Brad Wolverton of the Chronicle of Higher Education has an article on the alternative solutions college athletics is looking at to get the NCAA and its members out from under the parade of lawsuits which is currently engulfing the association. One of the those is the possibility of lobbying Congress for an antitrust exemption:
One way for the NCAA to protect itself, Mr. Schulz said, is to lobby for new federal regulations that would help define a student-athlete and give colleges more latitude in limiting spending. The NCAA and the Big 12 Conference, of which Kansas State is a member, have recently hired lobbying firms to work on issues related to student welfare.
“Legislation might be the only way we don’t bleed ourselves to death over the next 20 years,” said Mr. Schulz, a member of the Division I board and of the committee shaping the NCAA governance changes. “This is not ‘win one and it goes away.’”
The problem for the NCAA is that it may be “lose one and you go away”. And that one may happen before the NCAA and its leaders get serious about working with Congress.
The recent Congressional hearings on college athletics may not have accomplished much but they do show that Congress is not happy with the NCAA. It seems unfathomable that Congress would write a blank check to the NCAA in the form of an antitrust and labor law exemption. Congress will attempt to extract a tough bargain from the NCAA in exchange for such a valuable get-out-of-jail free card.
There is no indication that the NCAA, conferences, or college presidents have given any thought whatsoever to what they would be willing to accept from Congress. Obviously there are things which the NCAA seems poised to do already like raise athletic scholarships to the cost of attendance, require rather than merely allow four- or five-year scholarships and provide athletes with greater representation in the NCAA governance structure. But what if that is not enough?
What if Congress demands sweeping federal oversight of the NCAA? What if the power conferences need to dismantle the College Football Playoff and bowl system to get legislators from mid-major states and districts on board? What if the NCAA is not allowed granted an antitrust exemption to limit spending but instead those spending limits are imposed by the Department of Education? What if NCAA enforcement has to be reformed according to the government’s wishes, not the power conferences?
Everything points to college athletics officials having either never considered these questions or not gotten past a reflexive “no” at the thought of increased federal regulation. Until the NCAA and its members are ready to answer those questions and give ground on some of them, discussion of an antitrust exemption is wishful thinking at best.
Compounding the NCAA’s problem is that the window for getting such help from Congress could be closing any day now. The process of reauthorizing the Higher Education Act is now underway in earnest. That would be by far the best vehicle for granting the NCAA its desired antitrust exemption as well as imposing Congress’s reforms on the association and universities.
In Oakland, a ruling on the O’Bannon case could come as soon as next month. If the NCAA loses and the judgment is not stayed pending appeal, the NCAA would no longer be fighting to preserve its model. It would be fighting for a return to that model. Proposed reforms that sound like unqualified wins for athletes right now would have to be weighed against the possibility of taking real cash or commercial opportunities away from athletes.
If it were a year or even better two years ago, the NCAA would be on track. There would be time to define what type of deal the NCAA was looking for, what was on or off the table, and build support for the NCAA’s position in Congress. Instead the NCAA might have a matter of weeks to do so before such a lifeline becomes politically infeasible. And so far there is no evidence they can get up to speed that quickly.