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Drake Group Proposes Sweeping Federal Regulation of NCAA

If the Drake Group, one of a few groups who push for NCAA reform from the academic side, has its way, the federal government could become heavily involved in the regulation of the association. The group is drafting a wide-ranging law which would transform college athletics, possibly more so than even a complete victory by the O’Bannon plaintiffs would. Some highlights of the law include:

  • Give the NCAA an statutory antitrust exemption that covers more topics than its current judicial exemption. Would essentially reverse the Board of Regents case.
  • Restructure the Executive Committee to include equal representation of all divisions and subdivisions, and include more types of individuals but with a heavy presidential influence.
  • Empower that committee with the sole authority to make changes to many NCAA bylaws including those covering personnel, financial aid, and playing and practice seasons, as well as other spending related rules.
  • Increase due process protections to something approaching a criminal trial including outside investigators and judges as well are the right to cross-examine witnesses.
  • Bring the College Football Playoff under NCAA control and redistribute NCAA revenues more toward academic and student-athlete initiatives rather than simply distributing money to institutions’ general funds.
  • Cap salaries for head coaches and top administrators at two times what the highest paid professors in the country make.
  • Enshrine into federal law academic eligibility rules, multiyear scholarships, faculty control, and controls on subsidies of athletic departments.

Also notable is what is not in the proposed law, namely any pay-for-play scheme. Some minor NCAA likeness rules would be relaxed, but athletes would not be paid salaries, would not be paid for the use of their likeness, and would still be prohibited from profiting off their athletic skill and reputation.

Anyone can write a proposal for federal regulation of college athletics, but a couple of events are conspiring to give this proposal a fighting chance. First is that this would not be its own law, but an amendment to the Higher Education Act of 1965, which much be reauthorized next year. Despite the sweeping changes, it would still be a relatively minor part of the bill. College athletics may seem like big business but it is dwarfed by the Pell Grant program alone, which handed out grants of $33.4 billion in 2011–12, not to mention the $100 billion student loan market.

Second is that while Congress’s response to NCAA scandal has mostly been to grandstand, some legislators are prepared to actually start introducing legislation. Two members of the House of Representatives have already put forth a bill which would cover some of the same student-athlete health and due process protections that the Drake Group’s proposal covers. Existing support for more federal regulation of the NCAA plus the ability to attach the bill as a rider to a much larger piece of legislation greatly increases the chances of something getting done.

That said, there are huge obstacles to overcome. This round of reauthorization is set to be a major battle given President Obama’s push for major changes in how federal financial aid is awarded. With fights over accountability measures and tuition controls on colleges on the horizon, fanning those flames by including something people feel passionately about like college sports may not be wise. The fact that the NCAA and college athletics are minnows compared to the larger business of higher education makes it easier to slip an amendment in, but also easier to jettison the same amendment if it becomes too controversial.

It is also unlikely that the NCAA could ever become a supporter of this bill. With the NCAA Accountability Act, the changes are small enough that the NCAA could engage in a bit of horse trading: throw in an antitrust exemption that gets us out of the O’Bannon case and we’ll submit to the due process enhancements. This bill is just too large and has too many impacts to get the association or a sizable portion of member institutions behind it even after some concessions. The only way that would happen would be if support for the proposal picked up so much steam that it looked like an inevitability and the NCAA decided getting anything out of the bargain (say applying the antitrust exemption to ongoing litigation) was better than getting nothing and seeing the law passed anyway.

Just like arguments against scholastic sports, this is another illustration that the NCAA is not one side of an argument and play-for-play advocates are the other. The NCAA is in the middle, fighting on two fronts against pay-for-play advocates on the one hand and academic reformers on the other. The biggest impact of a potential federal law that would conclusively end the pay-for-play debate could be to finally have the pay-for-play crowd engage directly with faculty groups that want less commercialism and smaller athletic programs. What that means for the NCAA is a debate for another time.

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