Whenever Congress decides to take an interest in college athletics, the response ranges from “Oh no” to “Here we go again”. The recent history of interactions between Congress and college athletics is mostly composed of a series of grandstanding hearings that never produce a bill much less a law.
So even I could not contain the snark when news broke Friday that the House Education and Workforce Committee would hold a hearing entitled “Big Labor on College Campuses: Examining the Consequences of Unionizing Student Athletes”. The chairman of the committee made no bones about the point of the hearing:
“The NLRB’s decision represents a radical departure from longstanding labor policies,” committee chairman John Kline (R-Minn.) said in the release. “Classifying student athletes as employees threatens to fundamentally alter college sports, as well as reduce education access and opportunity. The committee has a responsibility to thoroughly examine how the NLRB’s decision will affect students and their ability to receive a quality education.”
This is certainly good news for the NCAA, who gained political allies the second unions became part of the debate. Others might roll their eyes at members of Congress siding with the NCAA or getting involved at all.
After many false starts though, this might finally be the time for Congress to do something with college athletics. This hearing might be different from others because the pending reauthorization of the Higher Education Act of 1965 offers a vehicle for increased federal regulation of the NCAA. Aside from the rare opportunity, Congress almost has to get involved to solve the issues facing college athletics.
The vision of college athletics pushed by many of the reform groups are not tenable long term. Unions will never be on every power conference campus. Some states will never vote to allow college athletes to unionize at public institutions. Every indication about the vote at Northwestern indicates that establishing unions even at private colleges will be a long process of two steps forward, one step back.
The antitrust cases seek to eliminate rules limiting what institutions can pay athletes or establish systems for paying athletes based on television revenue. But coaches and athletic directors are still worried about what their competitors might send to a prospect in the mail. The odds of them accepting a system where everyone can pay athletes whatever they want or one where one conference can pay athletes even a dollar more than another is unlikely. Unions would solve this problem with the labor antitrust exemption, but again will not exist across the board at power conference schools. The two reform pushes create a roadblock where unions are needed to get around the antitrust problems but antitrust hinders getting around the union problems.
Congress is the one body that can gather up these and other competing interests and sort out a compromise between them all. Congress could do things like:
- Require institutions to cover all injury costs;
- Require institutions to offer scholarships through graduation;
- Require some or all institutions to provide cost-of-attendance scholarships;
- Increase due process protections for athletes, coaches, and institutions;
- Eliminate rules which prohibit outside compensation;
- Prevent institutions from dropping sports;
- Provide the NCAA with an antitrust exemption;
- Make it clear that athletes are not employees;
- Provide the NCAA with additional investigative powers; and
- Change the tax status of college athletics in order to pay for all this.
Congress could do any or all of these in two ways. Some of these requirements would be attached to federal student aid. Amendments to the Higher Education Act would prohibit institutions from being part of an athletics association which has certain rules or simply requires institutions to provide certain things. The NCAA would then be forced to change rules to allow for what Congress has required. The rest would have to be part of separate legislation directed at the NCAA itself, especially the antitrust exemption and tax law changes.
Everyone gets something out of this. All or most athletes get additional protections from big medical bills or their scholarship getting cut. Major cuts to nonrevenue sports would be prohibited. Star athletes would get cost-of-attendance scholarships and freedom to profit off their likeness. The NCAA would get saved from the current set of lawsuits at the cost of paying some taxes and beefing up protections for athletes, coaches, and schools in infractions cases.
That assumes what comes out of Congress would be a compromise between the NCAA and groups putting pressure on the association. Congress obviously wields the biggest stick in this debate though, and could go other directions. But some amount of fear or confidence comes from the likelihood that Congress will do nothing at all.