“In watching this debate nationally for the last three, four years, the momentum for this type of change has been building,” California state senator Nancy Skinner, a Democrat, told SB Nation. “There is uniform expression by student-athletes, by professional athletes, and by former NCAA personnel that a change is needed.”
A college athlete getting paid no longer rattles the public like it used to. Polling suggests the NCAA’s definition of amateurism is becoming less popular. Players are speaking out against its rules more often than in the past. The court system has chipped away at NCAA power, giving players relatively small benefits and costing the NCAA millions.
And now, more politicians than ever before are circling the NCAA at once, with several pieces of legislation on the table.
“For me, while I followed the issue for a long time, introducing it this year felt like the exact appropriate timing,” Skinner said.
It will likely take outside actors to evolve the NCAA, because it always has.
Historically, when leaders in college sports have remained obstinate, they’ve needed to be pushed.
In 1906, President Teddy Roosevelt ordered college football to be investigated due to player deaths, eventually leading to the formation of the NCAA. In 1983, the Supreme Court guaranteed schools (as opposed to the NCAA) control of broadcast rights, exploding revenues and setting up the current situation.
The NCAA makes roughly $1 billion per year just on broadcast fees for its men’s basketball tournament, distributing most of that to schools. The Big Ten is paying members more than $50 million annually from its own media deals. Even the non-power AAC will soon pay its schools about $7 million a year. But the formula for player compensation has barely changed at all.
The NCAA has recently lost two significant legal cases over its amateurism model, but neither led to rule changes that would let players be paid.
That’s where politicians have come in. Among them are legislators in multiple states, a U.S. congressman, a U.S. senator, and a presidential candidate. In different ways, they’re taking on a bloated system, one well-organized to resist even incremental change.
Legislative approaches start with opening the free market without forcing schools to pay a dime.
That’s what’s happening in at least three states and Congress. None of these bills would compel a school to pay players, but they would seek to allow players to earn money for their images and likenesses without losing their eligibility. The state bills also call for players to be allowed to hire agents.
They aren’t the first bills to take on NCAA rules. In 2003, Nebraska and California legislators pushed to require schools to make cost-of-attendance payments to athletes. But we’ve never seen such a nationwide, bipartisan push to let players be paid for their own image.
When Republican Washington state representative Drew Stokesbary spoke with SB Nation, it was the second day of the men’s NCAA tournament’s opening round. For the first time he could remember at that point in March Madness, Stokesbary had yet to watch any games. A Duke grad, he was once the Blue Devil mascot.
Over Christmas break, Stokesbary began crafting Washington House Bill 1084. Introduced in January, the bill would force Washington universities to allow athletes to collect endorsement money or hire agents. It would seek to prevent the NCAA from sanctioning programs that allow athletes to collect such pay.
A month later in California, Skinner introduced her bill two days before football’s Signing Day. She consulted with Stokesbary while crafting what she named the Fair Pay to Play Act.
In Colorado, Republican state senator Owen Hill is aiming to move a similar bill through the legislature. Per a source, it has bipartisan support in both the state senate and house.
U.S. Congressman Mark Walker, a North Carolina Republican, introduced a bill in March that would amend the tax code to remove an exemption from any amateur sports organization that “substantially restricts a student-athlete from using, or being reasonably compensated for the third party use of, the name, image, or likeness of such student-athlete.”
“We’re not asking the NCAA, we’re not asking a college or university, to write checks or pay these players a dollar,” Walker told SB Nation. “What we are saying is we think this is a huge problem, even an injustice, that these student-athletes are restricted with no access to their image and likeness. It is the only group of people in our society who face that restriction.”
Walker also has a connection to Duke. He said he moved to North Carolina five days before the Blue Devils’ epic win over UNLV in 1991, en route to the school’s first national title under Coach Mike Krzyzewski. But Michigan’s Fab Five — an eventual Duke opponent — was catching Walker’s attention.
Walker said it was unfair the Five were “literally changing the dynamic of college basketball” but not getting paid. He said Michigan’s Ray Jackson and Jimmy King, who didn’t stick in the NBA, got “hosed” by not being allowed to get paid.
Walker represents a college basketball-obsessed part of the country. It’s easy to see why he’d care about the subject. But why should Congress?
“If I’m a 20-, 21-year-old young man or young woman and I’m in the prime of my earning career because I have a special skill or special talent, for somebody else to force me to sign a moratorium that says no, you can’t go out and get a single dollar — any profit that’s made on this will go back to the university, will go back to the NCAA — I don’t understand why everybody’s not up in arms on this,” Walker said.
