Near the end of a 99-page decision in the Ed O'Bannon lawsuit on Aug. 8, U.S. District Judge Claudia Wilken reminded everyone she's not the savior of college sports. She's simply a judge who handed down a high-profile, highly-debated opinion in a case that was narrowly defined.
“It is likely that the challenged restraints, as well as other perceived inequities in college athletics and higher education generally, could be better addressed as a policy matter by reforms other than those available as a remedy for the antitrust violation found here,” Wilken wrote. “Such reforms and remedies could be undertaken by the NCAA, its member schools and conferences, or Congress.”
Yes, Congress -- which may be even more unfavorable to the public than the NCAA -- may play a role in shaping the future of college sports. To what extent Congress could get involved is being debated within college sports, including the possibility of the NCAA seeking an antitrust exemption to protect the association's amateurism principle.
On the horizon for college sports is the Martin Jenkins antitrust lawsuit brought by attorney Jeffrey Kessler, who seeks a free market for college athletes. Some legal experts believe the O'Bannon ruling, which will be appealed, gave Kessler an easier path toward success by striking down some of the NCAA's antitrust defenses. Still pending is an appeal by Northwestern of a ruling by a regional director of the National Labor Relations Board that Northwestern football players are employees who can unionize.
The NCAA has reached the point on unfavorable legal rulings that retiring University System of Maryland chancellor William Kirwan, co-chair of the reform-minded Knight Commission, said he now views Congress as “our last, best hope for getting anything right with intercollegiate athletics.”
The Wall Street Journal reported July 30 that NCAA president Mark Emmert “acknowledged the discussions about an exemption and said he could envision winning political support for such a move.” NCAA spokeswoman Stacey Osburn said Emmert's quote was referring to winning political support within the membership.
Emmert, who was not made available for an interview for this article, has made a couple appearances on political TV talks shows in recent months. He testified before a Senate committee hearing last month.
In April, the NCAA hired outside lobbyists for the first time since 1998, signing up with Brownstein Hyatt Farber Schreck. The Big 12 hired the same firm. The NCAA's lobbyists include Elizabeth Gore, who was chief of staff and legislative director to former Sen. Byron Dorgan (D-N.D.); Marc Lampkin, who advertises that he was named one of the Hill's top 50 lobbyists and works closely with House Speaker John Boehner and other Republicans; and Elizabeth Maier, who was legislative director for former Sen. Jon Kyl (R-Az.).
OpenSecrets.org reported that as of June 30, the NCAA had already spent a yearly record of $240,000 on lobbying expenses in 2014. That's up from $160,000 the NCAA spent on lobbying in 2013.
Marc Edelman, a law professor at Baruch College's Zicklin School of Business, said although he thinks Congress giving the NCAA immunity would be “outrageous,” he believes it's possible. Edelman noted that Congress passed in 2004 the Sports Agent Responsibility and Trust Act, which included parts of the NCAA bylaws related to agents providing anything of value to players.
“Because the NCAA could convince Congress in 2004 to pass legislation to protect its interest and to the detriment of college athletes, it would not be beyond the realm of possibility the NCAA would be able to do that again,” Edelman said.
Rep. Charlie Dent (R-Pa.), a critic of the NCAA's who proposed a bill last year related to college athlete rights, said he cannot imagine Congress granting an exemption to the NCAA.
“Good luck with getting those votes given the NCAA's track record and the performance of Dr. Emmert in front of the Senate,” Dent said. “Everybody knows that big-time college football and basketball are the minor leagues for the NFL and NBA. It's professional sports operating under the umbrella of amateur athletics. I'm not here to endorse that, but that's the reality of what it is even if people don't want to call it that. The NCAA says it's all about amateurism, but they have a professional operation there.”
Congress is watching NCAA
Big 12 commissioner Bob Bowlsby said it's too soon to talk about legislative relief given that some of the NCAA's problems can be solved by providing athletes with new benefits through the new Division I model that was passed Aug. 7.
“We ought to work toward solving our problems with our new prerogatives and opportunities with the new governance model,” Bowlsby said. “If we get highly unfavorable judicial outcomes in some of these lawsuits and it looks like they might be replicable again in the future, it may be some form of legislative relief may be desirable.”
