Massachusetts Gov. Charlie Baker, the newly named president of the NCAA, will take the reins from Mark Emmert in March at a time when the organization and its controversial system of amateurism face existential crises.
Baker, a Harvard graduate who played basketball for the Crimson, was elected in 2014 and reelected in 2018. He previously served as CEO of Harvard Vanguard Medical Associates.
A popular Republican in a heavily Democratic state, Baker is regarded as a fiscally conservative, socially progressive consensus-builder who is pragmatic and open to reforms and different ideas. That skill set will be helpful as Baker faces daunting challenges at the NCAA.
One major issue will be developing an enforceable and lawful policy on name, image and likeness. Under Emmert’s leadership, the NCAA hastily adopted an interim NIL policy in June 2021, days before a set of state NIL statutes were set to go into effect that made it illegal for the NCAA and member schools to punish college athletes for using their right of publicity to sign endorsement deals and enter into sponsorships. The NCAA had hoped Congress would pass a federal NIL bill that would have contained an antitrust exemption, but no bill even made it out of committee.
To date, members of Congress have viewed NIL in disparate ways. Some demand NIL be joined with other reforms, such as defining college athletes as employees of their schools, requiring universities to share revenues with athletes and guaranteeing health care for several years after their collegiate sports careers end. Other members seek a targeted NIL statute without other reforms attached. The NCAA, meanwhile, wants an exemption from antitrust law so that it could regulate NIL without fear of lawsuits on the heels of losing Alston 9-0 at the Supreme Court, and would also offer a defense against existing litigation—specifically House v. NCAA, which is set for trial in 2024 and argues that the NCAA and its members’ prior NIL bans constituted an antitrust violation.
As potential federal legislation has stalled, the NCAA has not enforced restrictions on NIL. This has led to what some call a wild west, with boosters using collectives to pay recruits ostensibly for NIL but likely as inducements. Baker’s reputation as a political moderate might prove helpful in a divided Congress, but it’s not clear any of the fundamental divides on Capitol Hill can be bridged.
Baker will also need to tackle the multiple legal efforts designed to make college athletes employees under the National Labor Relations Act, which governs athletes at private colleges and could make them eligible to form unions, or the Fair Labor Standards Act, which would guarantee them minimum wage and overtime pay. NLRB general counsel Jennifer Abruzzo—whose agency works alongside the Department of Labor, which is led Marty Walsh, the former mayor of Boston—has advocated for such a position. There are two petitions brought by advocates for college athletes before the National Labor Relations Board, asking the NLRB to declare college athletes employees under the NLRA. While the timetable on those petitions is likely extensive and any decision by an NLRB regional director could be appealed to the NLRB Board in D.C. (and also spawn federal litigation), they present a threat to the NCAA’s model of amateurism.
Concurrently, Johnson v. NCAA is progressing in the U.S. Court of Appeals for the Third Circuit. If successful, it would lead to the recognition of college athletes as FLSA employees in that jurisdiction. In a statement this week, civil rights leader Rev. Al Sharpton questioned why college athletes are not paid hourly rates to work in games but “Student ticket-takers, student seating attendants and student food concession workers at NCAA games are paid hourly.” Whether Baker is open to employment recognition for college athletes, such as those at major programs, will be interesting to watch.
Still another challenge for Baker is the controversial “transfer portal,” which has made it easier for football and basketball players to switch schools without an eligibility penalty. Some have equated it to free agency in pro sports, even though it involves students transferring colleges. Baker will need to figure out a path for the portal at a time when major conferences are gaining autonomy and rendering the NCAA seemingly less necessary.
U.S. Rep. Lori Trahan of Massachusetts, a former volleyball player at Georgetown University and sponsor of the College Athlete Economic Freedom Act, praised Baker in a statement but acknowledged he faces a tough road.
“Governor Baker has been an extremely effective leader in Massachusetts, having steered our Commonwealth through some of the most difficult moments in recent history,” Trahan’s statement said. “The NCAA is at an inflection point where athletes and the millions of fans who root them on have largely lost faith in it as an organization. The association desperately needs a proven leader who personally understands the unique needs of the nearly 500,000 college athletes it serves and who is prepared to do what’s necessary to right the ship.”
—With assistance from Emily Caron