[Senate Hearing 116-578]
[From the U.S. Government Publishing Office]
S. Hrg. 116-578
NAME, IMAGE, AND LIKENESS: THE STATE OF INTERCOLLEGIATE ATHLETE
COMPENSATION
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON MANUFACTURING, TRADE,
AND CONSUMER PROTECTION
OF THE
COMMITTEE ON COMMERCE,
SCIENCE, AND TRANSPORTATION
UNITED STATES SENATE
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
__________
FEBRUARY 11, 2020
__________
Printed for the use of the Committee on Commerce, Science, and
Transportation
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
Available online: http://www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
52-659 PDF WASHINGTON : 2023
SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
ONE HUNDRED SIXTEENTH CONGRESS
SECOND SESSION
ROGER WICKER, Mississippi, Chairman
JOHN THUNE, South Dakota MARIA CANTWELL, Washington,
ROY BLUNT, Missouri Ranking
TED CRUZ, Texas AMY KLOBUCHAR, Minnesota
DEB FISCHER, Nebraska RICHARD BLUMENTHAL, Connecticut
JERRY MORAN, Kansas BRIAN SCHATZ, Hawaii
DAN SULLIVAN, Alaska EDWARD MARKEY, Massachusetts
CORY GARDNER, Colorado TOM UDALL, New Mexico
MARSHA BLACKBURN, Tennessee GARY PETERS, Michigan
SHELLEY MOORE CAPITO, West Virginia TAMMY BALDWIN, Wisconsin
MIKE LEE, Utah TAMMY DUCKWORTH, Illinois
RON JOHNSON, Wisconsin JON TESTER, Montana
TODD YOUNG, Indiana KYRSTEN SINEMA, Arizona
RICK SCOTT, Florida JACKY ROSEN, Nevada
Nick Rossi, Staff Director
Adrian Arnakis, Deputy Staff Director
Jason Van Beek, General Counsel
Kim Lipsky, Democratic Staff Director
Chris Day, Democratic Deputy Staff Director
Renae Black, Senior Counsel
------
SUBCOMMITTEE ON MANUFACTURING, TRADE,
AND CONSUMER PROTECTION
JERRY MORAN, Kansas, Chairman RICHARD BLUMENTHAL, Connecticut,
JOHN THUNE, South Dakota Ranking
DEB FISCHER, Nebraska AMY KLOBUCHAR, Minnesota
DAN SULLIVAN, Alaska BRIAN SCHATZ, Hawaii
MARSHA BLACKBURN, Tennessee EDWARD MARKEY, Massachusetts
SHELLEY MOORE CAPITO, West Virginia TOM UDALL, New Mexico
MIKE LEE, Utah TAMMY BALDWIN, Wisconsin
RON JOHNSON, Wisconsin KYRSTEN SINEMA, Arizona
TODD YOUNG, Indiana JACKY ROSEN, Nevada
C O N T E N T S
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Page
Hearing held on February 11, 2020................................ 1
Statement of Senator Moran....................................... 1
Statement of Senator Blumenthal.................................. 3
Statement of Senator Wicker...................................... 4
Statement of Senator Fischer..................................... 65
Statement of Senator Tester...................................... 67
Statement of Senator Thune....................................... 69
Statement of Senator Blackburn................................... 71
Statement of Senator Capito...................................... 72
Statement of Senator Young....................................... 75
Witnesses
Hon. Anthony Gonzalez, U.S. Representative from Ohio............. 5
Bob Bowlsby, Commissioner, Big 12 Conference..................... 7
Prepared statement........................................... 9
Dr. Mark Emmert, President, National Collegiate Athletic
Association.................................................... 15
Prepared statement........................................... 17
Douglas A. Girod, Chancellor, University of Kansas............... 21
Prepared statement........................................... 23
Ramogi Huma, Executive Director, National College Players
Association.................................................... 24
Prepared statement........................................... 26
Kendall Spencer, Chair, Student-Athlete Advisory Committee,
National Collegiate Athletic Association....................... 52
Prepared statement........................................... 53
Appendix
Response to written questions submitted to Bob Bowlsby by:
Hon. Jerry Moran............................................. 89
Hon. Dan Sullivan............................................ 94
Response to written questions submitted to Dr. Mark Emmert by:
Hon. Roger Wicker............................................ 97
Hon. Jerry Moran............................................. 98
Hon. Mike Lee................................................ 100
Hon. Dan Sullivan............................................ 101
Hon. Richard Blumenthal...................................... 104
Response to written questions to Douglas A. Girod, M.D. submitted
by:
Hon. Jerry Moran............................................. 107
Response to written questions submitted to Ramogi Huma by:
Hon. Jerry Moran............................................. 109
Hon. Deb Fischer............................................. 112
Hon. Dan Sullivan............................................ 113
Hon. Richard Blumenthal...................................... 114
Hon. Amy Klobuchar........................................... 115
NAME, IMAGE, AND LIKENESS: THE STATE OF INTERCOLLEGIATE ATHLETE
COMPENSATION
----------
TUESDAY, FEBRUARY 11, 2020
U.S. Senate,
Subcommittee on Manufacturing, Trade, and Consumer
Protection,
Committee on Commerce, Science, and Transportation,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:05 a.m. in
room SD-106, Dirksen Senate Office Building, Hon. Jerry Moran,
Chairman of the Subcommittee, presiding.
Present: Senators Moran [presiding], Wicker, Thune,
Fischer, Blackburn, Capito, Young, Blumenthal, Cantwell,
Tester, and Rosen.
OPENING STATEMENT OF HON. JERRY MORAN,
U.S. SENATOR FROM KANSAS
Senator Moran. Good morning, everyone. The Subcommittee
will come to order.
We are honored to have the Full Committee Chairman with us
this morning, and I expect Senator Blumenthal, the Ranking
Member of this Subcommittee, to join us momentarily.
As Chairman of this Subcommittee, with jurisdiction over
amateur athletics, I welcome all of you to today's hearing. It
is entitled ``Name, Image, and Likeness: The State of
Intercollegiate Athletic Compensation.'' The expectation or
hope is that we might limit ourselves to that type of
conversation, but I have no control over my colleagues or
necessarily what the witnesses will say that may take us a
little broader in scope.
I absolutely look forward to hearing from our witnesses. I
am appreciative of all of them being here but especially the
Chancellor of my alma mater, the University of Kansas; the
President of the National Collegiate Athletic Association; the
Commissioner for Big 12; and two former student athletes.
In my home state, we have a rich history of college
athletics. The University of Kansas won 14 straight Big 12
men's basketball titles and the women's soccer team just won
their first Big 12 title last year. In my hometown of
Manhattan, Bill Snyder revolutionized college football at
Kansas State University, a legacy that has been continued by
the current coach, Chris Klieman, and Athletic Director Gene
Taylor. And who can forget Wichita State's Cinderella run at
the NCAA men's basketball tournament in 2013?
In addition, Kansas City was the national headquarters for
the NCAA for 45 years before moving to Indianapolis. Senator
Young is not here, but I would remind the NCAA we would welcome
them back to Kansas City at any time.
[Laughter.]
Senator Moran. While Division I schools often come to mind,
in my view we cannot lose sight over the 1,000 colleges and
universities across three divisions included in the NCAA. In
Kansas, we have impressive Division II athletics at Fort Hays
State, Pitt State who won four D-II titles, most recently in
2011, Emporia State, Newman, and Washburn. I hope that in this
conversation that those schools and their athletes are not
forgotten.
Altogether there are nearly 500,000 student athletes that
compete in 24 different sports. The NCAA's considerable
financial restrictions tied to amateur athletics eligibility
has gained national media attention and heated debate in recent
years, specifically how student athletes are currently
restricted from profiting from their name, image, or likeness
to supplement the current scholarships and related benefits
they receive.
These debates have resulted in State legislatures taking
their own actions. In California, the Fair Pay to Play Act was
signed into law last September and will prohibit California
universities and colleges from preventing their student
athletes from gaining compensation for the use of their name,
image, or likeness from third parties.
Coming into effect in 2023, the law will also allow student
athletes in California to hire agents and other representation.
Following suit, legislation has been introduced in over 20
other states with more expected to follow raising concerns of
the ability of nationwide organizations to function within a
system of differing State laws and provisions.
Last May, the NCAA began to take steps to address the
debate around student athletes potentially profiting from their
name, image, and likeness by appointing a working group to
examine potential modifications that still allow a clear
demarcation between professional and amateur athletics and
ensure that they are still aligned with the general student
body. The working group is expected to issue recommendations
later this year with new rules scheduled to be implemented in
2021.
Understanding how State and Federal laws and regulations on
name, image, and likeness of student athletes would affect the
existing intercollegiate athlete system is critical in shaping
Congress' efforts on this issue. Some of the complexities
surrounding this issue include the use of third party agents,
the possible elimination of athletic programs, current
definition of amateurism, and allowable incentives made
available to today's college athletes.
As we will hear today, college athletics teaches young men
and women many values and skills that serve them throughout
their life, but the most important aspect is that they are
first a student athlete. NCAA student athletes have
considerably higher graduation rates than non-athletes which is
significant because less than 2 percent of student athletes go
on to become professional athletes.
It is important that actions taken by Congress do not harm
the education, health, and wellbeing of student athletes.
Joining us today to provide a variety of different
perspectives on this issue is Mr. Bob Bowlsby, Commissioner of
the Big 12 Conference; Dr. Mark Emmert, President of the
National Collegiate Athletic Association; Dr. Douglas Girod,
Chancellor of the University of Kansas; Mr. Ramogi Huma,
Executive Director of the National College Players Association
and former UCLA football student athlete; and Mr. Kendall
Spencer, Chair of the NCAA?s Student-Athlete Advisory Committee
and former University of New Mexico track student athlete.
We are also honored to be joined by former Ohio State
University football student athlete and U.S. Congressman
representing the 16th district of Ohio, Anthony Gonzalez. The
Congressman's background and active advocacy for this issue is
highly valued by the Subcommittee, and I thank him for his
willingness to join us today and present an opening statement.
With the conclusion of my opening statement, I turn to the
Ranking Member, Senator Blumenthal, for his.
STATEMENT OF HON. RICHARD BLUMENTHAL,
U.S. SENATOR FROM CONNECTICUT
Senator Blumenthal. Thank you so much, Chairman Moran.
I want to express my special appreciation to you and to
Chairman Wicker, who is with us, as well as to Ranking Member
Cantwell, for addressing an issue that I think will grow in
importance. Already it has preoccupied the minds and hearts of
many who are interested in college athletes and the future of
the great individuals who participate in college sports. And we
are now holding the Senate's first-ever hearing on compensating
college athletes, thanks to you, Representative Gonzalez, for
advancing a number of very promising ideas, which I hope we
will take into account in our work.
We have a highly significant opportunity today to better
understand how we can protect college athletes while promoting
intercollegiate sports. Our college athletes fuel the $14
billion industry that literally makes money for countless
companies and agents and almost nothing for the athletes
themselves. We should ensure they receive equitable
compensation for their hard work and the value that they
create.
Across the country, college athletes are being taken
advantage of by a financial model that has allowed the NCAA and
its members to profit off athletes' names, images, and
likenesses without allowing those athletes to receive any
compensation in return. College athletes risk their health and
safety to play these sports, but in return, their compensation
is capped at the cost of attending their college or university.
Athletes are not even guaranteed to have costs for sports-
related injuries be covered by their schools, and they can have
their scholarships revoked in the event of a college and
career-ending injury.
This system is deeply unfair, repugnant to the very ideals
that the colleges so actively espouse, and inherently flawed as
an economic matter, as well as marred with inconsistencies.
Only student athletes are barred from compensation, whereas
other students are able to monetize their skills in their free
time by working, such as music students who teach budding
musicians, or math majors who tutor high school students.
College athletes receive no remuneration, no compensation, no
financial recognition at all. That has to change.
So we are here to hear from some of the experts and to
begin this consideration. The kinds of egregious unfairness are
multiple. We know well that college coaches are paid
multimillion dollar salaries, outpacing the pay of many
corporate executives and almost all the teachers at their
schools. Many of the college coaches rank as the highest paid
public employees. In fact, they do so in 41 out of 50 states.
When universities are not turning their coaches into
millionaires, they pump millions of dollars into lavish new
athletic facilities, in fact, tens of millions of dollars that
can cost upwards of $130 million.
In short, everyone is profiting off the fame, image,
likeness, and accomplishments of college athletes except for
the athletes themselves, and it is during a period when their
prowess and, in effect, earning capacity may be at one of its
heights. Amateurism cannot be a means to monopolize college
athleticism for lucrative media deals.
I hope that states like the California Fair Pay to Play Act
will be part of our consideration. Among other things, these
laws provide new opportunities for women athletes who have less
professional sports options after college than men, allowing
them to be compensated for their athletic achievements while in
college.
And I look forward to continuing this work because we have
a responsibility, especially in the absence of leadership
elsewhere. But I hope there will be a leadership. I hope the
NCAA will take advantage of the real opportunity it has to do
right by hundreds of thousands of athletes across the country
whose talents generate billions of dollars for the college
sports industry. And I am glad that the NCAA is taking
necessary steps to update its policies, and I look forward to
hearing from the NCAA as to new rules to compensate athletes
for their name, image, and likeness. Fundamental fairness is at
stake here.
Thank you, Mr. Chairman.
Senator Moran. Senator Blumenthal, thank you. I look
forward to working with you on this topic in this subcommittee,
and you and I have a habit of responding to California
legislation.
[Laughter.]
Senator Moran. We will see if we can do it one more time or
maybe we can do it in both instances.
I now recognize the Chairman of the Full Committee, Senator
Wicker. He and his staff have been instrumental and supportive
of our efforts to bring this hearing to fruition this morning,
and I appreciate his presence here this morning.
