and you may disagree with say we need more detail before we'd ever agree to that—but also is damages for the last six years or whatever the number is, and then if you package that together as a global settlement to bring to Congress to say, we now as the plaintiffs are on board with this, then you start to see a path to say, we're not going to be in this sort of limbo where we're going to get sued constantly.
Kessler: I think if they settled with us, that would be a great step…for the athletes and everyone else going forward in all different ways.
2023 (December 19th) - in lead-up to the NCAA annual convention in January, Baker issues “A letter to student-athletes from Charlie Baker” describing potential changes to athlete benefits consistent with his December 5th letter; Baker portrays new benefits as a “working document” and “not set in stone”; Baker emphasizes that the NCAA cannot make suggested changes without help from Congress “to prevent athletes from being considered employees…and must have the authority to make nationwide rules without endless legal challenges,” a clear call for antitrust immunity; Baker also asks athletes to join in the NCAA lobbying campaign, saying “I am proud that so many student-athletes are joining us in our work with Congress. Thank you! We will continue to need your voice in Washington D.C.”
2023 - December 21st - Atlantic Coast Conference files preemptive lawsuit in North Carolina state court against the Board of Trustees of Florida State University seeking a declaration affirming the enforceability of the ACC’s grant of rights provision that severely penalizes schools who leave the ACC for another conference; ACC also makes breach of contract claims
2023 (December 22nd) - Florida State University Board of Trustees files lawsuit in Florida state court against the ACC seeking a declaration that the ACC’s grant of rights provision is unenforceable; FSU makes breach of contract and state antitrust claims
2023 (December 29th) - The Collective Association (TCA) retains two lobbying firms, Tidal Basin Advisors and TC Consulting, LLC; Tidal Basin lobbyist Jesse McCollum is a lobbyist for NIKE; scope of lobbying includes “issues relating to designating collegiate athletes as employees”
2024 (January 4th) - Just days in advance of the NCAA’s annual convention, the NCAA announces a new eight-year, $920 million contract with ESPN for broadcast rights to NCAA Olympic and women’s sports championships; contract also grants ESPN international broadcast for Division I men’s basketball tournament; rights women’s basketball tournament is packaged with the other sports, which continues to marginalize its value; NCAA statement says “With the significant increase in value of the new agreement, NCAA members will explore revenue distribution units for the women’s basketball tournament…those discussions will continue with membership in the coming year.”
2024 (January 8th/11th) - Florida House member Gus Bilirakis (R-FL) rereleases a discussion draft of the “Fairness, Accountability, and Integrity in Representation of College Sports Act” (FAIR Act); bill contains broad preemption, antitrust immunity, and no employee provisions that would end the athletes’ rights movement; bill goes further than prior draft proposal to protect NCAA/Power 5; federal powers would reside in a private nonprofit entity governed by a board comprised largely of NCAA, Power 5 and other institutional stakeholders; NCAA President would be a permanent nonvoting member of the board; on January 11th, Bilirakis—as Chair of the House Subcommittee on Innovation, Data, and Commerce—issues a press release in which Subcommittee member Debbie Dingell (D-MI) and Senator Ben Ray Lujan (D-NM) show support for the bill; Bilirakis pitches bill as bipartisan; in the third quarter of 2023, Brownstein Hyatt’s (NCAA lobbying firm) lobbying disclosures show that it added lobbyist Gregory Sunstrum to its NCAA lobbying team; Sunstrom served as Dingell’s former chief of staff, deputy chief of staff, and legislative aid
