Lobbying for Athletics

Speaking at a panel discussion in 2014, Tom McMillen, a former member of Congress and retired professional basketball player, warned of a coming apocalypse to the status quo of college sports.

At the time, the National Collegiate Athletic Association was facing lawsuits on several fronts over its amateurism rules and player safety. Three months earlier, the association’s president, Mark Emmert, had been grilled during a contentious Senate hearing in which lawmakers criticized the NCAA and its members for exploiting athletes and mishandling reports of sexual assault. The National Labor Relations Board was considering whether football players at Northwestern University should be allowed to unionize. Meanwhile, the White House and members of Congress were exploring the idea of creating a presidential commission on college athletics.

“You’re going to be facing a day of reckoning,” McMillen said to the roomful of college sports leaders.

More than two years later, that reckoning has yet to fully occur, but McMillen says it’s still coming. And when it happens, he’s aiming to have members of Congress already listening to the concerns of college sports officials. In December McMillen announced that his LEAD1 Association, which represents the 129 athletics directors and programs at the NCAA’s most competitive level, had created a political action committee to "support candidates for elective office."

The PAC, which McMillen says has no set agenda, joins the NCAA’s own lobbying in Washington, which the association has greatly increased in recent years. Since 2014, the NCAA has spent $1.4 million on lobbying.

“[The NCAA] would like to initiate discussions with members of Congress about having some public policy that would help protect their amateurism model,” Andrew Zimbalist, a sports economist and professor at Smith College, said. “My sense is the NCAA and LEAD1 are concerned about the various antitrust challenges to college sports. And they have good reason to be.”

Amateurism Under Threat

The NCAA spent more on lobbying efforts in 2014 than in the previous three years combined, spending $580,000 on hiring outside lobbyists for the first time in more than a decade. Since then, the association has spent another $820,000.

At a press conference during the NCAA’s annual meeting in 2015, Emmert said that he didn’t consider the federal interest at the time "to be a threat," and that he viewed it as a sign of how important college athletics are to the country. The association was not pushing for any specific legislation or changes in the law that would help preserve its amateurism model, he said.

When asked why, then, the NCAA was spending record amounts on lobbying, Emmert said the efforts were just an attempt to tell its side of the story to Congress.

"There's not always as strong information as we'd like," he said. "These issues are complicated, and we've simply been communicating with them about what is going on, and what's not going on, and how we're trying to constantly make things better."

Those complicated issues have not subsided.

In August 2014, Judge Claudia Wilken ruled in a lawsuit brought by Ed O’Bannon, a former college basketball player, that the NCAA violated antitrust law by not allowing athletes to be paid for the use of their names and likenesses. The ruling would have allowed but not required colleges to pay players about $5,000 each year beginning that fall. The payments would have been capped at that amount and held in a trust fund until the students completed their athletic eligibility.

The decision was seen at the time as a major blow to the NCAA, and the association appealed the ruling. An appellate court said that it agreed with the original ruling that the NCAA violated antitrust laws, but it backed the association’s opinion that college athletics should not be thought of as minor-league sports. Thus, the judges wrote, compensation for athletes should be limited to funds related to their education.

The panel stated that the “difference between offering athletes education-related compensation and offering them cash sums untethered to educational expenses is not minor,” calling the difference a quantum leap.

The NCAA praised the latter part of the decision, and, at the association’s annual meeting in January 2015, the NCAA’s five wealthiest conferences voted to allow programs to cover the full cost of attendance for athletes, which for many institutions entails providing players with additional stipends up to several thousand dollars. But the NCAA decided to challenge the ruling that it had violated antitrust laws. O’Bannon and his lawyers also petitioned the U.S. Supreme Court, arguing again that players should be allowed more than just full cost of attendance.

In October the Supreme Court declined to hear the case. The decision meant the NCAA’s amateurism model survived, but in letting a lower court's ruling stand, the court also set the stage for two other antitrust lawsuits that both seek to allow compensation for athletes beyond athletic scholarships.

In March 2014 lawyers representing a former West Virginia football player named Shawne Alston filed a class action against the NCAA alleging that the association violated antitrust law by limiting compensation to athletic scholarships. That same year, Jeffrey Kessler, a leading antitrust lawyer who has previously won major victories for National Football League and National Basketball Association players, filed a lawsuit on behalf of a former Clemson University football player named Martin Jenkins.

As the O’Bannon case made its way through the courts, the Jenkins case has loomed in the background as potentially the largest threat yet to the NCAA’s amateurism model. At a meeting of the Knight Commission on Intercollegiate Athletics prior to the Supreme Court’s decision, Lorry Spitzer, a tax lawyer and professor at Boston College Law School, said the Jenkins lawsuit “really would end the world as we know it” for college sports.

