VI: THE 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 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 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; Judge Wilken issues an injunction that prohibits NCAA from limiting certain education-related benefits; injunction order shifts authority to the conferences to regulate these benefits; education benefits are permissive, not mandatory; NCAA issues statement saying it viewed the decision as beneficial to the NCAA because it was faithful to O’Bannon’s education-non-education framework (“…the court rejected the [athletes’] desire for a free market system.”)
2019 (March 23rd) – NCAA announces that it is appealing the district court’s Alston ruling to the 9th Circuit; in its brief press release, the NCAA states that 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.”; 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 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 4th) – Kevin Warren replaces Jim Delaney as Big Ten commissioner; Warren NFL background; no connection to higher education
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 (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; schools do not have to incur production costs; ACC and ESPN have pre-existing long-term contract for sports content on ESPN; ACC schools required to up-fit technological capabilities of athletics facilities to ESPN’s specifications; value of contract(s) not made public; in FY 2010, conference revenue is $167 million; in FY 2018, conference revenue is $464 million; conference commissioner’s salary in 2010 is $1.46 million; commissioner’s 2018 salary is $3.5 million.
2019 (August) – D-I Board of Directors implements the Independent Accountability Resolution Process (IARP) infrastructure; IARP follows recommendations of Commission on College Basketball; IARP designed for complex, high-stakes cases; soon thereafter, critics of the independent process say it is inefficient and takes too long; Greg Sankey 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 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 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
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; 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
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.”; first public acknowledgment of potential Congressional engagement
2019 (December 10th) – Secret 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 (“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.”); 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
Summary of P5 Documents:
This meeting is proof 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 16th) - The 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; held in Senate Commerce Subcommittee on Manufacturing, Trade, and Consumer Protection (“Name, Image, and Likeness: The State of Intercollegiate Athlete Compensation”) chaired by Jerry Moran (R-KS); Commerce Committee has original jurisdiction over sports matters; NCAA President Mark Emmert tells subcommittee “we need your help”; NCAA dominated witness list; five NCAA/Power 5 witnesses, only one athlete-friendly witness (see Summary of Hearings in separate section below Timeline); Rep. Anthony Gonzalez (R-OH) is first witness to testify; NCAA/Power 5 witnesses flood the hearing with talking points that frame the debate 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. NIL “compensation” becomes a Trojan Horse through which the Power 5 and NCAA will attempt to pull off the most audacious regulatory power grab in American sports history.
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 unexpected request for briefing on California’s Fair Pay to Play Act in the Alston appeal, the NCAA files its brief in which it flatly denies that it has committed to, or intends to commit to, meaningful NIL rules changes or benefits
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 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; entire world incapacitated; 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 and the NCAA Working Group pressed forward with its final work product (see below)
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); these are the “smoking gun” on the NCAA’s true intentions in Congress and the use of NIL as a Trojan Horse; the NCAA clearly 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; Milan Smith concurring opinion questions consumer-facing market analysis; says athletes are denied the protections of antitrust laws
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 (May 25th) – George Floyd murdered in Minneapolis; national protests
2020 (May 31st) – Mark Emmert issues “message to membership on inequality and justice” in response to Floyd murder; message sandwiched between press releases on men’s lacrosse rules changes and Division III scheduling changes
2020 (June 12th) – FL legislature enacts NIL law; set to go into effect on July 1st, 2021; bill promotes amateurism; loaded with 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 articulates “displacement” theory; under “displacement,” any NIL money that goes to profit athletes in football and men’s basketball will necessarily be money that is “stolen” 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 naked NCAA/P5 power grab; short bill gives NCAA antitrust immunity, preemption, and no employee status; NCAA lauds bill on its website; Rubio bill would nullify Florida NIL law passed just six days earlier; Rubio’s bill offers virtually nothing in terms of NIL benefits, but its preemption, antitrust immunity, and “no employee” provisions would end the athletes’’ rights movement; Rubio’s bill has no co-sponsors
2020 (July 1st) – Senate hearing in Commerce Committee (“Exploring a Compensation Framework for Intercollegiate Athletics”); Chaired by Sen. Roger Wicker (R-MS); NCAA-friendly; 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; NCAA-friendly; 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 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 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 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) strenuously 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 brazenly denies it is seeking antitrust immunity; NCAA attacks District Court Judge Claudia Wilken and characterizes her as a rogue judge with an agenda against the NCAA
2020 (November) – D-I Council finalizes NCAA voluntary rulemaking proposal on NIL and transfers