In 2018, the NCAA’s Commission on College Basketball punted the issue by deferring to the courts on whether players should be allowed to profit off their names, images, and likenesses. The courts haven’t barred the NCAA from moving on the issue itself, though. So rather than wait on the NCAA, Walker says it’s on someone else to act.
Major football and men’s basketball players would likely be first to profit from their images under a new system. But Walker says his push is as much for the other 99 percent of athletes who, as the NCAA loves to say, will go pro in something other than sports. Like the hypothetical he gave about a backup quarterback at Elon, an FCS school in his district:
“If he wants to go back to his hometown and sign autographs at the car dealership for half a day on a Saturday and pick up a couple hundred dollars, he oughta be able to do that,” Walker said, adding that he’s OK with schools restricting players from wearing their uniforms and explicitly representing a university at such an event.
Walker told Sports Illustrated he would like to see the NCAA’s rules changed without a new law. He said he opted for a tax code amendment because he felt it was the best way to streamline the effort. Introducing the bill in Congress with a Democratic cosponsor, Louisiana’s Cedric Richmond, gave the effort some bipartisan legitimacy.
In the other chamber, Senator Chris Murphy of Connecticut, a Democrat, released a report in March that criticized the NCAA’s model as unfair. He plans to release more reporting that will “consider a range of problems with college athletics.” In a statement to SB Nation, he left open the possibility of drafting legislation:
I see the injustice in the system but I’m not enough of an expert on this yet to know the right solution. What’s offensive to me is the NCAA hasn’t even tried to figure out how to compensate players. They’ve sat in my office and told me that it’s impossible to figure out who to pay and how much to pay them. I don’t buy that. I’d like to keep the pressure on them first, and if the NCAA doesn’t act, I will consider introducing legislation.
Some of these bills have better chances than others — Stokesbary’s in Washington is basically on life support at the moment, for example — but it’s clear legislators across the country are on the hunt.
Another approach would force schools themselves to pay players. That’s found its way into a Democratic presidential candidate’s platform.
Andrew Yang, a New York businessman running for the 2020 Democratic nomination, wants some schools to pay. In doing so, he’s focusing on the competitive reality that’s clearest in football: only a small subsection of a section of Power 5 teams can actually win a title.
Yang’s idea calls for a handful of players at upper-tier Power 5 schools to be entitled to a salary from a taxable organization.
Currently, athletic departments are almost universally classified as 501(c) organizations, nonprofits that don’t pay income tax. Yang wants these schools to create separate, taxable organizations, funded by things like broadcast fees, to pay salaried athletes.
While Walker’s bill goes through the tax code, Yang says he would threaten schools’ bottom lines another way: with federal funding and Pell Grant allocations.
“That’s not my first move,” Yang told SB Nation. “but we have to get things done.”
He said the NCAA is “in some ways a very, very stark example” of a broader issue.
“Why has college gotten two and half times more expensive in the last 30 years and has not changed in quality?” Yang said. “Some of that at the public education level, some of these kids are getting less support, but a lot of it is the price tag has gone up because they’ve become administratively bloated.”
Would a plan like Yang’s ruin competitive balance? Well, as it stands now, there’s at least a $30 million difference in annual TV payouts between a typical Power 5 school and anybody else. The power conferences spend much more on those coaches and facilities, and they already dominate both on the field and recruiting trail. National title contention is limited to around 15 teams per year, about half of the amount Yang envisions paying players.
It doesn’t take an economics degree or a deep understanding of the NCAA to see the disparity between college sports’ haves and have-nots. Division I is already split in multiple ways, including the Power 5 leagues having authority to craft their own rules.
Yang hasn’t spoken with the NCAA and is a long way from having sway over it. He says his “first approach is to just sit down with people.”
“We can try and own up to the reality of what’s going on in these institutions in a way that does not hurt you and actually makes things better,” Yang said. “And then if that doesn’t work, then we’d have to look at what the regulatory mechanism is.”
The NCAA has little incentive to change until forced.
“The NCAA’s a very powerful organization. I don’t expect them just to roll over on this,” Walker said.
After Walker dropped his bill in Congress, the NCAA released a statement that called the bill “unnecessary” but didn’t explain its problems in detail:
This bill is unnecessary and may benefit only a small number of student-athletes and cause unintended consequences and negatively impact opportunities for all other college athletes. This is critical to keep in mind because the NCAA offers a unique model that creates opportunities for academic and athletic achievement to nearly 500,000 student-athletes across 24 sports each year.
The NCAA is a 501(c)(3) tax-exempt organization that supports other exempt organizations by providing almost a billion dollars annually to the higher education community through payments and programming. As such, NCAA member-made rules are essential to preserving college sports in the United States, which are separate and distinct from professional sports.
