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Yes, Republicans could stop college athlete employment.

The idea that the NCAA can NEVER get anything passed in Congress should be reevaluated

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Let’s talk about Congress for a second.

Leaders from individual schools, power conferences, and even the NCAA itself, have been pushing for Congress to step in and pass legislation to help the NCAA. Specifically, college sports industry leaders have been trying to get legislative help in regulating NIL, gaining freedom from onerous antitrust lawsuits, and in making sure that college athletes aren’t deemed employees.

The conventional wisdom is that the NCAA’s chances of getting this done were…basically zero. That conventional wisdom, in my opinion, comes from indisputable, stone-cold facts.

College athletics regulatory issues are not the sort of thing that drives any particular voting block or wins any lawmaker major political points. They’re also not the sort of thing that most lawmakers actually care about. The halls of Congress, and the staffers who actually guide ideas from hypotheticals to legislation, are full of Ivy League grads and the sorts of people who unironically say “Sportsball”, after all.

There’s also the fact that what the NCAA/P4 is asking for doesn’t neatly fall into partisan buckets. Just about everybody, from Bernie Sanders to Marsha Blackburn, dislikes the NCAA status quo, but there are a half-dozen potential legislative remedies floating out there, and none of them appeared to have enough support to move beyond an initial press release. Given the razor-thin Democratic majority in the Senate, and the challenges in uh, governing the GOP majority in the House, inching any bill forward that would require both R and D votes would be almost impossible.

How many congressional hearings have we had in the Extra Points era? How many proposed bills, from Democrats or Republicans, have been thrown out there, only to die before they ever left committee? More than a dozen, I’m sure. I’ve lost count.

So I totally understand why so many of my readers, industry sources and reporter colleagues are so deeply skeptical that legislative relief will ever come.

But something changed last week. And while I don’t believe that specific change will lead to any bills, it should force some folks in the College Sports Industrial Complex to rethink some of those assumptions from 2022.

On Thursday, the US House Committee on Education and the Workforce voted, on party lines, to advance a bill introduced by Rep. Bob Good (R-VA) that would explicitly prevent college athletes from being deemed employees of their school, conference or the NCAA.

Rep. Good’s bill, called the ‘Protecting Student Athlete’s Economic Freedom Act’, was also co-sponsored by Rep. Burgess Owens (R-Utah), who played football for Miami and the New York Jets, as well as eight other Republican lawmakers, some of whom are among the most conservative currently in Congress.

Is this bill going to become law? No, at least, not this year. But Congress isn’t guaranteed to always look the way it does this year.

Even if the PSAEF (is this what we’re calling it? I hope not) is brought to a floor vote and passes (which is not a guarantee), there’s no way it would pass this particular US Senate and be signed by Joe Biden. There would be too much pushback from organized labor and no direct way to reconcile any of the Senate bills with partisan momentum with one that takes direct aim at the employment question. This act would die as a messaging bill.

But here’s the thing. I don’t know if you’ve heard about this yet, but we’re going to have elections again this year.

Right now, Democrats currently have a tiny 51-49 seat majority in the US Senate, if you count all four independents as democrats (which you might not be able to do on some athlete right’s issues). But Democrats have to defend competitive senate seats in Arizona, Michigan, Montana, Nevada, Ohio, Pennsylvania and Wisconsin. They are almost certain to lose a seat in West Virginia. Republicans will be heavily favored in the two races that miiiiight become maybe competitive (Texas and Florida).

A lot can change between now and November, but regardless of who controls the House or wins the White House, most professional political analysts at this point would say it is likely that Republicans retake the US Senate.

If current polling is to be believed, Donald Trump probably has a small lead on Joe Biden at the moment, both in national polls, and in many important swing states, like Nevada, Wisconsin, Michigan and Pennsylvania.

We’re a ways out from November, and it’s hard for me to imagine this next election not being close. I don’t know who ultimately wins, but I believe the race is close enough that anybody who works in or around college athletes needs to at least plan for the possibility of unified Republican control of the House, Senate, and White House. Regardless of who you want to win, I believe it is important to acknowledge the possibility that this happens.

A world where Ted Cruz or Bill Cassidy or Rand Paul becomes the chair of the Committee on Health, Education, Labor, and Pensions, and where Bob Good and Burgess Owens can get higher education bills to the House floor, is absolutely a world where a bill that explicitly bans the concept of college athlete employment could get passed and signed by the President.

