A. Context and Timeline

Every aspect of the Power 5’s and NCAA’s congressional campaign flows from the thinking, values, and strategies outlined in these documents.

It’s important to understand that the NCAA and Power 5 went to Congress to stop state NIL laws and anything from Congress the NCAA and Power 5 could not control.

This was (and is) an offensive campaign designed to commandeer by brute force the congressional and public narratives on athlete compensation and rights, including NIL.

While the documents suggest some tension between the Power 5 and the NCAA regarding Congressional strategy, the NCAA and Power 5 have closely coordinated what they want from Congress.

The Timeline below from February 4th, 2019, to December 10th, 2019, provides context for issues discussed in the documents. (Note: A full “Congress Timeline” is in the Explore menu under the “Congress Tab”)

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 supersede the NCAA’s NIL compensation prohibitions contained in NCAA By-Law 12.5; 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) announces the “Student-Athlete Equity Act”; bill would strip the NCAA of nonprofit status unless it provides name, image, and likeness (NIL) benefits; bill has bi-partisan, bi-racial sponsorship; NCAA pushes aggressively to beat back bill’s momentum; Walker tries to schedule meeting with Mark Emmert but is rebuffed

2019 (March 8th) – District Court Judge Claudia Wilken issues opinion in Alston; finds that NCAA’s limits on education-related benefits violate federal antitrust laws; the NCAA’s “Statement” on Alston criticizes external regulatory challenges and emphasizes NCAA’s belief that it alone should regulate in college sports

2019 (March 23rd) – NCAA announces that it is appealing the district court’s Alston ruling to the 9th Circuit; in its press statement, the NCAA states it is seeking 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” suggesting NCAA-Power 5 solidarity on regulatory authority; NCAA statement is a disguised request for judicially created antitrust immunity

2019 (May 14th) – NCAA Board of Governors announces the formation of the “NCAA Board of Governors Federal and State Legislation Working Group”; Working Group is comprised of NCAA insiders and tasked with exploring whether it is feasible for NCAA to adopt a name, image, and likeness (NIL) policy that would permit athletes to be compensated for their NIL; 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 17th) – NCAA President Mark Emmert sends letter to committee chairs in CA Assembly (copy to Nancy Skinner) asking them to “postpone further consideration of Senate Bill 206…while we review our rules.”; points to creation of NCAA Federal and State Legislation Working Group and its study “of potential processes whereby a student-athlete’s NIL could be monetized in a fashion that would be consistent with the NCAA’s core values, mission and principles.”

2019 (September 11th) – NCAA Board of Governors sends letter to California Governor Gavin Newsome asking him not to sign SB 206 into law; threatens to declare NCAA universities and athletes in California ineligible if they enter 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.”

2019 (October 23rd) – NCAA Working Group releases “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; the meeting minutes do not mention congressional engagement; 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; 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 white, 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; letter used to create 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 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 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; the bi-partisan face of the working group caused anxiety in the NCAA national office and throughout the Power 5;  concerns weren’t merely that a diverse group of Senators had begun exploring athlete-friendly concepts but that the NCAA and Power 5 didn’t have absolute control over the narrative, the process, or the outcome; initial comments from the working group suggest a substantial gap between the starting point and priorities of the Republican and Democrat members. Rubio, Romney, and Purdue spoke about preserving the foundational principles of college sports (Rubio: “Having 50 different state laws…would result in chaos.”/Romney: “We need to find a way to resolve this inequity while preserving the integrity of college sports.”/Purdue: “…preserve the collegiate sports experience while promoting equality for student-athletes across all 50 states.”). Booker and Murphy approached athletes’ interests through a civil rights lens that did not subordinate athlete interests to institutional interests (Booker: “Student-athletes—especially black athletes, who are disproportionately represented in revenue-generating sports—are a massive source of revenue for colleges and media companies, yet aren’t allowed to share in the enormous value they create.”/Murphy: “The majority of executives, schools, and coaches who are getting rich off college athletics are white, while the majority of players at the big time sports programs are black.”). Despite the differences in their foundational philosophies, the NCAA and Power 5 viewed the very existence of the working group as a threat to their interests.