Senator Wicker is recognized.
STATEMENT OF HON. ROGER WICKER,
U.S. SENATOR FROM MISSISSIPPI
The Chairman. Well, thank you very much, Chairman Moran and
Ranking Member Blumenthal, for calling us together for this
important hearing. I think we see by the size of the crowd and
the attention that this hearing is receiving that we are onto
something very important and very timely.
I do not know how I feel about this issue, Mr. Chairman. I
do not know where it is going to lead, but let me say that I do
not disagree with anything that the Chair or Senator Blumenthal
have said during their opening statements. We have got a
situation where states are moving forward, and we need to
address the issue.
I am as proud of my state's history of intercollegiate
athletics as Senator Moran is and pointed out in his opening
statement. If Senator Blumenthal had taken the time to do so,
he could have pointed to great accomplishments in Connecticut
also.
Many college athletes come from middle class families, as I
did, who could scrape together the funds and pay for a college
education on their own if they had to. But for many collegiate
athletes, male and female, in football, basketball, or some of
the other sports that are not quite so popular, it is the first
opportunity for that family to get out of poverty, to go to
college, to grab a rung on the ladder of economic success.
And certainly the legislation in California and the
legislation being proposed elsewhere recognizes that there has
been a disparity there that ought to be addressed. I agree that
it ought to be addressed.
Perhaps name, image, and likeness is the answer. I wonder,
Senator Blumenthal, if it is the answer in all categories of
intercollegiate sports, and I wonder if we can come up with
something as a nation, with the help of the NCAA and with the
help of States, to help us figure out the fairest way to make
sure that no one is left out and that the athletes that do
contribute to this $14 billion per year economy are given their
fair share in bringing this largesse to our universities.
I agree with you, Mr. Chairman, also. We could get into
other issues. I had another hearing just a few days ago dealing
with doping, and we learned that there is a problem with
intercollegiate athletics with doping. I am going to stay away
from that today. I hope that members up and down the dais will
heed your admonition that we have a specific topic to talk
about today. I do not know where this is going to lead, but I
think this is an important step. And the Chair and Ranking
Member are due kudos for getting us moving on that.
And with that, I yield back, sir.
Senator Moran. Chairman Wicker, thank you very much and
thank you for your leadership in this issue and on the Full
Committee and your hearing last week.
Let me now recognize Representative Anthony Gonzalez, a
Member of the House of Representatives from Ohio, with a
history regarding being a student athlete, and we welcome your
statement, Representative. Thank you.
STATEMENT OF HON. ANTHONY GONZALEZ,
U.S. REPRESENTATIVE FROM OHIO
Mr. Gonzalez. Thank you. Chairman Wicker, Chairman Moran,
Ranking Member Blumenthal, and members of the Subcommittee,
thank you for inviting me to speak on this timely topic.
As a former student athlete at Ohio State University, I
know firsthand the impact college sports has on our students,
our athletes, and our communities across the country. For me,
my time playing for Ohio State shaped my life immeasurably, and
my appreciation for the lessons I learned on and off the field
grows every day. College athletics has a way of doing that. For
many of my teammates, college sports provided the best and
sometimes the only opportunity to attend college and earn a
degree.
That said, college sports has morphed into a multibillion
enterprise that few could have imagined when the NCAA first
formed in 1906. College athletics generated more than $10
billion in revenue in 2018, but student athletes are still
barred from capitalizing off their name, image, and likeness.
This is a regulation unique to student athletes on college
campuses. An award-winning, full scholarship chemist can accept
any financial rewards that may come her way, but the fastest
runner on the track team cannot.
The reality is that the majority of student athletes are
facing the same intense financial pressures as the general
student body, including student loan debt. Outside of the high
revenue sports, the majority of student athletes do not receive
full tuition scholarships. Division III athletes receive no
athletic scholarship at all. NIL rights would empower these
athletes to make a few extra dollars to alleviate some
financial pressure.
It is this disparity that spurred the passage of
California's Fair Pay to Play Act. The law grants NIL rights to
student athletes who compete in California. While I agree with
the idea in principle, California's law fails to capture the
nuance that is required to get this right.
Firstly, a state-by-state approach to NIL would throw the
collegiate athletic system into chaos. It would undermine
competition among schools from different states even if they
compete in the same conference. As it stands, UCLA and Arizona
State, both PAC 12 members, are now on unequal footing because
of the California law. Students considering athletic
scholarship offers at the two schools now have an added outside
incentive to pick UCLA, the ability to profit off name, image,
and likeness. This reality will only get worse if a patchwork
of State NIL laws becomes the norm.
Second, the California law created an anything goes system
that fails to understand the realities of the hyper-competitive
recruiting process. Guardrails are crucial to protecting the
integrity of the game and student athletes from overzealous
boosters who may want to buy their way to their school's next
national championship.
Nevertheless, the California did get one thing right. It
forced the discussion of NIL into the national conversation and
compelled the NCAA, universities, and conferences to confront
the reality head on. Over the past several months, I have
talked to student athletes, conference commissioners, athletic
directors, the NCAA, and university administrators, including
some of those testifying here today.
Despite uncertainty on the right path forward, there is
consensus that something must be done and that Federal action
is needed. Over 20 additional states are in the process of
passing different NIL laws. The question is not should student
athletes be able to profit off of NIL. That question has been
answered. The question before us today is how can we prevent
state-by-state chaos and protect the collegiate athletic system
that is beloved across the Nation.
First, the system must permit student athletes to
capitalize on their NIL rights regardless of whether they
participate in a high revenue sport like football or pitch for
the university softball team. NIL will benefit star players in
high revenue sports but also athletes who want to earn a little
money using their talents to pay off student loans or take
their significant other on a date.
Second, Federal legislation must protect student athletes
in the recruitment process and penalize bad actors who seek to
take advantage of the new NIL laws. By expanding upon existing
protections in Federal law, we can deter bad actors, encourage
oversight, and promote transparency so universities are aware
of the NIL contracts their students are entering into.
Third, any legislation must also guarantee that student
athletes are still considered students, not employees of an
institution. Using NIL to create an employment framework would
destroy college sports as we know it. Important protections
that currently exist for student athletes would be completely
eradicated. For one, if a student athlete can be hired, that
means he or she can also be fired. From personal experience, I
can tell you that incoming freshmen recruits often do not live
up to expectations in their first few seasons. Firing these
students instead of investing in their development would
eliminate countless opportunities, in many instances the only
opportunity.
The reality is the train has left the station on NIL. It is
no longer a question of if but rather when and how. Congress
must act to preserve the collegiate sports system we all know
and love.
For those reasons, I have begun to draft Federal
legislation in the House to allow student athletes to profit
from their NIL and create one uniform national standard.
I look forward to hearing from the witnesses on this issue
and working with my colleagues in the Senate to find a
bicameral, bipartisan solution to the challenge before us
today.
Thank you for the opportunity to provide a statement.
Senator Moran. Representative, thank you very much for your
statement. We appreciate your interest in this topic, and you
bring a particular expertise both on the field and now in
Congress. We look forward to that bipartisan, bicameral effort
to get this right. Thank you.
We will now call the panel of witnesses to the table: Mr.
Bob Bowlsby, Commissioner of Big 12 Conference; Dr. Mark
Emmert, President National Collegiate Athletic Association; Dr.
Douglas Girod, Chancellor, University of Kansas; Mr. Ramogi
Huma, Executive Director of National College Players
Association; and Mr. Kendall Spencer, Former Chair, Student-
Athlete Advisory Committee, National Collegiate Athletic
Association.
Welcome to all of you, and we will begin with Mr. Bowlsby
when he is ready.
STATEMENT OF BOB BOWLSBY, COMMISSIONER,
BIG 12 CONFERENCE
Mr. Bowlsby. Good morning.
Chairman Moran, Ranking Member Blumenthal, Chairman Wicker,
distinguished members of the Subcommittee, on behalf of the Big
12 Conference and its members, I thank you for holding this
hearing and providing me with this opportunity to testify.
I believe in the extraordinary opportunities our colleges,
universities, provide to our Nation and the world. I also
believe in the American model of intercollegiate athletics as a
co-curricular activity on our campuses. I have worked in
intercollegiate athletics for more than 40 years because I
believe that the fundamental purpose is to help 18-year-old
adolescents become 22-year-old adults and, in that process, to
provide an opportunity for an outstanding athletics experience
and a first-rate education.
I left my last position at Stanford University largely
because I believed that there was much that is good and right
about intercollegiate athletics and that I could perhaps better
be a part of effecting change from a commissioner's position.
Over the past 8 years, I have been afforded the opportunity
to participate in just such a change. Along with our
commissioner colleagues and our members, we work to provide
student athletes with the full cost of attendance in addition
to tuition, fees, room, board, and books. This change provided
funds for trips home, entertainment, and incidental living
expenses in amounts ranging between $3,000 and $6,000 per
student per year. We have changed rules so former participants
can return to school on scholarship to complete their degrees.
We have configured legislative changes to allow unlimited meals
and snacks. We have implemented transitional health care so
that medical expenses for injuries that linger on until after
graduation or departure from school can be reimbursed, all of
this plus Pell Grant benefits up to $6,800 a year for those
qualified.
The covenant with the 21st century student athlete is far
superior to the scholarship and benefits package available just
5 years ago. We have made constant progress since receiving the
prerogatives that have come with the new autonomy structure of
the NCAA.
When all of the recent NCAA legislative amendments are
considered along with the quality of the facilities, medical
services, academic support, travel opportunities, and high
level coaching and mentorship, the quality of the life of the
student athlete in Division I is really quite high.
I have spent a great deal of time recently working with
colleagues and advocates considering what an open NIL pay for
play environment might look like. I find myself supportive if
modernization, but daunted by the dark shadow between the ideas
and the reality. The changes advocated in many of the State
legislative proposals and likely in some of the national
concepts will benefit a very small percentage of the 450,000
student athletes in our country and will, de facto, render a
much larger percentage to a lesser status. For decades we have
funded broad-based sports programs, including our nation's
Title IX initiatives, on the revenue derived from a few sports.
This approach is defensible and worthy of protection because of
the multitude of opportunities that it creates.
Student athletes in a wide array of sports work very hard
in search of excellence. Their labors are neither less
intensive nor less strenuous than the efforts in football or
basketball or baseball. The participants in high profile sports
simply enjoy the benefits that accrue to those in sports, that
are adored by the public, and coveted by the television
networks.
The current model of athletics funding works because it
meets the university's objectives of offering a full array of
co-curricular, equitable opportunities for its students. There
is plenty of work to be accomplished and I advocate that we be
thoughtful in our collaboration.
The potential for harm is present and changes that some
assert as inalienable rights also have the possibility to
irreparably damage the collegiate model of athletic
participation. This model is and has been the envy of the
world. College sports is not a vocation and the participants
are not employees. Professional sports offer this arrangement.
Conversely, for more than 98 percent of the college athletes
population, the 4 years of college sports participation is the
last they will enjoy in organized high level competition. Their
active sports careers will be over, but the education they
earned, the camaraderie they enjoyed, and the experiences they
treasured will pay dividends for many years to come.
I thank you for this opportunity to testify and I refer you
to the written version of my comments which go into greater
depth on the pertinent issues of this hearing. Thank you.
[The prepared statement of Mr. Bowlsby follows:]
Prepared Statement of Bob Bowlsby, Commissioner, Big 12 Conference
Chairman Moran, Ranking Member Blumenthal and distinguished members
of the subcommittee, on behalf of the Big 12 Conference and its
members, thank you for holding this hearing and providing me with this
opportunity to testify. I am grateful for the expressed interest of the
Senate in issues pertaining to intercollegiate athletics. The impact
our Nation's student-athletes have had on our American culture is truly
remarkable.
I believe in the extraordinary opportunities our country's colleges
and universities provide to our Nation and the world. I also believe in
the American model of intercollegiate athletics as a co-curricular
activity on our campuses. I have worked in collegiate athletics for
more than forty years because I believe that the fundamental purpose is
to help 18 year-old adolescents become 22 year-old adults and in the
process provide opportunities for an outstanding athletics experience
and to provide first-rate educational opportunities. We should not
forget in this discussion that an athletics scholarship has provided
educational opportunities for millions of young men and women in the
last century. Most of them have left college with a degree and little
or no debt. Sometimes this experience also leads to a professional
career or an Olympic opportunity; both are highly desirable byproducts
of a successful collegiate athletics experience, but not the
foundational goal. I served as the director of athletics at three fine
universities for almost 35 years and left my last position at Stanford
University because I believe there is much that is good and right about
intercollegiate athletics and that I can be a part of changing that
which is not as good as it can be.
I theorized that I could be a more effective agent for change by
occupying one of the five Autonomy Conference (Pac12, BigTen, ACC, SEC
and Big12) Commissioner positions. Over the past eight years I have
been afforded the opportunity to participate in affecting just such
change. Along with my commissioner colleagues and our members we worked
to provide student-athletes with the full cost of attendance in
addition to Basic Educational Expenses (Tuition, Fees, Room, Board and
Books). This change has provided funds for trips home, entertainment,
incidental living expenses, etc. and amounts to between $3000 and $6000
per student per year. We have changed rules so former participants can
return to school on scholarship to complete their degrees. We have
configured legislative changes to allow unlimited meals and snacks. We
have implemented transitional healthcare so that medical expenses for
injuries that linger on until after graduation or departure from school
can be reimbursed. We have accomplished all of this while still making
sure that scholarship student-athletes can also receive the full
measure of PELL Grant benefits up to $6800 per year.
The covenant with the 21st century student-athlete is far superior
to the scholarship and benefits package available just five years ago.
