NCAA Begs for Antitrust, Employment Exemptions From Congress With Lawsuits Looming

The House Energy and Commerce Committee held a legislative hearing on Thursday discussing a proposal that would prohibit college athletes from becoming employees, provide the NCAA antitrust protection as it faces a myriad of lawsuits, and create an independent organization to regulate name, image, and likeness (NIL) dealings.

For nearly four hours, athletes, administrators, Democrats, and Republicans traded arguments about what the future of college sports should look like. UCLA quarterback Chase Griffin said college football players “operate as employees currently” when considering the time and effort they put in on a weekly basis.

Pleading for a Congressional exemption from antitrust law, NCAA president Charlie Baker warned that if the NCAA loses the Johnson case seeking college athletes to be paid minimum wage, he estimates around two-thirds of all athletic teams would be eliminated — a point that is disputed, however, by the plaintiffs in the Johnson case.

“If you convert all of college sports into employment, there is simply no doubt, based on math, that you will lose an enormous number of student-athlete opportunities,” said Baker, who suggested that schools having the ability to buy athletes’ NIL rights is a better alternative than employment. “The money is just not there. Most schools lose money on sports.”

When asked about House v. NCAA, a potentially multi-billion dollar case over NIL backpay, Baker said any payments would be “applied probably across most of college sports” as opposed to being absorbed by the NCAA as the organization did after its last antitrust loss.

Griffin and Baker were in agreement that outside NIL oversight is unnecessary. Sen. Ted Cruz (R-Tex.) is also against an outside entity regulating NIL, and he’s currently in talks with Sens. Cory Booker (D-N.J.), Richard Blumenthal (D-Conn.), and Jerry Moran (R-Kan.) surrounding a compromise bill in the Senate.

“Schools, conferences, and the NCAA — as opposed to a federalized structure — are best positioned to govern college sports,” Baker said in his written testimony.

Perhaps the most meaningful comments of the day came after the hearing from Rep. Lori Trahan (D-Mass.), a former volleyball player at Georgetown. She does not believe both chambers of Congress will come to a consensus on granting the NCAA employment and antitrust exemptions. Last September, Cruz said he thought there was a 60% Congress passed a bill addressing those issues.

“This Congress just doesn’t seem like the Congress where we’re going to have a lot of bipartisan wins,” Trahan said. “These are big, thorny, tough issues. I’m not optimistic that this is going to be a Congress where we figure out college athletics at large.”

Trahan said the Republican-back NIL draft bill does not do enough for international athletes, who still do not have NIL rights due to U.S. visa rules. Additionally, she advocated for closing Title IX loopholes that are currently “robbing women athletes of roster spots.” Trahan and other Democrats also want to see a bill that expands athletes’ medical coverage, health and safety standards, and rights to collectively bargain.

But in the big picture, Trahan pushed back against the notion that college sports needs saving, as mentioned by Rep. Gus Bilirakis (R-Fla.)

“The sky is not falling,” Trahan said. “Athletes are better off today than they were yesterday.”

Trahan recommended that NCAA leaders begin preparing for a future where college athletes are deemed employees. If it doesn’t happen because of Johnson v. NCAA, it could be set in motion by a pair of National Labor Relations Board (NLRB) complaints making their way through the system.

“Shame on them if they aren’t because any good leader does a lot of scenario-planning, and that is a scenario where the courts might actually deem athletes employees,” Trahan said. “You’re just going to see an adjustment around college athletics. I don’t think the sky is falling in college athletics as a result of any of these decisions. We want more athletes at the table. We want them to have a voice in college sports just like they would in any other industry.”

Although the hearing was intended to be focused on NIL, Baker fielded off-topic questions from Republican lawmakers related to international and transgender athletes.

Rep. Tim Walberg (R-Mich.) asked Baker why so many NCAA colleges are accepting international athletes who he claimed are potentially taking roster spots from American athletes. In response to questions from Rep. Kat Cammack (R-Fla.) about transgender athletes, Baker called the issue “complicated and challenging” and committed to meeting with female athletes for further discussion.