Congressional Attention is a Lifeline, Not a Threat for NCAA
Rep. Charlie Dent’s (R-PA) possible bill to remake NCAA enforcement is unlikely to go anywhere. Not for any legal reasons, the NCAA is not really in a position to fight anything but a clearly unconstitutional bill (more on that in a second). Rather, the combination of “recent Congressional history” as Brad Wolverton puts it and what typically happens when a Congressperson opens their mouth about the NCAA means this is likely either grandstanding or will never make it out of committee much less to President Obama’s desk for a signature.
But a bill might go somewhere if it had the support of the NCAA. Like I said above, the NCAA would be on very thin ice fighting this type of legislation. The association already enjoys virtual immunity from most state regulation through NCAA v. Miller, a 9th Circuit decision that arose from the aftermath an equally important case for the NCAA, NCAA v. Tarkanian. It would take incredible cheek for the NCAA to argue that it cannot be regulated by any state (except maybe Indiana) and the federal government. The last time that argument was successful, it was used to stop child labor laws and the minimum wage.
So if the NCAA is not in a position to fight, the best move is to play ball with Congress. Rep. Dent and any other supporters want to remake the NCAA’s enforcement process. The NCAA already has to do that. The association might as well get involved as early as possible to craft federal oversight into something the NCAA and its members can live with.
But more importantly, this is an opportunity for the NCAA to get out of the O’Bannon case without long-term damage. In exchange for submitting to greater federal regulation and beefing up due process for athletes, coaches, and institutions, the NCAA could ask for an antitrust exemption that is much clearer and stronger than the one they enjoy from the Board of Regents case. The NCAA might have to give some additional ground, like full cost-of-attendance scholarships, looser rules on athletes’ relationships with agents, and maybe some sort of limited outside income model. It would be like negotiating a settlement in the O’Bannon case, but without those pesky plaintiffs.
If the NCAA got any sort of concession from Congress that gets them off the hook in the O’Bannon case combined with regulation that they find manageable, there is no downside. Even if the enhanced due process and oversight prevent the enforcement staff from catching and prosecuting cheaters, how is that different from current public perception? At least now it would no longer be only the NCAA’s fault, as the federal government is an equally popular whipping boy. In a best case scenario, the NCAA’s economic model is not significantly impacted and enforcement gets stronger, if federal oversight comes with it tools like subpoena power.
The NCAA’s lobbyists, lawyers, and executives should be racing to Rep. Dent’s office before a class certification decision is made in the O’Bannon case. The longer the NCAA waits to get involved with the concept of more federal regulation, the harder the bargain Congress might drive and the worse it looks from a public relations standpoint. Better to be seen as willing to work with Congress to fix enforcement, with the side benefit of disarming the second biggest threat (after concussions) aimed at college sports.