College sports bring in billions of dollars in revenue every year, but until very recently virtually none of it went to athletes. In 2021, the Supreme Court ruled in N.C.A.A. v. Alston that student athletes should be able to profit from their names, images or likenesses, known as NIL. As Justice Brett Kavanaugh noted in a concurring opinion, the N.C.A.A.’s policies against permitting athletes to profit from their labor could be considered a violation of antitrust laws, writing, “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair-market rate on the theory that their product is defined by not paying their workers a fair-market rate.” Since then, in practice, NIL has included two common types of compensation: endorsement deals for athletes, but also more direct payments, which usually come from college-affiliated collectives supported by donors in exchange for appearances at events, social media posts or other promotion.
But some coaches and observers have raised concerns about players participating in a potential Wild West of big paydays and constant transfers that could put smaller programs at risk. The N.C.A.A. has also agreed to a settlement that likely will eventually result in billions of dollars going to athletes who sued over not receiving compensation for NIL use on television, and in the start of a revenue-sharing model that would, in the future, pay athletes directly. That settlement, which is not yet finalized, will likely change college sports, but many questions about the details of that future remain unclear.
Senator Ted Cruz, the Texas Republican, has been trying to help create a solution for college sports. I spoke with him about why he believes preserving competitiveness in college sports is a job for the federal government. “Well, there’s a difference between a conservative and an anarchist,” he told me.
This interview has been edited for length and clarity and is part of an Opinion Q. and A. series exploring modern conservatism today, its influence in society and politics, and how and why it differs (and doesn’t) from the conservative movement that most Americans thought they knew.
Jane Coaston: So let’s start with some of the basics. In 2021, the Supreme Court allowed, in practical terms, college athletes to accept endorsement deals for certain types of income. What’s been good about NIL and what’s been bad?
Senator Ted Cruz: Well, I’m glad the Supreme Court did that. I think it is a much better and more fair system. Athletes spend thousands and thousands of hours developing incredible skills, and in many instances those athletes produce millions and millions of dollars for universities, for conferences. And it is only fair that the men and women who work so hard to develop those skills be able to enjoy the benefits.
On the other hand, where we are now in college athletics is the Wild West. We have wide-open bidding wars. We have athletes moving from school to school to school and not having any loyalty to any institution. Not having the esprit de corps of the fan base and the alumni base. We have a real risk of chaos ensuing and fundamental damage occurring to college athletics, which would be a travesty.
The current path we’re on could very quickly lead to a handful of super schools with virtually unlimited budgets having all the best talent and the other schools left not able to be competitive, which does real damage to the quality of athletics overall. It’s no fun to watch an N.B.A. team play a J.V. team. For sports to be fun, you need some kind of parity where you have a real contest. There is also, I fear, a serious risk of all of the focus being on major conferences, football and basketball, and women’s sports being neglected, nonrevenue sports being neglected. One of the most important things about college sports is that it has provided an avenue for thousands upon thousands of young men and young women to be able to get a college education who would not otherwise have gotten a college education. And I think it is critically important that we preserve and protect that path.
[A vast majority of college sports revenue comes from football and men’s basketball. Many athletes play “nonrevenue” sports, like track or women’s lacrosse.]
Coaston: Should athletes be fully classified as employees?
Cruz: No, I think that would be a disastrous outcome. That is one of the most important questions. If student athletes are treated as employees, that would ultimately hurt the student athletes. There are all sorts of restrictions that fall upon employees. Employees can be terminated at will in many instances. We should not have student athletes losing their scholarship simply because they dropped too many passes. Employees have all sorts of restrictions in terms of work, in terms of overtime, in terms of the conditions of employment. I’m quite certain the two-a-days that I ran in high school would not comply with OSHA.
[There are many views in Congress about how to classify athletes; for example, Richard Blumenthal, a Connecticut Democrat, has discussed a possible proposal to extend bargaining rights to student athletes, while not classifying them as employees. There are also many proposals about any number of issues raised by the changes in college sports, like a House proposal that would bar employment status for athletes while creating a congressionally appointed panel that oversees national rules for NIL deals. There is also a wide array of colleges that are potentially affected, from the powerhouse schools to more regional schools or historically Black colleges and universities. The N.C.A.A. opposes classifying students as employees.]
Coaston: I’ve been paying attention to this issue for a long time, and it’s been wild to see a lot of conservatives from Justice Kavanaugh on down basically say, “Athletes should receive compensation for the work they do in some form,” versus how people were talking about this issue when, say, S.M.U. got in trouble with the N.C.A.A in the 1980s. What changed? Do you think that there are generational divides? What changed here?
