How Fighting the NCAA Became a Bipartisan Sport - Patrick Hruby
How Fighting the NCAA Became a Bipartisan Sport

The push to let college athletes profit from their work has supporters on both the right and leftand it's gaining momentum
By Patrick Hruby | The Washington Post Magazine | March 2020
"Ion’t get calls from congresspeople every day,” says Jay Bilas. The former Duke University basketball player turned lawyer and ESPN talking head is better known for his commentary during games than his involvement in politics. But in the spring of 2018, Mark Walker, a Republican congressman representing North Carolina’s 6th District, wanted to pick Bilas’s brain. The two met in a conference room at Bilas’s law firm in Charlotte.

Walker wasn’t interested in wins or losses or March Madness tournament brackets. Instead, he wanted to discuss business. Specifically, he wanted to understand how the National Collegiate Athletic Association, the nonprofit, privately run national governing body of campus athletics at more than 1,200 schools, could oversee a booming, multibillion-dollar industry that was making coaches and administrators rich — all while severely restricting the earning potential of the athletes playing the games.

March Madness alone generates nearly a billion dollars in annual television revenue. Last year, college football or basketball coaches were the highest-paid public employees in 40 states, according to ESPN. Yet NCAA amateurism rules prevent athletes from receiving more than the value of their scholarships and small cost-of-living stipends.

Walker believed that was unfair. So did Bilas. “What other college student is told what they can or cannot accept by virtue of what they do?” Bilas recently told me, recounting what he said to Walker. “Imagine if schools said, ‘Listen, we just gave you a scholarship to study chemistry. But you can’t go out and invent the best super glue and make money off it.’ Or if they told a music scholarship student, ‘You can’t go cut a record or perform in Radio City Music Hall.’ It would be ludicrous if they said that. Nobody would tolerate it.”

College athletes and their advocates have fought to change NCAA rules, particularly when it comes to names, images and likenesses, or NILs. Those rules keep players from signing autographs for cash, appearing on the covers of video games, and making money as social media influencers.

Walker, who played soccer, basketball and baseball at Trinity Baptist College in Florida, was sympathetic to Bilas’s point of view. If he took up the cause, Bilas told him during their meeting, the NCAA would make promises. Form committees. Talk a good game. But the organization would never really change without legislative pressure.

Now the fight over college athlete pay has come to Capitol Hill. Last March, Walker partnered with Rep. Cedric Richmond, a Louisiana Democrat and former baseball player at Morehouse College, to introduce the Student-Athlete Equity Act, a bill that would revoke the NCAA’s federal tax-exempt status if it doesn’t allow players to profit from their NILs. (The bill has since picked up seven more co-sponsors — four Democrats and three Republicans.)

While the bill made headlines, the issue behind it stalled in Washington until September, when California passed a law allowing the state’s college athletes to hire agents and cut endorsement deals using their NILs without losing their scholarships. More than two dozen other states, including Florida, Nebraska and New York, are considering similar legislation. California’s NIL law is set to take effect in 2023, a date chosen by that state’s lawmakers to give the NCAA time to change its rules accordingly. But other states may pass legislation that becomes active as early as this year or 2021.

Faced with the prospect of a patchwork of state laws that could dilute its authority while giving some schools recruiting advantages over others — for example, a coveted prep quarterback might choose Stanford University over the University of Alabama because playing in California means signing a six-figure endorsement deal with a tech firm — the NCAA has jettisoned its long-standing antipathy to federal oversight and is instead asking Congress to intervene by creating a national NIL law. In a December meeting with Sens. Mitt Romney (R-Utah) and Chris Murphy (D-Conn.), NCAA President Mark Emmert told the lawmakers that his organization needed their help “right now.”

College sports officials want legislative “guardrails,” specific restrictions on player NIL payments that they claim are necessary for the well-being of their industry. Athletes and their legislative allies would prefer a mostly free market, like the one that would be created by Walker’s bill or the California law. The NCAA and its member schools have money and Washington clout. But support for NIL payments occupies an increasingly rare bipartisan sweet spot, uniting the likes of Walker and Murphy, California Gov. Gavin Newsom (D) and Florida Gov. Ron DeSantis (R). “Almost all the people working on this [in Congress] are sports fans,” Murphy says. “And we just see something that doesn’t look right.”

