ESSAY: College Athletics Needs Saving, And It Needs Good Old Fashioned Bipartisan Lawmaking To Do it

This past week, Congress waded into the seemingly never-ending debate on the status and compensation of college athletes.

The casual college sports fan might be forgiven if their eyes glaze over Congressional hearings like this, or experiencing a general lack of fatigue over the issues involving these issues.

And yet it’s so important, and the points involved so consequential, that it deserves not only an honest debate, but a plain English explanation as to what’s happening.

On the floor for discussion this past January 18th was to discuss a name, image, and likeness (NIL) compensation proposal led by Subcommittee Chair Gus Bilirakis (R-Florida).

In Rep. Bilrakis’ own words, his act intended to “preempt current and future state-level name, image, and likeness (NIL) laws to ensure there is one national framework to govern how collegiate athletes receive compensation for such activities.”

In the memo for the hearing, an accurate description of the current sorry state of college athletics was detailed – and why the bill was proposed.

“Following recent court cases and a change in NCAA policy,” it stated, “student athletes can now profit from their [Name, Image and Likeness], with some student athletes securing brand partnerships… While the changes in NIL rules have provided massive upside for some student athletes, it has harmed others and started a race to the bottom as States compete to lower or reverse standards and win recruits. Instead of using NIL as a marketing tool, some wealthy boosters and collectives are allegedly using NIL as a pay-for-play scheme designed to advantage schools with more resources.”

The shorter version: The Supreme Court and Brett Kavanaugh’s concurring decision in Alston vs. NCAA overturned fifty years of guidance on the NCAA’s ability to govern college athletics, making the NCAA powerless to act as statehouses across the country passed local laws to allow their State U’s to use NIL payments providing a roadmap to inducement.

This new lucrative market for NIL rights – one that has pretty much operated outside the lines of Title IX – basically also operated outside any sort of law, as there are no national laws to govern it. This is why this new world of NIL is commonly (and accurately) considered “the Wild West”, with 50 states operating with 50 different laws. It’s like America’s healthcare bureaucracy, but somehow worse.

And with the NCAA’s ability to police kneecapped by Brett Kavanaugh, predictably, bad actors like supporter collectives and outright crooks swarmed into the space along with the more benign, legitimate use of NIL to compensate athletes for things they actually create, like songs or books. Supporter collectives are a group of interested, rich parties that group together to pay inducements to entice skilled athletes to go to their school. They have little or nothing to do with what athlete’s creative output is outside of the playing field, but their monetary influence is large.

Compounding the issue was another item forced upon the NCAA by the courts – the transfer portal.

Though the creation of the transfer portal was done for good philosophical reasons – to simplify the process of students transferring, and to make it more transparent and fair – the NCAA inadvertently created a monster that is, effectively, free agency that has taken the power away from schools altogether to maintain their rosters.

Student-athletes declare publicly their intent to transfer, and rather than do academic work towards a degree they have to field inducement offers – sometimes discovering they are worth way less than people were telling them. NIL collectives flood the zone can flood the zone with promises, some of it misinformation. Coaches went from having most of the power to none, now having a full-time headache for roster management, not to mention work for administrators to transfer credits to the new schools (and in some cases, trying to determine if they have good enough grades).

And thanks to the courts, any attempt of the NCAA to try to rein in this beast will be greeted with an antitrust lawsuit.

Surprisingly, most of this activity has operated outside of Title IX, which dictates broadly at the NCAA level that men’s sports and women’s sports require equal opportunities for both men and women. In practice this has meant athletics spending has to be broadly equal, too, however the NIL marketplace that has been created has been anything but. (And – you may have guessed it – there’s a lawsuit accusing the University of Oregon of such.)

Thanks to Brett Kavanaugh, now only Congressional or SCOTUS action has the potential to fix the ungovernable problems that they themselves created, which is why draft bills like Rep. Bilikrakis’ have hearings.

While this hearing predictably devolved into yet another Congressional clown show divided along partisan lines – because that’s all Congress seems to have been able to do on this matter as well as many others – focusing on the clown show is a mistake.

The Fairness, Accountability, and Integrity in Representation of College Sports Act, or the FAIR College Sports Act for short, sets a workable framework going forward that honestly could go a very long way towards saving college sports with some semblance of what they were.

It is not perfect, and there are other types of draft legislation in both the House and Senate, but the truth of the matter is Rep Bilirakis’ legislation would be a positive step towards college athletics’ survival as well as allowing the NCAA to operate.

The act “would establish a national framework to protect the rights of student athletes to earn compensation and sign agents to profit from their NIL,” according to the memo. “The framework
established by the bill would increase transparency by requiring the disclosure of NIL agreements and the registration of boosters, collectives, agents, and third parties. The bill would also ban pay-for-play by prohibiting such parties from offering inducements to attend or transfer to a specific institution or to perform specific in-competition actions or promotions.”

The bill does this by establishing a non-profit corporation and an NIL registry of athletes, agents and collectives.

The ambitious bill, however, requires something that does not have consensus.

