Puzzle Pieces, Pt. 1
Making sense of what's happening with college sports on Capitol Hill.
Puzzle Pieces, Pt. 1
There’s a lot going on with college sports on Capitol Hill. Let’s skip the throat clearing and get right to it.
I think the best way to break it down is for me to explain what I’ve recently reported, when I’ve reported it and how, to the extent I can while honoring agreements with the couple dozen people I’ve spoken with in the past two days. Peeling back the curtain on The Process can feel self indulgent/congratulatory. But in some cases — like this one, I hope — I believe it can also lead to a deeper understanding of a nuanced story. Here goes, then:
On Sunday, I obtained two legislation drafts that had been bouncing around Congressional offices since last week. I realize that writing “obtained” can make it sound like I met someone in a parking garage, which I did not. But by assigning the action to myself, I can better protect the person who leaked the documents to me, who was not supposed to but did because they wanted to help me report as accurately as possible. On the best days in this job, that’s how the game plays out.
The first document was a 16-page draft for a bill from Republicans in the Energy and Commerce committee in the House. The second was a six-page draft from Republicans in the House’s Judiciary committee. On page 12 of the first document, there was spot that said *hold for Judiciary text*. The idea, then, was for the six-page draft to eventually be inserted into the middle of the 16-page draft, amounting to a combo’d bill from the Energy and Commerce and Judiciary committees.
On Monday, I wrote about these drafts for The Washington Post, describing a bill that would be as NCAA-friendly as it could get. The bill would check off the NCAA’s wishlist for Congress in recent years (and then some):
broad antitrust protection that is also extremely specific to the House settlement that was approved last Friday (this is key and we’ll revisit in a sec)
a prohibition on college athletes being classified as employees
a preemption of state laws that already conflict — or could attempt to override — rules set by the NCAA, its conferences and likely the College Sports Commission, a newly formed governing body to implement the House settlement and enforce new name, image and likeness (NIL) rules
and some other things that have not even been on the main menu of NCAA asks, like the ability to regulate player movement, eligibility and who can represent athletes (with the help of an NCAA-run agent registration process)
The antitrust protections are key here because everyone — and their blissfully-unaware-of-college-sports mothers — is expecting legal challenges to the plan of using the House settlement to wrangle booster spending in the NIL market. Those same people are also predicting lawsuits over the settlement capping how much money schools can pay athletes per year (or in other words, a salary cap that was not established through collective bargaining, which would require college athletes being recognized as employees, which is a whole other newsletter or five).
Skeptics might say that the settlement solved legal challenges to price fixing with … what certainly seems like more price fixing! Okay, that’s exactly what the skeptics are saying, over and over with very blue faces. But the NCAA can avoid all those predicted lawsuits if Congress offers the silver bullet of antitrust protection. And the antitrust protection described in the drafts I OBTAINED — particularly in the six pages written by the Judiciary Committee — is a silver bullet indeed.
Straight from my Monday story (linked again here):
The draft language includes antitrust protection for:
Preventing an associated entity or individual from providing a student-athlete compensation greater than fair market value for NIL agreements. (The House settlement establishes a clearinghouse — run with the help of Deloitte by the College Sports Commission— that will review any NIL deal that exceeds $600, the most overt attempt to limit or eliminate booster spending.)
A school, conference or interstate association setting the maximum amount of money that can be distributed to athletes in a given year. (The House settlement establishes an initial spending cap of $20.5 million for money paid from schools to athletes in 2025-26. That cap is expected to rise throughout the decade-long legal agreement.)
Limiting the eligibility of athletes based on the number of seasons played or years exhausted. (This is not part of the House settlement but would provide the NCAA with protection from a slew of antitrust lawsuits challenging its eligibility rules.)
The draft goes on to outline additional antitrust protection for enforcing transfer rules and an agent registration process. Multiple athlete advocates say they believe the latter could create conflicts of interests if agents must be certified by the same people they are ultimately negotiating with on behalf of the athletes they represent. The NCAA currently has a voluntary registry for NIL agents.
Going to pause real quick for a deep breath for me and you. This stuff can be dense and easy to get lost in. We’re tracking toward the longest newsletter I’ve sent out. I named the post “Puzzle Pieces, Pt. 1” because I plan to write a “Puzzle Pieces, Pt. 2” before the Energy and Commerce committee holds its next college sports hearing this Thursday.
Okay. Back in three … two …
On Tuesday morning, the power conferences all threw their weight behind the draft legislation I had reported on, releasing a statement through Firehouse Strategies, a public affairs firm that runs the conferences’ joint PR in D.C. Then things got a little whacky.
