October 29, 2019
Honorable Cory Booker
United States Senate
Washington, D.C. 20510
Dear Senator Booker:
At Advocacy for Fairness in Sports, we are delighted to see that a candidate for President of the United States of America is taking the issues we advocate seriously. These include gender equality, racial equality, comprehensive medical care for injured athletes, and economic justice, as we oppose abuses of power by leagues and other athletic organizations.
Senator Booker, many of these issues are central to your campaign platform regarding justice and opportunity for athletes. After a review of the content of your plan, we applaud all the measures listed. They would certainly be steps toward a better experience and governance for everyone involved when it comes to sport in the United States.
We feel, however, that in some respects, the statements lack clarity and do not go far enough to ensure the stated goals. To those ends, we have some questions we’d like to ask, and recommendations on how to maximize the effect of your desired policies.
Our questions are as follows:
- How would you strengthen oversight of the Department of Education regarding scholastic athletics?
- What steps will you take to avoid regulatory capture, where federal oversight merely codifies NCAA control over college sports?
- How will you ensure current students have real influence given their short tenure as college athletes?
- How would you give the proposed U.S. Commission on Integrity in Sports actual power to enact significant changes in sport in our society that you have listed?
- What consequences would there be for colleges and universities who do not comply with the new, stricter standards for athlete wellness you are proposing?
- What consequences would there be for professional sport and entertainment corporations that do not comply with the proposals you have made, such as gender equity in compensation?
We certainly understand that you have many other issues that deserve your attention. We also realize that many of these details will be worked out if/when you are sworn in as President, in cooperation with other experts. To provide you with some ideas to work with, we have a few recommendations to clarify your policy and make it as effective as possible.
The first recommendation regards your commission. As you are aware, legal standards are only as effective as responsible bodies’ empowerment to enforce them. Simply put, the commission must have “teeth.” We recommend giving the commission the power to work with the Department of the Treasury to revoke the 501(c)(3) status of colleges, governing bodies, the United States Olympic and Paralympic Committees and universities which do not comply with your standards. Additionally, we recommend staffing the Department of Education with people who are not timid about revoking accreditation to violating colleges and universities. Situations like the recent sexual abuse scandal at Ohio State University exist because of a lack of real accountability. These measures would give real consequences to bad practices.
Please note that proposals to revoke the NCAA’s tax-exempt status (as opposed to individual schools) would likely be toothless, since the NCAA is a pass-through organization. The moment its profits are taxed, it will show zero profits. On the flipside, however, losing nonprofit status would insulate the NCAA from disclosure of things like Mark Emmert’s salary. If you wish to use the tax code to effect change at the NCAA level, consider keeping nonprofit status while imposing a UBIT tax on NCAA revenue rather than on profits.
We recommend educational standards include language which ensures athletes are free to choose any degree path they desire and athletic programs schedule activities around athletes’ academic work, not the other way around. For example, many college athletes are not allowed to pursue majors in the sciences which include labs that coaches feel interfere with athletics.
We echo your concerns regarding poor healthcare for athletes. For those at colleges/universities, any athlete having to spend a solitary penny on an injury sustained while involved in sport for a college/university is unacceptable. While your statement that you would require such coverage be provided for athletes for 10 years after exhausting eligibility is a positive change, it is not sufficient for all injuries. We propose this be extended to lifetime coverage.
On that same subject, oftentimes coaches have too much influence over decisions on athletes’ readiness to return to the field of play after suffering an injury. We suggest a policy mandating that athletic trainers and other attending healthcare professionals have the final authority on such matters and that athletic trainers do not report to coaches in the athletic department hierarchy.
We applaud your support of the new law in California which has some potential to move the needle toward economic justice for college athletes. However, there are some concerns we have with that law and a possible federal piece of legislation along the same lines.
- The law compels collegiate athletes in California to continue to give away their name, image and likeness rights to colleges/universities, athletic conferences those institutions are part of, and the NCAA. We see this as a continued artificial restraint on the market for these athletes’ services and hope that such language would not appear in a federal bill.
- The law puts the colleges/universities in control of which third parties athletes can contract with by codifying that athletes cannot enter into such agreements that would conflict with existing agreements that the colleges/universities have in place. Again, this keeps the locus of control in the hands of the institution, not the individuals themselves, and we hope that such language would not be part of a federal bill.
- Some bills that have surfaced in other states, like Florida, would make it illegal for any college/university to offer NIL compensation to prospective athletes. This would force athletes to commit under abnormal labor market circumstances and continue to facilitate the climate that led to the basketball hoops scandal and trials, accepting an ex-post monopoly offer of perhaps zero. Again, we hope that such language would not be part of a federal bill.
- We believe deferring payment to a trust to be paid after graduation also defeats the purpose of a NIL bill because athletes who are broke now and need money to fix a broken-down car, travel home for the holidays, or help a parent pay the electric bill won’t wait four years. Deferring payment would also place elite athletes who wish to complete their educations before turning pro subject to predatory lenders who will loan money to them against their projected salaries at enormous interest rates.
We applaud your desire to strengthen the enforcement of Title IX. While that law has improved the situation for girls and women who are athletes, it has had the opposite effect for women in coaching. We recommend that Title IX be expanded to require colleges/universities, national governing bodies and the USOPC to spend resources to improve opportunities for women who desire to coach. Urging Congress to override the Mary Ann Stanley case with legislation would give Title IX teeth with respect to coaching salaries.
The same issues apply along gender identity, racial, religious and sexual orientation lines. Simply put, if these institutions want federal dollars, they need to provide quantifiable and verifiable proof that they are providing opportunities for ethnic and religious minorities along with those in the LGBTQ community.
While the executive branch of the federal government does not have as much direct control over privately-owned sports entertainment ventures, Congress has a lot of power to regulate those industries. We would like to draw your attention to issues that are not mentioned in your plan.
- The WNBA’s collective bargaining agreement’s listing of pregnancy as a “condition” that athletes must disclose to their employers and franchises subject to discipline.
- The lack of lifetime healthcare for NFL players.
- The numerous and constantly shifting obstacles for members of the NFL’s concussion settlement class in obtaining the relief they deserve
- The repeated interference of the NFL and NHL in ongoing concussion research
- The abuse of opioids and other painkillers by athletes spurred on by leagues and their franchises
- Measures to guarantee transparency in both state and federal courts to ensure that over-zealous prosecutors and police do not unjustly use athletes to decorate their trophy cases. Increased judicial transparency will, of course, benefit all citizens, especially those in minority or marginalized groups.
Once again, we applaud the initiative you have already shown to drastically improve the quality of life for athletes in our nation. We welcome feedback from your campaign, including how Advocacy for Fairness in Sports can assist in helping you turn these initiatives into reality upon your inauguration as President or in a continued role in the United States Senate.
Sheilla J. Dingus
President, Advocacy for Fairness in Sports