Last week’s election wasn’t just a big win for Donald Trump and the Republican Party. It could turn out to be a win for the NCAA in its fight to prevent its athletes from becoming full-time employees.
Here’s why.
It’s no secret that the NCAA and Division I conferences have spent millions of dollars the last few years lobbying Congress to pass a law that will preserve the last vestige of amateurism that has not already been shredded by the courts. While this proposed law is often referred to as a federal NIL law, the NCAA is asking for something broader. Its wish list contains three main elements: an antitrust exemption, pre-emption of state NIL laws and a prohibition on college athletes being deemed employees.
The antitrust exemption would allow the NCAA to put in place limits on athlete compensation and movement without fear of being sued. While the NCAA once enjoyed long-standing, quasi antitrust immunity for its rules that placed economic restrictions on athletes, that has not been the case since it lost the O’Bannon case in 2014. Since that point, the NCAA has been hit with a tsunami of antitrust losses in court, among them the end of rules forcing multi-time transfers to sit out a year and a unanimous decision by the Supreme Court determining that NCAA rules limiting the “educationally-related” benefits violate antitrust law. The House case is also an antitrust case, as are the two other cases that are part of the proposed settlement, Hubbard v NCAA and Carter v NCAA. So you can see why the NCAA would love to get out of the antitrust crosshairs via a federal law.
I expect Sen. Ted Cruz, who was re-elected to a new six-year term last Tuesday, to introduce an NCAA-friendly bill early next year.
A law that preempts state NIL laws would make schools and athletes in every state subject to the same NIL rules. That would be a welcome change from the current situation where some state laws allow unlimited NIL payments, which gives schools in those states a recruiting advantage.
While the antitrust exemption and the preemption of state NIL laws are important for those backing the bill, the prohibition on college athlete employment has now become paramount. The NCAA believes – perhaps with good reason – that if all college athletes are deemed employees then it could lead to some schools eliminating many varsity athletics programs because of the increased cost.
The NCAA lobbying campaign has resulted in numerous federal bills being drafted and introduced in various Congressional committees. There have been a few hearings on those bills, but so far that has not resulted in any legislation. Only one bill (one that would only prohibit college athletes from being employees) has even made it out of committee.
So why were last week’s elections good for the NCAA? Because many Republican lawmakers are in favor of a bill that includes each of the items on the NCAA’s wish list. Individual lawmakers have their own reasons for supporting the bill, but for Republicans the support tends to come from a place of tradition and, in part, to avoid organized labor getting involved in college athletics. On the other hand, the majority of Democrats do not support the NCAA bill, since for them college athlete rights have become a civil rights issue — and with respect to employment specifically, a labor issue. Many Democrats are resistant to passing legislation that prohibits college athletes from becoming employees and potentially unionizing in the future.
With Republicans having taken control of the Senate, that means that Texas Sen. Ted Cruz is likely to become Chair of the Senate Commerce Committee. Cruz has been heavily involved in efforts over the past few years to get the NCAA bill passed. I expect Cruz, who was re-elected to a new six-year term last Tuesday, to introduce an NCAA-friendly bill early next year.
Will all of this be enough for the NCAA to finally get the law it wants? I still have my doubts. Antitrust exemptions for an industry are rare. Many have asked and few have succeeded.
Passage of a law that prohibits a specific group of individuals (in this case, college athletes) from being subject to the benefits and protections provided by employment laws would be unprecedented and controversial. It would also quickly be met with a lawsuit arguing that the law violates the Equal Protection clause of the US Constitution.
Thus, even if the NCAA gets what it wants from a Republican-led Congress, that will not be the end of its fight. But a win is a win and given how few of those the NCAA has had lately, many leaders in college athletics would consider it a welcome step.
Mit is a college sports attorney based in Kansas City. He currently represents numerous universities, NIL collectives, businesses, athletes and agents in NIL and other college sports-related matters, and is often sought out by the media and others for his expertise in those areas. More from Mit Winter »