Pac-12 commissioner Larry Scott said he sees no need for outside involvement or “radical changes” by the legal system.
“I think the knock on the NCAA has been historically it's had entrenched positions and is not able to get out of its own way,” Scott said. “The new model increases the possibility that we can seek significant changes. Now, it's incumbent on the five conferences to pass those changes, and I think you'll see meaningful and impactful changes in the next few months. Everybody would be right to take a watch-and-see approach.”
Congress is watching. Two hearings have been held in recent months. Letters seeking answers from the NCAA have been exchanged back and forth. Two bills have been introduced in the House.
In July, Senate Commerce Committee chairman Jay Rockefeller (D-W. Va) said that if the Democrats “control Congress next time … we want to make this a continuing subject of this oversight committee. We have oversight of sports. All sports. We have the ability to subpoena. We have a special investigative unit. We are very into this subject. This is part of a process here.”
Of course, Rockefeller isn't running for re-election in 2014. Not to mention, the track record of Congress reaching across the aisle for solutions about anything in America isn't very good.
At the Senate hearing in July, Emmert said he believes the NCAA will “wind up in the right place in a couple months” after NCAA governance changes happen. “If we don't, I'm sure we'll have these conversations again.”
Rep. Tony Cardenas (D-Calif.) and Dent recently created a bipartisan caucus to inform Congressional members about physical, academic and financial issues college athletes face so they are treated fairly.
“Yes, we have a lot more important things going on in our country, but the health and well-being of our 18- to 22-year-olds is important as well,” Cardenas said. “There are over 400,000 athletes on any given day. That's a lot of young, bright people that need to be appreciated and have the kind of protections and balance they deserve.”
Even Cardenas acknowledges there's an uphill battle for Congress to tackle the NCAA. Last November, Cardenas introduced a bill requiring schools with high-resourced sports programs to give athletes a package of benefits, such as continuing to pay for their education when a scholarship is lifted for reasons other than discipline or academic reasons. The bill has not gotten to a hearing. Cardenas said he hopes the legislation can be introduced to other members once the caucus is built up.
Another bill brought by Dent and Rep. Joyce Beatty (D-Ohio) last August would restrict Title IV funds to colleges that are a member of an athletic association that fails to establish minimum requirements for health and safety, financial aid and the NCAA infractions process. (Title IV of the Higher Education Act of 1965 covers the administration of federal student financial aid programs.) That bill also has not reached a hearing yet.
Instead of an antitrust exemption, Cardenas said he wants to build laws that provide requirements for the NCAA. But Congress can be influenced by the power of universities and relationships with high-profile coaches, Cardenas said.
“You have a lot of people who have a soft spot in their heart for their alma mater,” Cardenas said. “If they take that emotion out, hopefully we have Congress putting their foot down and saying this has gone on too long, the dynamics are evolving, and part of that should be better awareness of what these kids are going through. The fact that a kid could be a top-three pick going to college, he gets injured, and before you know it he's out on the street is wrong.”
Cardenas acknowledged he's likely in the minority in Congress who's interested in taking on NCAA issues, “but when you look at the momentum going on in courts, you may have a critical mass of members who say soon this is something we have to address.”
Wilken's injunction in O'Bannon would allow universities to give licensing money to players upon leaving college. The NCAA could choose to cap the licensing money at no less than $5,000 per year.
Kirwan, the Maryland chancellor, believes the $5,000 figure is ripe to be challenged in court. An antitrust exemption would be a high-risk, high-reward proposition, said Kirwan, who expressed being “very pleased” that the O'Bannon ruling allows players to be paid for their names, images and likenesses.
“I'm not naive about this,” Kirwan said. “I realize that if Congress does take on this issue and considers an antitrust provision, it's not completely clear where it would all end up. The market forces, particularly the big television and commercialization forces, will have very powerful and well-compensated lobbyists working all of Congress. We could end up with even worse commercialism of intercollegiate athletics. On the other hand, with the right kind of counsel to Congress, we could see some very positive things coming out of Congressional scrutiny.”
