Depends What You Mean by 'Save'

The headline on the White House, ahem, “fact sheet” reads: “President Donald J. Trump Saves College Sports.” Whew. Glad that’s taken care of. Obviously, the man’s talents aren’t limited to immigration, trade policy and foreign affairs. 

President “I Alone Can Fix It” last week signed an executive order that aims to provide stability to a college athletic landscape roiled by legal challenges, greater freedom of movement and athlete compensation, increasing disparities in revenue streams for various schools and conferences, and a leadership vacuum at the top. The order includes lofty rhetoric about preserving opportunities for college athletes, protecting women’s and non-revenue or so-called “Olympic” sports, and the unique value of college athletics. 

It’s also characteristically lazy – short on details and implementation and enforcement – with a touch of threats and a Trump aggrandizement kicker at the end. It’s like many of his previous 175 EOs. He gives an order, praises its wisdom and himself, and dares anyone to challenge it. The EO also prohibits “pay-for-play” measures to athletes from schools, while still permitting athletes to make money from third-party endorsement deals. It directs the Secretary of Labor and the National Labor Relations Board to clarify the employment status of student-athletes, which under the current administration is less likely to classify them as employees or permit collective bargaining. It also instructs the Attorney General and the Federal Trade Commission to figure ways to re-establish governance back to the NCAA and conferences, and away from state legislatures and courts. 

You’re correct if you view this as part of an NCAA wish list, as the governing body has been cuffed around by various courts for years while clinging to outdated amateurism standards that are untenable, ethically and legally. Trump’s executive order cannot provide an antitrust exemption – another line on the NCAA wish list – nor can it make a law or override state laws. Only Congress can do that. What the order can do is move the needle and help generate momentum. 

The NCAA has lobbied for Federal intervention for some time, which brings us to something called the SCORE Act. That piece of proposed legislation would grant the NCAA and conferences antitrust exemption, prevent athletes from being classified as employees, override current Name, Image and Likeness (NIL) laws, and return most governing power to conferences and the NCAA. The bill passed through two Congressional committees last week – the furthest any college athletics bill has ever progressed – on strictly partisan lines; all Republican approval, zero Democrat votes. It could come up for a full vote when Congress reconvenes. It might pass the GOP-controlled House, where bills need only a simple majority. 

The Senate, however, has a 60-vote threshold for such legislation, which means that seven Democrats must cross over for passage, a dim proposition. In addition to Democrat opposition to the bill, attorneys general for the states of Ohio, Florida, New York, Tennessee and the District of Columbia sent a letter to committee chairs and multiple ranking members of Congress, which reads in part: “The SCORE Act … will not redress the persistent power imbalance between the NCAA and student-athletes. To the contrary, it risks enshrining in federal law the same lack of accountability — to antitrust laws, to the States, and to student-athletes themselves — that the Supreme Court and numerous lower federal courts have found to be indefensible. Simply put, the SCORE Act consolidates too much power in the hands of the NCAA. The NCAA is a cartel that has consistently abused its monopolistic control even in the absence of a legislative blank check to do so.” 

The Big Dumb Orange Guy fancies himself a sportsman, though for him the appeal is conquest and adulation rather than respectful competition. He’s an avid, if unscrupulous, golfer (do enjoy the Commander-in-Cheat caught on video at Turnberry this week in the video below) with courses around the world. He was part of start-up USFL ownership and was famously shut out when he tried to bluster his way into the NFL. He attends various sporting events, making himself part of the show. He has a talent for exploiting disorder, an ego that convinces him that he’s the smartest and most capable guy in the room, and a position that confers gargantuan status and influence, all of which play to the unsettled world of present day college athletics. He met with Nick Saban in May and had several conversations with a gent named Cody Campbell, a multi-billionaire and Texas Tech booster who has some ideas about how to settle the present chaos and benefit everyone. He talked up the idea of a commission to address issues, but that seems to be on hold while legislation is on the table. After the SCORE Act cleared the committees, he signed his order the next day. 

There’s reasonable skepticism that Trump’s order and his yammering about preserving and protecting college athletics are anything but power plays. It isn’t lost on people that he has picked fights with universities and withheld hundreds of millions of dollars in Federal funding over supposed failures to curb antisemitism and to scrub diversity initiatives. He’s a champion of higher education, provided institutions bend the knee and conform to his and his minions’ vision. No telling how this plays out. Executive orders are sometimes merely weighty recommendations. They can be challenged in court and changed by future administrations. Traditionalists and reformers in this debate agree on little, but both believe that there should be a framework that settles some of the chaos and uncertainty. Banking on durable, enforceable proposals from the Disruptor-in-Chief wouldn’t appear to be the way to bet.