2019 (December 6th) - The NCAA wasted little time in responding to the Rubio-Murphy group. On December 6th, it released on its website “NCAA statement on Senate working group” that laid the foundation for its four-year campaign to promise voluntary rules changes while at the same time aggressively seeking “federal assistance” that would permit the NCAA and Power 5 to do nothing on NIL “compensation” or any other athletes’ rights issues; notably, the NCAA’s statement did not disclose the existence of the NCAA Executive Committee’s Presidential Subcommittee on Congressional Action formed on November 16th, 2019

2019 (December 10th) – Secret teleconference meeting of P5 commissioners and university presidents/chancellors on congressional strategy; 15 attendees (all men, 12 white); Michael Drake (Ohio State/Big Ten) and Jere Morehead (UGA/SEC) participated; Drake and Morehead also sit on NCAA Working Group’s Presidential Subcommittee on Congressional Action (see entry for November 16th, 2019); participants cite bipartisan Senate working group as precipitating factor for meeting; articulation of congressional playbook; group expresses concern with Mark Emmert’s leadership and NCAA taking lead on congressional engagement; emphasizes the importance of controlling the NIL narrative in Congress and in public discourse; emphasizes 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

          B.  Meeting Details and Documents

               1. Participants and Documents

                2. Foundational Themes that Emerged

Dr. Drake led the meeting, and Pac-12 conference commissioner Larry Scott drafted the notes. Five themes emerged:

                   a. Power 5 Unity and Coordination of Messaging

                       *  “work together to launch a coordinated strategy”

                       * “critical to be coordinated and aligned”

                       * “cannot have mixed messages”

                       * “all major players in sports and stakeholders need to be coordinated” (emphasis added)

                       * “hire a Washington-based public affairs firm…this firm will serve as the campaign manager or quarterback”

                       * “effort would be jointly managed by all five conferences”

    * “great advantages of hiring one firm – it will help us navigate the process, keep good coordination among the 65 universities, serve as a central hub for our messaging materials, and help deploy the right resources at the right time”

        b. Urgency to Commandeer the Debate

              * “…we have urgency here.”

              * “While there are different thoughts on whether a bill could go forward in this next year, it is very clear that forums are already being held and opinions are being shaped right now.” (emphasis added)

              * “All of us have spoken to 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.”

              * “We need to be coordinated, and we need to be ready.”

                   c. Call the Shots but Disguise Power 5 Involvement

              * “…as we have done with Autonomy, we think the 65 schools that make up our conferences should take the lead in this effort” (emphasis added)

              * “[b]ut we don’t think that it is advisable to brand this as a [Power 5] effort” (emphasis added)

              * “we don’t think Mark [Emmert, NCAA President] should be taking the lead in Congress”

              * “the feedback we hear in Washington is that the NCAA does not have a good reputation with Senators or members of Congress”

              * “the presidents and our government affairs leaders [lobbyists] at our 65 universities have ongoing relationships with these Senators and Members of Congress. These are the relationships that matter,

              * “the Members and Senators care more about their state universities and what they bring to their states and constituents much more than they care about our national trade association.” (emphasis added)

              * “we don’t want the NCAA to feel threatened or sidelined – this will require diplomatic discussions, and at some appoint, this will require a group of presidents and commissioners sitting down with Mark [Emmert]”

           d. Manipulate the Language to Devalue Athlete Interests

            * rather than “NIL rights…we would prefer to call [NIL] ‘collegiate licensing opportunities’ for our student-athletes.”

              * “we believe it is important to frame it as licensing opportunities for student-athletes within the college system, and not some inherent natural right.” (emphasis added)

           e.  Eliminate External Regulatory Threats: Preemption of State Laws, Antitrust Immunity, and Athletes Cannot be Employees

              * “don’t want this new collegiate licensing regime to enable boosterism or to be a vehicle for pay to play”

              * “we don’t want students to be turned into employees – they must remain students.”