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; scope of preemption (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; under every NIL proposal, universities are prohibited from entering into NIL deals with athletes and therefore no employer-employee relationship can exist; inclusion of “no employee” provision is evidence that Power 5/NCAA use “NIL compensation” as Trojan Horse; Wicker bill would eliminate from the college sports regulatory field federal courts, federal administrative agencies (NLRB), state legislatures, and free markets; these three extraordinary federal protections and immunities—unprecedented in colleges sports—are expressed in less than 175 words; bill would eliminate nearly all legal and regulatory pathways for athletes to protect their fundamental rights as Americans; bill has draconian 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
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 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 reason
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 “middle of the road” compromise; contains preemption, antitrust immunity, and no employee status; like the Wicker and Rubio bills, Moran’s bill would end athletes’ rights movement; bill has draconian 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 run 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 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 important role in making recommendations to the D-I Board of Director’s Transformation Committee formed in October 2021; Greg Sankey will become 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 SAAC should be involved as well; players later meet with Emmert and describe him as indifferent with no meaningful progress
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 draconian 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 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 NLRA; 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 questions the NCAA’s asks to “clarify” in federal legislation that athletes can’t be employees; Schatz characterizes the request as 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: 5-2
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 went into effect on July 1st, 2021; bill 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”); African American athletes (female) and father of P5 football player whose son died from heat stroke offer forceful testimony on inequities in college sports; Roger Wicker leads Republican boycott of hearing because he didn’t have control of the witness list; Wicker statement on boycott says “[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 antitrust analysis; narrow ruling b/c athletes abandoned main claim on appeal for 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 to do with NIL; 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 rules leads many—including members of Congress—to believe that Alston was a “NIL case”; Alston was relevant to NIL debate because if the NCAA/Power 5 had gotten judicially created antitrust immunity, it would have given the NCAA/Power 5 the authority to impose its amateurism-based compensation—including limits on NIL compensation–without any legal accountability
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 noted 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 NIL; institutions must adopt their own NIL policies consistent with the NCAA Interim Policy
2021 (July 1st) – Six state NIL laws—including FL—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
2021 (July 23rd) – Rescheduled 2020 Summer Olympics begin in Tokyo; 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 is necessary to underwrite Olympic development; ironically football and college men’s basketball players cannot 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, only 543 of 192,000 athletes responded
2021 (September 29th) – NLRB General Counsel Jennifer Abruzzo issues policy memorandum that college athletes have been misclassified as “student-athletes” rather than employees
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 worlds; 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; one of the two “primary contacts” is Luke Phillips, son of ACC commissioner Jim Phillips; relationship not disclosed in letter or at hearing; SI writer publishes article 9/23 that legitimizes letter and its narratives; SI writer uses quotes from Luke Phillips identified as “…a junior distance runner at Notre Dame who helped author the letter.”; article does not mention relationship with Jim Phillips
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) – Const. Comm. releases drafts of new Const.; largely cut and paste from prior constitution; sends regulatory authority to Divisions including infractions/enforcement; P5 now officially control 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
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 9th) – Mid-American Conference announces sports data/betting deal with Genius Sports; NCAA already in 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 26th) – NCAA president Mark Emmert announces his resignation; the following week Senator Marsha Blackburn (R-TN) says getting rid of Emmert is step in right direction; Blackburn had been critical of Emmert’s leadership in Senate hearings
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 of athletes
2022 (April 27th) – NCAA approves Mid-American Conference sports data/betting deal as consistent with NCAA rules and values
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 as 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 propaganda 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
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 (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; emphasize role of collectives
2022 (August 17th) – NCAA quietly 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 states that he will filibuster any legislation that grants athletes employee status
2022 (November 1st) – Senator Ben Sasse (R-NE) chosen 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; 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
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; not a single 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; overtly politicized; Livingstone makes 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
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; coaches 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; one of the five “primary contacts” is Luke Phillips, son of ACC commissioner Jim Phillips; no disclosure of the relationship in letter or at hearing; of ACC athletes identified, Luke Phillips is only ACC athlete involved in both 9/23/2021 and 3/28/2023 letters
