College sports are in transition again, this time prompted by last month’s legal settlement that could lead to schools paying athletes directly. It would be a monumental change, ending decades of fighting over whether athletes deserve a share of the huge revenues they help generate. But before that can happen, the deal has to go through a months-long approval process, beginning with an official submission to Judge Claudia Wilken in the Northern District of California.
It is expected to arrive in July. And after that, should Wilken go ahead with the terms as written? More steps through the legal system, including athletes being given the opportunity to object to the deal, at which point Wilken would consider those opinions before making a final, fateful decision. If revenue sharing were approved, it would likely begin in the fall of 2025.
There is a lot to track. If you’re confused, don’t worry, he’s in the exact same boat as the administrators, coaches, and athletes who would be most affected. But one thing for sure in all of this is that Congress remains a key component. The NCAA and its conferences continue to push (and push hard) for a federal bill that would offer antitrust protections, a priority over state laws that contradict NCAA rules and “special status” for college athletes that it says no They can become employees. For college sports leaders, the deal makes pushing for legislation even more urgent as they seek protection from the next lawsuit that could further shake up the model. They also remain diametrically opposed to the employment of college athletes, an issue that is being deliberated in federal court and by the National Labor Relations Board.
To date, Congress has held a dozen hearings on the future of college sports, but no bill has made it past the introductory phase. According to several people on Capitol Hill, most members of the Senate and House of Representatives do not have strong opinions on the issue, meaning it should be possible to find a bipartisan solution. But that doesn’t apply to Rep. Lori Trahan (D-Mass.) or Sen. Ted Cruz (R-Texas). Here are his latest thoughts on whether it’s possible (or wise) for Congress to reach a deal on college sports legislation:
Trahan (in a phone interview with The Washington Post this week): “More people are waking up to the fact that amateurism is dead and the only way to implement rules for athletes who are already being treated as employees is to negotiate with them.” directly or get Congress to legislate that the laws we previously passed don’t actually apply to athletes. “I haven’t seen an appetite for the latter of those two options.”
Cruz (speaking to The Post through a spokesperson): “There is a misconception that the settlement (House v. NCAA) reduces the urgency for Congress to act to protect college sports. Could not be farther from the truth. Without congressional action, there is a very high risk that college sports as we know it will be destroyed and that student-athletes will experience irreparable harm, including loss of benefits and scholarship guarantees.”
If a bill were to advance, it would likely mean that a Democrat would agree to cosponsor legislation introduced by a Republican (or vice versa). Otherwise, without that bipartisan support, it’s difficult for a college sports bill to pass through the House and Senate, especially since a member of the Senate could filibuster any bill that leans too far in either direction. The election year makes this even more complicated, although advocates of college sports legislation argue it would be an easy win for most politicians. After an initial committee hearing, a bill would have to pass through the Senate or House of Representatives, then the other chamber, before reaching the president.
None of those complications, nor the ticking clock, will stop the NCAA and the power conferences from making regular trips to Washington. If anything, the obvious obstacles will cause them to book additional trips and keep the lobby’s money flowing. The lack of results has has not yet deterred their efforts.
Since Jim Phillips became ACC commissioner in February 2021, five months before the NCAA changed its name, image and likeness (NIL) rules, he has been a mainstay in D.C. and recently participated in a panel discussion at March with Cruz and former Alabama football coach Nick. Sabán, among others. He hopes to visit Congress again within the next three or four weeks. Like NCAA leaders, the most powerful commissioners hope a deal will convince Congress to finally act on their behalf.
“Momentum on Capitol Hill continues to grow following the agreement. We’ve seen some interaction there,” Phillips said in a phone interview Friday. “The agreement has only served to further reinforce why Congress needs to act. We need you to help codify the agreement’s provisions into law, securing them in perpetuity so that this is not a moment in time.”
Before the $2.8 billion settlement agreement, which consolidated House v. NCAA, Carter v. NCAA and Hubbard v. NCAA, the NCAA wanted an antitrust exemption to eliminate those cases, which involved athletes suing for restrictions on compensation and for damages related to when they failed to monetize their NIL. After the settlement, their petition changed, hoping that Congress would provide antitrust protection to prevent the NCAA from being sued in similar cases in the near future. The agreement, if approved, would cover 10 years. The NCAA, then, is begging to have some of its power restored, feeling it cannot regulate the NIL market and the transfer portal without the threat of constant lawsuits.
