The two paths to NCAA reform

Employee status or congressional legislation - is either possible? Is either desirable?

After an offseason spent watching richer programs pluck the best players off of the rosters of both Cal football and men’s basketball, it’s probably fair to say that most Cal fans aren’t exactly huge fans of the current status quo in college sports.

Heck, after Jaydn Ott entered the transfer portal, there were even a few folks leaving angry comments aimed at this very website, because of our generally pro-player-empowerment editorial stance.*

While I wouldn’t say that I agreed with every comment, I do understand the sentiment. When you lose a previously-beloved QB, a star running back, and the two best players off of your basketball roster in the space of a few months, you can’t exactly be surprised when everybody is stuck in various stages of grief. My stage? Constant existential depression!

Since this is a Cal website, most of the conversation regarding NCAA reform has focused on the impact to Cal, and what Cal needs to do to navigate uncharted waters. But now that we’re deep into the quiet of the revenue sports off-season, I think it’s a good time to look at the bigger picture.

Even the most hardened player empowerment advocates would have to concede that the current college sports landscape isn’t healthy - for the sport at large, certainly, and probably not even for many of the players.

The core problem? The functional result of a series of legal pantsings is that the American judicial system has killed amateurism. The courts have functionally ruled that revenue student athletes are employees. But the NCAA (and its member institutions) don’t want to deal with that reality, and continue to insist that student athletes are not employees.

Which means that college athletes have all of the benefits of employment (getting paid, freedom of movement, various legal protections) and none of the restrictions. There are plenty of reforms that could be collectively bargained if the NCAA were to concede that athletes are employees. Transfer limits. A salary cap. Limits on certain types of endorsements.

This would be my preferred solution. If coaches and schools what limits on how often/where a player can transfer to, then give the players a benefit in exchange. Maybe protections against abusive coaching practices or better long term healthcare coverage. I’m not in a position to say what is most important for current athletes, but I’d be happy to let them speak for themselves.

I’m pretty sure, however, that this solution to the problem is a pipe dream. Here is a non-comprehensive list of things that would have to happen to lead to some kind of collective bargaining agreement between college athletes and universities:

1. Universities would have to agree that athletes are employees.

2. Athletes would have to form a union.

3. The National Labor Relations Board would have to allow said union to exist, which is incredibly unlikely to happen for at least 4 years.

4. And even if all of the above happened, the legislative and/or judicial system would have to figure out what it all means for Title IX application.

Which means the only vaguely plausible solution to the current situation is . . . congressional action.

While many have a dim view of the ability of congress to take action on anything, the chances of a bi-partisan bill to address the status of college sports is a thing that really could happen. Why? Because there’s a general consensus on both sides of the aisle that the status quo is not tenable, and there’s one person in particular who cares enough to make legislation a priority: Texas senator Ted Cruz.

There is some bipartisan consensus that Congress should grant the NCAA a limited antitrust exemption that would allow it to make rules governing college sports without the constant threat of lawsuits, and that national standards for athlete name, image and likeness (NIL) compensation are needed to override a patchwork of state laws.

Those are the key elements of legislation that Cruz has backed for more than a year.

The question is what Cruz would have to include in any bill to get an anti-trust exemption. Since any bill would have to get 60 votes in the senate, any successful bill would likely need to codify some of the gains that the court system has granted athletes. And while Ted Cruz isn’t exactly known for his pro-labor stances, it’s worth remembering - the idea that the NCAA needs to reform has bi-partisan consensus. It’s basically the only issue that gets a 9-0 ruling from the Supreme Court, after all.

Cruz and congress may well be waiting for the House (lawsuit, not legislative body) Settlement to be finalized, which has hit delays due to wrangling over roster size impacts. If the House Settlement does finally happen, be on the lookout for news about potential NCAA legislation.

Meanwhile, the President has announced his intention to create a committee to fix college football. Will that supersede congressional efforts, or work to create consensus for whatever bill ends up on the floor? Will it simply muddle the waters and make legislative action more difficult? Will Nick Saban even participate? Can a California senator demand that Cal and UCLA be in the same conference? Who knows?

All there is to do is sit back and wait, and hope for something sensible, while the college athletics landscape remains a chaotic mess.

*To be clear, Write for California does not have any kind of official editorial position regarding NIL, the transfer portal, or any other matter of ongoing NCAA reform. But many individual authors (myself very much included) have certainly advocated in favor of NCAA reform and player empowerment generally.

Meanwhile, to those who would suggest that I must now lie in the bed I have made myself, I’ll say what I’ve said multiple times over the years: I was confident that NCAA reform would be bad for Cal individually, but that didn’t mean that I wouldn’t advocate on behalf of what I felt was morally right - that student athletes deserved the same freedoms of profit and movement that we afford to coaches.