Official Congressional Record
Mr. President, the people who oversee the post office now want to run college sports. What could go wrong? The U.S. Congress has been called upon during one of the more important times in our history to make difficult decisions about the future of our country. We have navigated wars, economic downturns, and natural disasters. These are the kinds of nationwide issues the Federal Government should address. The Founders never intended for the Federal Government, though, to usurp the authority of your local school board or your homeowners association. I don’t think it ever occurred to them that Congress would one day be in charge of dictating the rules for college sports. Yet, with gas at over $4 a gallon, a persistent war with Iran, $40 trillion in debt, the Senate has decided that the most urgent thing now is to dictate how college sports are run from Washington. It came to this decision, of course, after acknowledging that government caused the very problems this bill purports to fix. This is the exact scenario the great Harry Brown described when he said: Government--you know, they know how to break your legs and then hand you a crutch and say, see, if it weren’t for the government, you wouldn’t be able to walk. I come to the floor today to offer an amendment that would avoid the Federal takeover of college sports. Unlike the underlying bill, my amendment rejects the idea that politicians should run college sports. My amendment would put the trust in the schools, the students, the coaches, and the conferences to run their own sports. You see, the whole problem originated because the government, through the courts, took the power away from the NCAA. My amendment accomplishes this goal simply by granting an antitrust exemption so that the NCAA, the conferences, the college students, and the schools can make their own deals without unelected judges or politicians micromanaging every detail of compensation and eligibility. Jason Russell, a journalist with Reason magazine, perhaps summed up this bill’s Federal takeover of college sports best when he wrote: This is not the job of the Federal Government. These decisions should be made privately by an association. The NCAA always did this until the courts interfered with them, calling them a monopoly and taking away their just power to govern themselves. Jason Russell goes on to write: This bill is the culmination of a slow march toward Federal control of college sports that began almost 140 years ago in the courts. In 1890, Congress passed the Sherman Anti-Trust Act. It is a piece of antitrust legislation, but quite quickly, antitrust became a weapon against businesses of all sizes. A brief review of the antitrust cases shows you the ridiculous nature of antitrust law. One of the most ridiculous examples of antitrust as a weapon of government came in 1967. In Utah Pie Company v. Continental Baking Company, the Court determined that a bakery violated antitrust laws by selling its pies too cheaply. Now, you would be forgiven for being confused if you thought monopolies were where someone controlled the market and raised your price. The government sued Utah Pie Company for selling its pies too cheaply. Not long after that, in 1969, the government sued IBM for dominating the computer market by innovating too quickly. Now, I thought monopolies were going to prevent competition. There would be no innovation. They would block new innovation because they didn’t want someone to get into their territory. Instead, they accused IBM of innovating too frequently. So antitrust law is full of the government going after people for charging too little and innovating too much. The world is upside down, and antitrust law is a perfect example of the illogic of the government. The logic of antitrust became so contorted that the FTC accused cereal makers of maintaining a shared monopoly on the theory that the brands blocked competition by being so popular, they flooded the store shelves with their product. After 10 years of litigation, the FTC dismissed the case, ruling the staff failed to prove the shared monopoly charges. They were being accused of being too competitive. They were putting too many products on the store shelves. So you had like six or eight cereal makers making so many cereals that they said: You are blocking competition by introducing too many products. These are the absurdities of antitrust laws. This is the antitrust law that ended up destroying college sports. When you see the mess that is college sports, don’t think it just happened and now government has to come in and fix it. Government created the problem. Government took antitrust law, used it against NCAA, neutered them, and said: You can no longer make your rules. So when it is the government’s fault, maybe we should get rid of the government problem, not add more government to try to solve the problems. Antitrust laws granted the courts the ability to intrude on private contracts and dictate how people should run their businesses or their associations, like the NCAA, and courts have grown increasingly comfortable using that power, increasing the scope of antitrust law with each case. For over 100 years, this country has left regulation of sports where it belongs: with the institutions and individuals and voluntary associations that have always run college sports. Until 1984, college athletics were excluded from antitrust law because antitrust law didn’t deal with noncommercial amateur pursuits. But in 1984, the Court decided that the NCAA couldn’t impose television broadcasting restrictions on college football games. Well, why not? It is a volunteer association. If you don’t want to be in the NCAA, don’t be in it. Form your own association. Have your own rules. But there is an advantage to being in it because people watch the NCAA, watch the Final Four, and they watch the March Madness. So it is that tradeoff. You get something, but in order to get it, you accepted, voluntarily, the rules--that is, until the Court came in, messed everything up, and neutered the NCAA. Rather than recognizing that there may have been an underlying reason for the restrictions, the Court threw out the restrictions and began the slippery slope we are on today. That case in 1984 established college athletics as a commercial enterprise, but it wasn’t until 2015 that the courts really sank their fangs into college athletics. In 2015, the court decided that the NCAA could not require students to maintain their amateur status by refusing payments for the use of their name, image, and likeness. The court decided that eligibility rules for a private association are best decided by the government, not the members of the association. This is a real tragedy, and the reason I bring it up today is not because college sports is so messed up by the government. When you let antitrust law pervade private associations, you get rid of all of the rules that people voluntarily accept. It is no different than your homeowners association. It has all these rules. You voluntarily accept them if you want to be part of that