New NIL bill in U.S. Senate is latest threat to NCAA cartel

People who complain about politics in sports as something new tend not to notice that it’s always been that way because the politics usually have favored their point of view. The politics of sports, like politics in general, benefit the interests of powerful people and institutions. Team owners and college sports leaders almost always get what they ask for from political leaders.

That’s disheartening for people who believe politics, in sports and elsewhere, should protect the interests of the less powerful. But now there’s hope that the change in Washington leadership will lead to fundamental reform of the NCAA model that allows schools to deny athletes their basic economic rights.

U.S. Sen. Chris Murphy (D-Conn.) and Rep. Lori Trahan (D-Mass.) introduced the College Athlete Economic Freedom Act on Thursday. If passed, the legislation would give college athletes the same rights as other citizens to profit from their name, image, and likeness (NIL). The bill includes several provisions that would prohibit college sports leaders from interfering with those NIL rights.

“Big-time college athletics look no different than professional leagues, and it’s time for us to stop denying the right of college athletes to make money off their talents,” Murphy said in a news release. “If predominantly white coaches and NCAA executives can have unfettered endorsement deals, why shouldn’t predominantly (Black) athletes be afforded the same opportunity? ...

“(Athletes) own their brand, not their school or the NCAA. Giving students a right to make money off endorsements is just one part of a much broader package of reforms that need to be made to college athletics, but it’s a good start.”

There’s a long way to go before Murphy and Trahan’s NIL legislation and other proposed NCAA reforms become law. Lawmakers, the executive branch and the courts have been sympathetic to business and hostile to labor. But there are reasons to believe there can be real change this time.

College sports made a great case for change when its unbridled greed wasn’t curtailed by the pandemic.

In April, I figured college sports wouldn’t risk undermining its “amateur” model by having athletes on campuses while students weren’t. It’s been difficult for NCAA member schools to maintain the fiction that athletes aren’t employees. It becomes harder when they are working during a pandemic while non-athlete students stay away.

That’s why I reasoned that colleges and universities would forego a season of football and basketball revenue to protect the system. What was I thinking? Of course big-time college football and basketball kept going. Of course school presidents and athletic directors tried to collect as much sports revenue as possible on the backs of athletes even if that meant hurting their primary defense of the NCAA scheme.

Maybe college sports leaders have gotten away with it for so long they figured nothing would change even if they made it obvious athletes are workers. If so, they should have paid closer attention to the changing political reality.

Democrats now control the executive branch and both chambers of Congress. Their ranks include corporate-friendly politicians, so it doesn’t necessarily follow that there will be fundamental changes to the college sports model. But it’s a problem for the NCAA that its critics now include Washington lawmakers who can gather the votes needed to pass legislation.

Murphy has long been an advocate for the economic rights of college athletes. He’s a member of Senate’s Health, Education, Labor and Pensions Committee. Trahan is on the House Committee on Energy and Commerce. She played volleyball at Georgetown.

In a recent Yahoo Sports op-ed, Murphy wrote that college programs putting their athletes at risk during the pandemic reinforced his view that they are workers who deserve full labor rights:

“(I)t became clear as day that the only thing separating professional sports from college sports is that one group of predominantly (Black) players gets paid handsomely to risk their health while the other group of predominantly (Black) players gets paid nothing — with all the profits going to almost exclusively white millionaire coaches, athletic directors and sports-industry leaders.”

That’s been true for a long time. Once college sports revenues exploded, even casual observers started to notice that athletes are the only people in the system who can’t profit from the enormous revenues they generate. Playing games during a pandemic made it even more obvious that athletes are unpaid employees.

And now the new Congress is set to act.

In addition to Murphy and Trahan’s bill, Sen. Cory Booker (D-N.J.) plans to reintroduce his College Athletes Bill of Rights. It would grant athletes full NIL rights as well as 50% of the profits from revenue-generating sports. The bill also would set health and safety standards and prevent schools from restricting player transfers.

Related to the NCAA’s political problem: Public opinion is shifting in favor of expanded economic rights for athletes. The politicians are pursuing policies that enjoy popular support.

A national survey by Ohio State researchers in November found that 51 percent of American adults agreed with the statement: “College athletes should be allowed to be paid, as athletes, more than it costs to go to school.” According to an Associated Press-NORC Center for Public Affairs Research poll conducted last year, 66 percent of adults believe college athletes should be allowed to receive NIL compensation, and 52 percent said they should get a cut of media rights revenues for football and basketball.

Those are the changes college sports leaders are desperate to prevent. The NCAA has tried to stem the tide of change with incremental reforms, but will resist any effort to classify athletes as employees. Remember, the genesis for the NCAA’s adoption of the term “student-athlete” was its desire avoid paying workers’ compensation. There’s also the NCAA’s more recent claim that it has no “legal duty to protect” the health of players.

The NCAA adopted NIL legislation last year that’s since been put on hold. But the “guardrails” included in those plans would severely limit the NIL market for athletes. The NCAA also asked Congress for an antitrust exemption and to preempt state laws that provide athletes more NIL rights than any federal rules. The NCAA and Power 5 conferences spent more than $2 million on congressional lobbying last year, according to the AP.

Those efforts paid off last month when Sen. Roger Wicker (R-Miss.) introduced an NCAA-friendly bill that included antitrust protection from lawsuits. But Wicker no longer is chair of the Senate Commerce Committee. Now Sen. Maria Cantwell (D-Wash.) runs the committee that includes 14 Democrats and 12 Republicans.

Democrats won control of the Senate last month when Raphael Warnock and Jon Ossoff prevailed in the Georgia special election. Here’s hoping elections have consequences for the college sports cartel.