Last week might have seemed like a consequential one in the lingering saga known as college athlete NIL reform.
Members of the House of Representatives held a hearing that, like previous Congressional hearings on NIL, featured spirited and sometimes thought-provoking debate.
Should Congress pass legislation to craft a uniform federal standard for NIL? Should the feds design a new federal entity to oversee NIL and the agents and collectives who live in that space? Has NIL become a disguise for pay-for-play? Should college athletes be granted or denied recognition as employees, or should that subject be separated from NIL reform? What about gender equity, revenue sharing and unions?
These and other topics dominated a hearing that at times could have been mistaken for a law school class.
Like law students, members articulated divergent viewpoints—some informed by the readings, others more akin to gut reactions. There was ideation. There were promises. There was enthusiasm. There was consternation.
And, like guest speakers visiting a class, NCAA president Charlie Baker, UCLA quarterback Chase Griffin and other witnesses provided informed insights from competing perspectives. There was no shortage of substance.
But the hearing seems destined for the same fate that befell those before it and a fate familiar to academia forums: the absence of consequence.
To date, not one NIL bill—let alone bills reaching into more divisive topics like college athletes as employees and union members—has made it out of committee. It’s as if NIL hearings occur in a vacuum, populated by politicians eyeing attention and journalists eager to facilitate.
There’s another branch of the federal government more likely to change college sports. And its occupants don’t worry about re-election, fundraising or fame. They’re also in no rush.
The judicial branch holds the key to the future of the NCAA and college athletes. Whatever happens with NIL and college athletes as employees won’t be decided by elected officials, NCAA leaders or even college athletes themselves. It will be judges, who at the federal level have lifetime appointments and who usually resolve debates by applying law to specific questions presented in a case.
That means judges won’t abstractly determine if states can prevent the NCAA from enforcing NIL rules. Instead, they’ll consider if the law of one state violates provisions in the state and federal constitutions. How that impacts other states and their laws could spark additional legal controversies. That’s how precedent works: taking one decision spawned by a unique set of facts and arguing the decision and accompanying legal reasoning ought to apply in a particular way to a similar set of facts.
Likewise, judges won’t consider if the NCAA’s system of amateurism is illegal under antitrust law. Instead, they’ll attempt to resolve usually confined antitrust disputes, such as whether Power Five conferences should be able to share broadcast money with players, whether a college athlete who has already transferred once without limitation can transfer to a third school without limitation, or whether a college athlete is eligible despite having received what appears to have been salary in a pro league. How those resolutions ought to impact judges in other state and federal jurisdictions and antitrust challenges to other NCAA rules is what lawyers are paid to figure out.
Lastly, it means judges won’t decide if college athletes are employees. They’ll consider whether a specific subset of college athletes—as narrow as those who play one sport at one school and as broad as all Division I athletes—are employees. It will be up to other athletes and schools to debate the fallout.
The answers to questions enthusiastically debated by Congress last week could take a decade or longer to play out in the courts. We’ll probably learn those answers long after many who spoke last week are no longer in Congress.
Law works incrementally. Decisions are subject to appeal, subject to additional appeals. The unhurried pace is even more noticeable in this era of instant news and hot takes.
So, sit back and watch. Class is in session.