2024 (January 9th - 13th) - NCAA holds its annual convention in Phoenix; 3000 attendees across all three Divisions; NCAA pays expenses from March Madness revenue and the labors of Division I men’s basketball players; according to the NCAA’s 2021 Form 990 nonprofit tax return, the NCAA spent nearly six million dollars on “conferences, conventions, and meetings”; it spent $140 million on “occupancy” and “travel”; ESPN’s Holly Rowe makes welcoming address and emphasizes gender equity and the new ESPN contract; priority themes at the convention include (1) gender equity; (2) protective federal legislation; (3) increasing NCAA revenues; (4) sports betting guardrails; (5) mental health (6) NCAA legislation to move forward Baker’s D-I proposal; Baker delivers his state of the association speech which included an open appeal for protective federal legislation; NCAA holds “Featured Session” titled “Safeguarding the Future of College Sports: Congressional Advocacy Tools for Campuses and Conferences”; session is an explicit lobbying effort for protective federal legislation including antitrust immunity; lobbying effort directed to stakeholders, not Congress; session 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.); Bully Pulpit is 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; since 2015, the NCAA has paid Bully Pulpit at least $40 million (see NCAA Form 990 disclosures below); the NCAA Division I Board of Directors Transformation Committee employed Bully Pulpit in 2022 to create a “comprehensive communications plan” (see February 1st, 2022 Transformation Committee meeting minutes below)
2023 (January 12th) - NCAA releases infractions decision involving a Florida State assistant football coach’s facilitation of a meeting between a prospect in the transfer portal and a booster who runs an FSU NIL collective; case was adjudicated through the “Negotiated Resolution” Process that is collaborative; case involved “impermissible recruiting activities” and “provision of false or misleading information” by the assistant coach; these violations were charged as “Level II” (less severe than “Level I”) violations; prior precedent typically resulted in false/misleading information cases being charged as Level I violations; although case arose in the NIL context, the actual conduct identified in the decision related to impermissible recruiting contacts and misleading the NCAA; NCAA website characterizes the case as “NIL-related Recruiting Violation”; penalties include a requirement that FSU “disassociate” from the collective for one year; media portrays the decision as a significant move by the NCAA that signals it is willing to pursue NIL cases after two-and-a-half years of inaction; media overstates the decision characterizing it as involving a of violation NCAA NIL rules prohibiting the use of NIL as a recruiting inducement; timing and coverage of the FSU decision aligns with the NCAA’s public relations and congressional strategies to prove to Congress and the public that it is willing enforce its own rules and address its own problems (see next entry)
2024 (January 13th) - Baylor University President and NCAA Board of Governors Chair Linda Livingstone gives an interview in which she addresses Charlie Baker’s December 5th, 2023 proposal and its connection to the NCAA’s congressional campaign; Livingstone says Baker’s proposal was the product of collaboration with the NCAA Board of Governors and the Division I Board of Directors; Livingstone’s characterization appears to be inconsistent with SEC commissioner Greg Sankey’s suggestion that Baker’s letter took key stakeholders by surprise; Sankey holds a key Board of Governors position on its Subcommittee on Congressional Engagement and Action; University of Georgia President and Division I Board of Directors Chair Jere Morehead also sits on the Board of Governors and works closely with Sankey; Livingstone also provides insight into a possible motive for Baker’s new proposal, saying that Congress members wanted the NCAA to show that it could fix as many of its own issues as possible as a precondition to any protective federal legislation; Livingstone also says she is “cautiously optimistic” that Congress will act, but believes any action must in place in the spring or summer before focus turns to the November general election
2024 (January 18th) - the United States, the District of Columbia, and the states of Minnesota, Mississippi, and Virginia intervene in the Ohio et al. v NCAA federal antitrust suit in West Virginia challenging the NCAA’s transfer rules; intervention by the United States is significant and places additional pressure on NCAA; it also raises the question of whether it will intervene in other college sports antitrust cases; the United States intervened late in the Alston litigation just weeks before oral argument in the U.S. Supreme Court but has not intervened in other antitrust cases filed by athletes challenging NCAA compensation limits and eligibility rules; plaintiffs file an amended complaint
2024 (January 18th) - in House v NCAA, the Ninth Circuit denies the NCAA’s Petition for an interlocutory appeal of Judge Wilken’s Order certifying the damages class; the case will go forward on damages; the ruling places pressure on NCAA and Power 5 to decide whether to attempt to settle the case, in whole or part