We have made constant progress since receiving the prerogatives that
have come with the new Autonomy structure of the NCAA. Among these
prerogatives is legislative authority to make changes that address the
needs of highly recruited and exceptionally talented student-athletes.
When all of the recent NCAA legislative amendments are considered along
with the quality of the facilities, medical services, academic support,
travel opportunities and high level coaching and mentorship, the
quality of life for the Division I student-athlete is quite high. In
fact, one of every five collegiate athletes is a first generation
student and the opportunity to attend college is truly life changing
for them and their families. Over my many years involved in higher
education I have encountered very few former participants who did not
view their college years as the best of their careers.
I recently attended the memorial service for Coach Hayden Fry.
Coach Fry and I were colleagues while I was the Director of Athletics
at the University of Iowa. It was remarkable to see so many former
players come back and talk about the impact Coach Fry had on their
lives. They talked of the value he placed on education and on learning
to be a productive adult.
I also heard the story of how Coach Fry integrated the Southwest
Conference when he brought Jerry Levias to Southern Methodist
University. Mr. Levias went on to be a first team all-conference
performer for three straight years but also endured the injustice of
opponents' treatment. Coach Fry passed at age 90 and he and Mr. Levias
spoke regularly until the time of his death.
I quickly realized that Coach Fry's legacy had much more to do with
the relationships than it did with the 230+ victories or the induction
to many halls of fame. I heard very few comments about the details of
the games they all played but instead many anecdotes about the hard
discipline when they missed a class or the celebration when a young man
walked across the stage to receive his degree after coming to campus as
a ``high risk'' student. I also heard of the shared experiences that
truly made them a team.
The four years that student-athletes spend on campus are
transformative. There are stories of failure but many more stories of
extraordinary and unlikely success. The kinship of a college sports
team is singular in its ability to shape. I fear that if we adopt a
process that permits per se ``play for pay'' or any proxy for ``pay for
play'' we will find ourselves changing the team chemistry that has made
college athletics so special.
In the same time frame that we have provided more benefits and
celebrated the growth potential afforded by intercollegiate athletics,
we have witnessed explosive growth in debt service through mind-
boggling facility projects intended to impress 17 year-olds and we have
experienced meteoric escalation in compensation for coaches, directors
of athletics and commissioners. This rapid escalation is principally
facilitated by the increases in revenue from the sale of media rights.
These trends require attention and I suggest for your review an essay
by Dr. Kevin Blue, the Director of Athletics at the University of
California at Davis, which thoughtfully dissects the expense trends and
the causality for the dramatic increases in the past 20 years. I have
included Dr. Blue's analysis for your reference.
Consistent with my comments above, I am a believer in constant
evolution and I am devoted to any sort of continuing improvement
program. As it pertains to a new model of collegiate licensing and a
loosening of restrictions on how student-athletes might activate around
their personal name, image and likeness opportunities, I find myself
supportive of the concept but daunted by the shadow that lies between
the idea and the reality. I am particularly hesitant regarding the
viability of the ``guard rails'' that are nebulously asserted to be
capable of ensuring boosters, donors, and other interested third
parties are not disruptive, unregulated and unwelcome participants in
the recruitment processes.
In an era of increasingly frequent transfers, the outside
influencers noted above will most certainly engage in the transfer
space, even without the knowledge or invitation of institutional
employees. Within the Autonomy Conferences where recruiting competition
is most acute, we have sought to do everything possible to embrace and
enhance integrity. Our constituents, college sports fans and our
universities, demand it. I fear, and I believe, that the invitation of
third parties into the NIL space will irretrievably insert them into
the recruitment and transfer environment. We have already witnessed far
too many such intrusions on fair play.
The American collegiate model of intercollegiate athletics has no
parallel in the world. We are not the NFL, NBA or MLB where well-
organized drafts determine the participants. Neither are we the
Olympics where the athlete's only choice of participation is with their
country of origin. Recruitment, especially in Division I, is highly
competitive and highly regulated. To replace or significantly amend the
current benefits system we must be able to move ahead with assurance
that recruitment can exist and that integrity can be maintained and
enhanced.
As a former collegiate wrestler, and having served two terms on the
United States Olympic Committee, I have significant concerns regarding
any legislative or structural initiative that will weaken our Olympic
Sports on campus or that could compromise our Nation's aspirations to
ascend podiums in international competitions. While all college sports
participants might be alleged to have equivalent opportunities to
profit from name, image and likeness activities, I believe that the
present discussion is principally about football and men's basketball
players and I am certain that the participants in these two sports will
harvest the vast majority of the opportunities. It follows that this
disparity will ultimately diminish other sports on campus. This
diminishment could come in the form of reduced scholarships, declining
budgets or even sport eliminations. Because more than 80 percent of our
Summer Olympians come through college programs, any damage to Olympic
Sports on campuses could have a profoundly negative effect for our
international Olympic efforts. I also believe that the relegation of
some sports to second-class citizenship could directly or indirectly
impact institutions' compliance with Title IX. Before Title IX's
implementation only 1 in 27 high school females played varsity sports,
today that figure is 1 in 2.5. Simply put, I do not believe the
architects of the Title IX of the Education Amendments of 1972
envisioned two or more classes of student-athletes on campuses, even if
the funding were to come from outside the campus coffers. These two
considerations implore caution.
Will intercollegiate athletics survive? Of course. Will we evolve
and will games still be played? Without question. Likely, the balance
of competition will not be dramatically altered. There have always been
institutions and locations that have enjoyed advantages, and there
always will be. Having stated that, we must go forward with our eyes
wide open. The changes advocated in many of the state legislative
proposals and, likely, in some of the national concepts, will benefit a
very small percentage of the 450,000 student-athletes in our country
and will de facto render a much larger percentage to a lesser status.
It is difficult to argue that the American collegiate model is not
collectivism in some form. For decades we have funded broad-based
sports programs, including our institutions' Title IX initiatives on
the revenue derived from a few sports. This approach is defensible and
worthy of protection because of the multitude of opportunities it
creates. Student-athletes in a wide array of sports work very hard in
the search of excellence. Their labors are neither less time consuming
nor less strenuous than the efforts in football, or basketball or
baseball. The participants in high-profile sports enjoy the benefits
that accrue to those in sports that are adored by the public and
coveted by television networks. Likewise, the coaches in these sports
have benefitted from an inflated marketplace and aggressive
representatives who play institutions off against one another for the
highest offer. Notwithstanding these sometimes misguided expenditures,
the current model of athletics funding works because it meets the
universities' objective of offering a full array of co-curricular
opportunities for its students. There is plenty of work to be
accomplished but I advocate that we be thoughtful in our collaboration.
The potential for harm is present and changes that some assert as
inalienable rights also have the possibility to irreparably damage the
collegiate model of athletic participation. This model is, and has
been, the envy of the world. This unique and long standing model exists
as a useful and appropriate rite of passage between high school and the
rest of one's life. College sports is not a vocation and the
participants are not employees. Professional sports offer this
arrangement and it is fair and timely to consider whether the current
limits to access should be amended or eliminated to allow those who
wish to pursue professional opportunities to do so at any time.
Conversely, for more than 95 percent of the collegiate athletics
population, the four years of college sports participation is the last
they will enjoy in organized, high level competition. Their active
sports careers will be over, but the education they earned, the
comradery they enjoyed and the experiences they treasured will pay
dividends for many years to come.
______
ADU
Rising Expenses In College Athletics And The Non-Profit Paradox
This article examines the structural reasons why controlling
expenses--especially for salaries and facilities--has been difficult in
the current economic system of major college sports. The combination of
three significant economic characteristics currently drives financial
choices: the non-profit organizational structure, zero-sum competition,
and accelerating revenue. The combination of these structural
characteristics creates inescapable upward pressure on expenses, and
differentiates financial decision-making in college sports from both
professional sports and other non-profit sectors. The structural
uniqueness of the non-profit economic system of college sports calls
for innovative business and legal solutions to curtail excessive
spending and its associated problems, and ensure the long-term health
of college athletics in the United States.
For-Profit Business and Non-Profit Organizations
A business exists to maximize income for its owners, while also
maintaining a sense of corporate social responsibility to other
stakeholders. On the other hand, a non-profit organization, such as a
school or a charity, exists solely to execute its mission.
Non-profit organizations do not have owners expecting a financial
return, so their leaders do not operate with the goal of making a
profit. Instead, financial decisions are guided by the primary
objective of mission impact, while also being mindful of long-term
investments and sustainability.
Accordingly, when revenues increase for a non-profit organization,
expenses tend to grow commensurately. New income is used by the
organization to further pursue its mission, not to create profitable
operating margins. For example, a food bank that receives a new large
grant will expand to serve more disadvantaged people rather than
keeping the money. The level of annual expenditures for a non-profit
organization is generally determined by its anticipated annual
revenues.
Athletics Departments as Non-Profit Organizations
College athletics departments and their associated foundations are
structured as non-profit organizations since they are part of
universities. However, they differ from most other non-profits in two
important ways.
First, college athletics programs compete against each other in a
zero-sum game; in other words, a college sports program can only
succeed at the competitive part of its mission (win) if another fails
(lose). Other kinds of non-profit organizations do not deal with this
dynamic to the same extent. The zero-sum nature of competition in
college sports thus creates an insatiable desire for an athletics
program to make investments that drive success in the competitive part
of its mission.
And second, for modern college programs in the major conferences
especially, revenue has accelerated at an unusually strong rate in
recent years. The median Division I Football Bowl Subdivision (FBS)
athletics program experienced inflation-adjusted revenue growth of 67
percent from 2006-2015[1], a higher rate of revenue growth
than all other non-profit sectors in the United States over this period
of time[2].
---------------------------------------------------------------------------
\[1]\ According to the 2016 edition of Revenues and Expenses of
NCAA Division I Intercollegiate Athletics Programs, median revenue
growth from 2006-2015, on an inflation-adjusted basis, was 67 percent
for FBS, 55 percent for FCS, and 55 percent for D1 without football.
\[2]\ Information about non-profit revenue and expense growth by
sector can be found on this 2018 report by the Urban Institute called
The Non-Profit Sector in Brief. On an inflation-adjusted basis, overall
higher education sector revenue grew by 39 percent from 2005 to 2015.
Religious organization revenue grew by 59 percent over the same time
period, the most growth of any non-profit sector outside of college
sports.
---------------------------------------------------------------------------
The combination of zero-sum competition, revenue acceleration, and
non-profit financial incentives would predict an increase in spending,
which has indeed come to fruition in major college sports. With
gravity-like inevitability, expenses are pulled to the threshold
established by the highest revenue earners. Paradoxically, the non-
profit organizational structure--typically associated with austerity
and frugality--has actually helped to create the extraordinary spending
growth we've seen.
Comparing College and Professional Sports
Unlike professional teams, college athletics departments do not
have owners with a personal financial stake in the game. Professional
owners want to win, but they are simultaneously incentivized to control
costs in order to turn a profit or manage operating losses, and to
consider long-term franchise value. These incentives are reflected in
league-wide policies developed to control spending and enhance
competitive equity, and also in the financial decision-making of team
executives.
On the other hand, financial decision-making in college athletics
reflects the different set of incentives that the non-profit structure
encourages. Every dollar of generated revenue is spent in pursuit of
the competitive and student-athlete education missions. Some income
might be saved for contingent or long-term use, but none is taken as
profits[3]. When revenue increases dramatically, increases
in spending quickly follow.
---------------------------------------------------------------------------
\[3]\ In a few cases, a portion of net income from athletics is
redirected to the financial needs of main campus.
---------------------------------------------------------------------------
In fact, head coach salaries in Power Five college football and
men's basketball have increased more rapidly than head coach salaries
in the NFL and NBA, relative to the rate of revenue growth in each
environment. The median Power Five head football coach salary grew by
87 percent from 2010-2017, at a faster pace than the median revenue
increase of 58 percent for Power Five athletic departments during this
period[4]. On the other hand, media reports suggest that NFL
head coach salaries grew by approximately 50 percent during the same
period, at a slower pace than the 70 percent growth of NFL revenue. In
the NBA, revenue increased by over 90 percent from 2010-2017, but head
coaching salaries are estimated to have grown less than 40 percent
during this period[5]. Coaching salaries grow at a faster
rate in college sports than in professional sports as more revenue
becomes available to fund them.
---------------------------------------------------------------------------
\[4]\ Salary information gathered from USA Today database and other
publicly available sources. Analysis included public school data only,
unless private school coaching salary information appeared on the Form
990. Revenue data gathered from EADA reports and Knight Commission
College Athletics Financial Database.
\[5]\ NFL and NBA revenue gathered from statista.com. Salary
information gathered from media reports. NFL and NBA salary information
is not comprehensive, but is sufficient for the purposes of these
general conclusions.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Of course, another notable difference between college and pro is
that paid professional athletes share in revenue increases through
collective bargaining agreements, which means that a smaller portion of
revenue growth remains to flow through to coaches, management, or
ownership. But the non-profit structure of athletics departments also
inherently facilitates salary growth, especially when negotiating
contracts with star coaches. Athletics directors and presidents do not
have the support of an owner who is incentivized to keep costs in check
and provide the reassurance--and personal career insurance--to walk
away from unfavorable deals.
Instead, athletics directors and presidents know that they will be
harshly criticized by vocal fans and influential benefactors if they
fail to come to terms with a star coach, even if the terms being
negotiated are not optimal for the school. Agents understand this
dynamic, and have been able to negotiate college coaching contracts
that are increasingly favorable as media rights revenue growth created
a larger pool of available funding[6]. There is a more
direct path from organizational income received to coaching salaries
paid in non-profit, mission-driven college sports.
---------------------------------------------------------------------------
\[6]\ Coaches are also incentivized to secure the best possible
contract terms because schools are growing less patient about results.
