Why the NCAA’s greatest rival is the US government

The National Collegiate Athletic Association (NCAA) is known for hosting historic and intense feuds that have captivated fans for decades. The rivalries are not limited to on-the-field play between schools.

The NCAA itself has fouled on regulations, governance, and legal disputes, demonstrating that greater clarity is needed to navigate emerging issues like athletes unionizing and our high school and college players earning compensation from their name, image and likeness (NIL). Various stakeholders in college athletics who should be entitled to their percentages and rights have turned to another powerful agency to be their advocate – the federal government.

Legal proceedings against the NCAA dominated the headlines in the first half of 2024. As we prepare for the halfway point of the year, let’s discuss three key areas in which the NCAA will continue to play defense against the federal government.

Regulatory oversight

Congress understands that billions of dollars are at stake when it comes to college athletics. In a 2020 report, NCAA Research indicated college sports generated $18.9 billion in revenues in 2019. Furthermore, Division I play generated 96% of that staggering and rising number. With a sizable and seemingly recession-proof sector contributing to the economy and keeping voters employed, the federal government has increasingly taken an interest in overseeing Division I athletics, especially regarding issues such as athlete safety, academic standards, and financial transparency.

Federal lawmakers have introduced bills aimed at reforming college sports, including proposals to establish a national commission on college athletics or to give student-athletes more rights and protections. The concept has bipartisan support, and some bills seem to have resonated on Capitol Hill.

For example, Senators Cory Booker (D-NJ), Richard Blumenthal (D-CT), and Jerry Moran (R-KS) in 2023 introduced a significant bill, the “College Athletes Protection and Compensation Act.” In addition to various new protections for our college athletes, the Act reflects skepticism towards the NCAA’s effectiveness.

As a former Stanford tight end, Booker’s firsthand experience amplifies his advocacy for our athletes. The bill aims to set national NIL standards and ensure fair opportunities by creating the College Athletics Corporation for oversight – which could also render the NCAA useless. It intends to streamline the transfer process and protect smaller schools from becoming mere feeder programs. After its comment period closed, there’s hope for its reintroduction with improvements in 2024.

NIL and student-athlete compensation

The debate over whether college athletes should be compensated beyond their scholarships reached the finish line in 2021, when the Supreme Court unanimously ruled in NCAA v. Alston (against the NCAA). This established a new legal precedent in which high school (depending on their state) and college players can earn from their NIL.

Since then, the interim rules set forth by the NCAA added to the confusion among states, schools, and athletes. As of January 2024, legislation is active in 31 states and the District of Columbia. In these areas, college athletes and their institutions are provided with specific guidelines for NIL activities, as outlined by both the NCAA and their respective state legislatures.

Our students should be able to earn from their NIL and – if the playing field were truly level – would be able to base their decisions on a federal framework, rather than the patchwork of confusing and often conflicting state laws.

On Jan. 18, 2024, the House Energy and Commerce Committee met with players and NCAA President Charlie Baker at the Innovation, Data, and Commerce Subcommittee. While it was one of many Capitol Hill hearings, Chair Cathy McMorris Rodgers (R-WA) noted it is “unreasonable to expect student athletes to balance their studies while navigating a maze of complex and conflicting laws.”

“I recently heard about a draft NIL agreement with a collective which agreed to pay an athlete $1.5 million over two years,” Rodgers said. “Hidden in the fine print was a provision which allowed the collective ‘from time to time’ to ask for repayment of that money plus 10% interest for commission and expenses. These provisions applied even if that agreement were to be terminated. This behavior is abhorrent, predatory and is exactly what we are trying to prevent with [a proposed federal] legislation.”

Baker has since floated the idea in several proposals, including one that would allow schools to directly pay college players for their NIL rights.

Should the NCAA decide to allow colleges to make direct payments, it must rigorously enforce compliance. If these payments are subsequently identified as pay-for-play, and the evidence suggests that the NCAA tacitly approved such actions, it becomes more likely that a court would determine the association essentially condones pay-for-play practices.

This scenario underscores the importance of the NCAA adopting a comprehensive approach to monitoring and enforcing regulations regarding direct payments to ensure they do not violate established guidelines against pay-for-play. It suggests a lot of work to circumvent further government oversight, and is highly unlikely that the federal government would allow this arrangement.

Antitrust concerns

One of the major points of contention between the NCAA and the federal government is antitrust issues. Several antitrust cases have been filed against the organization and are currently pending in 2024. Remember, the year kicked off with the U.S. Department of Justice announcing it had joined 10 states and the District of Columbia in a civil antitrust lawsuit challenging the NCAA’s Transfer Eligibility Rule.

The plaintiffs in that case have argued that the NCAA’s multi-time transfer rule served as an illegal restraint on college athletes under the Sherman Antitrust Act by hindering our college athletes’ ability to earn from their NIL and control their education.

A federal judge granted a temporary injunction against the NCAA in response to a lawsuit from universities in Virginia and Tennessee. As a result, the NCAA is in quicksand and unable to enforce its own policies. The attorneys general for Virginia and Tennessee, who filed the lawsuit, praised the injunction, but the NCAA is expected to appeal. This has created a stranglehold situation where the NCAA is essentially unable to enforce its rules or investigate, leaving the door open for potential abuses of NIL deals.

If the NCAA is found to have violated the Sherman Act, these injunctions could ultimately lead to its demise, unless it is willing to overhaul its top priority of setting and properly enforcing the rules.

Heading into the second half of 2024

For years, the NCAA was considered the ultimate authority in college sports and set the terms and conditions for everything from scheduling to earning revenues from broadcasting rights.

Billions of dollars were raked in and generated from the talent and sweat of our athletes who were unjustly and unfairly unpaid, and now they are playing offense in the courts and the halls of our government.

By turning to their elected federal representatives, our athletes have finally found an ally and advocate powerful enough to stand up to the NCAA and protect their rights within the limits of the law. Our athletes are hiring sports lawyers at a feverish pace, as navigating this shifting landscape is incredibly tricky, and a player could inadvertently leave millions on the table by signing a deal that merely seems favorable.

Today our athletes and their lawyers, with forward-thinking federal legislators, could rack up enough points to knock the NCAA out of its long-held power position. For those of us who have championed the rights of our college athletes, it’s about time!