Cruz: It’s a good question and candidly, I don’t know. I will say it is, I think, a very conservative position. The very essence of the free market is that if you develop a skill that is marketable and that there is demand for, you should be compensated for that and be able to make a profit. And the disparity was becoming really stark in a way that I think fundamentally wasn’t fair.
Coaston: So one big thing missing in college sports is transparency. A lot of student athletes don’t know their fair market value, so to speak. I know you envision a public database of information with anonymized NIL deals so that athletes and others can understand their fair market value. How would that work exactly?
Cruz: Well, it’s exactly right that there’s a lack of information and you’ve got, in many instances, young men and young women that are 17, 18, 19 years old with very limited information, and it’s hard to know what’s even remotely a fair market value. It’s hard to know what a defensive lineman at a comparable program would typically be compensated at what level. When you’re dealing with young people, many of whom are teenagers, they often have very limited business experience. We’re seeing the rise of agents including some really unscrupulous players who take advantage of the students.
Being able to look and see what comparable players and comparable positions and comparable teams are being compensated at gives you a sense of at least the range of the market. It’s not all that different than if you’re buying a car and you go look at AutoTrader online to say, “OK, what is the average price if I want to buy a Jeep Cherokee?”
Coaston: So you mentioned some concerns about competitiveness a little earlier. Obviously there’s a growing divide between schools like Texas and Ohio State and a lot of the smaller ones. I know my alma mater has money to burn. So does Texas. And you mentioned how competitiveness is important, but should the government have a role in preserving competitiveness in college sports and if so, why?
Cruz: So, I don’t think the government should directly regulate, but I think the N.C.A.A. should have a role in preserving competitiveness. Schools like Texas would probably do pretty well because they would have essentially unlimited money for athletics. I was at Kyle Field a few years ago when the Aggies beat Alabama (Alabama was the No. 1 team in the country). I’ll tell you, Kyle Field went nuts when A&M won that game. You look a couple of years ago, Baylor won March Madness. Baylor is, relatively speaking, a small school with much more limited resources than a U.T. or a Michigan, and yet Baylor can win it all. That’s part of what really makes March Madness so much fun. It’s part of what makes college football so much fun.
Coaston: What is the ideal outcome for college sports in, let’s say, five years? Let’s say that a deal comes about, your bill gets put through. What does it look like?
Cruz: Well, one piece that is likely to change that is the settlement that is expected to come out in the House v. N.C.A.A. litigation. At this point, we don’t know the details about what’s in the settlement. But there’s widespread speculation that it will include some components of revenue sharing. That may prove to be an impetus for Congress to act and potentially to codify some aspects of that settlement. We’ll have to see the details of the settlement before making an assessment of it, whether that’s a good idea or not. But I think we want to have an outcome where the N.C.A.A. has the authority to set basic rules that protect student athletes, that protect NIL rights, but that also protect what is great about college athletics.
A number of weeks ago, I hosted a round table in the Senate on NIL, and it included a number of stakeholders. One of the people who participated was Nick Saban, who described how the current chaos is a big part of the reason he left coaching in Alabama.
[Since Mr. Cruz and I spoke, the N.C.A.A. and the five power conferences voted to approve a proposed settlement in this class-action suit, which would include back-pay damages for former athletes. The proposal also reportedly includes, going forward, an optional revenue sharing model that would make a portion of annual revenue distributable to athletes. The settlement is not finalized yet, but revenue sharing would be another big change to the college system.]
Coaston: I have to ask, I’m curious as to the landscape before NIL. I keep thinking back. You mentioned that Texas A&M-Alabama game. I think about someone like Johnny Manziel, the Texas A&M quarterback who was suspended for allowing his likeness to be used for commercial purposes, or some of the figures who definitely received payments, but perhaps in a less legal manner. When you talk to coaches who are at big programs, they must know what types of activities were taking place at those programs back then. How did NIL change things?
Cruz: The old rules were that athletes were not supposed to be paid. A lot of places cheated, but they did so in darkness and hiding it. Sometimes they got caught and sometimes they didn’t get caught. That on the face of it is not a very good way to run a system. I think it is better doing it openly and transparently, and I think we have moved substantially in that direction. The combination of NIL with the transfer portal I think has exacerbated the problem because look, anyone who likes sports, I watch pro sports, I watch college sports and they’re different.
[For many years, college athletes typically had to sit out a year if they transferred schools. Since 2018, athletes have been able to enter the transfer portal, change schools and play the next season, which they do, from quarterbacks to women’s basketball players.]