I dunno Matt, aren’t you being a little dramatic? I mean, Brett Kavanaugh is a big conservative, and he basically begged for athletes to be able to collectively bargain. Couldn’t Democrats just filibuster this thing? Wouldn’t the courts strike it down?

Yes, Brett Kavanaugh is a big conservative, and yes, in his concurring opinion in Alston, he did write the blurbs that have been quoted in almost every news story about athlete labor classifications since then. You remember them, right? Lines like,

"Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate…and under ordinary principles of antitrust law, it is not evident why college sports should be any different.

The NCAA is not above the law."

or

“Of course, those difficult questions could be resolved in ways other than litigation. Legislation would be one option…or colleges and student athletes could potentially engage in collective bargaining (or seek some other negotiated agreement) to provide student athletes a fairer share of the revenues that they generate for their colleges, akin to how professional football and basketball players have negotiated for a share of league revenues.”

That doesn’t sound like somebody who would be thrilled about Congress taking steps to essentially lock-in some element of getting around paying market rates.

But remember, Kavanaugh is just one justice, and his spicy quotes came in a concurring opinion, leading one to believe that perhaps not every other justice was on board with all of his thoughts. The Alston opinion also included lines from Justice Gorsuch that explicitly stated the NCAA could continue to enforce a “no Lamborghini” rule, which is pretty funny, given that we now have teams pretty explicitly operating a “yes Lamborghini” operation.

I mention this only to point out that I don’t think we can assume that just because one justice wrote an opinion that sure made it seem like he thinks amateurism is illegal, we can assume that the rest of the Supreme Court would rule amateurism-codifying legislation illegal, especially if that legislation was proposed, signed and supported by Republicans.

It’s one thing to dunk on Mark Emmert. It’s another thing to dunk on the very people that got you appointed to the Supreme Court.

Is it possible that inter-party conflicts, the filibuster or other circumstances could delay or prevent a college sports bill from passing, even if Republicans control everything? Sure, it’s possible. But let’s not discount the “they did it because they wanted to and could” factor here

I think economists, lawyers and academics are correct when they point out that generally, conservatives tend to support policies more aligned with the free market, and preemptively locking out a class of individuals from participating in the formal workforce, while allowing the NCAA to set a different price cap on revenue sharing…would not be a very Free Market-y policy.

But the Real Life House of Representatives and US Senate are not some ideological debating societies where everybody makes decisions that completely line up with consistent ideology. It’s a place where folks are willing to make all sorts of ideological compromises in the name of Triggering The Libs or Getting On Cable News or Placating An Important Donor.

You know what else many Republicans like, besides supporting free market policies? Making it harder for employees to unionize or collectively bargain, especially for people who might become public sector employees. Lawmakers, Republican and Democrat, also would prefer to not have Local State U screaming at them, and if there isn’t really a political penalty for opposing athlete employee status, I think you’ll see more lawmakers do it.

Would a few lawmakers, like Sen. Murphy (D-CT), Sen. Booker (D-NJ) or Sen. Sanders (I-VT) get furious if the House and Senate tried to force a bill to shut down athlete employee status through via some budget rider or something? I’m sure. But I’m also going to hazard a guess that if Trump is President and the GOP controls both chambers, those folks are gonna be mad about a bunch of way more important stuff. You can’t go to the legislative mattresses over everything.

If the right lawmakers decide to make pushing a similar bill a priority, I think it will be very difficult for Democratic lawmakers to stop them, nor do I think it would be safe to assume that (again, deeply conservative) federal courts will oppose those legislative efforts once they are appealed, regardless of what common interpretations of the law might be.

I am not saying that I would prefer this outcome. I’m not even saying that college sports leaders should prefer this outcome, even if they badly want to prevent courts from ruling some athletes should be classified as employees. After all, unified GOP control of the federal government will bring other changes to higher education (and potentially athletics) that current leaders will probably not be happy about.

I am just saying that if Republican leaders in the House are showing that they can get behind this sort of legislation in committee, it’s worth considering a world where similar lawmakers control committee assignments elsewhere in the federal government.

For athlete advocates or business owners who want a different world…I think now is the time to at least create a plan B. And reporters ought to recognize that this scenario could absolutely happen.

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