While the Power 5 conferences work toward potential federal legislation that meets the conferences’ most pressing areas of concern, an internal memo from the Atlantic Coast Conference says “we must be prepared to negotiate and possibly compromise” on allowing a form of pay-for-play, among other issues.
On3 obtained a copy of the memo through a public records request.
The memo, dated December 13, 2022, says working groups from the ACC, Big 12, Big Ten, Pac-12 and SEC – conferences officially known in NCAA circles as the Autonomy 5 (A5) and informally referred to as the Power 5 – had “reached consensus on our positions … what we consider ‘Must Haves’” in potential federal legislation.
The five “Must Haves,” the ACC memo says, include wanting to prevent three things through federal legislation: college athletes being classified as employees; granting athletes their name, image and likeness rights in media telecasts of competition; and NIL or third-party payments being used as “recruiting or participating inducements.” In addition, the Power 5 leagues want federal legislation to preempt state laws, as well as to provide “legal liability protection for following these provisions of the new law, at least prospectively.”
In addition, the memo says Power 5 conferences had spent the past year developing “a strategic initiative to pursue a federal legislative solution that sets forth a sustainable path for intercollegiate athletics.” The memo says each conference formed a four-person working team that included its commissioner, a conference staff member who’s responsible for governance, legal counsel and a government relations consultant.
The memo was written by Jonathan Barrett, of Barrett Law P.C. Barrett won a University of North Carolina law school Distinguished Alumni Award in 2021, and his bio with the announcement said he represented the Big Ten for 13 years, including in the creation of the Big Ten Network and conference expansion.
3 additional categories are negotiable
The ACC memo says “we have not discussed in detail and have not reached a consensus” regarding three additional categories that a potential bill is expected to address. The other categories: additional student-athlete support, healthcare benefits for student-athletes and enforcement of laws in new legislation.
“These three items are what we consider, and what the Senate will consider, the price to obtain our ‘Must Haves’ above,” the memo says. “In other words, we must be prepared to negotiate and possibly compromise on items … in order to arrive at a bill that can pass the Senate and be signed by the President.”
The memo says additional student-athlete support “could be in the form of revenue sharing, direct NIL payments, other direct payments, all from the institution,” which the memo says amounts to a form of pay-for-play.
Healthcare benefits “could include establishing a minimum standard of healthcare benefits, including providing portable healthcare insurance policies that would cover a period of post-eligibility, and providing healthcare subsidy payments for the institutions outside the A5.”
There are 32 NCAA Division I conferences in basketball. The memo suggests the Power 5 could be required by law to help subsidize other conferences or institutions if future federal legislation mandates new healthcare costs.
It remains to be seen how potential federal legislation would be enforced. “We would need to reach agreement with Congress on what entity would be responsible for enforcing the new law,” the memo says. “Possibilities include the NCAA, a federal department or agency or an existing or newly established independent entity.”
2-part strategy after 2022 elections
The memo notes that Power 5 government relations consultants advised a two-part strategy following last fall’s midterm elections, after which the Republicans control the House of Representatives and the Democrats control the Senate.
“First, have a strong, pro-A5 bill passed fairly quickly by the House of Representatives (along the lines of the favorable Wicker bill that was introduced in the Senate by Senator Wicker during the 2020 term),” the memo says. “Second, negotiate with the Senate to arrive at a mutually agreeable bill.”
Sen. Roger Wicker (R-Miss.) introduced in December 2020, then reintroduced last September, the Collegiate Athlete Compensation Rights Act. The most recent version of the bill proposed the creation of an Office of Sport within the Federal Trade Commission (FTC) to “provide the agency with the focus and expertise needed to combat unfair and deceptive practices related to NIL.”
The memo says the government relations consultants “hope to achieve success with a House bill fairly quickly.” But the memo notes that because the Republican majority in the House of Representatives is smaller than some observers predicted, that may “necessitate a longer timeline and require simultaneous negotiations with the Democrat-led Senate, which will be challenging.”
The consultants said the Power 5 conferences should be prepared to approach the Senate to start negotiations as early as February.
“We have been told that once these negotiations begin in earnest, the Senators will expect the A5 to react and agree quickly on specific legislative proposals (within days, not weeks),” the memo says. “As a result, the A5 will need to be ready to arrive at decisions in order to impact the legislation. Otherwise, the legislation could proceed without significant A5 input.”
The memo says the Power 5 will be the group with whom Congress, “especially the Senate,” will work on a mutually agreeable bill. “We understand that the NCAA has a similar committee that may intend to negotiate with Congress ([NC State] Chancellor [Randy] Woodson is on that committee), but the A5 plans to be the driver of this legislation,” the memo says.
The Power 5 planned to take a similar approach with NIL-specific legislation several years ago. In December 2019, the Power 5 held a strategy call regarding NIL that featured every conference commissioner. A draft of the meeting notes, which then-Pac-12 commissioner Larry Scott put together, stated, “We think the 65 schools that make up our conferences should take the lead in this effort. But we don’t think that it is advisable to brand this as an A5 effort – rather, we think it is very important to chart a course so that schools in other conferences could support us, and that the NCAA could support us. But notably, we don’t think Mark [Emmert] or the NCAA should be taking the lead in Washington.”
Scott also wrote that “the feedback we hear in Washington is that the NCAA does not have a good reputation with Senators or Members of Congress.”
Former Massachusetts Gov. Charlie Baker officially takes over for Emmert as NCAA president starting March 1. Baker was a Republican governor noted for getting things done in a state government controlled by Democrats.
Empowering the ACC commissioner in negotiations
The memo addressed the role that ACC commissioner Jim Phillips and the conference’s board will play during the Power 5’s negotiations with members of Congress.
“Obviously, this negotiation, with the multiple parties involved in the negotiation, will be difficult and complex, but for the ACC to be heard and have an impact in the negotiations, Commissioner Phillips must have the ability and authority to engage on behalf of the Conference and to react quickly to developments,” the memo says. “However, because the Board has the ultimate authority to set forth the Conference’s positions, we have considered a couple of options as to how to integrate the Board in this negotiation process.”
The first option was to allow the board to predetermine the parameters or limits the conference is willing to accept in negotiations. The second option outlined the creation of a Select Committee of the Board to act as “on-call representatives” to assist Phillips during the process. The board could require Phillips and the committee to report developments to the board periodically. The board would create a second committee called the Select Committee of ADs to analyze legislative options and consequences.
The memo says feedback regarding the issues outlined in the memo was due December 20, 2022. A meeting with the other Power 5 conferences was scheduled for the following day. ACC representatives were encouraged to reach out to Phillips by phone “but not text or email” with any comments, questions or concerns. Text or email correspondence from a public institution is subject to FOIA requests.