Available revenue makes it easier for schools to terminate coaches and
endure switching costs.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
These Decisions are Rational and Predictable
From a behavioral economics perspective, financial decision-making
in college sports has been perfectly rational within the structures of
the current system. Aggressively reinvesting available revenue back
into the competitive mission is sensible behavior that is aligned with
the local interests of each school and its leadership. In some
instances, there is clear evidence that a coach or team has made a
transformational impact on the overall profile of a university, further
justifying the decision to invest[7].
---------------------------------------------------------------------------
\[7]\ For example, here is a brief note about the major
institutional impact of successful football at Clemson and Alabama.
---------------------------------------------------------------------------
The overall increase in spending on facilities and salaries in
college sports is a natural byproduct of each school's mission-driven
desire to compete in a zero-sum game, where leaders are incentivized to
spend available revenue towards the competitive mission rather than
make profits. Expense increases thus reflect systemic characteristics,
and not ``flaws'' of involved individuals. College athletics decision-
makers are acting rationally and predictably in the current system,
just like others would if confronted with similar industry
characteristics.
Why Does This Matter?
Aggressive expense growth in college athletics--that is
structurally reinforced by its economic system--has created some of the
most pressing challenges our industry faces. It has increased
perceptions of unfairness for student-athletes and led to
gerrymandering around the definition of amateurism in an effort to
preserve the educational roots of college athletics. It has intensified
financial pressure--ironically, given that we're in an era of
unprecedented revenue growth throughout the industry--on athletics
departments who aren't at the very top of the revenue production
pyramid (i.e., the top quartile of Power Five programs) and placed
these middle-income schools at an even greater competitive
disadvantage. And, it has created long-term financial obligations that
might turn into problematic exposures if revenue growth were to slow,
stop, or reverse.
Importantly, the focal point of this issue is not the resource
imbalance between Power Five schools and Group of Five or FCS, but
rather the financial and competitive challenges that arise due to the
effects of relative expense growth within each competitive level. For
example, even though Power Five schools have more revenue to deploy
than others on an absolute basis, a majority of them remain under
financial pressure trying to keep up with the small group of schools
who set a high bar on expenses in search of every possible competitive
advantage.
Accordingly, even if setting aside financial sustainability
considerations and viewing the issue only through the lens of
competitive self-interest, a majority of Power Five schools ought to
support a systemic solution among major conferences to control
expenses. Such a system would not only mitigate challenges related to
financial sustainability and public perception regarding spending, but
would also enhance competitive opportunity for median schools by
reducing the spending power advantage currently held by top-quartile
revenue earners. In fact, successfully lobbying for a system of expense
limits would be the most impactful action some schools could take to
enhance their competitive self-interests.
What Should Be Done?
To stimulate progress towards a solution, a critical mass of
influencers must first recognize that the expense growth problem in
college sports is structural in nature--i.e., it is not the result of
``flawed institutional leadership'', nor can it be effectively
addressed without systemic change. The next step of identifying
feasible solutions requires an in-depth legal, economic, and political
analysis that is beyond the scope of this particular article.
Many people in our industry think about this problem often.
Conventionally suggested methods--such as expense caps or other
legislated changes about how resources are allocated or shared with
central campus--are intuitive but complex to implement. Some solutions
might present legal challenges, particularly around antitrust law, that
could require a degree of regulatory involvement. Additionally, there
would be political difficulties for some campus leaders to advocate for
solutions that may be unpopular with a portion of their local
constituents, a dynamic which would slow legislative progress in the
member-driven governance model of the NCAA.
However, even with the complexities involved, an invigorated focus
on establishing mechanisms for expense control is worthwhile, and
should be acted upon as an important priority for the sustainability of
college sports. Aggressive expense growth, and its associated
challenges, will continue unless there is systemic change.
The economic system of major college sports uniquely combines the
non-profit structure, zero-sum competition, and extraordinary revenue
acceleration. It is a structural outlier in the American economic
landscape, and should be managed as such from a legal and antitrust
perspective. The uniqueness of its economic system calls for new
thinking and innovative solutions if we seek to ensure the long-term
health of college sports in the United States.
*Undergraduate research assistants Mitch Iwahiro, Mia Motekaitis,
and Tyler Mundy contributed to this article*
Senator Moran. Mr. Bowlsby, thank you for your testimony.
We now turn to Dr. Emmert.
STATEMENT OF DR. MARK EMMERT, PRESIDENT,
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION
Dr. Emmert. Chairman Moran, Ranking Member Blumenthal,
Chairman Wicker, and distinguished Members of the Subcommittee,
thank you for this opportunity to appear before you today.
My name is Mark Emmert and for almost 10 years, I have had
the privilege of serving as President of the NCAA. We are an
organization led by the colleges and universities of America,
and we are dedicated to the wellbeing and success of student
athletes on the field, in the classroom, and in life.
College sports in our country provide student athletes with
rewarding and a uniquely American experience. But while a
record number of students play college sports today and more
fans than ever enjoy watching them, there is also legitimate
concerns being expressed about the fundamental fairness of our
system. We share those concerns. We agree that college athletes
should be allowed to benefit from their name, image, and
likeness, commonly known as NIL, and we are in the process of
identifying appropriate ways to do so.
After several months of analysis by a working group of
student athletes, presidents, commissioners, athletic
directors, and faculty members, in October our board of
Governors directed each of the NCAA's three divisions to begin
immediately to consider how to modify the rules to permit
student athletes to benefit financially from the use of their
name, image, and likeness consistent with the values of
intercollegiate athletics. Like Congress, our process is
thoughtful and deliberate, and our member schools plan to make
changes no later than January 2021.
Unfortunately, constant litigation, litigation threats, and
recent State legislative efforts to regulate aspects of college
sports have complicated these efforts. These actions are
doubtlessly the product of good intentions, but without proper
guardrails and structure, some NIL proposals threaten to
undermine the core values of college sports by allowing
payments for NIL to serve as pay for play and potentially
turning college athletes into employees.
Also, as many have pointed out, a patchwork of different
laws from various states will create an uneven and unfair
playing field for our schools and college athletes. We simply
do not believe our schools can effectively support students and
host fair national competition if college athletics is pulled
in various directions by State legislatures.
It is critical that the administration of college sports be
undertaken by the NCAA at a national level. We believe that the
modernization efforts currently underway with respect to NIL
will address the concerns about fairness, but we need to make
sure that college sports operate consistent with two principles
that are not always aligned. On the one hand, we want to allow
student athletes to benefit from their NIL, like all college
athletes. On the other hand, we want to preserve the unique
character and quality of college sports that serves student
athletes so well.
And, Senators, we may need your help to achieve those
goals.
We have a history of making continual improvements to
benefit college athletes. Our member schools now award nearly
$3.5 billion in athletic scholarships each year, and more
students are earning degrees than ever before, including many
whose financial circumstances would have otherwise prevented
them from attending college. The past decade has seen enormous
enhancements in the support for student athletes, including in
health care, nutritional programs, academic assistance,
prevention of sexual violence, and covering the costs of
attending school entirely.
Today there are nearly a half a million NCAA athletes
competing in 24 sports, three divisions, and on 19,000
different teams. Regardless of their sport, their gender, their
division, regardless of whether their school is big or small,
rural or urban, public or private, we seek to support all
students and help them be successful.
We know we are not perfect. We know that the world is
constantly changing and we want to change accordingly. I am
confident that there is a path forward on this issue of NIL
that preserves what we love about college sports while creating
even greater opportunities for our students. That is what we
are seeking, and that is what brings us here today, Mr.
Chairman.
Thank you again, and I look forward to your questions.
[The prepared statement of Dr. Emmert follows:]
Prepared Statement of Dr. Mark Emmert, President,
National Collegiate Athletic Association
Chairman Moran, Ranking Member Blumenthal, and distinguished
members of the Subcommittee, thank you for the opportunity to submit
this testimony in connection with today's hearing. For almost ten years
I have had the privilege of serving as the president of the NCAA, a
school-led organization dedicated to the well-being and lifelong
success of college athletes on the field, in the classroom, and in
life. We appreciate the Subcommittee's attention to the important issue
of name, image, and likeness (``NIL'') opportunities.
College sports in America is at a critical juncture: while a record
number of college athletes are benefiting from more opportunities than
ever before, there is a legitimate concern about the fundamental
fairness of our system. We share that concern, and NCAA schools and
conferences are currently evaluating reforms to give athletes
opportunities to take advantage of their own NILs. We believe that
these efforts will address the concerns that have been raised about how
to treat student-athletes equitably. But the process will take time,
because we need to make sure that we operate consistent with two
principles that are not always aligned. On the one hand, we want to
allow opportunities for students to benefit from their NILs. On the
other hand, we want to preserve the character and quality of the
uniquely American phenomenon of college sports. And with ongoing serial
litigation and NIL legislation pending in over half the states, we may
need your help to accomplish this on a nationwide basis.
I welcome the opportunity to speak to you today about our progress
and goals, and I welcome the opportunity to hear from the Members of
this Subcommittee. We greatly value the ongoing dialogue with you and
look forward to the continued support of the Congress as we work toward
a solution that meets the needs of student-athletes in a manner
consistent with the long-held educational values of the NCAA, its
schools and conferences, and the nearly 500,000 individuals who
participate in college sports each year.
NCAA Background: Who We Are
I would like to begin by briefly describing the mission of the
NCAA. As the governing body for intercollegiate athletics, the NCAA
prioritizes three important principles in providing opportunities for
students: academic success, well-being, and fairness. While most people
associate the NCAA primarily with college sports, the truth is that
education is at the heart of our work. Each year, students from across
the country and the world participate in sports they love. 16 percent
are first-generation college students, and a similar number report that
they would not have attended college if not for athletics. To make
these opportunities possible, our member schools award nearly $3.5
billion in athletic scholarships each year, including up to the cost of
attendance. Athlete recruitment to attend a particular institution is
one of the key principles that sets apart college sports from
professional sports. This unique recruiting environment encourages
student choice in where to attend college. No other model in sports is
like it--not the Olympics nor professional sports.
Student-athlete graduation rates are the highest ever, with 84
percent earning their degrees. In Division I, nearly 9 in 10 student-
athletes are earning bachelor's degrees, their highest rate ever. 83
percent of men's basketball players graduate, as well as 82 percent of
Football Bowl Subdivision participants. And in particular, since 2002,
the graduation rate for African-American men's basketball players has
increased by 36 percentage points, and 79 percent of African-American
student-athletes are earning their degrees. Historically, student-
athletes have graduated at rates higher than the rest of the student
body.
But I acknowledge that what happens off the field does not always
garner as much attention as what happens on the field. When many people
think of college sports, they think of March Madness, the College
Football Playoff, or College Game Day. They think of the popularity and
success of powerhouses like the University of Kansas men's and the
University of Connecticut women's basketball teams. They see multi-
million dollar contracts, elaborate facilities, and Hollywood-style
productions. But this is just a sliver of college sports. College
sports is half a million student-athletes in 24 different sports spread
across three divisions and 19,000 teams, most of which generate no
revenue. College sports is a culture in which hundreds of thousands of
fans feel connected through alma mater or geography and appreciate that
the athletes are ``kids'' in pursuit of an education that will last
them a lifetime. College sports is, and always has been, about students
playing other students.
College sports has always had commercial aspects, but its rules
have consistently promoted education, opportunity, well-being, and
fairness. While we are considering important and necessary changes to
create additional monetary opportunities for student-athletes, any
changes must take into consideration these core values.
NCAA Rules: The Legislative Process and Enforcement
College sports as we know it is evolving. For over a hundred years,
the NCAA's member schools have provided significant opportunities to
tens of millions of athletes to obtain an education at this country's
top colleges and universities. But recent increases in the popularity
of NCAA-governed competition have brought greater interest in college
sports, raising questions about how to ensure that this evolving system
is inclusive, equitable, and fair.
The internal balancing act between preservation and reform poses
particular challenges in an organization with hundreds of diverse
schools. Each of our schools brings a unique perspective to college
sports, often informed by the size of the school and its athletic
program, the NCAA division in which it competes, its mission, its
geography, and myriad other factors. Each perspective is valuable
individually, but the adoption of each, without harmonizing, would
result in a chaotic college sports landscape. The NCAA's role reflects
the reality that no one school has the expertise or resources to ensure
that all opponents play by the same set of rules, both on and off the
field. The voluntary agreement to a central governing system offers a
whole that is greater than the sum of its parts.
In its role as convener, the NCAA National Office oversees a
ground-up, school-driven legislative process in which representatives
serve on committees that propose rules, and schools ultimately decide
which rules to adopt. Reflecting the diversity of our schools and
conferences, each of the NCAA's three divisions develops and approves
legislation unique to that division. Groups of presidents and
chancellors lead each division through committees with regularly
scheduled meetings. Once the NCAA schools and conferences establish a
rule through the legislative process, responsibility for enforcing that
rule on campus rests on both the institutions and the NCAA National
Office. By mutual agreement, each school agrees to establish mechanisms
to detect, prevent, and discourage rule violations, as well as
protocols to self-report and cure any rule violations.
Student Equity in the NCAA Model: Recent Reforms
As president of the NCAA, my role is to make sure that, during our
rigorous rulemaking process, our schools and conferences are
considering the best interests of students in a constantly evolving
college sports landscape while keeping our values front and center. In
recent years, we have undertaken initiatives or changed rules to
promote better student well-being. For example, within the last few
years the NCAA:
Partnered with leading organizations to develop best
practices and training modules for coaches and administrators
in support of student-athlete mental well-being. The goal of
these resources is to encourage a culture in which reaching out
for mental health care is normal and expected.
