What you need to know about the NCAA's new Washington Strategy

Good morning, and thanks for spending part of your day with Extra Points.

I'm still here at the NCAA Convention, and will be until Saturday afternoon. I've spent most of my time shooting video interviews for Collegiate Sports Connect, chatting with ADs and other industry leaders in coffee shop lobbies and hotel bars, and trying to get a handle on the major legislative issues facing not just D-I, but D-II and D-III as well.

I'll want to share those interviews, as well as updates about the NCAA Transformation Committee and various incremental legislation discussed in the convention, later next week.

For those of us media folks, the biggest event on Thursday was the NCAA's State of College Sports event. This seminar was a chance for Mark Emmert to give his final remarks to the NCAA, for incoming NCAA president Charlie Baker to address the body for the first time, and for Baylor president Linda Livingstone, the chair of the NCAA Board of Governors, to lay out, in clear, direct terms, what the NCAA feels they need in order to continue their transformation process.

In case the subtext wasn't clear when the NCAA hired a popular politician as their next president, it is now. The NCAA believes it needs federal assistance. Absent congressional action, the NCAA does not believe it will have the authority to self-regulate. Between state lawmakers, the court system, the NLRB, and potentially other outside actors, the NCAA feels that without Congress, somebody else will decide the direction of college sports.

Specifically, Dr. Livingstone said that the NCAA needs Congress to assist in three specific ways.

“Congress is really the only entity that can affirm student-athletes unique status.", she said, calling efforts to classify college athletes as employees as "deeply misguided." The NCAA will seek to make sure future legislation provides a pathway for college athletes to operate outside the employee designation.

Second, "Second, we need a safe harbor for a certain degree of antitrust complaints. We’re not looking for nor do we actually need broad antitrust exemption; we do need the ability to make common-sense rules without limitless threats of litigation.” A major reason the NCAA hasn't attempted to enforce NIL guidelines, for example, is fear of additional antitrust litigation. After Alston, the legal basis for enforcing many national guidelines that might impact athlete compensation, movement, etc., has changed.

And finally, she added that the NCAA wants legislation that will preempt various state laws, allowing for the creation and enforcement of national standards, specifically around NIL.

Later, during press availability, I asked her why she felt that the preemption factor was so important. Sure, dozens of states have different NIL policies, but most of them don't have any enforcement mechanisms, and even the states that do aren't enforcing anything. Does it matter that much if Illinois and Iowa have slightly different NIL rules if nobody enforces them? It's not like the highway patrol is arresting anybody because of CROOT CRIMES.

Here's what she told me:

...I'll give you a specific example. We really believe that a national clearinghouse of NIL deals would be extremely helpful because it would help you understand what the market is for different types of activities. It would actually help you understand our student-athletes actually being asked to do anything to earn the NIL, which is a real concern.

...

And that's not available now because there are states that require student-athletes to report their NIL deals to their institutions. There are states that prevent them. You cannot share the NIL deals with your institution. And so in that kind of landscape, we as an NCAA cannot require that students report NIL deals and we can't create a clearinghouse on a national level because it would be in violation of some set of state laws out there.

I've heard other administrators say that just because states aren't enforcing NIL-related laws now, doesn't mean they couldn't change their minds in the future, or perhaps write other state laws impacting college athletics that do have enforcement teeth built-in. This is probably fine, I'm told, is not a bedrock legal principle.

The conventional wisdom is that the NCAA has no shot of getting this legislation passed. After all, NIL-related bills couldn't even make it out of committee over the last congress. This new session will have a Democrat-controlled Senate, but a Republican-controlled house (one that, as you might recall, struggled to even elect a dang Speaker). One of the few ideas that actually had bipartisan support over the last congress was that the NCAA sucks.

Not exactly fertile ground for getting your wish-list turned into federal law.

Another reporter asked Charlie Baker why he felt the NCAA could get this effort across the finish line now.

"I think the challenges associated with moving any legislation are always significant." He said, while adding that he didn't believe a lobbying effort would just be about him. "There are thousands of universities and colleges in the U.S. that care significantly about college athletics, and I think many of them are really concerned about their future. And most of those schools have really solid relationships with a lot of the people who have an elected office. And I think one of the conversations that is probably going to take place is not just going to be the two of us {Livingstone and Baker} but it's going to be the people who are the leaders in a lot of those organizations...talking directly to elected officials."

It's entirely possible that conventional wisdom is correct, and these legislative efforts go nowhere. But I'm not ready to completely rule them out just yet, especially after the NLRB, or potentially Johnson lights another fire at the feet of lawmakers and universities. Charlie Baker is a lot of things, but he isn't Mark Emmert. If the NCAA is willing to push for different concessions compared to last year, I think a path to a bill exists.

Now, whether Congress should do anything here, or if providing even a "limited" antitrust exemption is a good idea, or if more athletes would benefit from an employee model...those are different questions, questions for different newsletters that aren't already 1,100 words long. Those are questions that should be explored deeply.

But last year, they were probably moot questions, because no matter how Indianapolis howled, lawmakers weren't listening. They might listen now, either because Indy is getting better at asking, or because other entities might offer stronger encouragement.

For those that chafe at any interactions between politics and sports, I'm afraid I have some bad news. I reckon this is going to be perhaps the biggest storyline of the college sports industry in 2023. We're all going to need to get to know some legislative backbenchers.

This is the strategy the NCAA is betting on. If it doesn't work, a lot of the other stuff everybody is talking about this week...is going to be moot.

I'll see y'all next week, when I'm back in Chicago.

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