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 flood the hearing with 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 makes no reference to the Phillips connection; 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 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 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 is “bipartisan” and is designed to federalize the NIL market; bill is very 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 loaded with 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; attendees and participants overwhelmingly white including a number of NCAA/Power 5 seven-figure beneficiaries of athlete labor; 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; Baker makes this comment in passing and it receives very little media attention; the NCAA openly entering the sports betting market would be one of the most consequential values and business model U-turns in college sports history; Baker does not mention that in 2018 the NCAA entered into a ten-year contract with sports betting/data acquisition company Genius Sports
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 begins with NIL as pretext, but shifts to emphasize NCAA’s no employee campaign; letter also asks for preemption of state laws and a “safe harbor” (antitrust immunity) from litigation threats; letter reads like a legal memo;
2023 (June 12th) - NCAA announces its first-ever “College Athlete Day”; in partnership with White House, 52 national championship teams from all three Divisions make 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 Athletes 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) draft bill titled “Protecting Athletes, Schools, and Sports Act of 2023” made public; appears to have been first circulated in April 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
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 leading many to believe that Texas (and several other states that have similar provisions) is laying the foundation for a breakaway from the NCAA
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 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; Cruz bill would make the NCAA untouchable; 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 essentially eliminates 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 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” (ex., 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 (September 14th) - Dartmouth men’s basketball players file petition with the National Labor Relations Board to obtain union status; must first establish they are employees
2023 (September 18th, 19th) – Power 5 leaders descend on 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 meeting in Washington to coincide with congressional push; Lead1’s president is 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; new assessment demonstrates the invisible progress the NCAA and Power 5 have made in their four-year congressional campaign to eliminate athletes’ rights
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, Gene Smith (OSU AD), Jeremiah Donati (TCU AD), Gino Toretta (former college football star), Maddie Salamone (VP College Football Players Association); no current or recently graduated college athletes testify and substance of hearing had very little to do with “entrepreneurial collegiate athletes”; 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 flood the hearings usual scare tactics such as “predatory agents and bad actors,” the “patchwork” of conflicting state NIL laws, the “Wild West” of NIL activity, “national standard,” “uniformity,” and “Congress, Congress, Congress”; conspicuously absent from the hearing were explicit requests for no employee provision while, as Smith’s podcast comments made clear, are the “Holy Grail” of the NCAA’s and Power 5’s quest for protective federal legislation; Democrats seem to support some form of federal legislation that would ostensibly regulate the NIL market; Kweisi Mfume (D-MD) gives shout out to LEAD1’s Tom McMillan (“…allow me on a point of personal privilege just to call the attention of the Chair and the Committee to the fact that we've been joined by Tom McMillan who many of you will recall his great years at the University of Maryland. You will recall him as a member of the 1972 U.S. Olympic team, and some of you will recall him as a member of this body, having gotten elected in the 100th Congress. Tom, it's good to see you. Thank you for being back up on the hill. Really good to have you.”); Mfume makes no reference to McMillan’s role as LEAD1 President and lobbyist/advocate for Power 5 athletic directors; 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 (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 (September 1st) – The Austin American-Statesman publishes an Orwellian 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 precisely that; Cruz and Baylor University President/NCAA Board of Governors Chair Linda Livingstone hold joint press conference to promote Cruz’s bill; loaded with standard NCAA/P5 talking points on NIL “chaos”; 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 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 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); says there is “growing sense of urgency” to get something passed
SUMMARY OF ALL HEARINGS
Total Number of Hearings: 9
Time Frame: 3.5 years (February 11th, 2020 – September 20th, 2023)
Total Witness Slots: 45
Total NCAA/P5-Friendly Witness Slots: 31
Total Athlete-Friendly Witness Slots: 14
Total Institutional Witness Slots (NCAA President, P5 university presidents, P5 conference commissioners, P5 athletics directors, G5 athletics director, HBCU university presidents/conf. commissioner, FCS conference commissioner): 22
Number of Hearings with More Pro-NCAA/Power 5 Witnesses than Pro-Athlete Witnesses: 8
Number of Hearings with More Pro-Athlete Witnesses than Pro-NCAA/Power 5 Witnesses: 1 (boycotted by Republicans)
Number of Hearings with Only One Athlete-Friendly Witness: 5
Number of current or recently graduated Power 5 Football, Men’s Basketball, or Women’s Basketball Witnesses: 0
Number of Expert Witnesses on Economics of College Sports: 0
Number of Expert Witnesses on Title IX: 0
Number of Expert Witnesses on Labor Issues/Labor Law: 0
Number of Expert Witnesses on Intellectual Property/IP Law: 0
Number of Expert Witnesses on Health/Safety: 0
Number of Subpoenas Issued by Committees: 0