Paired with the U.S. Department of Defense to launch a
landmark alliance to enhance the safety of athletes and service
members by more accurately preventing, diagnosing, and treating
concussions. This alliance is undertaking the most
comprehensive longitudinal study of concussion and head impact
ever conducted, managed by the Concussion Assessment, Research,
and Education (``CARE'') Consortium. Twenty-six participating
universities enrolled their student-athletes in the study, and
the four military academies enrolled all cadets. The CARE
Consortium is continuing its work in a phase known as CARE 2.0,
featuring 40,000 participants.
Funded and operated the Sport Science Institute (the
``Institute''), which promotes health and safety through a
variety of initiatives, including research and training on
cardiac health, concussions, overuse injuries, drug testing,
mental health, nutrition and sleep, sexual violence prevention,
athletics healthcare administration, and data-driven decisions.
Last year, the Institute, in partnership with the NCAA Office
of Inclusion, released the second edition of a sexual violence
prevention tool kit that provides schools with appropriate
tools to support a safer campus environment. The new tool kit
was developed with input from leading professionals in the
field and aims to help NCAA schools reduce incidents of sexual
violence involving student-athletes and other college students,
and to respond appropriately when they occur. The Institute
also is collaborating with the most respected medical and
sports organizations in the country to promote research,
education, and best practices around cardiac health to reduce
injuries and death from heart conditions.
Enhanced funding for an insurance policy covering all
college athletes who experience catastrophic injuries while
playing or practicing their sport--providing up to $20 million
in lifetime insurance benefits--and saw many of our schools
provide medical coverage for athletic-related injuries for at
least two years after a student-athlete graduates or leaves
school.
Permitted any Division I institution to provide athletic
scholarships to the federally-defined cost of attendance,
without limits on duration.
Enhanced student voice and vote by expanding the Division II
and III student representation to Division I, where they are
now voting participants at all levels of governance.
Allowed college basketball players investigating their
professional options to be represented by an agent.
Reformed the transfer rules to make it easier for students
to change schools.
Required Division I schools to provide independent medical
care for student-athletes to determine medical management and
return-to-play decisions.
These reforms demonstrate that the NCAA is ready and able to
address emerging challenges to ensure that students are treated
equitably and the essential character of the college sports is
preserved. While we have more work to do, including on the issue of
NILs (discussed below), I am confident that the NCAA, in partnership
with Congress, has the tools to achieve a balance that minimizes
unintended consequences.
Modernization of Name, Image, and Likeness Rules
We have heard the concerns about the NCAA's current rules governing
an athlete's ability to license his or her NIL for commercial purposes,
and we recognize that changes need to be made. Currently, the NCAA
schools and conferences are reviewing our rules and proposing changes.
We are moving thoughtfully on this, and our membership plans to vote on
those changes in January 2021.
Recent Developments around NIL
Recognizing the need to further modernize our rules with respect to
NILs, in October 2019 our Board of Governors directed each of the
NCAA's three divisions to immediately begin considering how the
relevant NCAA rules could be modified to permit student-athletes the
opportunity to benefit financially from the use of their NILs
consistent with the values of intercollegiate athletics--including and
especially the principle of amateurism. This principle means that
students are ``students first'' and not professional athletes who are
paid for their athletic performance. What makes college sports
different from and more popular than other sporting options (such as
minor-league professional sports) is that college athletes are
participating in a sport they love as part of their educational
experience, because the reality is that most student-athletes will not
play professional sports and thus need to rely on their education to
support their success in life. Our schools and conferences' commitment
to amateurism helps keep athletics programs and student-athletes
integrated within the larger educational mission, promotes competitive
balance among schools, and creates a fairer system for recruiting and
retaining top talent. Without rules, the highest-resourced schools
would use their greater financial resources to attract the most
promising student-athletes, depriving other schools of the ability to
build strong teams and decreasing fair competitive opportunities for
many student-athletes.
The Board of Governors' decision followed the work of our Federal
and State Legislation Working Group (a group consisting of presidents,
commissioners, athletics directors, administrators, and student-
athletes) in gathering input on NIL issues from current and former
student-athletes, coaches, presidents, faculty, and commissioners
across all three divisions in response to Federal and state legislators
proposing NIL legislation. The Board directed these modernization
efforts to take place in harmony with eight principles and guidelines.
First, schools should assure that student-athletes are
treated similarly to non-athlete students unless a compelling
reason exists to differentiate.
Second, schools should maintain the priorities of education
and the collegiate experience to provide opportunities for
student-athlete success.
Third, schools should ensure rules are transparent, focused,
and enforceable and facilitate fair and balanced competition.
Fourth, schools should make clear the distinction between
collegiate and professional opportunities.
Fifth, schools should make clear that compensation for
athletics performance or participation is impermissible.
Sixth, schools should reaffirm that student-athletes are
students first and not employees of the university.
Seventh, schools should enhance principles of diversity,
inclusion, and gender equity.
Eighth, schools should protect the recruiting environment
and prohibit inducements to select, remain at, or transfer to a
specific institution.
The Working Group will continue to gather feedback from the schools
and conferences and their student-athletes through April 2020 and will
refine its recommendations. And the NCAA's divisions are working to
create new NCAA bylaws reflecting divisional priorities. This effort is
to be completed in January 2021.
We have undertaken this modernization effort committed to balancing
the vital need for the continuation of college sports with the need to
adapt our rules to changing student-athlete environments. We want to
improve the experience for our student-athletes, as well as fans,
alumni, and student bodies. We remain committed to our student-athletes
being students first, with emphasis on their education and the
physical, mental, and social benefits to be derived from
intercollegiate athletic competition.
It is for this reason that, as part of this modernization effort,
we will not consider any concepts that could be construed as payment
for athletic play. We believe it is imperative to the success of
college sports as both an integral component of the educational
experience and a popular form of entertainment that we maintain a clear
line of demarcation between college and professional sports. To do so,
payment to student-athletes for use of their NILs should not be a
substitute for or vehicle to deliver pay for athletic performance; nor
should the payment serve as an inducement for a prospective or current
student-athlete to select or remain at a particular NCAA school.
Consequently, the NCAA has no intention of taking any action that is
contrary to the position advocated by the NCAA or accepted by the Ninth
Circuit with respect to the types of NIL payments that were at issue in
the O'Bannon case decided a few years ago.
Need for National Uniformity
Just as the NCAA has done in the past on issues involving student
fairness, we believe that the modernization efforts currently underway
with respect to NILs will address the concerns about equity. But given
the current legislative landscape, uniformity will not be achieved
without Federal support for our mission.
The Subcommittee is aware of the dozens of proposals on NILs in
state legislatures that, in our view, risk converting college sports
into professional sports. While we understand the desire to assist
student-athletes, we believe many of these ideas would be harmful to
intercollegiate athletics and its many stakeholders, including the
student-athletes. For instance, one state has passed legislation that
effectively eliminates the distinction between college and professional
sports. It allows payments for NILs to serve as pay for play and thus
turns college athletes into employees. This law in particular, and
others like it, threaten to undermine the mission of college sports
within the context of higher education--that student-athletes are
students first and choose to play a sport they love while earning a
degree.
In the short term, such legislation is creating confusion for
current and future student-athletes, coaches, administrators, and
campuses. Some of these laws would take effect as early as July 2020.
If implemented, these laws would give some schools an unfair recruiting
advantage and open the door to sponsorship arrangements being used as
recruiting inducements. This would create a huge imbalance among
schools and could lead to corruption in the recruiting process.
As more states consider their own NIL legislation, it is clear that
a patchwork of different laws from different states will make
unattainable the goal of providing a fair and level playing field--let
alone the essential requirement of a common playing field--for our
schools and nearly half a million student-athletes nationwide. It is
thus critical that the administration of college sports be supported at
a national level. We believe that, given its role, the NCAA--informed
by its schools and conferences--is best positioned to provide a uniform
and fair NIL approach for all student-athletes on a national scale. But
we cannot effectively achieve our goals if we are pulled in various and
potentially inconsistent directions by state legislatures that may be
focused on serving one set of constituents rather than serving the
entire array of participants that the NCAA's own rulemaking processes
are designed to serve.
Conclusion
At the NCAA, we are proud of the role that intercollegiate
athletics have played in creating opportunities for our Nation's
student-athletes, especially those who might not otherwise have had the
opportunity to pursue higher education. Over the last ten years, we
have actively worked to drive much-needed change and address many of
the concerns that surround intercollegiate athletics. Our membership is
large and diverse with an equally large and diverse range of
viewpoints. While this diversity can, at times, slow the pace of reform
in our democratically governed association, we have made significant
strides across a variety of areas and are actively working to modernize
in the area of NIL opportunities. But that process takes time, and we
may need Congress's support in helping maintain uniform standards in
college sports. I appreciate the Subcommittee's attention to this issue
and look forward to collaborating with this body to achieve these
important goals. Thank you again and I look forward to your questions.
Senator Moran. Thank you, Dr. Emmert.
Now Dr. Girod.
STATEMENT OF DOUGLAS A. GIROD, CHANCELLOR, UNIVERSITY OF KANSAS
Dr. Girod. Good morning, Chairman Wicker, Chairman Moran,
Ranking Member Blumenthal, and members of the Subcommittee.
Thank you for the opportunity to be here today.
My name is Doug Girod. I am the Chancellor at the
University of Kansas.
The University of Kansas is a leading public research
institution and a member of the Association of American
Universities. We are also the proud sponsor of a robust NCAA
Division I athletics program competing at the highest level of
intercollegiate athletics.
Senator Moran, sir, I would like to begin this morning by
thanking you for your outreach, not just to the University of
Kansas and to our student athletes, but also to the Big 12
Conference and to the NCAA, and really all the constituents who
care deeply about the model of collegiate athletics.
You have repeatedly stated in our conversations that we are
in a fact-finding mission here to try and understand better how
name, image, and likeness may impact collegiate athletics. And
honestly, we too are in that fact-finding mode. And we join you
and your colleagues on this subcommittee, as well as a growing
voice of Members in the House of Representatives, to seek a
working solution to the challenges brought by the patchwork of
recently enacted and pending State legislation with varying
degrees of name, image, and likeness provisions. And it is
clear to me that the imperative of national consistency,
fairness, and equity requires a Federal solution. Like all
Division I universities, we compete in 50 states, and really
only a Federal approach that creates a level playing field for
competing athletes and universities makes sense.
KU acknowledges that it is a new day in college athletics,
and if there is an opportunity for student athletes to earn
value from their name, image, and likeness, we should support
them and provide reasonable guardrails that will protect them
and the integrity of the game while maintaining successful
educationally based athletic programs across the country.
There is no doubt this is a complicated policy matter and
none of us has the answers at the moment, which is why it is
important we are having these discussions. But no matter what
solutions we pursue, I think there are two ironclad principles
that should inform us every step of the way. First, we must
continue to prioritize what is in the best interest and welfare
of our student athletes; and second, we must preserve and
protect the collegiate athletic model.
So as this process moves forward, we must not forget that
more than 98 percent of student athletes do not turn
professional in their sport after they graduate or have
significant opportunity to earn income from name, image, and
likeness, yet they benefit greatly from the education and the
resources and the development that they have access to as
student athletes. So we must be cautious not to risk losing
what is so valuable for the 98 percent while addressing the
specific needs for those blessed to take their athletic talents
to the professional level. And additionally, we must preserve
access for first-generation students and under-represented
minorities to an education through sports and continue to
enhance gender equity in compliance with Title IX. The bottom
line is there are ways to allow student athletes to benefit
from name, image, and likeness while maintaining the benefits
of the collegiate athletic model.
Additionally, these actions that we contemplate today on
name, image, and likeness have the potential to transcend
athletics and really impact every aspect of the university
mission from education and service to research. For better or
worse, a major athletics department at a university like KU is
inextricably linked to the entire university model in
everything that we do.
For example, athletics is important in student recruitment,
particularly for a Midwestern university like ours that is
highly dependent on out-of-state student enrollment.
Athletics is crucial to our engagement with alumni and
donors, whose support is essential to our most important
academic missions and research initiatives.
And athletics enhances our work to improve access to
education and campus diversity by enrolling students from
diverse backgrounds.
As a university chancellor, one of my responsibilities is
to support more opportunities for our students while they are
enrolled at our university, whether that is an internship, an
opportunity to research in a company, or study abroad. And most
certainly today I want to support this new opportunity for
student athletes who have the potential to earn money while
competing at our institution to do so.
And right now student athletes, parents, alumni, and
supporters of our universities are counting on us to do this
fairly and correctly. Forming a comprehensive national plan for
name, image, and likeness is a challenge and it will take some
time to implement. But together, we can do this together.
So let us partner with the universities, Congress, our
governing association, our conferences, and all our key
stakeholders to create a solution that ensures the best
interests of our student athletes are front and center while
also preserving the current collegiate model to the benefit of
all of our student athletes.
Thank you.
[The prepared statement of Dr. Girod follows:]
Prepared Statement of Douglas A. Girod, Chancellor, University of
Kansas
Good morning, Chairman Moran, Ranking Member Blumenthal, and
Members of the Subcommittee. My name is Doug Girod, and I am the
Chancellor of the University of Kansas.
The University of Kansas is a leading public research institution
and a member of the Association of American Universities. We also are
the proud sponsor of a robust NCAA Division I athletics program
competing at the highest levels of intercollegiate athletics.
Thank you for the opportunity to appear in front of you today to
discuss the impact of recently passed and pending state legislation
around the country related to ``Name, Image and Likeness.''
Senator Moran, I would like to begin by thanking you for your
outreach during the past several months, not just to the University of
Kansas, our student-athletes, the Big 12 Conference and to the NCAA--
but to the community of stakeholders who hold dearly the value of
collegiate athletic programs.
