Even a casual observer of college sports can see the system is broken. What was once a haven for amateur athletics has become big business, even bigger perhaps than the professional leagues that many of these young sportsmen and women hope someday to join.
Fans are understandably aghast at the insanity of the new rules establishing transfer portals and name, image, and likeness agreements, and a patchwork of state laws that have tried to stabilize things. Predictably, as others have tried to bring order out of chaos without success, Congress is stepping up to take a whack at it.
College sports need that about as much as basketball teams need a goalpost. The various legislation coming out of Congress over the last decade or so related to the subject has invariably made things worse than they’ve ever been.
The latest effort, driven by Sen. Ted Cruz (R-TX) and helped along by Sen. Maria Cantwell (D-WA), is generating the most buzz and, because it is both bipartisan and introduced by the chairman and ranking member of the Senate Commerce Committee, seems to have the best chance of passing, is also just about the worst option out there.
The Cruz-Cantwell Protect College Sports Act, or PCSA, goes much further than the executive orders recently signed by President Donald Trump that try to make college football make sense.
What Trump has done is a moderate, incremental approach to resolving a problem everyone saw coming that no one, recognizing that college athletes operating in anything resembling a free market have economic rights that ought to be protected, could figure out how to solve fairly and equitably without destroying collegiate sports.
The Trump framework for NCAA football mirrors what House Speaker Mike Johnson, (R-LA), and Majority Leader Steve Scalise (R-LA), do in legislation that has already passed the House: give the NCAA the federal protections it needs to regulate the transfer portal and NIL, ban any new litigation avenues for trial lawyers, and instruct the Department of Justice to invalidate certain state laws that conflict with the association’s policies or discriminate against out-of-state commerce.
That’s about as modest an approach as one can take without going so far as to squeeze all the toothpaste back into the tube. The Cruz-Cantwell legislation, on the other hand, puts the federal government dead center when it comes to scheduling college games, hiring and firing coaches, and distributing revenue. Even worse, it creates an even larger antitrust exemption than Trump’s orders alluded to, which would allow for the establishment of private equity-backed pooled media rights.
This is why so many private equity firms are not only lining up in support of Cruz-Cantwell but also taking credit for helping draft the bill. The cash bonanza awaiting them at the other end makes the SpaceX initial public offering look small.
It’s also where the gap between Trump’s limited reforms and the Cruz-Cantwell college sports takeover bill is most apparent. Nothing the president has done so far suggests he intends for the federal government to respond to the disarray in college sports by severing colleges’ and universities’ media rights. The transfer that would be otherized under the Senate Commerce bill is so egregious that it might be considered a taking. In any event, an early analysis by the major athletic conferences concluded that pooling media rights would be “dangerously unworkable”.
Trump and Cruz-Cantwell aren’t totally misaligned. The president has expressed enthusiasm for congressional action on the subject. The White House created committees, held roundtables, and took executive action. Free-marketeers are generally not wild about the federal government’s intrusion into the marketplace, but the amount of litigation pending on the NIL alone makes it necessary. Unfortunately, Cruz and Cantwell have interpreted this need as an opportunity to go hog wild. In Title II of the PCSA, the Federal Communications Commission is made responsible for approving all future college sports media deals.
You can bet FCC Chairman Brendan Carr didn’t see that coming when he underwent confirmation.
IN FOCUS: THE WINNERS AND LOSERS OF THE PROTECT COLLEGE SPORTS ACT
If the White House believes the Cruz-Cantwell bill will do the job, there’s no need to promote a compromise that includes input from the House. Yet that’s exactly what’s happening, which should probably be taken as a signal that the president wants Congress to send him a bill, but one that is very different from the one deemed most likely to pass the Senate.
The president wasn’t just reading the tea leaves when he endorsed the idea of bipartisan reform of how college sports are organized and operate. But he also signaled the final product should reflect the will of both chambers. By implication, that means something different from Cruz-Cantwell. Anyone serious about the need for reform should take him at his word and scrutinize the Senate bill closely, especially where it departs from Trump’s executive orders.
A veteran journalist and former columnist for United Press International and U.S. News & World Report, Peter Roff (@TheRoffDraft) is now affiliated with several Washington, D.C.-based public policy groups. His writing and commentary appear regularly in the U.S. and international media. You can reach him at [email protected].