In order to be able to effectively regulate NIL, rein in boosters, collectives, crooks and thieves, according to Rep. Bilirakis’ bill, athletes engaging in sports have to be considered students, not employees.

The reason for this is simple, but often misunderstood.

If Rep. Bilrakis’ proposal becomes law, it would effectively take the power away from the courts to determine whether students are students engaging in an activity, or employees of the college or university. That’s because it would codify into law the status of college students as not being employees.

It would define the student-athlete as “not considered an employee of an institution, a conference, or an association based on the participation of the student athlete in a varsity intercollegiate athletics program or a varsity intercollegiate athletics competition,” according to the language in the bill. This would then supercede the courts from butting in with their own definitions (like they notably did in Alston vs. NCAA, where they defined the NCAA’s “marketplace” as being the market of “elite college football and basketball [athletes]”, which is on its face ludicrous.)

To those in the political arena, this is a hot potato. But why is this the case?

The answer is obvious to people who have been following government for any period of time.

On the Democratic side, led by people like Rep. Lori Trahan (D-Mass.), many on the Democratic side have no interest in having a special status for student-athletes to protect Olympic sports, countless football and basketball players receiving little or no scholarship money, or preserving the delicate status quo of collegiate sports.

Trahan has her own competing draft legislation called the College Athlete Economic Freedom Act which resembles more of her vision of what college sports should look like. Similar to Bilirakis’ bill, the meat of it aims to set a framework for working around NIL compensation, but has as its centerpiece instead a clause which aims specifically to prohibit schools and the NCAA from preventing a “right of collective representation”. In other words, a union.

Seen cynically, you could view this debate on fixing college sports on the simple party battle lines that have been the same tired partisan battle lines for decades. Republicans are trying to prevent the union from forming at all costs, with Democrats trying to deliver a dues-paying union at all costs.

But lost in this – on both sides – is a proper appreciation of what college athletics is now, what fans believe, and what fans expect.

For example, some Congresspeople seem unwilling and/or unable to see how unionization would be impossible for a collegiate sport like college swimming and diving. Faced with the prospect of added expense and hassle of unionization, most, if not all of these swimming and diving programs would disband, with some sports disbanding altogether.

That’s because almost all college athletics programs involve student activities that are not profit centers. Some sports offer full scholarships for their athletes, but swimming and diving is rarely a scholarship sport. Those athletes are likely going through the financial aid office and paying money to the school for the honor of advancing their skill in a sport, perhaps with a shot at, say, the Olympics. Making a profit isn’t a part of the mandate.

This isn’t just swimming and diving. Some college-seeking athletes in team sports are surprised to learn that they might be only offered partial scholarships or no scholarships in Division I sports for many programs, like baseball, softball or soccer.

Football at the national level, too, in particular would be deeply affected. Already expensive, an additional requirement of unionization and salaried athletes would rapidly present non-scholarship and limited-scholarship football programs an almost impossible choice to continue. It’s not overstating things to say that it could shutter, conservatively, 2/3rds of the college football programs today, including virtually all D-II and D-III programs. Already-strapped HBCU football at the national level, too, would likely be unable to continue.

Colleges are better and richer not just because they have football and men’s basketball programs – they are great destinations because they allow students to develop their skills and abilities in tons of different sports, from golf to rifle and every team and individual sport in between. Losing this will erode the special experience that is higher education for many. Preserving this needs to be a priority for everyone involved in this process.

Yet on the other side Congresspeople also seem to think amateurism, and defining the students as amateurs, is the key to keeping college athletics the same. This is folly as well.

Amateurism has been nearly impossible to describe for more than 150 years and has defied definition for more than a century. How can one really measure an individual’s love of sport? It’s more defined by what it’s not rather than what it is. The truth is the 1850s definition of an amateur has no place in a modern society in any way, one where some sports have become profit centers. Using the words “restoring amateurism” is a trap.

While the athletes are there for education and a college degree and sports are ostensibly activities, training for all and revenue for some are an enormous business. It’s not too much to ask that the student-athletes should be able to share in that business to some degree, and if they are at risk of injury, it’s the school that should pay for that care should they actually get injured, at least for a significant amount of time.

It’s a known quantity that in the biggest athletic departments, revenue from the most lucrative programs pays for the non-revenue programs. It doesn’t seem unreasonable to require those schools to share in some of that generated wealth.

There are ways to manage this without explicitly paying students during a time at school when they need to be focusing on academics and training. What isn’t and shouldn’t be an option is embracing a half-definition of sports status whose purpose is to kick the can down the road of giving the athletes’ any benefits at all.

I am not a lawyer of a member of Congress. I’m not employed by a school. I am open to ideas.

But I feel like Congress needs to listen not just to lawyers, Congresspeople or even athletes and commissioners. They need to listen to the many, many experts out here that are trying to tell them that they can’t restore 1850’s amateurism and they can’t remove education from the sports (which is, effectively, what will happen if they are required to become employees).

There has to be a third way. An unpoliticized, honest third way.