You have repeatedly stated that you are in a ``fact-finding'' mode
to learn how the Name, Image and Likeness issue may impact college
athletics. And honestly, we, too, are in a fact-finding mode. We join
you and your colleagues on this Subcommittee and a growing voice of
Members of the House of Representatives to seek a working solution to
the challenges brought by the patchwork of recently enacted (and
pending) state legislation with varying degrees of Name, Image and
Likeness provisions. It is clear to me that the imperative of national
consistency, fairness, and equity requires a Federal solution. Like all
Division I universities, we compete across 50 states. Therefore, only a
Federal approach that creates a level playing field for competing
athletes and universities makes sense.
KU acknowledges that it is a new day in college athletics, and if
there is an opportunity for student-athletes to earn value from their
Name, Image and Likeness, we should support them and provide reasonable
guardrails that will protect them and the integrity of the game while
maintaining successful educationally based athletic programs across the
country.
This is a complicated policy matter, and none of us has all of the
answers. That's why it is important that we are having these
discussions. But no matter what solutions we pursue, there are two
ironclad principles that should inform us every step of the way: (1) we
must continue to prioritize what is in the best interests and welfare
of our student-athletes; and (2) we must preserve and protect the
collegiate athletic model.
As this process moves forward, we must not forget that more than 98
percent of student-athletes do not turn professional in their sport
after graduation or have significant opportunity to earn income from
NIL, yet they benefit greatly from the education and resources they
access as student-athletes. We must be cautious not to risk losing what
is so valuable for the 98 percent while addressing the specific needs
of those blessed to take their athletic talents to the professional
level. Additionally, we must preserve access for first-generation
students and underrepresented minorities to an education through sports
and continue to enhance gender equality in compliance with Title IX.
The bottom line is, there are ways to allow student-athletes to benefit
from Name, Image and Likeness while maintaining the benefits of the
collegiate athletic model.
Additionally, Senators, please keep in mind the following: The
actions we take on NIL have the potential to transcend athletics and
impact every aspect of our university mission--from education, to
service, to research. For better or worse, a major athletics department
at a university like KU is inextricably linked with the entire
university model and everything we do. For example, athletics is
important to student recruitment, especially for Midwestern
universities that rely on out-of-state student enrollment. Athletics is
crucial to our engagement with donors, whose support is essential to
our most important academic and research initiatives. And athletics
enhances our work to improve access to education and campus diversity
by enrolling students from diverse backgrounds. Again, the decisions we
make on Name, Image and Likeness have implications that extend beyond
the athletic playing field and into virtually every aspect of what we
do as universities.
As a university chancellor, one of my responsibilities is to
support opportunities for students while they are enrolled at KU--
whether that is an internship, a chance to study abroad, or a chance to
do research with a company in our region. Today, I want to support this
new opportunity for those student-athletes who have the potential to
earn money while competing at our institution. Like all new
initiatives, there will be hurdles, and we will learn from them and
adapt. But let's work together to do what is right and support our
student-athletes in these new opportunities.
Right now, students, student-athletes, parents, alumni and
supporters of our universities are counting on us to do this fairly and
correctly. Forming a comprehensive national plan for Name, Image and
Likeness is a challenge that will take some time to implement. But we
can do it together.
So let us partner--universities, Congress, our governing
association and conferences, and other key stakeholders--to create a
solution that ensures the interests of our student-athletes are front
and center while also preserving the current collegiate athletic model
to the benefit of all student-athletes.
Thank you.
Senator Moran. Dr. Girod, thank you very much.
Mr. Huma, welcome.
STATEMENT OF RAMOGI HUMA, EXECUTIVE DIRECTOR, NATIONAL COLLEGE
PLAYERS ASSOCIATION
Mr. Huma. Thank you. Good morning. My name is Ramogi Huma.
I am a former UCLA football player and the Executive Director
of the National College Players Association, the NCPA, a
501(c)(3) nonprofit advocacy group comprised of over 20,000
current and former college athletes nationwide.
First, I would like to thank Chairman Wicker, Chairman
Moran, and Ranking Member Blumenthal, and members of the
Subcommittee for allowing me to testify today.
College sports is a $14 billion per year commercial
industry where multibillion dollar TV revenues fuel
multimillion dollar salaries for coaches, administrators, and
commissioners. The NCAA's basketball tournament alone generates
over $1 billion per year. Under Armour is paying UCLA $280
million to require UCLA players to serve as walking billboards
to advertise its apparel.
Meanwhile, the NCAA denies players third party compensation
claiming it is to protect players from forces of
commercialization. This double standard has inflicted serious
economic harm on countless college athletes, many of whom are
from low-income backgrounds.
The NCPA is a co-sponsor of California SB 206, known as the
Fair Pay to Play Act, and is currently assisting 14 of an
estimated 28 states that are pursuing similar legislation.
In short, a wave of bipartisan action is sweeping across
this Nation in response to longstanding, unjust NCAA rules that
deny college athletes economic freedoms afforded to other
students and Americans.
As part of my written testimony for today, I submitted an
updated white paper on this issue that was published last
Friday, and I will cover some of the key advocacy positions
included in that document.
First, Federal legislation is not necessary for positive
reform in this area, but there are some reasonable provisions
or guardrails that could be positive.
For instance, Congress could prevent third-party
compensation offers used as inducements to high school recruits
and college transfers to attend a particular college.
It could also ensure that colleges themselves do not
coordinate third-party athlete compensation.
Similar to some of the state guardrails, they should be
enacted directly through law and not through any NCAA antitrust
exemption.
If Congress acts, it should also uphold the freedom for
players to secure independent representation, which 28 states
are currently pursuing. Congress should not grant the NCAA and
its colleges the power to certify athlete agents and other
representation because this representation would also be
expected to represent players in disputes with the NCAA and
colleges.
Also, current NCAA rules are discriminatory as they only
allow elite men's basketball players the ability to secure
agents while denying the same right to all female athletes.
States are capable of setting athlete agent standards and many
have already adopted such standards into law.
Additionally, the NCAA conferences and colleges should not
be allowed to represent players in name, image, and likeness
compensation agreements.
And Congress should not appoint any entity to control
college athletes' group licensing rights, which the NCAA stated
in December they will be asking Congress to do. The NCAA
conferences and colleges are already taking advantage of
players in this area, selling players' rights and refusing to
give them any compensation for it.
Again, some guardrails can be helpful, but there are
serious concerns about the potential for even well-intentioned
guardrails to serve as hammers, hammers that can harm college
athletes' economic freedoms being unlocked by the states. Some
have proposed banning third-party compensation agreements from
people and companies affiliated with players' colleges. This
would mean players could not get a deal with Nike if Nike
sponsored their college. They could not get a deal with
countless companies that contract with their colleges. If a fan
happens to be an alumni or donor, pays admission to a player
autograph signing, the fan, player, and college could be in
violation of Federal law and be subject to punishments.
Yet, these are precisely the opportunities that states are
seeking to open up to college athletes. The states are
realizing that proposals that would prohibit or cap college
athletes' opportunity in the name of competitive equity are
especially problematic largely because competitive equity does
not exist under current NCAA rules. In fact, after 6 years of
legal scrutiny in the O'Bannon v. NCAA name, image, and
likeness antitrust lawsuit, the Federal courts came to this
exact conclusion in their rulings. Colleges with the most
revenues and wealthiest boosters have the largest recruiting
budgets, have the best coaches, and build the best facilities.
In turn, they get the best recruits, they win the most games,
and score the richest TV deals allowing them to continue their
dominance.
Importantly, if NCAA sports was truly committed to pursuing
competitive equity and recruiting and winning, they would ban
booster payments to athletic programs and teams would share TV
revenue equally like they do in other multibillion sports
leagues. College athletes should not be forced to sacrifice
their economic freedom and rights so the NCAA and its colleges
can pretend that competitive equity exists while doing nothing
about huge disparities in booster donations and athletic
revenues.
Finally, the State legislation in question will have no
effect on players' employee status or Title IX because payments
would be from third parties not colleges. If Congress does act,
it should advance college athlete freedoms being pursued by the
states not roll them back.
Thank you.
[The prepared statement of Mr. Huma follows:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Name, Image, and Likeness:
The Players' Plan for Economic Liberty and Rights
National College Players Association
Author: Ramogi Huma, Executive Director
February 7, 2020
Overwhelming Support for College Athlete NIL Pay
California made history when it approved SB 206, legislation that
will allow California college athletes the right to secure legal and
professional representation as well as earn compensation for use of
their name, image, and likeness (NIL) beginning on January 1, 2023. The
bill was voted into law with unanimous bipartisan support: 73-0 in the
Assembly and 39-0 in the Senate.
The National College Players Association (NCPA) was a co-sponsor of
SB 206 and is working with thirteen states of the estimated twenty
states that are pursuing similar legislation at the time of this
writing. Lawmakers in these states express sincere opposition to the
NCAA's prohibition on such rights due to the harm it inflicts on
athletes in their states.
Florida state lawmaker Representative Chip LaMarca who introduced a
college athlete NIL stated, ``Not allowing college athletes to
participate in the same free market opportunities that drive our
institutions runs counter to the American principles of free enterprise
and equal rights.''
Missouri state Representative Nick Schroer (R) introduced similar
legislation and stated, ``The NCAA has long banned student athletes
from obtaining compensation from their own name and likeness. This ban
violates every capitalistic principle of free markets which has made
this country exactly what it is today. While student athletes are
barred from making money off of their image and likeness, the NCAA
continues to cash in as they siphon money away from the very student
athletes the organization should be protecting.'' \1\
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\1\ https://www.stltoday.com/news/local/education/anger-with-ncaa-
could-speed-measure-to-pay-missouri-college/article_2da211ed-3d06-5bd5-
a96b-d13b0467b3db.html
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After introducing a Pennsylvania NIL compensation bill, state
lawmaker Dan Miller (D) said, ``Athletes are forced to give up their
rights and economic freedom while the colleges make hundreds of
millions of dollars off of their talent and likeness. This bill would
help to balance the scales. . .'' \2\
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\2\ https://www.cbsnews.com/news/fair-pay-to-play-act-pennsylvania-
lawmakers-seek-compensation-college-student-athletes-2019-10-01/
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In addition, there is bipartisan interest in Federal college
athlete NIL legislation among members of the United States Senate and
House of Representatives.
US Senator Mitt Romney (R): ``We're coming to help these young
athletes in the future, and the athletes of today, make sure that they
don't have to sacrifice their time and sacrifice, in many cases, their
bodies without being fairly compensated.'' \3\
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\3\ https://www.sportingnews.com/us/ncaa-basketball/news/mitt-
romney-warns-ncaa-about-compensating-athletes-were-coming-for-you/
mguqknsv5e3o1p19p3dtwi8ut
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US Senator Chris Murphy (D): ``College athletes are being used as
commodities to make money for the NCAA, colleges and corporations,
while not being compensated for the work they do, nor given the
appropriate health care and academic opportunities they deserve.'' \4\
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\4\ https://www.athleticbusiness.com/college/senator-s-report-
calls-for-ncaa-to-overhaul-its-health-care.html
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Congressman Mark Walker (R): ``Signing on with a university, if
you're a student-athlete, should not be (a) moratorium on your rights
as an individual. This is the time and the moment to be able to push
back and defend the rights of these young adults.'' \5\
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\5\ https://www.si.com/college/2019/03/07/ncaa-student-athletes-
profit-name-use-bill-introduced-mark-walker
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The NCPA is engaging in talks with various members of Congress to
help ensure any Federal legislation advances these protections
nationwide without rolling back provisions sought by states.
Finally, polls show that 66 percent of Americans \6\ and 80 percent
of regular students \7\ support allowing college athletes the ability
to earn compensation for use of their NIL. Also, 52 percent of
Americans support providing college athletes a share of millions of
dollars in TV revenue generated by football and basketball players.
While the NCAA opposes such legislation, it also ranks among
institutions with the lowest public approval--only 14 percent of
Americans have a favorable opinion of the NCAA and its colleges.\6\
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\6\ https://apnews.com/3ab2b10f53e2c7f6a16b25ccaf49eb1a
\7\ https://collegepulse.com/2019/09/college-students-say-the-ncaa-
takes-advantage-of-athletes.html
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Declarations
1. College athletes' talents, time, and physical sacrifices are
central to fueling a highly commercialized, $14 billion per
year industry that pays coaches and administrators multimillion
salaries and allows apparel companies to spend millions of
dollars to require college athletes to advertise their logos on
their bodies.
2. The commercial use of college athletes' NIL rights is not
necessary to field school-based athletics and non-revenue
sports; it is an optional, lucrative activity for which
athletes should have the freedom to be fairly compensated by
3rd parties.
a. If large commercial revenues were required for colleges to
field athletic programs and their nonrevenue sports, NCAA
Division II and III would not exist.
3. College athletes should have the same economic liberties and
rights afforded to other students and Americans.
4. The NCAA's athlete NIL compensation ban infringes upon college
athletes' 1st Amendment Rights. The NCAA prohibits college
athletes from receiving compensation for engaging in highly
protected forms of speech on their own time such as religious
or creative expression.
a. The NCAA would punish a player receiving compensation for
giving a speech or writing about his or her experience as a
Christian college athlete. There are many players who are
members of The Fellowship of Christian athletes and other
organizations who are not allowed to pursue such
opportunities.
b. Central Florida football player Donald De La Haye lost his
NCAA eligibility for receiving compensation from his
YouTube channel.\8\
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\8\ https://www.latimes.com/sports/more/la-sp-ucf-kicker-
ineligible-youtube-20170801-story.html
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5. NCAA rules prohibiting college athlete compensation for use of
NIL rights do not bring forth competitive equity and do not
justify denying college athletes equal rights and economic
freedom.
a. After six years of deliberations in O'Bannon v. NCAA, federal
courts determined that the NCAA's prohibition of players'
NIL compensation did not foster competitive equity because
various colleges have numerous other competitive advantages
and disadvantages that the NCAA permits (recruiting
budgets, quality of coaches/facilities, etc.)
