SAN ANTONIO – The future of the collegiate model has never been more uncertain.
So college sports leaders have decided to be clearer than ever about what they want, measures they believe are essential in order to preserve college sports as we know it. And, to them, the solution lies in Congress. Yes, the same Congress whose House of Representatives just required 15 painstaking votes to elect a speaker.
No one ever said it would be easy to work with Congress. But it may be the only way forward, according to Baylor president Linda Livingstone, who chairs the NCAA Board of Governors, the organization’s highest governing body. Livingstone spent a great deal of time at the NCAA’s annual convention on Thursday detailing the need for Congressional help as the association faces myriad attacks from outside entities. Multiple lawsuits aimed at the economic structure of college athletics are working their way through the courts in a legal environment that appears more supportive of athletes’ rights than ever before. The National Labor Relations Board is proceeding with an unfair labor practice charge filed against USC, the Pac-12 and the NCAA in a push to categorize athletes as employees.
Livingstone repeatedly said that the NCAA needs Congress to protect the categorization of athletes so that they cannot be classified as employees.
“We feel like there’s a great sense of urgency,” Livingstone said. “It’s related in some ways to some of the potential state laws that are out there that the state legislators are looking at. It’s related to some things that could be coming out of some of the federal agencies. So, we absolutely believe that it’s urgent, it’s essential and it’s something that we really need to lean into and make progress on in this legislative session.”
She characterized the threat the NCAA is facing as “imminent.”
“Several states are right now considering legislation that would mandate a vastly changed relationship between schools and their students,” Livingstone said. “Congress is really the only entity that can affirm student-athletes’ unique status. We have to ensure that Congress understands what’s at stake and motivate them to act. Second, we need a safe harbor for a certain degree of antitrust complaints. We’re not looking for nor do we actually need broad antitrust exemption; we do need the ability to make common-sense rules without limitless threats of litigation.”
A governor gets the controls to the NCAA’s delicate political game
Livingstone’s loud-and-clear message came on the same day that the new NCAA president Charlie Baker, the former governor of Massachusetts, was introduced to the NCAA membership. His political background and history of bipartisan success were strong selling points in the hiring process.
It is clear that Baker will be spending a lot of his time in Washington, DC, asking for help in the areas that Livingstone outlined. He will also rely on individual athletic directors and conference officials who have relationships with their own elected representatives. They will be asking for those elected representatives to jump in – even if only in the form of narrow legislation – to preserve the ideals some believe prop up college sports. They will be pulling on their heartstrings, talking about tailgating and campus camaraderie. Simply put, they will be asking for help.
“The challenges associated with moving any legislation are always significant,” Baker said. “I do believe, though, that there are serious issues associated with just letting this train run without doing something to deal with the consequences that are currently facing college sports. There are 1,100 universities and colleges in the US that participate significantly in college athletics, and I think many of them were really concerned about their future. Most of those schools have really solid relationships with a lot of people who serve in elected office.
“It’s going to take the people who are the leaders in a lot of those organizations and the alumni of a lot of those organizations targeting, frankly and directly, to their own way through officials about why this is going to be such a challenging time if they don’t do some things to create some framework around which this can operate going forward.
Livingstone’s (and the NCAA’s) argument is that a federal law is needed to preempt the patchwork of state laws that currently exist regarding athlete compensation in the name, image and likeness (NIL) space. She said that the problem is that state legislators will do whatever it takes to gain a competitive advantage over schools in neighboring states, which “is not sustainable and is destructive for everyone.”
“We need a federal legal framework that’s clear, fair and stable for student-athletes nationwide so they can take advantage of legitimate NIL opportunities,” Livingstone said. “We need to formalize federal laws that supersede state level legislation. Educating Congress on the issues and motivating them to take action on these critical priorities is going to be a central activity for the NCAA in 2023. My greatest fear is that people won’t understand the severity of the threats we face until we live with the consequences. .”
The NCAA has operated from a place of fear for much of the past 18 months, ever since the US Supreme Court ruled unanimously against the NCAA in the Alston case, which centered on the NCAA’s ability to cap education-related expenses. A scathing concurring opinion written by Justice Brett Kavanaugh seemingly welcomed future challenges to the economic model of college sports.
Livingstone said the idea of turning college athletes into employees is “deeply misguided” and would have a “sprawling, staggered and potentially catastrophic impact on college sports broadly.” Asked later if there’s a way schools or conferences could put more money directly into athlete’s pockets or even perhaps collectively bargain with them without them being classified as employees, Livingstone said she and other leaders are working to find an answer.
“We’ve got to try to figure out what that kind of economic model might be going forward that’s different than what we’ve done in the past,” she said. “But to develop something that’s sustainable and that works — it is going to take some federal protection in some of these areas that are particularly challenging for us without some protection.”
Other attendees at the NCAA convention were far less confident in Congress swooping in to save the day and preserve the idea of a student-athlete. It hasn’t happened yet, but the walls do appear to be closing in on the model as it’s currently constructed — which could, in theory, prompt action.
“The fact that something is beloved does not make it permanent,” Livingstone said. “That’s very much the case with college sports. For all those working about college sports right now, we face challenges that are bigger, more complex and more urgent than at any time in generations, and maybe ever in the history of college sports.
“We face a choice at this moment in time. Either we can oversee college sports’ modernization ourselves, or others will modernize and transform it for us.”
(Photo: Ezra Shaw / Getty Images)