WASHINGTON — Sitting cross-legged in his Texas boots, Ted Cruz gazed out at the more than 75 FBS athletic directors before him while contemplating an answer to the question just asked: What are the odds that a college athletic bill governing name, image and likeness (NIL) passes Congress soon?
Eight seconds of silence passed.
“I think the odds are 60-40 we get it done,” Cruz, the Republican senator from Texas, finally whispered into the microphone.
A full-throated applause erupted from his audience. And then some 15 minutes later, in a rebuttal fitting of the divide in Congress, Cruz’s Democratic counterpart in the U.S. Senate sent any expectations plummeting.
“The chances are not 60-40,” said Chris Murphy (D-Conn.). “They are less than 50-50 that Congress does something comprehensive in the short term.”
The discord among congressional lawmakers played out here Tuesday in front of some of the leading administrators in college sports. Over the course of 90 minutes, three U.S. senators and a Congresswoman separately delivered varying degrees of opinions and prognostications on the passage of college athlete legislation.
Amidst an urgent push from the NCAA and college leaders for a federal bill, lawmakers offered a mixed bag during an annual gathering of college officials with LEAD1, an organization representing a majority of FBS athletic directors.
From a raised stage in a room at a downtown D.C. hotel, the dichotomy was not so surprising from members of a split or, some might say, fractured U.S. Senate. There was optimism and pessimism. There were compromises and disagreements.
One senator, Joe Manchin, a conservative Democrat from West Virginia, acknowledged that he wants to roll back new NCAA rules to “put the genie back” in the bottle, preserve a more amateur model and prevent athletes from becoming employees.
Another, Murphy, told administrators that it’s “too late” to protect any amateur system in college sports and that leaders should be seriously exploring a way to share revenue with athletes, opening the door for what he says is the answer: collective bargaining and potentially employment.
And then there was Cruz, who as the ranking member of the Senate Commerce Committee is one of the most influential lawmakers on this issue. The commerce committee holds jurisdiction over any college athlete bill.
“I think it is more likely than not,” he said of a bill passing, “but I don’t want to underestimate the challenges. That 40 [percent in the 60-40] is real. I’m optimistic because I think the need is urgent. But we also have a dynamic where there are real, meaningful partisan divides. That being said, we can overcome them.”
Negotiations have begun among the top Senate leaders on the committee. They include Cruz, the highest-ranked Republican; committee chair Maria Cantwell (D-Wash.); and other Democrats invested in the issue, such as Cory Booker (D-N.J.), who with two other senators released a college athletics rights bill earlier this year.
The pathway to a bill is simple to explain but difficult to reach: Cruz and Booker agree on concepts around the issue, in a way combining their two bills into a single article that Cantwell puts forward to a full committee.
Cruz and Cantwell have held “positive and constructive” conversations, Cruz said. They hold a lunch meeting every third week. In their latest gathering last week, the two spent “half of the lunch” discussing this issue.
“Maria has expressed an interest in trying to address this issue. She’s not sure we can get bipartisan compromise and if we can’t, it won’t pass," Cruz said. “I do think there’s an urgency to moving. This is not an issue that we should spend 10 years studying. We need to act. Y’all are dealing with the consequences of the Wild West. I don’t think that is good for the long-term sustainability of college athletics.”
As Cruz tells it, an agreement from the ranking member and chair on legislation is the recipe for a successful bill to move out of committee, onto the Senate floor and then, after a successful Senate vote, to the House of Representatives, where a Republican majority is more inclined to swiftly rubber-stamp such a proposal.
Can it happen?
Well, it’s complicated.
“I find myself saying this very rarely in the Senate,” Murphy said, “but I think Ted is right. I think this is one of the issues in which there is an ability to strike common ground. Yes, there are some differences between where Democrats and Republicans are but not for traditional left-versus-right reasons.”
The differences lie within a few key issues, lawmakers contend:
(1) NCAA legal protection: While Cruz wants to give authority to oversee NIL to the NCAA and grant the association at least a partial antitrust exemption, Murphy and other Democrats vehemently push back on such a concept. “That would be a big mistake,” Murphy said.
(2) Athlete employment: Some, like Cruz, believe any bill should stipulate that college athletes are students and not employees, something that could pause ongoing litigation to deem college players as employees of their schools or conferences. Cruz contends that Democrats are less inclined in such a provision because of their relationship with trial lawyers and labor unions.
At one point, Manchin, firmly against college athlete employment, delivered a message meant for his Democrat colleagues: “Should student-athletes be employees?” he said. “Jesus criminy! Are you crazy?”
In a clear and striking difference, Murphy pushed college leaders to examine a model to share revenue with athletes and collectively bargain with them: “You might disagree,” he said, “but I think it feels and smells a lot like employment at the highest level of the sport … that is increasingly attractive to me as a potential way to move forward.”
On this issue, there is disagreement in the House of Representatives as well.
Rep. Lori Trahan, a Democrat from Massachusetts on hand Tuesday, gave little hope that the House would produce a strong bill. Trahan described a draft of an NIL bill from Rep. Gus Bilirakis as “not a good bill” with little chance of passing the Senate even if it does pass a Republican-controlled House.
“It’s not going to build on the progress,” she told administrators.
For legislation in this Congress, a deadline somewhat looms. Once into the presidential election cycle — by this winter — most Congressional legislation tends to slow to a crawl.
Meanwhile, in the courts, a bevy of cases are working their way through the judicial system that could financially cripple college sports — including one, House vs. NCAA, in which a class-action certification hearing is scheduled for Thursday.
While many of the cases are more than a year from the end of an appeals process, they weigh on an industry that may have to pay billions to former athletes in back-NIL and Alston v. NCAA-related pay.
In a foreshadowing of the looming issues, Murphy, toward the end of his session before administrators, was clear and concise on what he believes is coming.
“The clock is ticking,” he said. “The appellate courts and the Supreme Court are going to strike down the existing system and paradigm sooner rather than later. I think it’s going to be up to the folks in this room to really lead on reform. Right now, this is not a priority issue in Congress.”