6. Allowing successful female athletes (i.e., Olympians) to enter
into commercial activities can raise the profile, popularity,
and value of women's college sports.
7. The NCAA, athletic conferences, and their member colleges should
not be allowed to represent college athletes in NIL commercial
agreements. These entities have a conflict of interest and they
are currently taking advantage of such powers. The NCAA has
stated publicly that it wants the U.S. Congress to grant it the
ability to represent players' group licensing rights, yet this
conflicted, forced athlete representation is among the
injustices that states are seeking to eradicate.\9\ \10\ It is
not necessary for the government to appoint a college group
licensing entity, but if it did, it should not be the NCAA,
conferences, or colleges.
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\9\ https://www.aspeninstitute.org/events/future-of-college-sports-
governments-role-in-athlete-pay/
\10\ https://www.usatoday.com/story/sports/ncaaf/2019/12/17/ncaas-
mark-emmert-meets-mitt-romney-chris-murphy-reform/2675473001/
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a. NCAA sports has been a bad actor in this area. NCAA rules
restricting college athlete compensation have been ruled
illegal multiple times in Federal courts (O'Bannon v. NCAA
& Alston v. NCAA) and have harmed countless college
athletes.
b. The O'Bannon v. NCAA ruling found that the NCAA, conferences,
and schools sell valuable players group licensing rights to
3rd parties but give players $0 in return.
c. The NCAA chose to end the popular EA sports video games
rather than allow college athletes, whose NILs were used in
the games, to receive any portion of revenue.
8. College athletes' NIL representation should not be nationalized/
operated by the government.
9. Sports agents, financial advisors, and other individuals and
entities facilitating college athlete compensation for use of
their name, image, or likeness rights and athletics reputation
should be subject to standards to help prevent fraudulent and
negligent activity that can harm college athletes.
10. The NCAA, athletic conferences, and their member institutions
should not govern certification of college athlete
representation.
a. College athletes must have representation certified by an
entity that does not have a conflict of interest. College
athlete representation must have the freedom and
qualifications to represent college athletes in
negotiations with 3rd parties as well as during any NIL
rights disputes with colleges, conferences, and the NCAA.
b. The NCAA has demonstrated ongoing opposition and poor
judgment regarding college athlete representation. For
instance, it denies all female athletes the ability to
secure a sports agent while giving this right to select
men's basketball players.
11. College athletes should receive financial skills development.
a. While NCAA sports leaders point to a lack of college
athletes' financial skills as a reason to deny athletes
economic freedom, but NCAA sports is responsible for
failing to use its robust educational infrastructure and
some of its commercial revenue to address any lack of
financial development skills among athletes.
12. NIL college athlete compensation should not be locked in a trust
fund but, if it was, the NCAA, athletic conferences, and their
colleges should not administer it.
a. The NCAA did a poor job of administering the 2008 White v.
NCAA antitrust settlement that was supposed to provide $10
million to players to complete their degree and continue
their education. It did not do enough to inform players of
available funds and returned $4.3 million dollars in unused
funds to its colleges.\11\
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\11\ http://www.ncaa.org/about/resources/media-center/news/six-
schools-selected-grant-program-pilot
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Group Licensing
In addition to individual commercial opportunities that can benefit
an individual athlete, group licensing would provide even revenue
distributions among each athlete on each team or set of teams included
in a group license. When it comes to group licenses, each player is
equally valuable. For instance, a star quarterback cannot participate
in a televised game and would have virtually no value to a sports
videogame maker if his teammates--including backups who standby to fill
in for injured and tired starters, did not participate. For this
reason, each individual in the group is equally valuable.
Federal court antitrust rulings recognize that a group licensing
market for college athletes' NIL rights exists and declared the
following:
1. NCAA's prohibition on athlete name, image, and likeness
compensation violated Federal antitrust law and deprives
college athletes of compensation that they would otherwise
receive.
2. If the NCAA did not have a prohibition on athlete compensation
for use of their name, image, and likeness, athletes would be
able to create and sell group licenses;
3. 3rd parties purchase groups of athletes' name, image, and
likeness rights for commercial purposes including for use in
live game telecasts, sports video games, game rebroadcasts,
advertisements, and other archival footage to ensure they have
the legal right to use every athlete in a group of
athletes.\12\
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\12\ O'Bannon v. Nat'l Collegiate Athletic Ass'n, 802 F.3d 1049
(9th. Cir. 2015)
California SB 206 and other similar legislation will allow players
to secure representation to create, bundle, and sell group licenses.
College athletes should be informed and empowered to make decisions
regarding group licensing distributions.
Title IX & Athlete Representation Certification
College athlete NIL compensation from 3rd parties is not subject to
Title IX.
The NCAA's policy to allow men's basketball players to sign with
sports agents while denying female athletes the same rights sets up
NCAA colleges for possible violations of Title IX and the 14th
Amendment's Equal Protection Clause.\13\
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\13\ https://www.si.com/college/2018/08/09/ncaa-agents-student-
athlete-one-and-done-nba-draft
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There is a reasonable desire to have standards for college athlete
representation. Such standards can help protect college athletes
against fraudulent and negligent activity. Inadequate representation
can also lead to the loss of college athletes' eligibility.
For instance, there are questions surrounding a new online platform
that allows fans to incentivize recruits to play for a particular
college. Fans are allowed to pledge money by position and college. The
platform, StudentPlayer.com, claims it has already raised $100,000 from
both named and anonymous donors to make offers to 800 athletes at 42
different colleges. It states that such activity is made legal due to
emerging state legislation. However, no such state legislation is
currently in effect, and some states like California have laws that
likely prohibit such activity. The NCAA may punish a recruit if he or
she publicly indicates such inducements as a factor in selecting a
college team. Many states already have standards for athlete agents and
are capable of addressing this area.
Employee Status
The NCAA argument that 3rd party college athlete NIL compensation
will change players' employee status and lead to unionization is false.
Such NIL payments would not come from the colleges and, therefore,
would not be a factor in considering employee status of college
athletes. If the NCAA were correct, bipartisan support for college
athlete NIL compensation would not be taking place among states and in
Congress.
State Legislative Reform Model Summary
(See Attachment 1 for The NCPA's Model State Legislation)
Allow college athletes to receive NIL compensation from 3rd
parties.
Allow college athletes to secure professional and legal
representation.
Avoid language prohibiting NCAA and conference punishments.
The NCAA has signaled it will use that language to pursue a
legal challenge based on the Dormant Commerce Clause. While
such a legal challenge would be weak, it could delay justice
for college athletes and unnecessarily tax states' Attorneys
General resources. States can enforce their own state antitrust
laws to protect their players and colleges from NCAA group
boycotts and other illegal cartel punishments. States may want
to include their athlete NIL legislation under their antitrust
law for this reason. In addition, and most importantly, it will
not be practical for the NCAA to expel so many colleges from
the numerous states that are likely to adopt similar laws.
July 1, 2020 effective date
*States should leave out language regarding conference and
athletic association penalties. The vast number of states
pursuing similar legislation makes clear that such penalties
against large numbers of colleges are unrealistic.
Limits of State Legislation
Some have expressed a desire to try to make college athlete
compensation more equal. Any restriction on an individual athlete's NIL
compensation would be unjust since other students, citizens, and
athletes in other multibillion-dollar sports industries are not subject
to such limits. It could also put that state's colleges at a
competitive disadvantage.
Contrary to NCAA assertions, state NIL laws will not destroy
college sports. The NCAA claims it is complicated to find a way to
enact NIL compensation without allowing certain colleges an advantage
over others. This is a smokescreen since such advantages and
disadvantages exist under current NCAA rules. For instance, the SEC's
television contract is much higher than ``Group of 5'' conferences'
television contracts. This allows the SEC to maintain a much larger
recruiting budget, hire better coaches, and build top of the line
facilities. In turn, these advantages allow SEC colleges to secure the
best football recruits, win the most games, and position itself for
even higher television contracts in the future.
Federal Legislative Reform
Federal reform that advances college athletes' freedoms and rights
being pursued by many states would represent positive reform, but
Congressional action to eliminate these college athlete protections
would undermine states' rights and harm all college athletes. It is not
necessary for Congress to get involved but, if it does, it should do so
in a way that does not cement unjust and exploitative NCAA rules into
law.
The NCPA's Federal reform model would be similar NCPA's State Model
Legislation with the following additional provision and considerations:
Additional Provision:
1. Congress should void all current NCAA punishments and
investigations related to college athlete compensation and
financial extra benefits. NCAA economic rules leave many
college athletes desperate and vulnerable. Players, coaches,
and colleges should not be punished for violating unjust and
illegal NCAA rules--many of which would be eliminated upon the
implementation of athlete NIL compensation legislation.
Considerations:
1. If Congress is truly looking for ways to make college sports
``more equal'', it would be remiss in not considering equal
media rights revenue sharing across all colleges themselves.
The NCPA is neutral on this, but notions of fairness should not
be used to limit players' ability to receive NIL compensation.
Perhaps a more powerful action would be for colleges to follow
revenue sharing models of other multibillion sports leagues
such as the NFL.
2. Congress should not buy into NCAA rhetoric and limit college
athlete NIL compensation. Other multibillion sports leagues
have no such limits and function just fine.
3. Federal legislation attempting to prohibit college boosters from
arranging NIL endorsements for current college athletes in
hopes of making college sports more equal would be seriously
flawed. Booster donations are currently used by colleges to
pursue an advantage by luring the best recruits via enhanced
recruiting budgets, hiring better coaches, building flashy
facilities, etc. A booster ban would inflict economic harm to
college athletes and do nothing to make recruiting more equal
since booster donations would continue to provide some colleges
advantages over others. Federal legislation hoping to
neutralize boosters' affect on competitive balance would have
to ban all booster donations to colleges, a proposition for
which no stakeholder has voiced support.
Alternatively, Federal legislation could take a more reasonable
approach by prohibiting NIL opportunities explicitly aimed at
recruits as inducements to attend a particular college.
Prohibiting colleges from coordinating 3rd party NIL
opportunities for their athletes could also be a more measured
approach. That provision would be similar to other sports
leagues that do not allow teams to coordinate player
endorsement deals as a way to circumvent the salary cap.
Notably, these leagues do not attempt to prevent players from
entering endorsement deals with local businesses run by fans of
the player's team. These industries operate just fine, and
these leagues are not seeking Federal legislation attempting to
stop this practice due to any perceived or actual advantage or
disadvantage this may give any team.
A Federal NIL Trust Fund
Some have expressed an interest in holding college athletes' NIL
compensation in a trust fund until their eligibility expires. The NCPA
does not support compensation being held in this way because it would
continue the economic hardships college athletes face during the
duration of their college career. Additionally, college athletes would
be more susceptible to turning to high interest credit cards and high
interest loans to pay for expenses throughout college. In short, they
would likely take out loans against what they hoped to eventually
receive in a future NIL trust distribution. Tying up college athletes'
compensation in a trust would be a significant disadvantage to a state
since California and (most likely) other states would have no such
limitation. However, it would be viable via Federal legislation.
Any NIL trust fund established by Federal legislation should hold
only a small portion of NIL revenue. For instance, California,
Louisiana, New Mexico, and New York laws protecting child entertainers
from being taken advantage of by their guardians require only 15
percent of their gross earnings to be placed into a blocked trust
account.\14\ It should be noted that these entertainers gain access to
these accounts upon turning 18 years old, and virtually all college
athletes are at least 18 years old. The NCPA believes young adults
should be empowered to properly handle their earnings through financial
skills development rather than receiving a delayed payment. However, if
Federal legislation requiring a trust fund is enacted, college athletes
should be allowed to generate interest via investments (i.e., stock
market) to earn more revenue.
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\14\ https://www.sagaftra.org/membership-benefits/young-performers/
coogan-law
---------------------------------------------------------------------------
Summary
NCAA sports imposes second-class citizenship on college athletes in
its pursuit to monopolize all commercial dollars generated from college
athletes' NIL rights. NCAA colleges are complicit since they
collectively adopt and maintain NCAA rules. The NCAA and its colleges
are making a mockery of Federal and state antitrust laws meant to
protect free enterprise and have shown a disregard for players' 1st
Amendment rights.
As the NCAA and its colleges fight to keep the status quo by
lobbying state and Federal lawmakers and putting out vague media
statements with empty promises, two questions should be asked
persistently. Why should those who break laws be allowed to design new
laws? Why should those who victimize college athletes be appointed
stewards of college athlete well-being?
The NCAA and its colleges' assertion that college athlete NIL
reform has been too complicated to address is further evidence that
they are both unwilling and ill-equipped to do so. Reform is not too
complicated to achieve, and justice for college athletes should not be
delayed any longer.
References
Berkowitz, S. (2019, December 17). Two U.S. senators appear to be
taking aim at NCAA even beyond image, likeness controversy.
