Eli Nachmany is a second-year law student at Harvard Law School and the Managing Editor (Print) of the Harvard Journal of Sports and Entertainment Law. Prior to law school, Nachmany worked in the White House Office of American Innovation as a domestic policy aide and as the Speechwriter to the U.S. Secretary of the Interior. He is a 2017 graduate of New York University, where he earned a B.S. in Sports Management, summa cum laude.
It appears likely that Congress will enact federal legislation on the subject of student-athletes earning compensation for their names, images, and likenesses. The National Collegiate Athletic Association (NCAA) is mulling the promulgation of a set of rules, or “guardrails,” for this new compensation landscape.[1] Passage of national legislation on this topic would inform these rules, and may even set them.
This is only part of the battle. Eventually, some entity will have to actually enforce these rules against universities and student-athletes. The NCAA might like for someone other than itself to enforce the policy. Commentators regularly rake the NCAA over the coals for coming down on athletes in the name of amateurism.[2] It is no surprise, then, that in a recent poll of university athletic directors, 85 percent said they were “not confident at all” that the NCAA could enforce the rules it has currently proposed.[3]
Enter the concept of an independent oversight board. Three-quarters of the aforementioned poll’s respondents “were in favor of creating a third-party board that would oversee the new marketplace for athletes.”[4] But what might this look like? Certainly, the NCAA can create a private, independent body. But it may prefer that Congress entrust the responsibility to a public overseer, and such an arrangement may even be necessary if the guardrails are federal laws. If Congress does so, it would be wise to consider how courts might view an independent enforcement board, while also taking care to avoid some of the practical issues that have plagued recent oversight entities.
Over the past 25 years, Congress has created a few independent oversight bodies in the executive branch. In 1998, Congress established the IRS Oversight Board to “provide the IRS with long-term guidance and direction.”[5] Six years later, Congress created the Privacy and Civil Liberties Oversight Board (PCLOB) within the Executive Office of the President, with the goal of “oversee[ing] adherence [to] counterterrorism policies with protections for privacy and civil liberties.”[6] And just this year, Congress constituted the Pandemic Response Accountability Committee (PRAC), whose job is to conduct oversight of the funds distributed through various pieces of COVID-19-related legislation.[7] It remains to be seen how the PRAC will fare, but if the respective histories of the other two boards are any indication, there may be some obstacles ahead.
The IRS Oversight Board has been an unmitigated disaster. It suspended operations in 2015, lacking enough members to reach a quorum.[8] Senator Rob Portman stated in 2018 that the board had “fallen by the wayside.”[9] And that same year, Congressman Sam Johnson (R-TX) introduced a bill entitled the “Eliminate Failed IRS Oversight Board Act.”[10] Presidents today struggle to confirm all of their appointees, given the slowness of the Senate and other factors,[11] making it less shocking that boards like the PCLOB and the IRS Oversight Board would have trouble functioning due to a lack of confirmed members.
Congress reconstituted the PCLOB in 2007 as an independent agency, but the agency lay dormant for more than three years after the 2007 legislation.[12] It did not become fully operational until 2013, after the Senate confirmed its four part-time members and a chairman.[13] After the PCLOB issued a few reports, and its chairman argued for independent oversight of U.S.-targeted killings, members of Congress “became concerned,” and some even introduced proposals to limit the board’s authority.[14] “During 2016, the chairman and two of [the board’s] part-time members left, and only two members remained when President Donald J. Trump was inaugurated. . . . By March [2017], only one member remained, leading one commentator to argue PCLOB was ‘basically dead.’”[15]
Returning to the possibility of an NCAA Name, Image, and Likeness Compensation Oversight Board, Congressman Anthony Gonzalez (R-OH), a former college football player, stated his desire for a body that reports to Congress.[16] The Congressman’s statement suggests that the board’s duties would be legislative in nature, limiting such an entity to compiling reports for Congress. Congress has some legislative agencies, like the Government Accountability Office and the Congressional Budget Office, which prepare such reports for the legislature.[17]
This formulation, however, appears inconsistent with what the athletic directors, and likely the NCAA, truly want from this board: enforcement. And once the board moves from issuing reports to enforcing rules, it is exercising executive power. Importantly, a board with this kind of authority is doing more than just engaging in “independent oversight.” If an enforcement body is part of the eventual NCAA legislation, Congress will need to be careful about the way in which it constructs the board.
