The Senate Commerce Committee conducted a hearing on Wednesday regarding the bipartisan bill known as the “Protect College Sports Act.” Throughout the course of the day, I watched the entire thing. (I could have used some of that Cuban coffee Senator Ted Cruz (R-Texas) referred to in his opening remarks.)
I took some notes. Only a few, because there weren’t many surprises. The NCAA and its member institutions, after decades of antitrust violations for which there finally has been a reckoning, wants a governmental bailout in the form of a license to break the law without fear of accountability. And those who are pushing for a way to get Congress to cure the chaos of the past five years will say whatever they need to say in order to get what they want.
Here are five things that caught my attention.
First, unlike most committee hearings in the Senate or the House in recent years, there was none of the predictable performative nonsense, from either side of the aisle. No squabbles. No arguments. No grandstanding for an audience of one. Which is encouraging for the republic, but discouraging for anyone who was hoping that someone would say what needs to be said — that this supposed problem does not require a Congressional solution.
Second, the devil always lurks in the details of any proposed legislation. Senator Lisa Blunt Rochester (D-Del.) made an excellent point during her allotted time. The proposed legislation contains a provision that allows the prevailing party in any litigation pursued under the Protect College Sports Act to recover attorneys’ fees and litigation expenses.
That’s a common device employed in situations where the government hopes to use civil litigation as a way to enhance the available resources that would police and enforce the law. In lieu of adding to the workload of lawyers employed by taxpayers, an individual can hire a private lawyer and fight any violations, knowing that the lawyer eventually will be compensated for their time from the entity that has violated the law.
There’s an important catch in the Protect College Sports Act. The fee-shifting provision swings both ways. If a student-athlete sues and loses, the student-athlete would have to pay the attorneys’ fees and litigation expenses of the university or the conference that allegedly violated the law. That will cause many potential plaintiffs to punt on potential lawsuits, for fear of owing tens if not hundreds of thousands of dollars if they lose in court.
The obvious goal of this provision is to prevent lawsuits, even when potential violations occur. Given the legislative threat that, if you guess wrong, you’ll end up with a significant debt, only the most clear and egregious violations will result in the filing of a civil action.
Third, the issue of agents came up multiple times during the hearing. Obviously, they need to be regulated — as former Michigan State, LSU, Miami Dolphins, and Alabama coach Nick Saban mentioned multiple times. He referred to the fact that agents representing NFL players are duly licensed, but that agents representing college players have no such requirement.
Saban didn’t take the point as far as he could have, possibly on purpose. Agents representing NFL players are licensed and regulated by the NFL Players Association, as part of the federal labor laws. If the various NCAA institutions were to embrace a global, unionized workforce (as the NFL has), the union would have the power to do for college agents what the NFLPA does for pro agents: Impose licensing requirements, active oversight, and cap fees.
Fourth, Saban referred to the fact that the NFL has a Commissioner with the power to create universal rules. Again, Saban deftly avoided embracing the whole truth. The NFL’s Commissioner has the power to impose rules as a result of collective bargaining with the players. Absent a union, all rules imposed by the NFL’s 32 teams on the broader workforce would amount to the same kind of antitrust violations that were rampant in college sports, before the reckoning finally arrived.
On that same point, one of the senators claimed that only Congress can fix this problem. That’s not true. A nationwide union would give the colleges exactly what they want: An antitrust exemption that would allow for the creation of rules regarding transfers, limits on player pay, and everything else they want from Congress without having to deal with the players being backed up by the power of a union.
Finally, there continues to be significant handwringing about the impact of paying players in the high-revenue sports on the low-revenue sports. But no one ever takes a step back and asks the obvious question.
Why should the efforts of the players in the sports that make money subsidize the sports that don’t?
Sure, it’s nice to have Olympic sports that become the de facto training ground for those who will eventually pursue gold medals every four years. But why should college football and college basketball players fund those efforts through their far more marketable skills?
It’s for the colleges to figure out a way to finance sports that don’t pay for themselves. Picking the pockets of the profitable programs isn’t the fair and just way to do it.
It remains to be seen where it goes from here. The SEC and the Big Ten have made it clear that they oppose the current bill as written. That won’t stop those who hope to turn the clock back to the days before the reckoning to keep asking for something that will, at its core, strip away much of the gains that have been realized by the college athletes who play the sports that make real money.
That’s the real problem. The folks in charge don’t like the fact that those who previously got nothing are getting plenty. And they’ve been trying to create a false crisis in order to change the laws. The American way is, or should be, to find a way to do business in compliance with the laws that everyone else is expected to respect.
Except when, that is, the American way is to run to Uncle Sam and ask to be bailed out of a problem that the party seeking a Congressional gift created.
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