              * “Importantly, the bill will also have to give us and the NCAA the ability to enforce NCAA rules AND keep us from facing numerous lawsuits”

              * “What we’ve initially heard through discussions with legislators in Congress is that we should stay narrow and focus on developing legislation that fits with the foundational principles we want to preserve in college sports. This message has resonated with reasonable legislators and may be our best path forward.” (emphasis added)

            C. Consequences of the Power 5’s Power Play

The repercussions of the December 10, 2019, meeting are being felt in various ways today in discussions over the future of college sports. Beneficiaries of the current regulatory and business model have not moved an inch in their militant behind-the-scenes disdain for any meaningful change in the relationship between institutions and athlete-laborers. That should be no surprise to those paying attention to what the NCAA and Power 5 have done since 2019, not what they say.

Because of the self-perpetuating nature of the NCAA bureaucratic state, the same thinking that caused this “crisis” is now being used to solve it.

Set forth below are important long-standing dynamics illustrated by the December 10, 2019, documents that exist today yet have not seen the light of day in the Congressional debate or media commentary.

               1.  Power 5 Demand Absolute Authority Without Accountability Because They Are “Special”

The Power 5’s behind-the-scenes demands to call the shots while refusing to accept regulatory responsibility or accountability is a primary and little-discussed cause of the current regulatory chaos. It can be traced back to Board of Regents, as discussed above. The NCAA’s refusal to enforce its own rules in response to what it has characterized as out-of-control, “Wild West” NIL and transfer markets is as much about profound structural defects in the voluntary regulation of college sports as it is about fear of legal liability post-Alston.

Forty years of NCAA/Power 5 neglect, arrogance, and greed have brought college sports to a perceived regulatory “crisis,” not the operation of free market principles working for the benefit of athletes.

Perhaps the most illuminating statements from the December 10th documents relate to the Power 5’s relationship with the NCAA (see Section 3, “How We Work with the NCAA and Other Groups”).

The Power 5 say, “…as we have done with Autonomy, we think the 65 schools that make up our conferences should take the lead in this effort…[b]ut we don’t think that it is advisable to brand this as a [Power 5] effort.” (emphasis added)

The Power 5’s use of the “Autonomy” template is a crucial “tell.”

In a November 25th, 2013, memo to the Division I Board of Directors, University of Nebraska Chancellor Harvey Perlman and University of Florida President Bernie Machen made the case for a separate regulatory classification for the Power 5 conferences known as “Autonomy.”

The new classification and authorities would permit the Power 5 to legislate in certain defined areas—including raising the athletic scholarship limit to include the full cost of attendance for Power 5 athletes—without seeking permission from the entire NCAA.

In essence, the Power 5 wanted to create an association within an association.

The Power 5’s arguments supporting Autonomy were built around their desire to “control [their] own destiny” while remaining in the NCAA (the Power 5 threatened to leave the NCAA unless the membership acceded to its demands). The Power 5 argued that the threats and criticism facing college sports that existed at that time (“radical proposals,” charges of “exploiting student athletes for our own financial gain,’ “litigation and potential legislation”) “…will have a differential impact on the institutions of our five conferences.” (emphasis added)

The Power 5 also frankly acknowledged their special role in the business of college sports: “We operate the most visible and the most competitive programs. Because of this we generate the most revenue, revenue that not only benefits our own institutions, but also supports the enterprise of intercollegiate athletics across the landscape of higher education. We have the most to lose if ill-advised reforms are imposed.” (emphasis added)

As discussed in the Introduction, the NCAA sent NCAA Mark Emmert to Congress in 2014 to make the Power 5’s case for special treatment. Big-time football (pre-Power 5) used a similar approach in 1997 in the Senate hearings on post-season football. 

The Power 5 disguise their interests and dispatch loyal lieutenants to public forums to take the flack. That’s what Mark Emmert was paid $2.7 million a year to do. Current NCAA President Charlie Baker now serves the same purpose for a similar salary.

              2. NCAA’s “Representative Democracy” Exposed as a Ruse

The Power 5/NCAA congressional campaign has evolved into farce as it attempts to convince legislators and the public that lower-level Division I, Division II, and Division III interests are relevant to the college sports’ business model and policymaking. In their 2013 Autonomy memo, the Power 5 concede that only two sports are relevant to their interests: football and men’s basketball.

The Power 5’s and NCAA’s (through their lobbyists) emphasis on and professed concern over the equity interests of Olympic sport athletes, female athletes, non-Power 5 athletes, and Title IX is a breathtaking form of misdirection. The participants in the December 10th meeting gave only a parade wave to Title IX. Beyond that, they say nothing about the interests of other stakeholders, equity or otherwise.