As the Supreme Court recently held in Seila Law v. Consumer Financial Protection Bureau,[18] an independent agency exercising “significant” executive power (defined as a governmental entity that enforces laws and whose leader(s) can only be removed by the President for cause) cannot have a single director.[19] Taking Seila Law at face value, Congress would be unable to create an NCAA Name, Image, and Likeness Oversight Board with enforcement power and a single director removable only for cause, assuming the enforcement power at issue here is significant.[20] Instead, drawing on the makeup of longstanding independent agencies like the Federal Trade Commission (FTC) or the Federal Communications Commission, Congress could to create an independent body with multiple members—say five or seven—to do the work, notwithstanding the practical time-to-appointment issues outlined above.
But a closer reading of Seila Law may foreshadow significant structural changes to the separation of powers coming soon to the administrative state. Congress should anticipate those changes—and eschew the “independent” model in favor of an entity that reports to the President—if it seeks to create an agency that can enforce guidelines for compensation of student-athletes in the NCAA. At first glance, Seila Law distinguished the facts of the CFPB dispute from the Court’s precedent in the 1935 case of Humphrey’s Executor v. United States,[21] which essentially held that certain independent agencies with multiple heads are constitutional.[22] Ultimately, it was the fact that the CFPB had a single director that led the Seila Law Court to strike down the for-cause removal protection for the agency’s head.[23]
The Humphrey’s Executor Court acknowledged that some agencies (in that case, the FTC) carry out functions that are quasi-legislative and quasi-judicial, holding that these agencies may be independent.[24] But Chief Justice Roberts noted that the 1935 FTC, whose independence the Humphrey’s Executor Court upheld, merely made reports and recommendations to Congress and submitted recommended dispositions to Article III courts.[25] That is almost certainly a narrower set of responsibilities than the modern FTC carries out. It is not inconceivable to think that after sending up this smoke signal, the Court is poised to take a much more aggressively anti-independent stance for even those agencies that have multiple heads, to the extent that they exercise executive power.
Even if a decision from the Court effectuating this stance is not imminent, Congress should hesitate to make an NCAA enforcement body independent. Some of the most compelling arguments for independence concern the tension between the hyper-technical nature of an agency’s work and the President’s interest in short-term political gain. Proponents of an independent Federal Reserve, for example, usually make this point.[26] But such issues are not present with enforcement of NCAA compensation rules. In stark contrast to the Federal Reserve setting monetary policy, ensuring that student-athletes and universities are complying with compensation guardrails presents neither a potentially grave threat to the country’s long-term economic stability nor a significant risk of undermining the rule of law in the United States.
To avoid (1) judicial scrutiny, (2) the issue of oversight failing based on not having a quorum, and (3) a lack of democratic accountability, Congress should structure an NCAA Name, Image, and Likeness enforcement authority like a regular executive enforcement agency: charge it with enforcing clearly defined rules,[27] limit its rulemaking power, establish it under a single director appointed by the President with the advice and consent of the Senate and removable by the President at will, and perhaps even place it within an executive department like the Department of Labor or the Department of Education.
[1] Billy Witz, N.C.A.A. Outlines Plan to Let Athletes Make Endorsement Deals, N.Y. Times (Apr. 29, 2020), https://www.nytimes.com/2020/04/29/sports/ncaabasketball/ncaa-athlete-endorsements.html [https://perma.cc/MK9Y-9Y7P].
