By Daniel Libit and Luke Cyphers
(Editor’s Note: This story originally appeared in Newsletter of Intent)
In the late summer of 2015, John Kasich, the former governor of Ohio, was polling in the low single digits nationally in the Republican presidential primary, in as desperate need of a campaign boost as any of the frantic challengers dog-paddling in Donald Trump’s wake.
Kasich’s North Carolina co-chair had an idea.
Bob Orr, a former state Supreme Court justice, had noted that the college football season would be kicking off in short order with an ESPN-televised clash between North Carolina and South Carolina at Bank of America Stadium in Charlotte. This, he thought, made for a perfect political backdrop.
“You had two important primary states that are going to be intensely focused on that game,” Orr tells The Intercollegiate. While presidential candidates have long found opportunities to pay lip service to the home-state team, Orr’s idea was for Kasich to come to Charlotte the weekend of the rivalry and hold a press conference on what’s wrong with college sports.
“I thought it was a way to separate Kasich a little bit from the crowd, talking about something dramatically different but which I though the broad voting public was interested in,” Orr says.
Orr’s political intuition wasn’t merely speculative. Since retiring from the bench in 2004, and losing a GOP gubernatorial primary bid two years later, he had begun representing a handful of college athletes in eligibility battles against the NCAA. He found that people actually cared about this stuff.
“I would get more questions about my work representing players against NCAA as opposed to my any other experiences as a supreme court member or litigating other issues,” Orr says. “I thought it was a great opportunity.”
He knew that Kasich was a big sports fan, and he knew that there were plenty of well-founded criticisms the candidate could marshal.
“Kasich didn’t necessarily have to come swinging at the NCAA,” Orr says, “but simply pointing out in the venue this range of issues that people needed to be talking about, needed to be addressed — and again, he was getting very little national attention, with everybody talking about the same thing.”
Failing to make headway, Orr eventually pitched his idea to John Weaver, Kasich’s senior advisor (and “a big Texas A&M guy”) over Twitter direct message.
The campaign’s response?
“Crickets,” according to Orr.
(Kasich and Weaver did not respond to requests for comment.)
Kasich eventually ended his campaign in May 2016, but not before landing the endorsements of the five most recent Ohio State football coaches and taping a campaign ad with Urban Meyers that hasn’t aged well:
Orr, a Republican National Committee delegate, made headlines when he was booted out of the GOP presidential convention after vowing not to vote for Trump in the general election.
Now, three years into Trump’s first term, those political crickets are furiously rubbing their wings over college sports. Pay-the-players initiatives are igniting across the country, with California’s name, image and likeness law just the start. Over the next year, at least a half-dozen other states, and the U.S. Congress, are likely to be debating legislation that attacks the NCAA’s outdated amateurism rules. And the most striking aspect of this sudden, nation-wide movement is its bipartisan character. The efforts are being pushed as hard by rock-ribbed conservatives as they are by West Coast liberals.
“That has been one of my problems,” Orr jokes. “I have always been ahead of my time.”
FROM BOTH SIDES NOW
In a column last week, the Washington Post’s Sally Jenkins put her finger on “the rare political” harmony that has been created by college sports’ pigheadedness.
Taken together, the various legislative efforts represent a significant departure from the sympathetic treatment the NCAA and its member institutions historically have received from lawmakers.
In 2015, Georgia made it a crime, punishable by up to a year in prison, to entice college athletes to break NCAA rules for money. Support for what was called the “Todd Gurley Law” stemmed from an incident in which Gurley — a former University of Georgia football star who plays for the Rams — was suspended for four games by the NCAA after allegedly receiving cash for autographing sports memorabilia.
Similarly, state legislatures in Michigan and Ohio responded to a 2014 unionization effort by Northwestern football players — an effort the NCAA opposed — by passing or rewording laws preventing athletes at state schools from unionizing.
That’s suddenly changed.
Russian aggression couldn’t do it. School shootings couldn’t do it. Infrastructure couldn’t do it. But the NCAA, somehow, has brought Donald Trump’s America together. How did this happen? Eliciting the Beltway wisdom of Purple Strategies, the bipartisan political consulting shop, Jenkins credits the NCAA itself.
“It’s a body that has become so universally offensive to the nose that even politicians on the opposite poles have formed a consensus against it,” she writes.
“According to Purple’s managing director of reputation strategy, Robert Fronk, once the public suspects an organization’s motives don’t align with its mission, ‘we often see a rapid decline in the public seeing that organization as indispensable.’”
Is that it? Is it simply that the governing organization of major college sports is so risible that it has simply overcome America’s partisan default setting?