Last month the National Labor Relations Board’s general counsel, Richard Griffin, wrote a memo that stated that “scholarship football players in Division I Football Bowl Subdivision private-sector colleges and universities are employees” under the National Labor Relations Act. While limited to granting protections under just one section of the act, the memo clarifies that football players at private FBS programs are entitled to campaign for their own interests as employees, including asking for pay, free of retaliation.

Last year, Griffin's office issued a similar notice regarding how private institutions govern the ways football players communicate with reporters and on social media. In that memo, he also stated that the athletes are employees.

The new memo partly answered a question left open by the full NLRB in 2015, when it declined to assert jurisdiction over whether football players at Northwestern University could form a union. It does not reverse that ruling, but neither does it carry the force of law.

Later that week, Virginia Foxx, a North Carolina Republican and chairwoman of the House Committee on Education and the Workforce, said in a statement that Griffin should "abandon his partisan agenda or step down immediately." Griffin's term as general counsel will end in November, at which point President Trump will choose his replacement.

“This partisan memorandum puts the interests of union leaders over America’s students, and it has the potential to create significant confusion at college campuses across the nation,” Foxx said in a statement issued jointly with Representative Tim Walberg, a Michigan Republican who is chairman of the Subcommittee on Health, Employment, Labor and Pensions. “It’s an affront to hardworking Americans for Griffin to double down on his extreme, big labor agenda, especially at a time when a new president is entitled to move the NLRB in a new direction.”

The NCAA also criticized the memo, with its general counsel, Donald Remy, saying, “Students who participate in college athletics are students, not employees.”

A Presidential Commission

In 2013 Representative Charlie Dent, a Republican from Pennsylvania, and Representative Joyce Beatty, a Democrat from Ohio, introduced legislation that would establish a presidential commission on intercollegiate athletics.

A year later, Representative Jim Moran, a now-retired Democrat from Virginia, introduced a similar piece of legislation. In 2015 Dent and Beatty were joined by three other House members to introduce another version of the bill that would have created a 17-member panel to review and analyze college sports issues -- including the academics of athletes, the financing of college athletics and safety protections -- and report their findings to the White House and Congress. The legislation was not voted on, and Dent is expected to reintroduce the bill again.

McMillen, a longtime critic of the exorbitant spending in big-time college sports, has spoken in support of the creation of such a commission in the past, but he said he believes the idea has less momentum with the new White House and Congress. "With all the pressing issues in our country, I think it would be very difficult to get college sports on the national policy docket," he said.

McMillen and the president have known each other since 1985, when Trump donated to McMillen's first campaign. In September LEAD1 will host a gala in the presidential ballroom of the Trump International Hotel in Washington. An early invitation to the event described it as allowing athletics directors to meet with “members of Congress and special guests, including the president and vice president of the United States.” An updated invite later dropped the references to the White House, and McMillen said LEAD1 had not approved of the invitation, which was created by a consulting firm.

While LEAD1 still maintains that it has no agenda, it is possible that the PAC will eventually push for an antitrust exemption. McMillen introduced a bill that would have granted the NCAA such an exemption while he was a member of Congress representing Maryland. An antitrust exemption would help resolve many of the legal issues at play in the current lawsuits against the NCAA. Many have also speculated that LEAD1 was formed as an effort to fight attempts to force colleges and the NCAA to pay athletes.

While McMillen believes that “paying athletes would be devastating for just about every college sports program across the country,” he said LEAD1 has “never discussed this pay-for-play matter as a legislative agenda item.”

“We have only told members who we are and to call us if they have questions about athletics directors or college sports,” he said. “The legislative agenda is set by the presidents, and the institution’s government representatives will be primarily charged to try to implement it. We hope we can help them on college sports-focused issues where our expertise may be needed -- issues like Title IX, drones flying over stadiums, tax reform -- but we will not take the lead. The PAC is purely a way to build relationships.”

Specifically, the PAC will focus on members of Congress who are former college athletes. There are 46 of them.

Emmert said in January that LEAD1 -- which represents athletics directors who are all members of the NCAA -- has not discussed any of its goals with the association, but that he does not expect the PAC's work to conflict with the NCAA’s.

“They’re an independent professional association, and they have an opportunity to do a variety of things,” Emmert said. “We work hard in Washington, D.C., to not lobby, but to simply tell stories about what college athletics are all about and how it serves our students and how it serves our states and communities. And we’re going to keep doing that.”