SAN ANTONIO – The future of the university model has never been more uncertain.
So the leaders of college sports decided to be clearer than ever about what they wanted, and what measures they believed were necessary to preserve college sports as we know it. For them, the solution lies in Congress. Yes, the same Congress in which the House required 15 painstaking votes to elect a president.
Nobody ever said it would be easy to work with Congress. But it might be the only way forward, depending Baylor President Linda Livingston, who chairs the NCAA Board of Governors, the organization’s highest governing body. Livingston spent a significant amount of time at the NCAA’s annual conference on Thursday detailing the need for Congress’ help as the association faces countless attacks from outside entities. Multiple lawsuits aimed at the economic structure of college athletics are making their way through the courts in a legal environment that seems more supportive of athletes’ rights than ever. The National Labor Relations Board is pursuing an unfair labor practice case against it USCand the Pac-12 and the NCAA trying to classify athletes as employees.
Livingston has repeatedly said that the NCAA needs Congress to protect the classification of athletes so that they are not classified as employees.
“We feel there is a great sense of urgency,” Livingston said. “It’s related in some ways to some of the potential state laws that are out there that state legislators are looking at. It’s about some of the things that could come out of some of the federal agencies. So, we absolutely think it’s urgent and necessary and it’s something we really need to build on and make progress on. This legislative session.
She described the threat to the NCAA as “imminent”.
“Several states are now considering legislation that would force a significant change in the relationship between a school and its students,” Livingston said. Congress is the only entity that can affirm the unique status of student-athletes. We have to make sure Congress understands what’s at stake and motivates them to act. Second, we need a safe haven for a certain degree of antitrust complaints. We’re not looking for, and we don’t really need, a broad antitrust exemption; We need the ability to make common sense rules without unlimited threats of litigation.”
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Livingston’s blunt and blunt message came on the same day that new NCAA President Charlie Baker, the former governor of Massachusetts, was introduced to NCAA membership. His political background and history of bipartisan success were strong selling points in the hiring process.
It is clear that Baker would spend much of his time in Washington, D.C., seeking assistance in areas that Livingston had identified. It will also rely on athletic directors and conference officials who have relationships with their elected representatives. They will ask these elected representatives to make the leap—even if it comes in the form of narrow legislation—to preserve the ideals that some believe underpin college sports. They’ll tug at their heartstrings, talking about the camaraderie on campus. Simply put, they will ask for help.
“The challenges associated with transitioning any piece of legislation are always significant,” Baker said. “I do think, however, that there are serious issues associated with just letting this train run without doing something to deal with the consequences that college sports are currently facing. There are 1,100 universities and colleges in the United States that are heavily involved in college athletics, and I think a lot of them were really concerned. Most of these schools have really strong relationships with a lot of people who serve in elected office.
“People who are leaders in a lot of those organizations and alumni of a lot of those organizations that target are going to, frankly and directly, take their own way through the officials about why this is a tough time if they don’t do some things to create a framework that they can work around in the future.
Livingston’s argument (and the NCAA’s) is that federal law is necessary to pre-empt the patchwork of state laws that currently exist regarding athlete compensation in the name, image, and likeness (NIL) space. The problem, she said, is that state legislators will do whatever it takes to gain a competitive advantage over schools in neighboring states, which is “unsustainable and devastating for everyone.”
“We need a clear, fair, and stable federal legal framework for student-athletes across the country so they can take advantage of legitimate NIL opportunities,” Livingston said. We need to formalize federal laws that replace state-level legislation. Educating Congress about the issues and motivating them to take action on these critical priorities will be a central activity for NCAA in 2023. My biggest fear is that people will not understand the gravity of the threats we face until we live with the consequences. “
The NCAA has operated from a place of fear for most of the past 18 months, since the US Supreme Court ruled unanimously against the NCAA in Alston , which centered on the NCAA’s ability to reduce education-related expenditures. A scathing favorable opinion written by Judge Brett Kavanaugh appears to welcome future challenges to the economic model of college sports.
The idea of turning college athletes into staff, Livingston said, is “deeply misguided” and would have “a sprawling, overlapping and potentially catastrophic effect on college sports at large.” When asked later if there was a way schools or conferences could put more money directly into the pockets of athletes or perhaps even bargain with them en masse without designating them as employees, Livingston said she and other leaders are working to find an answer.
“We have to try to figure out what kind of economic model it 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 challenging for us without some protection.”
Other NCAA conference attendees were far less confident that Congress would turn around to save the day and preserve the student-athlete idea. It hasn’t happened yet, but the walls seem to be approaching the model as they are currently built – which could, in theory, prompt action.
“The fact that something is likable doesn’t make it permanent,” said Livingston. “This is very much the case with college sports. For all those involved in college sports right now, we face challenges that are bigger, more complex, and more pressing than at any time in a generation, and perhaps at any time in the history of college sports.”
“We face a choice at this moment in time. Either we oversee the modernization of college sports ourselves, or others modernize and transform it for us.”
(Photo: Ezra Shaw/Getty Images)