2024 (January 18th) - House Subcommittee on Data, Innovation, and Commerce, chaired by Rep. Gus Bilirakis (R-FL), holds a hearing titled “NIL Playbook: Proposal to Protect Student Athletes’ Dealmaking Rights”; six witnesses testify; four are pro-Power 5/NCAA; two advocate against protective federal legislation; although the hearing title suggested an emphasis on NIL, NCAA/Power 5 witnesses and sympathetic committee members flood the hearing with dire predictions of harm if athletes are deemed employees of their university; critics of an employment model invoke Title IX, Olympic development, and nonrevenue sport interests; for the first time in four years through twelve hearings and sixty-two witness slots, a current Power 5 football athlete—Chase Griffin of UCLA—testifies; Griffin offers a persuasive, comprehensive free market-based rebuttal to the limitations in Bilirakis’s bill and the broader question of the necessity for government regulation in college sports
Hearing Summary
January 18th, 2024 - House Energy and Commerce Subcommittee on Innovation, Data, and Commerce (“NIL Playbook: Proposal to Protect Student Athletes’ Dealmaking Rights”)
Subcommittee Chair: Gus Bilirakis (R-FL)
Subcommittee Ranking Member: Jan Schakowsky (D-IL)
Purpose: renew NCAA/Power 5 request for preemption, antitrust immunity, and no employee status for athletes; renewal follows Charlie Baker’s announcement of the NCAA’s “Project D-I” proposal that includes potential educational trust fund distributions to athletes at “highest resources” institutions and potential NIL group license payments directly from schools to athletes
Witnesses:
NCAA/P5
Charlie Baker (NCAA President)
Jeff Jackson (conference commissioner of The Missouri Valley Conference)
Meredith Page (Radford University volleyball athlete)
Kaitlin Tholl (University of Michigan softball athlete)
Athlete
Chase Griffin (UCLA football athlete)
Dr. Victoria Jackson (associate clinical professor of history at Arizona State University)
Pro-NCAA/Power 5 v Pro-Athlete: 4-2
Power 5 Football/Men’s Basketball/Women’s Basketball Witnesses: 1
2024 (January 29th) - the parties in Fontenot and Carter begin a series of opposing procedural maneuvers to consolidate the two cases in either Colorado (Fontenot) or California (Carter); in the NCAA/Power 5 briefing on their motion to transfer Fontenot to California, they abandon their fifteen year-long criticism of the Northern District of California and District Court Judge Claudia Wilken as biased against the NCAA and now contend the N.D. CA is the preferable forum; consolidation of the cases in California would facilitate a global settlement of House, Hubbard, Carter, and Fontenot
2024 (January 31st) - the states of Tennessee and Virginia file a federal antitrust suit against the NCAA challenging the NCAA’s NIL rules, the Interim Policy, and subsequent guidance memos; the suit arises from an unconfirmed NCAA infractions and enforcement probe against the University of Tennessee involving its NIL collective Sprye Sports; at issue is whether a NIL collective associated with a school can engage in discussions with high school or transfer portal athletes about potential NIL deals (before executing them); Tennessee Attorney General Jonathan Skrmetti issues press release saying in part, “The NCAA’s restraints on prospective students’ ability to meaningfully negotiate NIL deals violate federal antitrust law. Only Congress has the power to impose such limits.”; the suit seeks (1) an order declaring the NCAA’s NIL-recruitment ban violates section 1 of the Sherman Act and (2) a temporary restraining order and preliminary injunctive relief “barring the NCAA from enforcing its NIL-recruiting ban or taking any other action to prevent prospective college athletes and transfer candidates from engaging in meaningful NIL discussions prior to enrollment, including under the NCAA’s Rule of Restitution”
2024 (February 2nd) - SEC and Big Ten announce a partnership to collaborate on big-picture issues in college sports, including pending litigation (particularly House) and the possibility of settling cases, governance proposals, and state laws; partnership comes to be known as the “SEC-Big Ten Advisory Group” comprised of key conference stakeholders and decision-makers; Big 12 and ACC not consulted before Advisory Group was created; move generates speculation that the SEC and Big Ten are planning a departure from the NCAA; SEC commissioner Greg Sankey and Big Ten commissioner Tony Petitti say that is not their intention; Advisory Group could be influential in structure and payout system in expanded CFP; in response to why stakeholders outside the SEC and Big Ten are excluded, Sankey says, “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.”