particular neighborhood. It is the same way with the NCAA. But they can’t make the rules anymore because the courts said: You are a monopoly. You are no longer allowed to. All of the problems in college sports can be laid at the foot of antitrust law. You can say it is the courts, but it is really Congress. Congress passed these ridiculous laws, and for 150 years, they have been used in a ridiculous way. In fact, to this day, antitrust laws protect Big Business against Small Business. If five doctors get together and they say ``Well, we want to get our annual fee or our exam fee to be $100’’ and they are in separate practices that come together, the government will sue them for antitrust even though they are trying to use their leverage to negotiate a higher price with a billion-dollar company. The insurance companies are protected from doctors organizing or nurses organizing or hospitals organizing even though they are the big player. The big bully is the insurance company, but they are protected by antitrust and the small business people are punished. This is the history of antitrust law. In 2015, the court finally decided that the NCAA could not require students to maintain their amateur status. This NIL--name, image, and likeness--you can’t have rules against it. You are a monopoly. No more rules. So it is the Wild West, and it is chaos now. Nobody says it is not chaos. But the chaos was created by the antitrust laws. The chaos was created by the government. The court decided that eligibility rules for a private association would be decided by the government, not the members of the association. Since 2015, a flurry of cases has decided issues as parochial as how much individual athletes are paid out of broadcast revenues and how long student-athletes are eligible to play, when they can transfer, who they can play for, how old they are, what injuries they can play with. It is really not the government’s business to be involved. Government has shirked its real duties--which are paramount, which are of great national importance--to focus on something it knows nothing about. And mark my words, this won’t be the end of it. Sports has commissioners--a commissioner of baseball. Who is going to be the commissioner of college sports? Will we be back here in another year with people lobbying us to tweak the eligibility rules, tweak the transfer rules? As important as college sports are to students and institutions, they aren’t something Congress should micromanage. Athletes and institutions should be free to make choices about who they work for, who they play for, and what rules they should be subject to. This bill manages to interfere with college athletics at nearly every level. It limits the ability of certain employees to freely leave one school and accept a job at another. It decides how students may go about licensing their name, image, and likeness. It even decides when the transfer students are eligible to play. The bill actually forbids a return to the historic model of amateur sports where athletes are not paid. I am old enough to remember when amateur sports was lauded. You remember when we beat the Russians. We beat them with amateurs. It was commendable. They put all their professionals out there, and we beat them with amateurs. But people knew what it was to be amateurs. People who remember Bobby Jones remember and respect that Bobby Jones didn’t take money. There was something admirable about someone so pure that they didn’t. There was always something more admirable--not that money is bad, not that the NFL and NBA are bad. Look, our basketball players go after a year anyway. They are playing 1 year and going to the NBA. Some of them are going directly from high school, and that is their business. There is always this avenue to make money, but now what we have done with this bill is we have micromanaged this, and in the bill, it actually forbids anybody from preventing amateurs from being paid. You will no longer--it was probably a lost dream anyway, but this bill prevents the NCAA from ever going back to having true amateur sports where they aren’t paid. The bill would also set up a Commission on the future of college athletics. A legislative Commission--this is where we will get to the commissioner of college sports--will recommend new rule changes to Congress in the future. It seems that we already have an institution that does this; it is called the NCAA. Congress should not mire itself in another endless cycle of solving problems it caused. We should address the root cause, which is the antitrust law, that got us here. I have several bills to get rid of some of these old antitrust laws that I think actually favor Big Business over Small Business. One of the antitrust laws says that if you buy more in bulk from someone--so if you are a hardware store and you buy 5 hammers or you are Walmart that buys 5,000 hammers, there is a law that says you are not allowed to give discounts to big suppliers. Well, that is ridiculous. It goes against all economics. So what I am offering is an amendment that would actually solve the problem faced by college sports. My amendment would not create all the new rules for it. It would simply reverse the previous antitrust interference and prevent future interference by exempting college sports from antitrust laws. Now, the interesting thing is, in order to pass their bill, they actually do a little bit of exemption from antitrust laws. They do a little, though, and then in place of that, they replace it with congressionally dictated laws. What I would do is just get rid of antitrust laws. NCAA would have their power back again, and they would be able to make these rules. It might be that NIL probably still continues, but it would be a negotiated settlement and NCAA would do it. This would ensure conferences, colleges, and athletes are free to negotiate and enter into agreements that benefit everyone without the heavy hand of government dictating what parties could offer or accept. It would also prevent Congress from imposing rules governing such minutiae as eligibility for transfer students as a threshold for reporting name, image, and likeness income. I love college sports as much as anyone, which is why I think the best way we could protect college sports is to stop sticking our nose in where it doesn’t belong. Now, we have the bill before us, and you would think, in a country like ours that prizes democracy in a republic, we would have debate, we would be able to present my amendment, and it would either pass or fail on its merits. So what we will do is ask to bring my amendment down for a vote, and it is going to be rejected. And that is disappointing that we are going to do this whole thing where we take over college sports and any dissent will be muted and there will be no attempts to alter the bill. The bill has been written in private, but there will be no ability for anyone to amend this bill. That is a disappointment. So what I will be asking for is permission to have a vote on my amendment. Mr. President, I ask unanimous consent to call up my amendment No. 6758.