Public Option - Patrick Hruby
Public Option

Are athletic directors angling for a Washington bailout of NCAA amateurism?
By Patrick Hruby | VICE Sports | January 2017
Tom McMillen swears this is not what it looks like. Not yet, at least. A former basketball star and member of Congress, McMillen now heads LEAD1, a trade group for college athletic directors at the nation's biggest sports schools.

Yes, McMillen acknowledges, his group recently announced the formation of a political action committee (PAC), the better to funnel money from its members to campaigns and candidates.

Yes, LEAD1 also will be holding a fall gala at the Trump Hotel in downtown Washington, D.C., where lawmakers will have a chance to mingle with campus power brokers, and the president-elect himself—a longtime acquaintance of McMillen's—may appear.

And yes, the ongoing battle over the National Collegiate Athletic Association's multibillion-dollar amateur economy—a system that prevents athletes from being paid, yet enriches athletic directors enough that they can afford their own PAC—may ultimately be settled on Capitol Hill, given that association president Mark Emmert and others have said they may seek a Congressional antitrust exemption if federal courts continue to rule that the status quo is, well, illegal.

Connect the dots, and it sure as heck seems like LEAD1 fits into a larger push by the NCAA and its allies to kneecap college sports pay-for-play via a Washington bailout. Only McMillen insists that's not the case.

"We have zero agenda right now," says McMillen, a former University of Maryland basketball player and three-term Congressman. "We've not spoken to one member of Congress about any issue in college sports. We've never talked about pay for play as a group. What we are trying to do is build relationships, so when the time comes, we can be helpful.

"Down the road, [Donald] Trump may come in and try tax reform, changing the rules for tax deductibility on athletic scholarships. Or maybe there are Title IX issues. Who knows? If an issue comes up where the athletic directors or the school presidents need to come to Washington and walk the halls [of Congress], we'll be ready for it."

College sports critics, myself included, were skeptical when LEAD1—which was founded in 1986 and represents the 129 athletic directors at NCAA Division I-A schools, essentially the big-money football and men's basketball programs—announced its intention to create a PAC. The Washington Post wrote that McMillen's group was looking to squash proposals that would allow scholarship athletes to be paid, and that read right. Because besides preserving amateurism, what issue would possibly prompt athletic directors and university presidents to come to the capitol?

Federal law has not been kind to the NCAA lately. Two years ago, a regional office of the National Labor Relations Board ruled that Northwestern University football players qualify as school employees. In a highly-publicized lawsuit brought by former UCLA basketball star Ed O'Bannon and other campus athletes against the NCAA, district judges found that the association's restrictions on athlete compensation for the use of their names, images, and likenesses violate the Sherman Act. Public and media opinion is slowly turning against amateurism—when you've lost TIME magazine, you haven't lost America, but you're certainly looking up at a deficit on the scoreboard. And an ongoing lawsuit filed by current college athletes and led by the lawyer who brought free agency to the National Football League, Jeffrey Kessler, threatens to blow up pay-for-play prohibitions entirely.

Meanwhile, big-time college sports have become a $10-12 billion-a-year industry with fixed compensation for labor and a lucrative free market for everyone else—including athletic directors making an average of $515,000 a year. If those same ADs now qualify as a well-to-do special interest group with a feathered nest to protect—and make no mistake, they do—then why wouldn't they try to game the system by lobbying Washington lawmakers, the same way gunmakers, pharmaceutical companies, and a host of other industries long have?

"It's inevitable," says Sonny Vaccaro, who pioneered the practice of shoe companies paying schools and coaches to have athletes wear their products, and has since become one of the NCAA's most persistent critics. "The schools want complete autonomy and to keep control of everything. People like myself and athletes who don't have the strength to stand up for themselves know what this means. It means they're making friends with the Hill and donating money for the same reasons Wall Street donates. So they can curry favor. Because Congress is the branch of government that can control collegiate amateur sports—say that these are the rules, or change them."

LEAD1 President and CEO Tom McMillen. Photo by Mitch Stringer-USA TODAY Sports

McMillen takes exception to that analysis. On a recent afternoon in a steakhouse located across the street from the Capitol Dome, he told VICE Sports that LEAD1's political goals have yet to be determined. "We're just telling people who we are, that we're new in town, and if you have any questions, reach out," he says. "We have no position on amateurism right now."

When LEAD1's athletic directors take a unified position on that or other college sports issues, McMillen says, their stance will come from university presidents. Not the other way around. As for giving actual cash to candidates, lawyers are still processing the necessary paperwork for the LEAD1 PAC, which will be funded by personal donations from its members.