In my Monday story, I reported that the combo bill could include a third House committee: Education and Workforce. And that’s why, late Monday night, right as I was closing my eyes to sleep, I started hearing about a separate house bill that would drop at 9 a.m. EST Tuesday.
As promised, at 9 on the dot, Reps. Lisa McClain (R-Michigan) and Janelle Bynum (D-Oregon) introduced the College SPORTS Act. McClain is a member of the Education and Workforce committee.
That same hour, Brett Guthrie, chair of the Energy and Commerce committee, and Gus Bilirakis, chair of that committee’s subcommittee for commerce, manufacturing and trade, introduced a discussion draft for the SCORE Act (which was what I had reported plus a few additions).
(Let’s quickly acknowledge that the College SPORTS Act takes the name contest over the SCORE Act. You can SCORE a lot of things, a lot of ways. But College SPORTS can’t be anything else, especially when written like that. I may even steal it for emails. Hi, I’m Jesse. I cover college SPORTS can you hear me?!)
Since SPORTS and SCORE are a little too close, we’re going to call them the McClain/Bynum bill and the Guthrie/Bilirakis bill. In the press release for the Guthrie/Bilirakis bill, they confirmed my reporting that three committees, including Education and Workforce, are working together on legislation. The Guthrie/Bilirakis bill still left a blank spot for the antitrust language from the Judiciary, though you, dear reader, now have a good idea of what might say once it’s typed in (explored in detail above). But since I’m not a member of Congress or a Congressional aide, I was confused as to why the bills were separate if the ultimate goal is for the three committees to land legislation together. I also didn’t count every word, but I would estimate about 70 percent of the language was the exact same between the two bills.
By tomorrow or early Thursday morning, at the latest, I hope to have more for you on that question and how the McClain/Bynum bill came about. It’s striking that a Democrat is pushing a bill that bars athlete employment and grants so much power to the NCAA, since those two things — employment or not, absolute NCAA power or not — have mostly split along party lines in public. There are, of course, a ton of dynamics at play, one of which is that Bynum’s son is a Division I football player (three years at Oregon before transferring to Prairie View this spring). If any of this were simple, the NCAA would have gotten its antitrust protection years ago. Or athletes would have unionized years ago. Or there would maybe be like one shred of certainty for what the industry will look like from one day to the next.
But the master plan, as repeated to me by close to a dozen people this week, is for each of the committees to handle a facet of the ultimate bill: Energy and Commerce takes the preemption of state laws and the agent registry; Judiciary takes antitrust protection; and Education and Workforce makes sure athletes don’t become employees. At some point, as one Republican aide put it to me Tuesday, that would mean key parts of the McClain/Bynum “would fold into the rest, like a big mixing bowl.”
Anyway, here’s what to know after all that: There have been more than a dozen hearings on college sports in the past four years, which has included a handful of drafts that went nowhere, which has a lot of people hesitant to take any of this seriously. But I have sensed a much different tone among the sources I trust most on these things, which includes Republican aides, Democratic aides, fans of the NCAA/establishment and those who hope the NCAA never gets a single win in Washington. With three House committees teaming up, and with a lot of the language aligned with what Ted Cruz (R-Texas) has long been selling in the Senate, this is being treated like a substantial, significant effort in the House. If the committees are really on the same page, two could eventually waive jurisdiction, meaning it would only need to go through markup and a vote in one of them — likely the Energy and Commerce committee — before advancing to a House floor vote. And if it advanced past the House floor vote, it would then need 60 supporters to break a filibuster in the Senate.
Is there a guarantee that will happen now? Hell no. It would probably be a stretch to even handicap it is a solid chance. But there’s upped urgency for the NCAA and its most powerful conferences, which will start permitting schools to pay athletes for the first time on July 1. There’s upped urgency for Republicans, who know they have a golden opportunity here, controlling the White House, Senate and House, and would love to deliver a college sports bill for their beloved schools before the midterms could shake up Washington like a snow globe. And in the wake of all that, there’s something that looks a bit like traction.
Democrats in the House’s Judiciary committee are jumping into a lot of group research. Lori Trahan (D-Massachusetts), the most active House Democrat on college sports, will likely be going from member to member this week, sharing why she thinks there doesn’t need to be any Congressional action at all. One insider I talked to Tuesday, who falls into that group of folks who loathe the NCAA, first commended the coordinated lobbying blitz by the NCAA, power conferences and Republicans, then lamented the lack of a unified front from Democrats on the issue.
I’ll get into that more in Puzzle Pieces, Pt. 2. Thanks for sticking with me if you made it this far.
I always learn so much about this current challenging college situation — And, I really need it because I fall into the category of — “blissfully-unaware-of-college-sports mothers”
“Met someone in a garage”. I get it!😆