I mean, watching the N.B.A. or the N.F.L. is a lot of fun. But I cheered for James Harden when he was with the Rockets. Now he’s not with the Rockets anymore. And that’s part of the N.B.A. He goes to the Nets and then the Clippers., and that’s part of the N.B.A. College has always been different. College, you have your alums and you’re rooting for your school and you have allegiances. It’s fundamentally different than pro sports. And part of it is typically the athletes stay at a school for the four years. If they make a commitment, they’re getting an education.
I think commoditizing it and lessening every athlete’s attachment to their school is not good for college sports. Earl Campbell only makes sense as a Longhorn. I was at the Rose Bowl when Vince Young and Texas beat U.S.C. for the national championship; if we saw Vince Young playing the next year for U.S.C., that would piss me off. I also think it is very important when addressing this issue to remember the vast majority of college athletes are not N.F.L. or N.B.A. superstars — the vast majority of college athletes will never play pro sports. It’s not going to pay their mortgage; it’s not going to feed their kids. But the degree they get, the education they get, hopefully will enable them to get a job that is going to pay their mortgage and that is going to feed their kids.
Coaston: You’re usually very restrained as a limited-government conservative about when and how Congress and the federal government should intervene in private enterprise. Does your involvement with these N.C.A.A. issues represent an evolution in your thinking? Or if not, help us understand the interest here from a limited-government conservative.
Cruz: Well, there’s a difference between a conservative and an anarchist. I believe government exists and has important roles and responsibilities. Under our Constitution, the federal government has the authority to act where it is needed and consistent with constitutional authority.
In this instance, a state-by-state solution doesn’t work because conferences are by design national. The State of Texas can’t regulate what colleges in Oklahoma do, and Oklahoma can’t regulate what they’re doing in Alabama. The only way to have a national set of rules is at the federal level. I’m a big believer in principles of federalism — and Montesquieu and others describe them, that as much government as possible should be local, and everything should be local, except that which has to be at the state level, and as much government as possible should be at the state level, and what should be federal is only that which has to be at a national level. Here, because we’re dealing with interstate competition, interstate commerce and national competition that is each year culminated in a national championship, the only level of government that has the authority to address these issues is the federal government.
Coaston: My final questions are about politics. You’re running for re-election this year, for a third term. In your estimation, are Texas voters overall trending in a more conservative direction, a more progressive direction or a more centrist direction?
Cruz: I think some of both. Texas is changing significantly. When I was first elected in 2012, there were 26 million Texans. Today, there are more than 30 million Texans. There are a lot of reasons for that, but the No. 1 reason is Texas is where the jobs are. People are packing up and moving from bright-blue states, from New York and California and Illinois, and they’re moving to red states that have low taxes, that have low regulations, that have an environment that is conducive to small businesses and conducive to job creation. I think Texas needs to protect what we have. We need to keep Texas Texas. But if you look at the in-migration to Texas, I break it into two groups.
No. 1, there are people that are in blue states and they’re fed up. They can’t stand the high taxes, they can’t stand the regulations, they can’t stand the woke policies. They couldn’t stand the Covid lockdowns and shutdowns and schools being closed down. They look across the country and they say, “Where do I want to be?” And they pick Texas. The data show those folks coming to Texas are actually more conservative than the median Texas vote. They show up in Texas and they buy a pickup truck and boots and a hat and a shotgun. I call them Refugees for Freedom. I want every one of them to keep coming to Texas.
There is a second group, which is: A company moves to Texas and it transfers its employees to Texas. And in that circumstance, the individual employees didn’t make a decision “I want to be in Texas.” Many of them just decided to stay with their job and transfer. In my experience, many of those employees vote exactly like they did in the state they came from. We’ve got a whole lot of people in the first category and a whole lot of people in the second category. I think Texas is in flux, and that’s an argument that we’re having right now in real time.
Coaston: You ran for president in 2016 and you did well against Donald Trump. Any interest in running for president in 2028 or further down the line?
Cruz: I can tell you my focus is 100 percent on 2024. I’m running for re-election in Texas. It is a big race. Democrats are expected to spend over a hundred million dollars trying to beat me. And so I’m putting in 18 hours a day to fighting for 30 million Texans and making the case to the people of Texas that we need to continue the policies that are working so well in Texas. As for future years, those questions will be decided sometime in the future.
[In 2018, Mr. Cruz’s opponent spent more than $79 million, while he spent about $46 million.]
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