"It's not going to be a big PAC," McMillen says. "Very small. What kind of politicians will we support? If we have a profile, it will be bipartisan—people who played college sports, love college sports, people who take an interest in them and believe in them."

And what about politicians who have been critical of the NCAA and amateurism—lawmakers like Rep. Bobby Rush (D-Ill), who once called college athletics an "abysmal cesspool" and "the last plantation in America?" Would LEAD1 spend money to defeat them?

"We have a committee that will decide our PAC policy, and it's not set yet, but I would say that we wouldn't get into contested races," McMillen says. "We're not going to dig too deep."

In the not-too-distant future, though, it's easy to imagine LEAD1 spearheading an inside-the-Beltway push against pay-for-play. No school presidents have publicly expressed interest in allowing campus athletes to be freely compensated; to the contrary, Notre Dame president John Jenkins told the New York Times that his school will drop out of elite athletics if it's no longer permitted to price-fix.

Moreover, McMillen says he has been lunching with the NCAA's top Washington lobbyist to better coordinate their work—and given that the association has spent tens of millions of dollars fighting legal challenges to amateurism, it's unlikely that work will involve calculating signing bonuses for the University of Kentucky's latest group of incoming men's basketball recruits.

As SB Nation's Alex Kirshner has pointed out, LEAD1 could lobby against specific nominees for the NLRB, whose members could squash future efforts to unionize athletes at private schools. It could throw its support behind judicial nominees who seem more likely to agree with the NCAA's arguments in future antitrust lawsuits.

McMillen's group also could play an important role in pushing for an antitrust exemption. In her O'Bannon ruling, Judge Claudia Wilken wrote that the fight over amateurism would be better resolved by Congress than by the courts. The NCAA appears to be gearing up for that possibility: according to USA Today, the association spent $580,000 lobbying Congress in 2014, more than what it spent over the three previous years combined.

That same year, the NCAA also hired outside lobbyists for the first time, reportedly contracting a high-powered K Street firm to work on issues related to what its disclosure forms called the "welfare of student-athletes." As Politico noted at the time, that was a key phrase, underscoring the contention that players are first and foremost budding young scholars—who are given scholarships and housing because they also happen to be very good at sports—and not professional athletes who should receive compensation.

"As current and former players have stood up and challenged the NCAA's unjust rules, the people who are profiteering from it are deciding to take action," says Ramogi Huma, a former UCLA linebacker and longtime athlete's rights activist who was instrumental in the Northwestern unionization effort. "There's no high ground here. It's all about money."

When you're happy to be here, and also could set the rules for college sports pay-for-play. Photo by Jack Gruber-USA TODAY Sports

For the NCAA, the halls of Congress are akin to a home court. Many of the association's member schools already have full-time federal lobbyists; better still, they have institutional clout. What member of Alabama's Congressional delegation would want to take a public stand against the University of Alabama, especially against the wishes of that school's beloved athletic program? Some lawmakers are alumni of the very schools that will be lobbying them—and if they're sports fans, they're likely to be watching the big game from a luxury box. For them, the system is working just fine.

When schools squawk, lawmakers listen. Case in point? In 1986, the Internal Revenue Service ruled that donations to school athletic departments to purchase tickets were no longer tax-deductible. Sen. Russell Long from Louisiana and Rep. J.J. Pickle from Texas promptly slipped an amendment into the larger Tax Reform Act of that year to exclude Louisiana State University and the University of Texas from the IRS's decision. When other colleges and universities realized they had been left out, they were furious. As McMillen tells the story, athletic directors personally lobbied Congress, which responded by creating 80 percent deduction for tickets—one that applied to all schools, and remains in effect today. "That's the last time the athletic directors came to Washington," he says. "So this is not new. All we're doing is a remobilization drill so that is something comes up, we'll be ready."

If that something is an antitrust exemption, LEAD1's athletic directors couldn't have hired a better salesman than McMillen. A former Rhodes Scholar, he's something of a true believer in the NCAA's student-athlete mythos. While McMillen is quick to point out that he's not personally opposed to players receiving more benefits from their schools—better health insurance; the ability to market their images and likenesses; maybe even bonus money contingent upon academic performance and graduation—he believes that making them employees will spoil their educations. "I think it will diminish the scholar-athlete bond that is essential to college sports," he says. "The most important thing we can do is give kids a meaningful degree and the chance to become a leader."

On Capitol Hill, McMillen already has a reputation as a college sports reformer. In the early 1990s, he sponsored and helped pass the Student Right to Know Act, which made it mandatory for schools to disclose their graduation rates for athletes. He also championed a bill that would have granted the NCAA a limited antitrust exemption for football and basketball—sound familiar?—in exchange for improving athlete graduation rates and distributing television money more equitably among its member institutions.