The NCAA’s general counsel and the managing partner of its lobbying firm also met with Walker, per Sports Illustrated.
When politics motivate the NCAA to change, it can move quickly. Walker’s seen it firsthand. In 2017, the NCAA pulled seven championship events from his state, North Carolina, in response to a bill that restricted transgender people. The events returned when lawmakers put a partial repeal measure in place.
The NCAA has not been motivated enough to make wholesale changes on player pay. It has spent significant money lobbying against congressional action. Universities have spent far more on their own influence operations, in-state and federal.
To change the NCAA, you have to do more than work on the NCAA itself. You have to work on the schools that comprise it.
Stokesbary thought the opposition would come from the NCAA itself. In a roundabout way, it did.
“The NCAA never showed up to talk to anybody [in Washington state], as far as I know, but the universities did,” he said. “People were willing to give the universities the benefit of the doubt.”
Dealing with the NCAA means more than dealing with president Mark Emmert or a group of lobbyists.
The NCAA is not just the central building in Indianapolis.
And it tends to be one or the other, depending on what best suits the situation. In practice, that means its 1,200 schools, who are much more popular than the NCAA itself, can act on the organization’s behalf.
“The institutions came in and sort of insisted that they weren’t opposed to it per se, but they went from having some legitimate issues with the original draft to sort of resorting to scare tactics when each iterative draft fixed the issue,” Stokesbary said.
Schools have persuaded lawmakers in Washington state that this bill could lead to the Washington Huskies and Washington State Cougars getting kicked out of the NCAA. Representatives from UW, WSU, Gonzaga, and Whitman College were vocal in their opposition, despite the bill saying changes wouldn’t take effect unless states representing 15 percent of the U.S. population put similar laws on the books as well.
But universities have so far been unable to stop California’s bill. At a hearing, Democratic state senator Richard Pan asked a school representative what reservations the schools might have.
“Don’t tell me, ‘NCAA rules are making us do something.’ That’s a separate conversation. I got that,” Pan said.
The school rep’s only response was to ask for clarification on what “compensation” meant in the bill. Then the bill passed its committee vote, 7-0, with five Democrats and two Republicans.
Different political bases feel differently about the issue, but the gap might be narrow enough to build some consensus.
According to a 2017 poll from the Washington Post and University of Massachusetts Lowell, about 62 percent of Republicans thought scholarships were enough compensation for athletes, compared to about 51 percent of Democrats.
It begs a question. If Republicans consider themselves the party of free markets, shouldn’t they support this free market?
“I don’t believe it’s the right of the government to come and start telling non-profit or for-profit groups how to run a business,” Walker said. “What we are in the business of is standing up for the rights of those who are being infringed.”
“Our worldview is if two people want to do something, they should be allowed to do that, and the government shouldn’t get in the way of that,” Stokesbary said. “So in this case, if Nike and Zion Williamson want to cut a deal with each other and they both benefit from it and it doesn’t hurt anybody else, why should that be stopped?”
Republican lawmakers have found it helpful to explain the issue to their bases in those terms.
“At first we’d get a little bit of pushback, but that shouldn’t stop you from doing what you feel like is the right thing,” Walker said.
“People say, ‘Yeah, well, these athletes shouldn’t be paid. They’re already getting a scholarship.’ Once you have a chance to begin to break it down, we’re not asking the college or university to pay. We’re just asking that these athletes — these adults — have the same rights as you do to be able to use their skills and talents and likeness to be able earn a living, whether they’re in college or not.”
It could be years before legislative change comes. But there’s a reason these efforts have more momentum now than ever.
Stokesbary says a three- to five-year timeline for legislative change is reasonable. He considers it progress to have a few states with legislation on the table and another bill in Congress. Walker sees what is happening now as “foundational change.”
But proposals and a platform on a website aren’t helping an athlete whose family sure could use some money to help pay a mortgage right now.
“It’s tough,” Stokesbary said. “Athletes have been dealing with this for a lot longer than I’ve been in the legislature. And I’m doing everything I can with my small platform to try and bring about a more fair solution as quickly as possible. It’s hard. It’s a terrible system.”
For college athletes, a new day is closer than ever, as more people with power join the fight. But politicians have tried before and failed.
The crux of the whole effort is public pressure.
The NCAA is increasingly losing the public, and that makes it vulnerable, inviting attention to anti-NCAA lawsuits and tipping off legislators that now is the time to strike. Perhaps some day, it could even cause the NCAA to change its rules without being ordered.
“I think,” Walker said, “this is kinda the pivotal point, as far as saying, ‘You can’t do business this way any more.’”
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