Illustrations by James Clapham

Legislative history is dotted with failed attempts to regulate college sports. In 1978, for example, the House held hearings on whether the NCAA was trampling the due process rights of athletes accused of breaking its amateurism rules — hearings that produced more than 40 witnesses, 1,500 pages of testimony, the revelation that a football player had been suspended for three years for receiving a $12 discount on pants, and not a single new law.

In 1997, Ramogi Huma, then a football player for the University of California at Los Angeles, founded the College Athletes Coalition, an advocacy group that later evolved into the National College Players Association (NCPA), after seeing a teammate suspended for a game and forced to make a $150 donation to charity because he violated NCAA rules by accepting a bag of groceries from an agent. Back then, Huma says, the idea of letting campus athletes be paid for their NILs was considered radical within sports — and hardly considered at all in the wider world. “When we held our first press conference in 2001, very few people were sympathetic,” he says. “What you heard was, ‘These are spoiled athletes who have it made.’ ”

When lawmakers bothered to intervene in the college sports economy, it usually was to support the NCAA. In 2004, Congress passed the federal Sports Agent Responsibility and Trust Act, which essentially criminalized amateurism rules by making it illegal for agents to provide anything of value to college athletes or anyone associated with them; as recently as 2015, Georgia lawmakers made it a crime, punishable by up to a year in prison, for someone to entice campus athletes to break NCAA rules for money.

In 2003, the NCPA pushed the California legislature to pass a “bill of rights” that would have allowed the state’s college athletes to sign with agents, earn outside income, transfer to another school without penalty after a coach’s departure, and receive scholarships valued at the full cost of attending school — all things that were forbidden by NCAA rules at the time. In response, then-NCAA President Myles Brand publicly threatened to kick California’s schools out of the organization. The bill subsequently died in committee. “Lawmakers thought NCAA punishments would hurt the state,” Huma says. “They cowered, and it fell apart.”

But times — and attitudes — have changed. An influential 2011 article by Pulitzer Prize-winning civil rights historian Taylor Branch argued that NCAA amateurism was deeply unjust, “a bill of attainder, stripping from college athletes the rights of American citizenship.” In 2014, a federal judge ruled in a landmark lawsuit brought by former UCLA basketball star Ed O’Bannon that the NCAA’s restrictions on athlete compensation constituted an anti-competitive conspiracy in violation of antitrust laws. College sports administrators continue to argue that allowing athlete pay will ruin their industry by harming education, bankrupting athletic departments and despoiling the amateur purity that attracts fans. However, Huma says, the sheer amount of money flowing through the sport has made those claims less persuasive.

Today, the college football playoff television package — which consists of the national championship, two semifinals and four marquee bowl games — pays a total of about $550 million a year to participating schools and conferences. Across the country, schools have built lavish athletic facilities featuring barbershops, “Godzillatron” video boards, cryotherapy chambers, antigravity treadmills, miniature golf courses, and man-made lazy rivers.

Just before the conclusion of last year’s March Madness, Murphy released a 14-page report titled “Madness, Inc.” that criticized the NCAA for enriching “broadcasters, apparel companies, and athletic departments” at the expense of athletes and pointed out that college sports revenue rose from $4 billion in 2003 to $14 billion in 2018. “Fifteen years ago, you would have laughed at a story of a college football program building a mini golf course,” Murphy says. “Five years from now, they all will have mini golf courses.”

As the bill that became California’s new NIL law was making its way through legislative committees last summer, Emmert, the NCAA president, sent a letter to lawmakers that implied its passage would result in the state’s schools being barred from participating in national championships, including March Madness. This time around, however, that strategy backfired. California lawmakers voted unanimously for the law, partially out of irritation at the NCAA. “Legislatures don’t like when outside entities tell them, ‘I dare you,’ ” says Nancy Skinner, the California state senator who sponsored the bill. “My colleagues were like, ‘You know, NCAA, you’re just wrong, and we’re going to move ahead.’ ”

In perhaps the surest sign of a meaningful shift, Gov. Newsom signed the bill into law during an episode of “The Shop,” an HBO talk show hosted by NBA star LeBron James. That same day, Pennsylvania legislators working with the NCPA announced their intention to introduce a similar bill.

