Forget NIL. Here's what the federal government CAN actually do for college sports

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

There was yet another NIL hearing in Congress yesterday. Like most of the other ones, the witness list included multiple sitting ADs, a former athlete with little-to-no practical experience in NIL, somebody tied to athlete rights/athletic reform…and nothing from a current athlete with significant NIL experience, an agent, collective operator, or brand.

There was talk about blah blah guardrails, blah blah competitive balance, and…look, I already wrote a takedown of one of these things before, and I’m not going to bother doing another one. Writing a takedown of Congress at this point isn’t shooting fish in a barrel so much as it is shooting fish at the supermarket. It’s not exactly difficult to do.

These hearings are mostly centered around the NCAA’s desire to secure federal legislation that will standardize NIL legislation across the country, give the NCAA some level of antitrust protection to enforce NIL rules, and prevent athletes from being classified as employees. Seeing as it is now September 20, no bills have advanced out of committee, and oh yeah, the government might shut down again in a few days, the odds of the NCAA being successful in their endeavor are…slim.

I don’t think there’s a political coalition right now that can pass an NIL regulations bill in this Congress…and I also don’t really think it would be a good idea.

But over the last few months, I’ve talked to enough people in and around the industry to come out to the idea that there actually may be some good things the federal government could do right now that would improve college athletics…and not just things they have the capacity to do, but things that could either pass Congress, or that the Executive Branch could pull off without starting fights.

These ideas have very little to do with anything on the NCAA’s legislative wish list. But if anybody was looking for policies that would actually help athletes, schools and the industry as a whole…I have a few suggestions

The Department of Education could offer some specific guidance re: Title IX and NIL Collectives

Both the law and precedent are reasonably clear about what athletic departments need to do in order to remain in compliance with Title IX. They might not always do those things, but schools at least understand what those rules are.

Right now, it isn’t clear what, if any, Title IX rules specifically apply to NIL collective activity and how schools interact with them. If an NIL collective is only offering opportunities for say, men’s basketball players, and the school shares their donor list or endorses that collective in any way…has the school failed to comply with Title IX? What about the collective?

Way back in January, the Drake Group asked the Department of Education for clarity on this issue, and to the best of my knowledge, nobody has responded in public. I am aware of at least a few schools that are hesitant to get involved with collective efforts specifically because of concerns about Title IX compliance.

I do not have the legal education to have an opinion as to what the law actually requires…all I know is that the government could clear up misconceptions by clarifying how this administration defines Title IX obligations with NIL. By clearing up regulatory uncertainty, schools, brands and collectives can plot a course with confidence. The longer the uncertainty goes, the more athlete opportunities will be lost.

Speaking of uncertainty and athlete opportunities…

Fix the immigration loopholes that prevent international athletes from engaging with NIL…or from potentially losing their visas

I wrote about this earlier this week…multiple immigration lawyers I’ve spoken to believe that international athletes would be at high risk of losing their student visas if and when they are ruled to be employees. At least one expert tells me that college athletes would be very unlikely to have access to other common visa opportunities without federal law changes, as they likely won’t be eligible for the same visas that say, NBA stars, or rock musicians, get to play in the United States.

On that same note, current international athletes largely are prohibited from taking advantage of NIL opportunities, lest they run the risk of losing their visa and future ability to get back in the United States.

You don’t need to throw open the borders of the country to address this issue…relatively modest tweaks to the F-1 or P-1 visa could allow college athletes to enjoy the same NIL benefits their peers have, or feel confident that they would be allowed to remain in the country if and when a more employment-centered model comes to the United States.

Speaking of employment…

Create a congressional commission to study post-collegiate Olympic sports models

David Ridpath of Ohio University wrote an Extra Points newsletter recently, arguing for a commission to expansively study college athletics. I think that could be a good idea as well, but for the sake of political expediency, allow me to endorse a commission with a narrower scope.

Eventually, some college athletes are going to directly share athletic department revenue, and will almost certainly be classified as employees. Maybe it will just be P5 football and basketball players. Maybe it will be all of D-I athletes. Maybe it will be college athletes…period. That’s a question for the federal courts and the NLRB. Maybe it happens next year, or the year after, or in five years. But it’s coming.

When it does happen, I believe it is probable that those financial changes could be highly disruptive to Olympic sports offerings. Absent any other changes whatsoever, there’s a good chance programs will be cut or diminished in some way. Since the United States uses college athletics to develop large numbers of our Olympians, figuring out who will train the next generation of swimmers, runners, and more is a question the feds ought to consider.

Should the government follow the suggestion of my friend Victoria Jackson at Arizona State, and help pay for Olympic sports programs with a nationwide sports gambling tax? Should the military help pay for these programs? What should the government be doing to prepare for a world where Stanford and Cal swimming won’t be funded by football television dollars…or at least, not in the same way as before?

I don’t know! And you who else doesn’t know? Your Senator. Setting aside money and time to put our brightest minds to study this and come up with concrete suggestions, in my opinion, would be a good use of resources. If lawmakers don’t come up with good ideas soon, judges may force the issue on them.

Enforce the rules you already have on the books

Much of the NCAA’s push for NIL regulation centers around the idea of consumer protection. Athletes, as the argument goes, do not have access to enough information to help them weed out the upstanding agents and financial services representatives from the unscrupulous weasels. Standardized contracts, stronger regulations, and information databases could help protect them better.

That…might be true, but it’s harder to take the federal government seriously when it talks about regulating sports agents. Right now, the FTC already has the ability to go after sports agents who lie, thanks to SPARTA, or The Sports Agent Responsibility and Trust Act of 2004.

But the FTC isn’t enforcing that rule, and there’s reason to be skeptical that the current FTC has the capacity and legal deference to do so.

If the FTC isn’t going after any agents now, why should schools, agents, etc. think that’ll get serious with more laws? Wouldn’t this risk undermining the FTC by creating more laws that can’t be enforced?

If college sports wanted that, shoot, they’d just stick with the NCAA.

Is this a list of every possible thing the government could do to address problems in college sports? Of course not. It doesn’t address unionization, health care, employee status, and more. But those issues can’t be addressed by this Congress and this White House in this timeline. I’m trying to limit suggestions to what may be more possible now.

If I knew how to get everything addressed by Congress right now, I wouldn’t be in the newsletter business. I’d be sitting on a beach outside Rio right now, drinking out of a coconut and counting all of the money I’ve earned from a K St consulting company.

But for now, you’re stuck with me writing newsletters. Here’s what else I wrote this week:

• I have a bunch of questions about what happens next for the Dartmouth Men’s Basketball Union campaign, from what it means for student visas, to whether the public will rally to support Ivy Leagers, and more.

• I filed some FOIAs and learned a bit about how NC State messaged why the ACC is expanding with Stanford, Cal and SMU.

• We have a look back at the initial decisions to create D-I, D-II and D-III, and what we can learn from them today.

• And also some tidbids on conference realignment, from the A10 to the WCC, CAA and more:

I can afford to pay freelancers, file FOIAs for our contract directory, update Athletic Director Simulator 3000, and write original reporting and analysis, thanks to your support.

I’ll see you in your inbox next week. Thanks for reading.

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