"It was pretty radical at the time," he says. "It would have spread TV money around based on how well you did with education. It would have given players $300 a month stipends, tax-free. Back then, I said it was a time capsule bill. No one would pay attention to it for 25 years."

McMillen laughs.

"That model has zero chance today. But the concept of conditional antitrust is very real. It's also very difficult to achieve."

That much is true. Two years ago, Obama administration officials met with athletic directors and NCAA executives to discuss the creation of a presidential commission on college sports—a body that reportedly would have considered a McMillen-like grand bargain, with Washington offering college sports an antitrust exemption, and schools promising to do a better job of educating athletes while spending less money on coach and administrator salaries. Despite bipartisan support, however, the commission didn't materialize. "The [White House] never fought the fight," says someone with knowledge of the situation. "They had no backbone with the NCAA. Politicians are strange animals. They go with the flow."

While both the House and Senate have held hearings in recent years to talk about college sports—Republicans criticizing athlete unionization attempts; Democrats expressing concern over graduation rates and campus sexual assaults—Congress hasn't followed up with any concrete action, and a handful of reform bills have gone nowhere. Lawmakers have bigger fish to fry, and more importantly, they're loathe to take on high-profile issues that offer little in the way of partisan or electoral gain. Imagine you're an ambitious member. Is preventing Malik Monk from getting paid—or allowing him to cash in—really going to advance your political career?

"We've tried to get lawmakers to introduce bills in our favor, too," Huma says. "It's not something they want to touch, even if every Congressperson says they're a sports fan. Overall, if you look at this whole issue, Congress isn't looking to regulate college sports."

When you won't let sad! ethics lawyers get in the way of a great deal. Photo by John Blackie-USA TODAY Sports

For McMillen's constituents, a related calculation may apply. Much like the nation as whole, Washington is bitterly polarized. Political and cultural animosity reigns, and likely will become more pitched under Trump. Protecting one's interests on Capitol Hill makes sense if you're Exxon Mobil. Is it worth the trouble if you're Alabama's athletic director? Do you really want your sports programs associated with partisan rancor? And are you ready to deal with possible blowback? It's one thing to disappoint sports fans by hiring a lousy football coach; it's quite another to court national controversy by being connected to the wrong politician on the wrong issue at the wrong moment.

Take LEAD1's decision to hold their shake-and-schmooze Congressional gala at the Trump Hotel. The Post didn't just note the event on a calendar—it made it the lead item in a story about the Trump administration's conflicts of interest, writing that the party would "combine the tried-and-true Washington practice of seeking to influence elected officials with the fresh twist of paying a company owned by the president of the United States. Bookings at Trump's hotel create potential ethical conundrums going forward as groups seeking political influence in Washington decide where to take their conference business."

Just like that, athletic directors inadvertently stepped into a ongoing political controversy. Richard Painter, a former chief White House ethics lawyer for President George W. Bush, told that Post that he found LEAD1's plans "concerning" and "very risky."

McMillen says that LEAD1 booked the Presidential Ballroom at the Trump Hotel for a simple reason—the organization needed a room that could host 700 people, and everything else was already booked. "We were late on this, we had very few choices, and the Trump Hotel was the best facility with the capacity we wanted," he says with a sigh. "The Post made this story about somehow we are currying favor with Trump. Listen, we're staying at the Mandarin [a nearby D.C. Hotel]. If I were currying favor, I would have moved our rooms, too!"

Such is the risk that LEAD1 is taking: become political, and people will judge you accordingly. Near the end of our meeting, I ask McMillen a simple question. Suppose I'm an African-American college athlete. And suppose I'm familiar with Trump's racially toxic campaign rhetoric; his incendiary statements about the Central Park Five; his obnoxious, conspiratorial questioning of President Obama's birthplace; his history of alleged housing discrimination. Come this fall, I see you and a group of wealthy, mostly white athletic directors having a party at Trump's luxury hotel, hobnobbing with a bunch of Washington movers and shakers. How do you explain and justify that to me?

"Am I putting a litmus test on hotels?" McMillen says. "Marriott. What is the Mormon position on gays? Four Seasons. What is the Saudi support for Sharia Law? I don't want to get crazy about this. It's a damn hotel."

Another sigh.

"But I am sympathetic to that," he says. "Listen, our mission is about the student-athletes. I don't want to get into the bigger politics." Perhaps not. Only now that the NCAA and its allies have come to Washington, they may not a have a choice.