As discussed in more detail in the Congress Tab and Timeline, by the time the first congressional hearing was held on February 11th, 2020, in Senate Commerce, the Power 5 and NCAA—with the assistance of the best lawyers, lobbyists, and public relations experts on the planet—had successfully co-opted the NIL discussion in Congress. They controlled the language, the narrative, and the process through an undeniably partisan lens in a Republican-controlled Senate.

That hearing had NCAA/Power 5 witnesses, including NCAA President Mark Emmert, Big 12 conference commissioner Bob Bowlsby, and University of Kansas Chancellor Doug Girod.

Around the time of the hearing, all Power 5 conferences hired some of the most influential lobbyists in Washington tasked with the singular goal of federal protections and immunities that eliminate all external regulatory threats and make the NCAA and Power 5 untouchable.

The entire congressional campaign has run through Power 5 and NCAA influence-peddling to protect their regulatory authority and economic interests.No Group of Five, lower-level Division I, Division II, or Division III conferences hired lobbyists to protect their interests or advocate for protective federal legislation.

Those stakeholders were nowhere to be found at the December 2019 meeting and most assuredly are not at secret decision-making tables in 2023.

               3. “Bipartisanship” is Desirable Only Through Legislation that Gives the Power 5 Everything They Want

Another important consequence of the Power 5’s congressional strategy was eliminating hope for a truly bipartisan approach to athlete interests. The Power 5 and NCAA viewed the bipartisan Rubio, Romney, Perdue, Booker, and Murphy group as a threat to their regulatory and financial interests.

In the December 10th documents, the Power 5 declare their interests on this point when they say legislation that protects “the foundational principles we want to preserve in college sports” could only “resonate” with “reasonable legislators.” (emphasis added)

The “reasonable legislators” in 2019 and 2020 were NCAA/Power 5-friendly Republican Senators from Power 5 states.

Between the December 10th, 2019, meeting and the first Senate hearing on February 11th, 2020, the Power 5 and NCAA successfully commandeered the Congressional debate. They reframed it away from athletes’ rights and toward Power 5 and NCAA institutional interests through a partisan lens.

While the Power 5’s and NCAA’s lobbyists knew that they would ultimately need “bipartisan” support for a bill to pass, it was critical for them to control the narrative. Over four hearings in the Senate in 2020, the Power 5 and NCAA reinforced their need for preemption, antitrust immunity, and a no-employee provision as prerequisites to any NIL marketplace.

It is not coincidental that the four hearings in 2020 occurred in three committees: (1) Senate Commerce (then chaired by Roger Wicker R-MS) which has original jurisdiction over sports matters and would also be the Committee through which the Power 5/NCAA would obtain preemption, (2) Senate Judiciary (then chaired by Lindsey Graham R-SC) through which the Power 5/NCAA would receive antitrust immunity, and (3) Senate Health, Education, Labor and Pensions (then chaired by Lamar Alexander R-TN) through which the Power 5/NCAA would get a blessing for a no-employee provision.

In those hearings, Wicker, Graham, and Alexander were openly hostile to NIL compensation. The constant drumbeat of Power 5/NCAA talking points throughout 2020 elevated Power 5/NCAA interests and marginalized athlete interests. Over nine hearings since February 2020, not a single current or recently graduated Power 5 football or men’s basketball player has testified.

Notably, Marco Rubio was pulled out of his initial bipartisan thinking on NIL and athletes’ rights and became the first Congress member to introduce a piece of legislation (on June 18th, 2020) ostensibly on NIL “compensation.” Rubio had no co-sponsors, and his bill was a naked power grab that provided the Power and NCAA preemption, antitrust immunity, and a no-employee provision while offering very little in NIL “compensation.”

In the recent flurry of lobbying activity and the introduction of several more Power 5/NCAA-friendly bills, the Congressional debate is being portrayed as “bipartisan.” Three new bills have a “bipartisan” face, yet each is built around Power 5 and NCAA institutional interests.

Slowly but methodically, the Power 5 and NCAA have brought the debate back to their values and interests.

Suddenly, “bipartisanship” seems like a great thing.