Democrat Joe Tate, a former Michigan State football player who represents Detroit in the Michigan House of Representatives, is among the state lawmakers sponsoring NIL legislation. The co-sponsor of his bill, Republican Brandt Iden, played tennis at Kalamazoo College — but was unable to advertise that fact when offering lessons. “That’s not fair,” Tate says. “This is something that can touch all athletes, giving them an opportunity to flex their entrepreneurial spirit while in college.” He laughs. “Being an offensive lineman, I don’t know if I would have made a career out of [NIL] opportunities when I was playing. But it goes back to fairness.”

Beyond that, Tate adds, lawmakers have another reason for moving quickly: They don’t want rival schools in California and elsewhere to end up with all the best high school recruits. “If D.C. isn’t able to come up with something, then at least we’ll have something in place,” he says. “There have been concerns voiced in our state around not giving our athletes a worse deal than other states. We don’t want to be left behind.”

Illustrations by James Clapham

The same can be said of the NCAA. Before the California bill became law, the organization publicly warned that allowing unrestricted NIL payments would “erase the critical distinction” between college and pro sports, and “remove [the] essential element of fairness and equal treatment that forms the bedrock of college sports.” Weeks later, however, the NCAA softened its stance, announcing in late October that it was ready to consider changing rules to allow athletes to “benefit” from their NILs. Following his December meeting with Murphy and Romney, Emmert expressed a desire to work with Congress to codify those changes into federal law. “Having, in the end, 50 different state laws is a challenge to anything that’s trying to be operated at a national level around the country,” Emmert told reporters. “So having this discussion be elevated to the congressional level, I think, is very, very good and certainly welcome.”

What does the NCAA want, exactly? According to Emmert, the organization will offer specifics later this year, perhaps by April. Its must-have list likely will include restrictions on: schools setting up or being part of athlete endorsement deals; deal type and value (for instance, prohibiting players from endorsing alcohol); and any deals that could be perceived as transforming athletes into school employees or could act as recruiting inducements (for instance, a booster who owns a car dealership paying an incoming high school star $500,000 to appear in a TV ad).

In 2016, Tulane Law School professor Gabe Feldman wrote a white paper for the Knight Commission, a college sports reform group, outlining an NCAA-friendly NIL plan. His proposal would allow athletes to be paid for autographs, endorsements and group licensing agreements for jersey sales and video game appearances. However, players wouldn’t be paid for NIL use in game broadcasts, and an independent committee with NCAA representatives would oversee and approve individual deals.

Placing restrictions on NIL payments, Feldman says, could help the NCAA defend itself against athlete lawsuits. In federal antitrust court, the organization has argued that without its amateurism rules, college sports would be badly harmed: Athletes wouldn’t study, fans wouldn’t watch, and a handful of rich schools would buy up all of the best players in the kind of bidding wars now reserved for coaches. Despite poking holes in those contentions, judges have mostly allowed the NCAA to maintain the status quo, granting athletes concessions such as the freedom to receive cash stipends that cover the full cost of school attendance without creating a free market for their services.

“This is not just about NIL,” Feldman says. “It’s about the NCAA’s entire amateurism model, which says, ‘No payments allowed.’ Well, if NIL payments are allowed and life goes on, then [athletes] can go back to [antitrust] court and say, ‘It obviously is not necessary to have these restrictions. They’ve been eliminated and things are the same.’ So, the NCAA has to make [any NIL changes] seem like the evolution of amateurism, the 21st-century version of it.”

That won’t satisfy athlete advocates and their legislative allies. Murphy says he’s “not really interested” in federal restraints on what athletes can do. California’s law, which other states are emulating, contains just two major limitations: First, athlete deals can’t conflict with team sponsorships (for example, a Duke player couldn’t wear Adidas shoes during games if the Blue Devils have an apparel contract with Nike); and second, schools can’t pay high school players for their NIL rights.

