SAN ANTONIO — The future of the college model has never been more uncertain.
So college athletic leaders have decided to be clearer than ever about what they want, steps they believe are essential in order to preserve college athletics as we know it. And, for them, the solution lies in Congress. Yes, the same Congress whose House of Representatives only needed 15 laborious 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’s board of governors, the organization’s highest governing body. Livingstone spent a lot of time at the NCAA’s annual convention on Thursday, detailing Congress’s need for help as the association faces myriad attacks from outside entities. Multiple lawsuits targeting the economic structure of college athletics are making their way through the courts in a legal environment that seems more favorable than ever to the rights of athletes. The National Labor Relations Board is pursuing an unfair labor practice charge filed against USC, the Pac-12 and the NCAA in an attempt to categorize the athletes as employees.
Livingstone has repeatedly said the NCAA needs Congress to protect the categorization of athletes so they cannot be classified as employees.
“We feel there’s a great sense of urgency,” Livingstone said. “It ties in some ways to some of the potential state laws that are out there that state legislators are looking at. It’s related to some things that could come from some federal agencies. So we absolutely believe it’s urgent, it’s essential, and it’s something that we really need to look at and move forward with in this legislative session.
She called the threat facing the NCAA “imminent.”
“Several states are currently considering legislation that would mandate a significantly altered relationship between the school and its students,” Livingstone said. “Congress is really the only entity that can affirm the unique status of student-athletes. We need to make sure Congress understands what’s at stake and motivate them to act. Second, we need a safe harbor for some degree of antitrust complaints. We don’t really seek or need a broad antitrust exemption; we need the ability to establish common sense rules without unlimited threats of litigation.
A governor takes control of the delicate political game of the NCAA
Livingstone’s loud and clear message came the same day new NCAA president Charlie Baker, the former Massachusetts governor, was introduced to NCAA members. His political background and history of bipartisan success were strong selling points in the hiring process.
It is clear that Baker will spend much of his time in Washington, DC, asking for help in the areas described by Livingstone. It will also rely on individual athletic directors and conference officials who have relationships with their own elected representatives. They will ask these elected representatives to intervene – even if only in the form of narrow legislation – to preserve the ideals that some believe underpin college sports. They’ll tug at their heartstrings, talk tailgating and campus camaraderie. In other words, they will ask for help.
“The challenges associated with passing any legislation are always significant,” Baker said. “I believe, however, that there are serious problems associated with simply letting this train roll without doing anything to deal with the consequences currently facing college sports. There are 1,100 universities and colleges in the United States that are meaningfully involved in college athletics, and I think a lot of them were really concerned about their future. Most of these schools have really strong relationships with a lot of people who hold elective office.
“It’s going to get the people who are the leaders of a lot of these organizations and the alumni of a lot of these organizations to target, frankly and directly, their own way through the leaders to find out why it’s going to be such a difficult time if they don’t do not certain things to create a framework around which it can work in the future.
Livingstone’s (and the NCAA’s) argument is that federal law is needed to pre-empt the patchwork of state laws that currently exist regarding athlete compensation in the name, image, and likeness space ( NILE). She said the problem is that state lawmakers will do whatever it takes to gain a competitive advantage over schools in neighboring states, which “is unsustainable and destructive for everyone.”
“We need a clear, fair and stable federal legal framework 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 about the issues and motivating them to act on these critical priorities will be a core activity for the NCAA in 2023. My biggest fear is that people won’t understand the seriousness of the threats we face until they will not have lived with the consequences. .”
The NCAA has operated from a place of fear for much of the past 18 months, since the United States Supreme Court ruled unanimously against the NCAA in the Alston case, centered on the NCAA’s ability to cap education-related spending. A scathing concurring opinion penned by Justice Brett Kavanaugh seemingly hailed future challenges to the college sports business model.
Livingstone said the idea of turning college athletes into employees is “deeply flawed” and would have a “sprawling, offbeat, and potentially catastrophic impact on college sport in general.” When asked later if there was a way for schools or conferences to put more money directly into the pockets of athletes or even maybe collectively bargain with them without them being categorized as employees, Livingstone said she and other leaders are working to find an answer.
“We have to try to understand what this kind of business model might be different from what we’ve done in the past,” she said. “But to develop something that’s sustainable and works — it’s going to take some federal protection in some of these areas that are particularly difficult for us without some protection.”
Other NCAA convention attendees were far less confident of congressional intervention to save the day and preserve the idea of a student-athlete. It hasn’t happened yet, but the walls seem to be getting closer to the model as it is currently built – which could, in theory, inspire action.
“Just because something is loved doesn’t make it permanent,” Livingstone said. “That’s definitely the case with college sports. For everyone working in college sports today, we face bigger, more complex, and more urgent challenges than at any time in generations, and perhaps never in the history of college sports.
“We are faced with a choice right now. Either we can oversee the modernization of college sports ourselves, or others will modernize and transform it for us.
(Photo: Ezra Shaw/Getty Images)