[2] See, e.g., Stephen A Smith (@stephenasmith), Twitter (Nov. 8, 2019, 6:15 PM), https://twitter.com/stephenasmith/status/1192943698708971520 (“The @NCAA is a damn travesty. [Memphis basketball player James] Wiseman is ineligible – after already starting the season – because COACH Penny Hardaway is a booster? This is straight B.S.”); Jay Bilas (@JayBilas), Twitter (Nov. 18, 2018, 9:40 PM), https://twitter.com/JayBilas/status/1062898113340493824 (“An absurd, unjustifiable ruling by the NCAA on Minnesota’s Marcus Carr. ‘Student-Athlete welfare’ is a meaningless term. Forcing Carr to sit out benefits no one, just hurts an unpaid student. What a joke.”).
[3] Dan Murphy, Most ADs polled think NCAA is incapable of policing athletes’ endorsement deals, ESPN (June 4, 2020), https://www.espn.com/college-sports/story/_/id/29268117/most-ads-polled-think-ncaa-incapable-policing-athletes-endorsement-deals [https://perma.cc/4SK9-LSA6].
[4] Id.
[5] IRS Oversight Organizations, IRS (last visited Aug. 8, 2020), https://www.irs.gov/about-irs/irs-oversight-organizations [https://perma.cc/HGX6-KSZ2].
[6] David P. Fidler, Is the Privacy and Civil Liberties Oversight Board Back in Business?, Council on Foreign Relations Blog (Sept. 11, 2017), https://www.cfr.org/blog/privacy-and-civil-liberties-oversight-board-back-business [https://perma.cc/97MM-8SAJ].
[7] About, Pandemic Response Accountability Committee (last visited Aug. 8, 2020), https://pandemic.oversight.gov/about [https://perma.cc/H86G-Q8PX].
[8] See Jory Heckman, Senators look to restore long-neglected IRS ‘board of directors’, Fed. News Network (July 26, 2018, 5:11 PM), https://federalnewsnetwork.com/agency-oversight/2018/07/senators-look-to-restore-long-neglected-irs-board-of-directors/ [https://perma.cc/EFP9-3EJT].
[9] Id.
[10] H.R. 5370, 115th Cong. (2nd Sess. 2018).
[11] See generally Anne Joseph O’Connell, Shortening Agency and Judicial Vacancies through Filibuster Reform? An Examination of Confirmation Rates and Delays from 1981 to 2014, 64 Duke L.J. 1645 (2015).
[12] See Fidler, supra note 7.
[13] See id.
[14] See id.
[15] Id. (hyperlink omitted).
[16] See Murphy, supra note 4.
[17] Branches of the U.S. Government, USA.gov (last visited Aug. 8, 2020), https://www.usa.gov/branches-of-government [https://perma.cc/46DT-FYD2].
[18] Seila Law v. Consumer Fin. Protection Bureau, No. 19-7, slip op. (U.S. June 29, 2020).
[19] Id. at 2.
[20] This essay brackets this question for the time being.
[21] 295 U.S. 602 (1935).
[22] See generally id.
[23] Seila Law slip op. at 2.
[24] 295 U.S. at 629.
[25] Seila Law slip op. at 17.
[26] FAQ: Why is it important to separate Federal Reserve monetary policy decisions from political influence?, Board Governors Fed. Res. (last visited Aug. 8, 2020), https://www.federalreserve.gov/faqs/why-is-it-important-to-separate-federal-reserve-monetary-policy-decisions-from-political-influence.htm [https://perma.cc/UKN8-ASP5].
[27] The clearer the rules, the less likely it is that the agency is vulnerable to nondelegation challenges in the wake of the Supreme Court case of Gundy v. United States, 139 S. Ct. 2116 (2019), in which Justice Alito signaled in concurrence that he might be willing to apply a more muscular conception of the nondelegation principle in future cases if the position would command a majority.