For example, in February, a legal challenge in Tennessee forced the NCAA to at least temporarily lift its restriction on using NIL money to influence athletes’ decisions about where to attend school. On July 1, a new state law in Virginia will allow its universities to pay athletes directly through NIL agreements, which is against NCAA rules. And the proposed deal for House, Carter and Hubbard includes a limit on the amount of revenue schools could share with their athletes, which has already sparked antitrust scrutiny.
To that end, athlete advocates have a pretty simple message for the NCAA: If you don’t want antitrust lawsuits, don’t violate antitrust law.
“By definition, (a revenue-sharing cap and crackdown on NIL) is a restraint on trade,” said Brian Davis, a California-based NIL attorney who represents more than 100 football players. “…There is a lot of money that will be funneled through lobbyists in Congress, saying that college football and college basketball will be dead as we know it. “I think that’s hyperbole.”
When an agreement was reached on May 23, statements began to circulate. The NCAA and conferences immediately called for Congress to take action to support the terms. So did Notre Dame President John I. Jenkins, who said, “To save the great American institution of college sports, Congress must pass legislation.” He then listed the NCAA’s wishes. Cruz and Trahan intervened the next day, further positioning themselves as the most active members of their parties on these issues.
Trahan called for the NCAA to focus less on Congress and more on collective bargaining with athletes. Cruz maintained his firm opposition to athletes becoming employees.
Before the settlement agreement, Steve Berman, one of the two lead attorneys for the plaintiffs in House v. NCAA, also regularly visited Washington. He usually came in after the NCAA and then responded to requests for an antitrust waiver. But with a settlement in place, Berman and Jeffrey Kessler, the other lead attorney for the plaintiffs, have pledged to help the NCAA lobby for certain antitrust protections. As proposed, the agreement includes a system in which incoming freshmen could choose whether to opt for the revenue-sharing model, which Berman and Kessler believe provides protection against lawsuits challenging a cap or other aspects of the agreement.
“If the NCAA asks us to, we will go to Congress and say that we think (the deal) is a great solution for college athletes and that the NCAA should receive antitrust immunity for pay-for-play and for NIL,” Berman said in a interview. “That’s all we’re willing to do. We are not going to advocate on the issue of employment or unionization, anything like that. “We are not involved in that.”
Phillips added: “The key part of why Congress still needs to act is that the agreement provides a framework but does not provide long-term stability.”
Of course, the NCAA and its conferences are not the only parties interested in this matter. This week alone, members of Congress were visited by leaders of The Collective Association (a trade group of 40 donor-funded NIL collectives) and representatives of the Student-Athlete Advisory Committee (an NCAA-sanctioned group that typically sells the line of the company). Russell White, president of The Collective Association, said his group said it is “firmly against antitrust protections for the NCAA, simply because there is so much more to develop before that makes sense.”
SAAC President Cody Shimp took to social media and called for “congressional intervention on employment and NIL.” Unsurprisingly, SAAC’s position is that athletes should not be considered employees. In March, the Dartmouth men’s basketball team voted to unionize. The university immediately appealed to the NLRB’s national board, which has not yet issued a ruling.
Trahan, a former Georgetown volleyball player, has often teamed up with Sen. Chris Murphy (D-Conn.) to expand rights for college athletes. When he first pushed for athletes to gain employee status and collective bargaining power, he knew it would be difficult to find bipartisan support. The goal, however, was to plant a flag at the other end of the spectrum, an approach some Republicans have taken in recent months. It is the middle ground that remains elusive.
“If we’re considering legislation to literally turn back the clock under the justification of protecting (athletes), we should listen to all of those voices,” Trahan said. “So the outlook for this year, given the lack of alignment and the absence of more members listening directly to the athletes, I think simply deserves more time.”
Keynote USA
For the Latest Sports News, Follow Keynote USA Sports on Twitter.