NCAA model ‘is unraveling' like USSR
The NCAA has debated for many years whether to seek antitrust protection. Back in 1991, then-Congressman Tom McMillen unsuccessfully introduced a bill to restore a limited antitrust exemption allowing the NCAA to regain the right to negotiate all TV contracts. In exchange for that limited exemption, McMillen wanted the NCAA to distribute TV revenue based less on won-loss records and more on educational values, such as academic performance and Title IX compliance.
Today, McMillen says it would be “ludicrous” to give the NCAA immunity and questions how the NCAA would get enough votes, given likely opposition from liberal Democrats and organized labor. The United Steelworkers are helping to fund the unionization efforts to make Northwestern football players employees.
But McMillen, now a board member at the University of Maryland, does see an opportunity for Congress to play a role. He recommends President Barack Obama and Congress form a presidential commission on college athletics, similar to the President's Commission on Olympic Sports created by President Gerald Ford in 1975.
The Olympic commission came in response to conflicts among the NCAA, Amateur Athletic Union and U.S. Olympic Committee over athletes' rights and the amateur status of participants in games. The issue also got pushed by America's international struggles in the Olympics.
The commission led to the Olympic and Amateur Sports Act of 1978, which established the USOC as the coordinating Olympic body in the U.S. The act chartered a national governing body for each sport and required that active athletes have a 20 percent share of the voting seats on each of the 39 new U.S. Olympic committees. In 1986, the International Olympic Committee expunged the word “amateur” from its bylaws. Media rights for the Olympics have skyrocketed in recent decades, contrary to predictions that the public wouldn't want the Olympics with pro athletes.
“Strangely enough, I think creating a similar commission for intercollegiate athletics is an area Congress and the president could work together on,” McMillen said. “One thing America cannot afford to do is allow these great universities to have the tail wagging the dog due to sports.”
Michael Hausfeld, an attorney for the O'Bannon plaintiffs, said the NCAA often considers seeking an exemption “because they understand their exposure. You seek an exemption when you know you have exposure and you hope Congress can cover it.”
Nebraska law professor and faculty athletic representative Jo Potuto said the NCAA should have no rule banning players from using their name and likeness to be paid. She likens it to actress Emma Watson being paid for appearing in movies while a student at Brown and still participating in theater performances at the university.
“The athletic world is worried that boosters will just bid up to get players,” said Potuto, former chair of the Division I infractions committee. “Every time the athletics world has worried about a parade of horribles, they've overstated what the parade of horribles might be. I don't discount there will be a bidding war for players, but I don't think people would be paying thousands and thousands of dollars for most players. Maybe the most talented players would get benefits. It seems to me there should be a way for group licenses.”
Potuto predicts mid-level schools will try to keep up with the Power 5 conferences' benefits by cutting some non-revenue sports because they won't want to reduce salaries for coaches in major sports. “It will be a different group paying the piper on it,” she said.
Former NCAA vice president Wally Renfro, who for years debated internally whether Congress should help the NCAA, said an exemption would be difficult to get. He sees value in the exemption if it lowers the frequency of litigation -- "these suits are almost entirely about settlements" -- but he sees ways around managing costs if there's a cap of on expenses.
“Let's say everybody agrees you should set some sort of cap on coaches' salaries,” Renfro said. “I don't think it takes a lot of imagination for an institution to tell a coach you're paid X, but a whole lot of other people would be willing to publish your book and we'd pay X for that. Pretty soon you have all kinds of ingenious ways that have nothing to do with institutions. In America, you can have a cap on how much a particular employee can get. You can't put a cap on how much a person can earn.”
Unless you're an NCAA athlete.
McMillen said the O'Bannon ruling shows public sentiment will continue to move against the NCAA regarding the rights of players.
"You can only put so many fingers in the dikes,” McMillen said. “I think it's clear that the old model is unraveling, it's just a matter of time. It reminds me of the Soviet Union trying to keep the old USSR together, and all of a sudden it just broke apart one day. The model is built out of a very flimsy facade that's falling down.
“The whole idea that players have no rights and they're student-athletes and they're not supposed to get anything is just so antiquated. When you go down the commercial road so far, you better be prepared for the commercial consequences. We have swung so far down the commercial road that it may be difficult to turn it back.”