Why Capitol Hill remains a key battleground in college sports

That’s expected to come in July. And after that, should Wilken move forward with the terms as written? More steps through the legal system, including athletes having their chance to object to the settlement, at which point Wilken would consider those opinions before making a final, fateful decision. If revenue sharing were approved, it would probably start in the fall of 2025.

It’s a lot to track. If you feel confused, don’t worry, you’re in the exact same boat as the administrators, coaches and athletes who would be most affected. But one certainty in all of this is that Congress remains a key component. The NCAA and its conferences are continuing to lobby — and lobby hard — for a federal bill that would offer antitrust protections, a preemption of state laws that contradict NCAA rules and a “special status” for college athletes that says they cannot become employees. For college sports leaders, the settlement makes the push for legislation even more urgent, as they seek cover from the next lawsuit that could shake the model even further. They also remain diametrically opposed to employment for college athletes, an issue that is being deliberated in federal court and by the National Labor Relations Board.

To date, Congress has held a dozen hearings on the future of college sports, but no bill has made it past the introductory phase. According to multiple people on Capitol Hill, most Senate and House members don’t have entrenched views on the subject, meaning it should be possible to find a bipartisan solution. But that does not apply to Rep. Lori Trahan (D-Mass.) or Sen. Ted Cruz (R-Tex.). Here are their latest views on whether it’s possible — or prudent — for Congress to compromise on college sports legislation:

Trahan (in a phone interview with The Washington Post this week): “More people are waking up to the fact that amateurism is dead and the only way to implement rules on athletes who are already being treated like employees is to either negotiate with them directly or get Congress to legislate that the laws we previously passed don’t actually apply to athletes. I haven’t seen an appetite for the latter of those two options.”

Cruz (in a statement to The Post through a spokesman): “There is a misconception that the House [v. NCAA] settlement reduces the urgency for Congress to act to protect college sports. Nothing could be further from the truth. Without congressional action, there is a very high risk that college sports as we know them will be destroyed, and that student-athletes will experience irreparable harm, including loss of benefits and scholarship guarantees.”

If a bill did advance, it would probably mean a Democrat agreed to co-sponsor legislation introduced by a Republican (or vise versa). Otherwise, without that bipartisan support, it’s hard to see a college sports bill passing through the House and Senate, especially because a Senate member could filibuster any bill that swung far in either direction. The election year makes this even trickier, though proponents of college sports legislation argue it would be an easy win for most politicians. After an initial committee hearing, a bill would have to move through the Senate or House floor, then the other chamber, before reaching the president.

None of those complications, nor a ticking clock, will stop the NCAA and power conferences from making regular trips to Washington. If anything, the obvious hurdles will make them book additional trips and keep the lobbying money flowing. A lack of results has yet to deter their efforts.

Since Jim Phillips became ACC commissioner in February 2021, five months before the NCAA changed its name, image and likeness (NIL) rules, he has been a mainstay in D.C., most recently participating in a March roundtable with Cruz and former Alabama football coach Nick Saban, among others. He expects to visit Congress again within the next three to four weeks. Like NCAA leaders, the most powerful commissioners hope a settlement will convince Congress to finally act on their behalf.

“Momentum on Capitol Hill continues to grow following the settlement. We’ve seen some interaction there,” Phillips said in a phone interview Friday. “The settlement has only served to further reinforce why Congress needs to act. We need them to help codify the provisions of the settlement into law, securing them in perpetuity so this isn’t a moment in time.”

Before the $2.8 billion settlement agreement — which consolidated House v. NCAA, Carter v. NCAA and Hubbard v. NCAA — the NCAA wanted an antitrust exemption to wipe out those cases, which involved athletes suing over restrictions on compensation and for damages related to when they couldn’t monetize their NIL. After the agreement, its ask has changed, hoping Congress provides antitrust protection to keep the NCAA from being sued in similar cases in the near future. The settlement, if approved, would cover 10 years. The NCAA, then, is begging to have any of its power restored, feeling it can’t regulate the NIL market and transfer portal without the threat of constant lawsuits.