2024 (February 5th) - in the Dartmouth NLRB unionization case, the NLRB Regional Director rules in favor of the men’s basketball players and issues her Decision and Direction of Election; applying the common law test for employee status, the Regional Director finds the athletes are employees within the meaning of the NLRA.
2024 (February 7th) - House members Alma Adams (D-NC), Suzanne Bonamici (D-OR), and Lori Trahan (D-MA) re-introduce the Fair Play for Women Act that would hold the NCAA accountable under Title IX and provide athletes a private right of action; the bill makes Title IX applicable to the NCAA, which cures a defect in Title IX coverage from the 1999 U.S. Supreme Court decision in NCAA v Smith in which the Court held that Title IX did not apply to the NCAA because it does not receive federal education money; Senators Chris Murphy (D-CT) and Richard Blumenthal (D-CT) introduce a companion bill in the Senate
2024 (February 23rd) - in the Tennessee NIL suit, U.S. District Court Judge Clifton Corker (E.D. TN) issues a preliminary injunction against the NCAA; under the order, the NCAA is “ restrained and enjoined from enforcing the NCAA Interim NIL Policy, the NCAA Bylaws, or any other authority to the extent such authority prohibits student-athletes from negotiating compensation for NIL with any third-party entity, including but not limited to boosters or a collective of boosters, until a full and final decision on the merits in the instant action.”; the order also prevents the NCAA from enforcing its “Restitution Rule” (NCAA Bylaw 12.11.4.2) that allows it to punish athletes and schools if they seek judicial relief and the case is ultimately resolved in the NCAA’s favor; the ruling permits collectives associated with a particular school to discuss potential NIL deals with high school and transfer portal prospects
2024 (March 1st) - in response to Judge Corker’s order granting Tennessee and Virginia’s motion for a preliminary injunction, Charlie Baker sends a letter to the membership informing them that the Division I Board of Directors directed enforcement staff “to pause and not begin investigations involving third-party participation in NIL-related activities.”
2024 (March 5th) - Dartmouth men’s basketball team votes 13 - 2 to form a union; Dartmouth immediately appeals to the NLRB’s top board; NCAA issues statement restating NCAA opposition to employee status for athletes and the need for federal legislation:
“The NCAA is making changes to deliver more benefits to student-athletes, including guaranteed health care and guaranteed scholarships, but the NCAA and student-athlete leadership from all three divisions agree college athletes should not be forced into an employment model. The Association believes change in college sports is long overdue and is pursuing significant reforms. However, there are some issues the NCAA cannot address alone, and the Association looks forward to working with Congress to make needed changes in the best interest of all student-athletes.”