“We don’t want any federal legislation unless it is going to expand the rights and protections that the states are moving toward. If it is a rollback, we will oppose it,” says Huma, whose NCPA played a major role in getting the California legislation passed and currently is working with lawmakers in more than a dozen states. “The states are doing the right thing. They’re driving real reform. It would be great if the federal government facilitated that. It would be a tragedy if they stopped it.”

Illustrations by James Clapham

That sets up a contest for the hearts and minds of members of Congress. Some, like Walker, have staked out a position: In October, Sen. Richard Burr (R-N.C.) tweeted that if college athletes could profit from their NILs, then he would introduce legislation to tax their scholarships. (His threat was widely panned online.) But many have yet to study the matter, let alone pick a side. “I don’t know how I feel about this issue,” Sen. Roger Wicker (R-Miss.) said at a February Senate hearing on player compensation. “I don’t know where this is going to lead.”

Lobbying has begun in earnest, and on Capitol Hill, the NCAA has somewhat of a home-court advantage. According to the Associated Press, the organization spent $450,000 last year on lobbying, the most it has since 2014; meanwhile, the Big 12 and the Atlantic Coast conferences combined to spend at least $300,000, with some of the Big 12’s money going to former congressman Kenny Hulshof of Missouri, now a lobbyist, to address Walker’s bill. By contrast, Huma’s organization has the longtime support of the United Steelworkers — and a lobbying budget of zilch. “The NCAA,” Walker says, “has a very strong influence in this town.”

Rep. Tony C├írdenas (D-Calif.) concurs. In 2013, he introduced a bill that would have required schools with big-time athletic programs to pay for the educations of athletes who lose their scholarships because of injury and also to cover sports-injury treatment costs for no less than two years after graduation. Modeled on a California law, C├írdenas’s proposal never made it out of committee. “If it wasn’t for the power of the NCAA and them being in the building sniffing things out whenever anybody raises these issues, we would have had 50, 100, 200 co-signers,” he says. “So, I don’t think it’s likely that [an NIL bill] like the one in California will pass in Congress.”

Murphy disagrees. “I’m not sure there’s a lot of groundswell for putting a whole bunch of new rules on athletes that can trip them up like the existing [NCAA] rules do,” he says. Public opinion polls have found majorities support NIL payments for campus athletes. Tate, the Michigan lawmaker, believes that there’s a simple reason: Unlike, say, tax policy, the right to profit from one’s face and fame is easy to grasp — and in the Instagram era, as all-American as ice cream, apple pie and “Keeping Up With the Kardashians.” “It resonates,” he says. “People don’t want anyone to have their rights to be infringed upon because of an industry or because they are part of a certain group.”

State NIL bills so far have attracted bipartisan support, and Murphy and Walker each say they’ve gotten positive feedback from colleagues on the other side of the congressional aisle. (President Trump’s views on NIL payments are unknown; the White House says it is studying the issue.) Murphy is part of a recently formed working group on college athlete compensation that includes Republicans Mitt Romney, Marco Rubio and David Perdue and Democrat Cory Booker. For conservatives, such efforts provide an opportunity to support free markets while rewarding individual initiative and hard work; for liberals, they offer a chance to stick up for an arguably exploited labor force that happens to be predominantly young and black. “It speaks to the parties’ core principles,” Huma says. “I saw that when I was meeting with [state legislature] members in California, Democrats and Republicans. At first, some of them weren’t so supportive. But when I was able to speak to how it coincided with their beliefs, their decisions would flip.”

The NCAA’s central argument to lawmakers remains effective: Everyone loves college sports, and allowing unrestricted NIL payments will harm them. So, don’t. However, many of the sky-is-falling claims made by those sympathetic to the status quo strain credulity. NIL payments will turn athletes into school employees! (Actually, they involve contracts with third parties.) They will compromise athletes’ educations! (Universities neither ban rich students nor make them take poverty vows.) They will destroy competitive balance! (Wealthy schools in the so-called Power Five conferences already dominate, annually winning the lion’s share of games and championships and signing the vast majority of top high school recruits.)

