Seizing on Republican criticism of the NCAA boycott of North Carolina over the state law that became known nationally as the “bathroom bill,” some congressional staffers are looking for a legislative path to payback — and it might come by allowing players more rights to their name, image and likeness.
In 2016, the NCAA pulled several championships from college-sports crazed North Carolina, including its popular men’s basketball tournament, after the state legislature overrode a local Charlotte ordinance that allowed transgender people to use public restrooms based on the gender with which they identify.
Due to pressure from the NCAA, as well as the NBA and a variety of other business interests, state lawmakers partially repealed the law known as HB2. The decision came as the NCAA was prepared to choose sites for several years’ worth of championships. The NCAA said it was boycotting North Carolina because of “the cumulative impact HB2 had on local communities’ ability to assure a safe, healthy, discrimination free atmosphere.”
Such open political engagement for a nonprofit — the NCAA operates as a tax-exempt 501(c)(3), which imposes restrictions on political actions and lobbying — annoyed Republican state lawmakers in North Carolina and federal ones in Washington.
The NCAA has spent more than $1.6 million on lobbyists since 2014, when it faced a lawsuit brought on behalf of former UCLA basketball star Ed O’Bannon that opened the door for minimal added benefits to college athletes.
“Anytime you have a nonprofit taking an inordinate amount of political positions, whether I’m for them or against them, it’s problematic. That’s not what a 501(c)(3) status is,” said Rep. Mark Meadows, a North Carolina Republican.
Because of the O’Bannon decision, college athletes have been able to a receive a cost-of-attendance stipend to cover gaps between a scholarship and the actual cost of attending the university.
But the NCAA, its member conferences and schools sell television rights to games for billions of dollars each year, generating income that has paid for rising coaches’ and administrative salaries, new facilities full of amenities and ever-expanding stadiums.
College athletes are not allowed to profit from their name, image or likeness and retain their eligibility to play.
Proposed legislation is not likely until next year at the earliest as talks among Republican staffers continue over exactly what remedies to propose.
“You could say, ‘We’re going to pass a federal law that says a university that receives federal funds and enters into contracts over X million shall give this percentage to the players in terms of health, education and welfare,” said Richard Johnson, a lawyer who won a landmark case against the NCAA in 2009. “You do not have to destroy college football to give the players some rights.”
Congress has tried to get involved in NCAA issues from time to time, including 2015’s unsuccesful attempt to pass a NCAA Accountability Act, which would have also created a presidential commission on intercollegiate athletics.
“I think there’s a lot of momentum out there because I think there’s a general sense that the NCAA is incapable of reforming itself," said Rep. Charlie Dent, a Pennsylvania Republican, told CBS at the time.
The bill never came to a vote in the House. But some in Congress believe they can use the current political outcry to broaden the discussion into athletes’ rights.
“You always look to Congress as the last resort to solve problems, but that may be where we need to go. I think it’s the leadership of higher ed that has to get some backbone and start initiating reforms,” said Robert Orr, a former N.C. Supreme Court justice and an attorney representing two former UNC-Chapel Hill athletes in a lawsuit against the university.
The NCAA considers amateurism “a bedrock principle” and says it is “crucial to preserving an academic environment in which acquiring a quality education is the first priority.” The NCAA considers payment for competition, prize money above expenses and benefits from an agent as violations of its amateurism principle.
But critics say that’s a smokescreen to exploit athletes. “It takes the layman’s capital and talent and the skills of its participants under the guise of being amateurs, promises them education, but then it exploits their labor -- without pay I might add,” said Rep. Bobby Rush, an Illinois Democrat, in 2015.
Rep. Roger Williams, a former college baseball player and coach at TCU in Texas and chairman of the House’s “College Football Caucus,” said a scholarship and an education is enough for college athletes.
“These kids get a tremendous amount of help when they get a scholarship. I think that’s pretty good for them. If you sell a kid’s jersey, is that the school’s money? Is that the kid’s money? I think my reasoning is this person is being offered a scholarship, plays at that university and he gets a fabulous education that’s going to last a lifetime,” said Williams, a Texas Republican.
It is not the only way Congress is putting college athletics under the microscope. The House Energy and Commerce Committee has requested a briefing on the latest scandal, which involves accusations of shoe companies paying high-level basketball players to steer them to schools that the shoe companies have contracts with. The FBI has charged four college basketball assistant coaches, other agents and shoe-company executives with fraud and corruption.
“The federal government’s investigation into sports companies and basketball coaches at numerous colleges across the nation is extremely troubling and puts into serious question the NCAA’s ability to oversee its own institutions,” said Greg Walden, R-Ore., and Frank Pallone, D-N.J., in a statement from the committee.
In North Carolina, state lawmakers proposed bills aimed at punishing schools for their role in the boycotts and at helping players. Legislation that would make schools’ communication with the NCAA or their conference a public record passed the state Senate.
Another bill aimed at removing North Carolina schools from the Atlantic Coast Conference if it boycotted the state again did not pass. The ACC also moved championship events, including its football championship game, from the state.
State Sen. Warren Daniel’s proposal to create a “Legislative Commission on the Fair Treatment of College Student-Athletes” is still making its way through the process. The commission would study education, health insurance, sports injuries, unionization and profit-sharing for college athletes and report to the legislature within a year.
“The rationale was that if you use the term student-athlete, there’s lot more emphasis on athlete. I’ve gotten a lot of feedback from athletes. They each have their own story to tell, what they feel are the pressures, the mistreatment they received and that the focus of their education became sports more than education,” Daniel said.
Even legendary Duke coach Mike Krzyzewski is open to changes in the NCAA’s model.
The basketball scandal “has forced dialogue about this middle – amateurism,” Krzyzewski told reporters Tuesday in Durham. “Do you pay them? Do you do this? Do you do that? Whatever. I think those are good discussions.”
Brian Murphy: 202.383.6089; Twitter: @MurphinDC