Surely, it has provided plenty of reasons to be nationally loathed — the NCAA’s potent blend of sanctimony and hypocrisy reaches deep into the nasal cavity. And yet, there are plenty of unpopular institutions that fail to rouse both ends of the political spectrum. What makes this different?
“I think there are so many components to the issue that fit into both the Republican and Democrat wheelhouse,” says Orr. “You have the free-market concept that I think deals to Republicans; you are talking about a multi-billion-dollar industry. There is obviously a large racial component, that appeals to the Democratic side. You have a real cross-party interest in higher education, that we are supposed to be providing quality higher education.”
While Kasich never ended up stumping on college sports, another 2016 Republican candidate did take it up. Well, an almost-candidate.
David French, the National Review columnist who was briefly floated as an eleventh-hour “Never Trump” spoiler, wrote an essay in April 2016 decrying the college sports world as a “progressive-dominated urban enclave” exploiting the labor of its minority underclass.
French unfavorably compared the NCAA to the city of Chicago and urged the political right to claim this mantel of reform.
“[C]onservatives should be leading the charge against NCAA exploitation and hypocrisy,” French wrote. “It is antithetical to free-market values. It allows a progressive cultural elite to exploit minorities by adopting fashionably liberal positions. And it helps prop up America’s corrupt, bloated, and discriminatory higher-education system.”
WHAT THE BATHROOM BILL WROUGHT
While California gets credit for adopting the first piece of anti-amateurism legislation, Orr’s home state of North Carolina might be where the spark for the issue first kindled into the fiery reform efforts — the impetus coming from an entirely unrelated realm: the commode.
In March 2016, North Carolina’s Republican-controlled legislature passed House Bill 2 (HB2), which required transgender people in public or government facilities to use the bathroom that corresponded to the gender on their birth certificate. In the ensuing national uproar, a number of national corporations and organizations threatened to boycott the state, calling the legislation discriminatory. That August, the NCAA announced that, due to HB2, it was going to exclude North Carolina from consideration as a future host for the men’s and women’s basketball national championships.
The NCAA’s pressure campaign was widely credited for leading to the partial repeal of HB2 in April 2017, but it also infuriated some GOP lawmakers, who then sought revenge against an organization they argued was unduly meddling in their politics.
Shortly after the NCAA’s boycott, Orr says he got a call from a Republican legislative staffer with this solicitation: “I understand you hate the NCAA. Do you have any suggestions for legislation we would use to poke them in the eye?”
Orr told him that he had an idea for a proposed study commission. He “knocked out about 10 or 12” bullet points and sent it to the staffer. Shortly thereafter, the state legislature established The Commission on the Fair Treatment of College Student-Athletes. “I assumed that this was going to go nowhere,” Orr says. “But they introduced the legislation to (create) the commission that was virtually identical.”
Despite its score-settling origins, the commission, chaired by the state’s conservative Lt. Gov. Dan Forest, proved to be a deeply substantive platform for exploring the multitude of problems in college sports. Experts and advocates from North Carolina and around the country began testifying last fall. Ramogi Huma, the executive director of the National College Players Association, and Andy Schwarz, the anti-trust economist and NCAA critic, flew in from California.
David Collins, a former UNC football player who hails from a staunchly conservative GOP family, spoke of his career-ending ankle injury in advocating for better medical protections and coverage for college athletes. Jay Allred, publisher of a local golfing magazine, and his daughter Victoria, a former East Carolina University golfer, spoke about the mental and physical toll she faced in recovering from a sports-related back injury.
Orr, for his part, testified about the college athletes he had represented, arguing that they should have a Constitutional right in North Carolina to be compensated for their on-field endeavors. The legislature produced a final report containing a number of broad-sweeping reforms that materialized in a piece of legislation, Senate Bill 335.
The North Carolina movement has created space for conservatives in other states, such as Washington and Colorado, to pursue California-style reforms, and inspired action at the federal level.
In March, another North Carolina Republican, Rep. Mark Walker, a former three-sport collegiate athlete, introduced federal legislation that mirrored California’s bill to allow college athletes to earn money off their name, image and likeness. Walker’s co-sponsor was Democratic Rep. Cedric Richmond of Louisiana. And last month, Rep. Anthony Gonzalez (R-Ohio), a former star wide receiver at Ohio State, announced he would propose House legislation providing additional “guardrails” to college athletes’ NIL rights.
The political jostling is evidence that the old truism about politics making strange bedfellows might still apply, even in these hyper-partisan times. And it is definite proof of another hoary cliche: Timing is everything.
“Sometimes there is a time to launch and a time not to launch,” says former Rep. Charlie Dent, the Pennsylvania Republican who twice introduced an NCAA reform bill, to no avail, in 2013 and 2015. “Looks like there are no clouds over the launch pad now.”