College football is evolving, but it’s not necessarily doing so by choice.
Name, Image and Likeness (NIL) deals, a free-for-all transfer portal and an inability for the NCAA to enforce their own rules have left fans and schools struggling to keep up.
Congress recognizes that it may become necessary to provide both recruiting guardrails and a consistent national standard while giving the NCAA the power to make and enforce rules across the board.
However, the Senate’s latest related working proposal, the Protect College Sports Act (PCSA), goes much further by literally trying to take control of the game instead of merely effectively regulating it.
The Senate Bill, backed by Sens. Ted Cruz, R-Texas, and Maria Cantwell, D-Wash., is being sold as a way to restore sanity to college sports.
In reality, it goes far beyond cleaning up NIL and bringing some order to the transfer portal where players declare their intent to play, be contacted, and recruited.
It applies a broad antitrust exemption for the pooling of media rights and then puts the federal government in charge of scheduling games and redistributing television dollars as it sees fit.
The bill does attempt to address some legitimate concerns. The transfer portal is chaotic.
NIL rules differ by state. Schools are spending more exuberant sums on their football programs each year.
Fans and schools want stability and predictability.
But instead of a narrow, targeted bill that addresses those issues and allows the NCAA to go from there, the PCSA layers on a myriad of restrictions from athlete compensation and transfers to coaching hires, program offerings, and the calendar itself.
We didn’t get from cleaning up the transfer-portal to a 111-page Washington takeover accidentally. Sen. Cruz, a wealthy donor, college sports booster Cody Campbell, and private equity firms alike, saw it as an opportunity to greatly expand government power in a private industry.
It is an unconstitutional assault by government against private enterprise at the behest of a very privileged few.
To keep progressives and labor groups at the table, the bill includes a significant media-rights pooling idea (complete with a mandated revenue-sharing formula) and new legal hooks for trial lawyers, thus, turning what should be a targeted fix into a sprawling system of federal control.
The result is legislation that reflects every faction in Washington's power structure and their respective wish lists – not what’s best for the sport.
For Example, backers of the PCSA insist that pooling media rights would generate increased media revenue.
That talking point, pushed by private equity interests, hasn't stood up to scrutiny. In fact, this is a solution in search of a problem.
Under the current system, conferences have already grown the average annual value of their media deals by roughly 2.8 times in the most recent renewal cycle.
This growth rate is already comparable to the pooled NBA deal that proponents hold up as a model. Further, the problems don’t stop with money.
The PCSA writes into federal law specific guidelines for college football scheduling, requiring a minimum number of "historic football opponents" and "traditional rivalry games" and placing restrictions on when games can be played during the year.
As a former member of Congress, I can absolutely guarantee that it will not be more than two seasons before sitting members routinely insist on scheduling "fixes" to brag about at home and will do everything that their individual seniority allows to rig and advantage their own state’s teams.
It doesn't take a Ph.D. to guess which is more important to your average senator –Fourteenth Amendment substantive due process or where Clemson, A&M, or Auburn are playing this season and against whom.
This is an insane idea.
The PCSA even creates a broad private right of action that invites a wave of lawsuits over every legitimate, perceived, and manufactured violation.
Schools will drown in legal fees when they should be growing their programs.
The ensuing settlements that will likely flowing from these expensive suits will also bring litigants to the decision-making table, thus influencing the operation of the sport in ways that are opaque and self-serving.
This is more insanity that will actually defeat the purported purpose of the legislation.
This level of government overreach is dangerous.
Such "Congressional Boosters" (so to speak) have no place in sports legislation.
However, there is a better approach.
The consequences of previous litigation dictate that the federal government does need to act – but to provide college athletics with the proper tools and protections to effectively self-govern.
That is very different from a proposal to pool media rights, to micromanage schedules, to control coaching hires and fires and to freezing the evolution of conferences in place by legislative fiat.
If it were really about improving the program for those in it, Congress could pursue a bill that clarifies NIL rules, sets basic transfer standards and protects athletes' ability to compete in a fair market – all while leaving the NCAA and conferences free to innovate.
Instead, the PCSA protects and serves the corrosive interests of those in Washington.
Conservatives should reject this misguided bill and instead insist on reforms that enforce clear rules, protect real competition and keep college sports away from direct Washington control where they belong – governed by conferences, schools, and fans
(Related stories may be found here, here, and here.)
Mike Flanagan represented the 5th District of Illinois in the U.S. House of Representatives. Read more Micael Flanagan's Insider articles — Click Here Now.