Then there are the optics. When lacrosse player Tehoka Nanticoke of the University at Albany was briefly suspended last season for the amateurism violation of adding the hashtag of a stick-stringing company to a post on his popular Instagram account, it made NCAA rules look petty. And when UCLA gymnast Katelyn Ohashi was unable to cash in after a joyous floor routine went viral and transformed her into a national celebrity — something she subsequently lamented post-graduation in a New York Times video op-ed that garnered over 730,000 views on YouTube — it made the organization look like a bully.

People really do love college sports. But do they love the suits who run them? In recent years, journalists and lawmakers have scolded the NCAA for policing amateurism with a heavy hand while failing to protect college athletes from brain trauma, sham educations and sexual abuse. At a 2017 meeting of the Knight Commission in Washington, Emmert said that the NCAA’s own polling showed that 79 percent of people believed that big universities put money ahead of college athletes; 69 percent believed that those schools were part of the problem, rather than the solution to problems in college sports; and 51 percent believed the NCAA was part of the problem.

Donna Lopiano — a former University of Texas athletic director who has recently visited roughly 60 congressional offices to build support for a House bill co-sponsored by Florida Democrat Donna Shalala and Republican Ross Spano that would create a commission to study problems in college sports — says she has encountered a near-unanimous “lack of respect” for the NCAA. “I think everybody understands,” she told me, “that they are acting in their own brand and commercial interest.”

Illustrations by James Clapham

Rather than side with athletes or the NCAA, Congress could simply choose not to choose. “I don’t think they’ll get anything done,” says Tom McMillen. A former University of Maryland basketball star, McMillen was a Democratic congressman in the 1980s and early 1990s. He helped pass legislation that prompted NCAA schools to publicly disclose graduation rates for college athletes, and wrote a book criticizing greed and hypocrisy in sports. Today, he’s the president of the Lead1 Association, a trade group that represents athletic directors at the major NCAA football schools.

McMillen remains plugged in on the Hill. He says that while neither he nor Lead1 have been involved in NIL lobbying, the issue has come up in informal conversations with lawmakers. Based on what he has heard, McMillen believes that federal NIL legislation is unlikely. While some members of Congress want to act, he says, others want to leave NIL laws to the states. Some are focused on NILs; others want to tackle a broader range of issues, including academics and athlete health care. “You’re also coming off the impeachment rancor, and then you have a presidential election,” McMillen says. “It is hard to pass legislation when everyone is rowing together. But when it is fractionated, it’s much more difficult.”

Walker, however, is undaunted. In December, he announced that he will not run for reelection this fall after redrawn North Carolina congressional lines made his district significantly more Democratic. Still, he plans to push for his NIL bill, and against what he sees as the injustice that has precipitated it. “Listen, I don’t have any ill will toward the NCAA,” Walker says. “I’ve enjoyed their product for years. They’ve given us no choice but to move forward with this.”

Walker will have allies in both chambers. At the Senate NIL hearing in February, Sen. Richard Blumenthal (D-Conn.) put Emmert on the spot, asking the NCAA president if he agreed that the current system of athlete compensation was “unfair and outdated.”

“I certainly agree that the NIL model that’s in place needs to be modified,” Emmert said.

“Radically modified,” Blumenthal said.

“Correct,” Emmert said.

Blumenthal then turned to a witness panel consisting of Emmert, Huma, a former college athlete, the commissioner of the Big 12, and the chancellor of the University of Kansas. “Does everybody on the panel agree with that point?” Blumenthal said. “Please raise your hands if you agree.” Everyone raised their hands — a reminder that Congress has the power to change college sports, and not necessarily by passing a law.

According to Emmert, the NCAA plans to adopt new NIL rules at its annual convention in January 2021. Coincidentally, the meeting will be in Washington. “If the NCAA gets it done, we will stand down,” Walker told me. “But if not, then it’s full speed ahead to get it across the finish line.”