2024 (March 5th) - immediately after the Dartmouth vote, the House Committee on Education & the Workforce’s Subcommittees on Health, Employment, Labor, and Pensions and Higher Education and Workforce Development announce a March 12th hearing is ironically titled "Safeguarding Student-Athletes From NLRB Misclassification"; the hearing is identical in context and purpose to a reactionary hearing in the same committee on May 8, 2014 after the regional director issued his decision in the Northwestern unionization case finding that Northwestern football players were employees and entitled to vote on whether to form a union; the 2014 hearing was likewise ironically titled “Student-Athlete Unions”
May 8th, 2014 hearing; Ken Starr (1946-2022), then Baylor University president
2024 (March 12th) - House Committee on Education & the Workforce’s Subcommittees on Health, Employment, Labor, and Pensions and Higher Education and Workforce Development hold a hearing ironically titled "Safeguarding Student-Athletes From NLRB Misclassification"; hearing is a frontal attack on athletes as employees, the NLRB’s policy on athletes as employees, and the NLRB’s Dartmouth decision
Hearing Summary
March 12th, 2024 - House Committee on Education & the Workforce’s Subcommittees on Health, Employment, Labor, and Pensions and Higher Education and Workforce Development
(“Safeguarding Student-Athletes From NLRB Misclassification”)
Subcommittee Chair: Burgess Owens (R-UT)
Subcommittee Ranking Member: Frederica S. Wilson (D-FL)
Purpose: argue against employee status and unionization for athletes through the NLRB; the hearing is a frontal attack on athletes as employees, NLRB policy on athletes as employees, and the Dartmouth NLRB decision
Witnesses:
NCAA/P5
Jill Bodensteiner (athletic director St. Joseph’s University
Tyler Sims (attorney, Littler Mendelson)
Matt Mitten (Marquette University law professor)
Athlete
Mark Gaston Pearce (Executive Director, Workers’ Rights Institute Georgetown Law School)
Pro-NCAA/Power 5 v Pro-Athlete: 3-1
Power 5 Football/Men’s Basketball/Women’s Basketball Witnesses: 0
SUMMARY OF ALL HEARINGS
Total Number of Hearings: 12
Time Frame: 4 years (February 11th, 2020 – January 18th, 2024)
Total Witness Slots: 62
Total NCAA/P5-Friendly Witness Slots: 44 (71%)
Total Athlete-Friendly Witness Slots: 18 (29%)
Total Institutional Witness Slots (NCAA President, P5 university presidents, P5 conference commissioners, P5 athletics directors, G5 athletics director, HBCU university presidents/conf. commissioners, FCS conference commissioner): 31 (50%)
Number of Hearings with More Pro-NCAA/Power 5 Witnesses than Pro-Athlete Witnesses: 11
Number of Hearings with Only One Athlete-Friendly Witness: 8
Number of current or recently graduated Power 5 Football, Men’s Basketball, or Women’s Basketball Witnesses: 1
Number of Expert Witnesses on Economics of College Sports: 0
Number of Expert Witnesses on Health/Safety: 0
Number of Expert Witnesses on Title IX: 0
Number of Non-NCAA/P5 Expert Witnesses on Labor Issues/Labor Law: 1
Number of Expert Witnesses on Intellectual Property/IP Law: 0
Number of Witnesses from Federal Agencies that Have Actual or Potential Jurisdiction Over College Sports Issues (NLRB, Labor Department Wage and Hour Division, OSHA, EEOC, FTC, DOJ Antitrust, DOJ Civil Rights, Education Department/Office of Civil Rights, IRS): 0
Number of Subpoenas Issued by Committees: 0
2024 (April 18th) - the state of Virginia passes a law that permits schools in Virginia to pay athletes directly for their NIL; the law conflicts with NCAA prohibitions on direct payments; the universities of Virginia and Virginia Tech were instrumental in getting the law passed; UVA athletics director Carla Williams said, "If this law gets us closer to a federal or a national solution for college athletics then it will be more than worthwhile. Until then, we have an obligation to ensure we maintain an elite athletics program at UVA."
2024 (April 29th) - rumors fueled by selective media leaks surface that the NCAA and Power 5 are in “deep discussions” on a settlement House, Hubbard, and Carter; few details are offered, but the basic structure would have the NCAA (not the Power 5 ) pay nearly 3 billion in damages, and the Power 5 would agree to future revenue sharing with athletes at a potential cost of $15-20 million per year; the scope of releases from liability—including future liability—are not disclosed; NCAA and Power 5 couple settlement talks with potential Congressional action that would further immunize the NCAA and Power 5 and prevent athletes from being employees of their university
2024 (May 8th) - House members Barry Moore (R-AL) and Russell Fry (R-SC) introduce a bill titled “The Protect the Ball Act” that contains sweeping antitrust immunity for the NCAA and Power 5; the bill is viewed as a complement to a potential global settlement of House, Hubbard, and Carter