For example, back in February, a legal challenge in Tennessee forced the NCAA to at least temporarily lift its restriction on using NIL money to influence athletes’ decisions about where to attend school. On July 1, a new state law in Virginia will allow its colleges to pay athletes directly through NIL deals, which is against NCAA rules. And the proposed settlement for House, Carter and Hubbard includes a cap on how much revenue schools could share with their athletes, which has already invited antitrust scrutiny.

To that end, athlete advocates have a pretty simple message for the NCAA: If you don’t want antitrust lawsuits, don’t violate antitrust law.

“By definition, [a revenue-sharing cap and NIL crackdown] is a restraint on trade,” said Brian Davis, a California-based NIL lawyer who represents more than 100 football players. “… There is a lot of money that’s going to be funneled through lobbyists in Congress, saying that college football and college basketball will be dead as we know it. I think that’s hyperbole.”

When the settlement was agreed to on May 23, statements started flying. The NCAA and conferences immediately called for congressional action to support the terms. So did Notre Dame President John I. Jenkins, who said: “To save the great American institution of college sports, Congress must pass legislation.” He then listed off the NCAA’s wishes. Cruz and Trahan weighed in the next day, further positioning themselves as the most active members of their parties on these issues.

Trahan called for the NCAA to focus less on Congress and more on collectively bargaining with athletes. Cruz maintained his staunch opposition to athletes becoming employees.

Ahead of the settlement agreement, Steve Berman, one of two lead plaintiffs’ attorneys in House v. NCAA, regularly visited Washington, too. He would typically arrive after the NCAA, then counter the asks for an antitrust exemption. But with an agreement in place, Berman and Jeffrey Kessler, the other lead plaintiffs’ attorney, have pledged to help the NCAA lobby for certain antitrust protections. As proposed, the settlement includes a system in which incoming freshmen could choose whether to opt into the revenue-sharing model, which Berman and Kessler believe provides protection from lawsuits challenging a cap or other aspects of the agreement.

“If the NCAA asks us, we will go to the Hill and say we think [the settlement] is a great solution for college athletes and that the NCAA should be given antitrust immunity for pay for play and for NIL,” Berman said in an interview. “That’s all we’re willing to do. We’re not going to advocate about the employment issue or unionization, any of that. We’re not involved in that.”

Phillips added: “The critical piece of why Congress still needs to act is that the settlement provides a framework but it doesn’t provide long-term stability.”

Of course, the NCAA and its conferences are not the only stakeholders here. This week alone, members of Congress were visited by leaders of The Collective Association — a trade group of 40 donor-funded NIL collectives — and representatives of the Student-Athlete Advisory Committee (an NCAA-sanctioned group that typically peddles the company line). Russell White, president of The Collective Association, said his group expressed that it is “firmly against antitrust protections for the NCAA, just because there is so much more to develop before that would make sense.”

SAAC chair Cody Shimp took to social media, asking for “congressional intervention on employment and NIL.” Unsurprisingly, SAAC’s position is that athletes should not be considered employees. In March, Dartmouth’s men’s basketball team voted to unionize. The university immediately appealed to the NLRB’s national board, which has yet to issue a ruling.

Trahan, a former Georgetown volleyball player, has often partnered with Sen. Chris Murphy (D-Conn.) to expand college athletes’ rights. When first pushing for athletes to gain employee status and collective bargaining power, she knew bipartisan support would be hard to find. The goal, though, was to plant a flag on the far end of the spectrum, an approach that’s been matched by some Republicans in recent months. It’s the middle ground that remains elusive.

“If we’re considering legislation to literally turn back the clock under the justification of protecting [athletes], we should be hearing all those voices,” Trahan said. “So the prospects for this year, given the lack of alignment and the absence of more members hearing directly from athletes, I think it’s just deserving of more time.”