USAToday.com. Retrieved from https://www.usatoday.com/story/sports/
ncaaf/2019/12/17/ncaas-mark-emmert-meets-mitt-romney-chris-murphy-
reform/2675473001/
College Pulse. (2019, September 11). 8 in 10 college students say
the NCAA takes advantage of athletes. Collegepulse.com. Retrieved from
https://collegepulse.com/2019/09/college-students-say-the-ncaa-takes-
advantage-of-athletes.html
Fritz, B. (2019, December). Senator's report urges NCAA to overhaul
its health care. Athleticbusiness.com. Retrieved from https://
www.athleticbusiness.com/college/senator-s-report-calls-for-ncaa-to-
overhaul-its-health-care.html
Gooden, C. (2019, December 19). Anger with NCAA could speed measure
to pay Missouri college athletes. STLToday.com. Retrieved from https://
www.stltoday.com
/news/local/education/anger-with-ncaa-could-speed-measure-to-pay-
missouri-college/article_2da211ed-3d06-5bd5-a96b-d13b0467b3db.html
Lawrence, M. (2012, December 11). Six schools selected for grant
program pilot. NCAA.org. http://www.ncaa.org/about/resources/media-
center/news/six-schools-selected-grant-program-pilot
McCann, M. (2018, August 8). What's really to come from the NCAA's
student-athlete agent announcement? SI.com. Retrieved from https://
www.si.com/college/2018/08/09/ncaa-agents-student-athlete-one-and-done-
nba-draft
McMillen, B. (2019, October 17). Sen. Mitt Romney warns about
compensating athletes: ``We're coming for you''. Sportingnews.com.
Retrieved from https://www.sportingnews.com/us/ncaa-basketball/news/
mitt-romney-warns-ncaa-about-compensating-athletes-were-coming-for-you/
mguqknsv5e3o1p19p3dtwi8ut
O'Bannon v. NCAA O'Bannon v. Nat'l Collegiate Athletic Ass'n, 802
F.3d 1049 (9th. Cir. 2015). Retrieved from http://cdn.ca9.uscourts.gov/
datastore/opinions/2015/09/30/14-16601.pdf
O'Donnell, N. (2019, October 1). Pennsylvania lawmakers working on
``Fair Pay to Play Act'' for college athletes. CBSNews.com. Retrieved
from https://www.cbsnews.com/news/fair-pay-to-play-act-pennsylvania-
lawmakers-seek-compensation-college-student-athletes-2019-10-01/
Russo, R. D. (2020, January 6). AP-NORC poll: 66 percent favor
endorsement money for NCAA athletes. APnews.com. Retrieved from https:/
/apnews.com/3ab2b10f53e2c7f6a16b25ccaf49eb1a
SAG-AFTRA. (2020). Coogan Law. SAGAFTRA.org. Retrieved from https:/
/www.sagaftra.org/membership-benefits/young-performers/coogan-law
Solomon, J. (2019, December 17). Future of college sports:
Government's role in athlete pay: Interview with Mark Emmert.
Aspeninstitute.org. Retrieved from https://www.aspeninstitute.org/
events/future-of-college-sports-governments-role-in-athlete-pay/
Schilken, C. (2017, August 1). Central Florida kicker Donald De La
Haye loses his NCAA eligibility because of his YouTube videos.
LATimes.com. Retrieved from https://www.latimes.com/sports/more/la-sp-
ucf-kicker-ineligible-youtube-20170801-story.html
West, J. (2019, March 7). Congressman to introduce bill to let NCAA
athletes profit from use of their name, likeness. SI.com. Retrieved
from https://www.si.com/college/2019/03/07/ncaa-student-athletes-
profit-name-use-bill-introduced-mark-walker
Attachment 1
Model Legislation--Name, Image, Likeness Pay
SECTION 1. Declarations
1. The Legislature seeks to help ensure college athletes have equal
rights and economic freedoms afforded to all students and
residents in the state of ______________.
2. The Legislature recognizes the disproportionate negative impact
that economic and legal restrictions have on African American
and female college athletes.
3. The commercial exploitation of college athletes' name, image, and
likeness rights is not required for school-based athletics; it
is an optional, lucrative activity for which athletes should be
fairly compensated by 3rd parties.
4. College sports is a $14 billion dollar industry with millionaire
coaches and lucrative apparel deals that require college
athletes to advertise for commercial interests.
5. Rules prohibiting college athlete compensation for use of name,
image, and likeness rights, or athletics reputation do not
bring forth competitive equity and cannot justify denying
college athletes equal rights and economic freedom.
6. State legislatures have adopted or are pursuing legislation, to
grant college athletes the right to secure professional
representation, which includes their own group licensing
representation; and the right to earn compensation for use of
their name, image, and likeness beginning as early as July 1,
2020.
7. Federal court rulings recognize that a group licensing market for
college athletes' name, image, and likeness rights exists and
declared the following:
a. The NCAA, conferences, and schools sell valuable players
group licensing rights to 3rd parties, but give players $0
in return.
b. NCAA's prohibition on athlete name, image, and likeness
compensation violated Federal antitrust law and deprives
college athletes of compensation that they would otherwise
receive.
c. If the NCAA did not have a prohibition on athlete
compensation for use of their name, image, and likeness,
athletes would be able to create and sell group licenses;
d. 3rd parties purchase groups of athletes' name, image, and
likeness rights for commercial purposes including for use
in live game telecasts, sports video games, game
rebroadcasts, advertisements, and other archival footage to
ensure they have the legal right to use every athlete in a
group of athletes.
8. Sports agents, financial advisors, and individuals and entities
facilitating college athlete compensation for use of their
name, image, or likeness rights and athletics reputation should
be subject to certification standards to help prevent
fraudulent and negligent activity that can harm college
athletes.
9. College athletes' representation should be independent from
athletics associations, athletic conferences, and colleges to
avoid a conflict of interest.
SECTION 2. Definitions
``Athlete'' means an individual that participates or participated
in intercollegiate sport for a postsecondary educational institution
located in the state. An individual's participation in a college
intramural sport or in a professional sport outside of intercollegiate
athletics does not apply.
``Athletic association'' means an entity with athletics governance
authority and is comprised of postsecondary educational institutions
and athletic conferences.
``Athletic conference'' means an entity and/or a collaboration of
entities such as the autonomy conferences that has/have athletics
governance authority, is a member of an athletic association, and has
members comprised of and/or competes against postsecondary educational
institutions.
``Certification'' means the process of developing enforcing
professional and legal policies and practices.
``Group'' means three or more athletes from the same sport.
``Group licensing'' means an agreement or agreements to allow a 3rd
party the right to use the name, image, and likeness rights and
athletic reputation of a group of athletes.
``Postsecondary educational institution'' means any campus of a
public or a private postsecondary educational institution.
``3rd party'' means any individual or entity other than a
postsecondary educational institution, athletic conference, or athletic
association.
SECTION 3. Resolution
The state of ____________ requests that any Federal legislation
regarding this act respect and permit _____________ college athletes'
rights, protections, and other provisions included in this legislation.
SECTION 4. Legislation
Part A.
1. A postsecondary educational institution shall not uphold any
rule, requirement, standard, or other limitation that prevents
a student of that institution from fully participating in
intercollegiate athletics without penalty and earning
compensation as a result of the use of the student's name,
image, or likeness rights, or athletic reputation. Earning
compensation from the use of a student's name, image, or
likeness rights, or athletic reputation shall not affect a
student's grant-in-aid or stipend eligibility, amount,
duration, or renewal
2. For purposes of this section, a grant-in aid and/or a stipend
from a postsecondary educational institution in which a student
is enrolled is not compensation for use of a student's name,
image, and likeness rights, or athletic reputation; and a
grant-in-aid or stipend shall not be revoked or reduced as a
result of a student earning compensation pursuant to this
section.
3. A postsecondary educational institution shall not interfere with
or prevent a ______________ student from fully participating in
intercollegiate athletics for obtaining representation
unaffiliated with a postsecondary educational institution or
its partners in relation to contracts or legal matters,
including, but not limited to athlete agents, financial
advisors, or legal representation provided by attorneys.
4. A college athlete shall not enter into an apparel, equipment, or
beverage contract providing compensation to the athlete for use
of the athlete's name, image, or likeness rights, or athletic
reputation which requires a student to display a sponsor's
apparel, equipment, or beverage or otherwise advertises for the
sponsor during official team activities if such provisions are
in conflict with a provision of the athlete's team contract.
5. A team contract of a postsecondary educational institution's
athletic program shall not prevent a college athlete from
receiving compensation for using the athlete's name, image, or
likeness rights, or athletic reputation for a commercial
purpose when the athlete is not engaged in official, mandatory
team activities that are recorded in writing and made publicly
available. Such team activities may not exceed up to 20 hours
per week during the season and up to 8 hours per week during
the off-season.
6. An athlete with remaining intercollegiate athletics eligibility
who enters into a contract providing compensation to the
athlete for use of the athlete's name, image, or likeness
rights, or athletics reputation shall disclose the full
contract to an official of the institution who is designated by
the institution. The institution and its designated official
shall not disclose terms of an athlete's contract that the
athlete and/or the athlete's legal representation deems to be a
trade secret and/or non-disclosable.
7. An institution asserting a conflict described in Part A. 6. shall
disclose to the athlete and the athlete's legal representation,
if applicable, the full contract they assert to be in conflict.
The college athlete and/or the college athlete's legal
representative shall not disclose terms of an institution's
contract that the institution deems to be a trade secret and/or
non-disclosable.
Part B.
1. Postsecondary educational institutions that enter into commercial
agreements that directly or indirectly require the use of a
college athlete's name, image, and likeness must conduct a
financial development program of up to 15 hours in duration
once per year.
a. The financial development program cannot include any
marketing, advertising, referral, or solicitation by
providers of financial products or services.
2. Athlete attorney representation shall be by persons licensed by
the state.
Part C.
1. This legislation shall apply only to contracts entered into,
modified, or renewed on or after the enactment of this section.
2. Athletes have the right to pursue private action against 3rd
parties who violate this act through superior court, through a
civil action for injunctive relief or money damages, or both.
a. The court shall award court costs and reasonable
reimbursement for attorneys' fees to the prevailing
plaintiffs in an action brought against a violator of this
legislation.
3. Athletes and state or local prosecutors seeking to prosecute
violators shall not be deprived of any protections provided
under ______________ law with respect to a controversy that
arises in ______________; shall have the right to adjudication
in ______________ a claim that arises in ______________.
4. The provisions of this chapter are severable. If any provision of
this chapter or its application is held invalid, that
invalidity shall not affect other provisions or applications
that can be given effect without the invalid provision or
application.
5. Legal settlements cannot permit noncompliance with this act.
6. This chapter shall apply to any applicable agreement or contract
newly entered into, renewed, modified, or extended on or after
July 1, 2020. Such agreements or contracts include but are not
limited to the National Letter of Intent, an athlete's
financial aid agreement, commercial contracts in the athlete
group licensing market, and athletic conference or athletic
association rules or bylaws.
***States may want to make clear that violations of this
legislation is a per se violation of their state antitrust law and
should consider granting the Attorney General some discretion for
penalties.
______
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Senator Moran. Thank you for your testimony.
Mr. Spencer.
STATEMENT OF KENDALL SPENCER, CHAIR,
STUDENT-ATHLETE ADVISORY COMMITTEE,
NATIONAL COLLEGIATE ATHLETIC ASSOCIATION
Mr. Spencer. Chairman Wicker, Chairman Moran, and Ranking
Member Blumenthal, thank you for inviting me to speak on behalf
of the hundreds of thousands of men and women who represent the
current, former, and future student athletes, some of whom are
sitting behind me today.
My name is Kendall Spencer. As a Division I track and field
student athlete at the University of New Mexico, I have won
national championships, secured multiple All-American honors
both academically and athletically, and represented my country
abroad in international competition.
Today my advocacy on behalf of student athletes starts with
the Student-Athlete Advisory Committee. In this capacity, I led
my group to numerous policy decisions that were set to benefit
the student athlete welfare that eventually led to my
appointment as the first student athlete to serve on the NCAA's
Board of Directors.
Today I am a third-year law student at Georgetown
University where I am a technology, law, and policy scholar
focusing on privacy, election security, and the role that
emerging technologies play in shaping this current digital
economy. I continue to train competitively while in law school
with my eyes firmly set on making the 2020 Olympic team.
In this testimony, I will discuss the name, image, and
likeness through the lens of today's modern student athlete,
giving strict emphasis to the technological framework that we
live in today.
Now, as many of you know, NIL has the right to publicity
which, as a result of our Federalist system, is determined by
the extent of its recognition at the State level. Consequently,
we left with a patchwork of State laws designed to regulate
NIL.
Members of the Committee, let me illustrate for you what
this actually looks like. It looks like a 17-year-old high
school student athlete choosing between two institutions not
because of the educational value but rather because of which
state has the fewest restrictions on the financial benefit they
can gain from their NIL. If within intercollegiate athletics
and as a nation we value education, this is not something that
we should allow to happen so freely.
Now, today's discussion is not for me to comment on the
strain this places on interstate commerce or to describe the
burden it places on institutions that conduct business
throughout the country, but I can illustrate the glaring danger
looming in the shadows for student athletes.
In all of these conversations, we must understand that
today's student athlete lives in this innovation economy driven
by social media influencers and emerging technology platforms.
A student athlete's NIL, however, is inextricably tethered to
technology, and this makes the value and protection of this
right incredibly complex. The social media landscape that all
student athletes today live in is grossly under-regulated
leaving many of the users without protection when their NIL is
misappropriated. Additionally, a student athlete will have to
monitor the use of his or her potential misappropriation and
ensure that he or she is compliant with this myriad of State
laws that may or may not recognize these rights.
The assumption that student athletes, many of whom already
spend upwards of 60 hours a week on athletically related
activities, will have the time to monitor the use of their NIL
in order to protect their profit is absurd. The notion of
expecting student athletes to potentially hire an agent to
manage their brand on top of perhaps an attorney to ensure
compliance with this patchwork of State laws is unreasonable.
And this expectation that community members will continue to be
able to support student athletes at such a high level without
fear of violating a student athlete?s NIL agreement is absurd.
Members of the Committee, this is not just a matter of
protecting the student athlete experience. This is about
maintaining the welfare of students who happen to be athletes.
So what is the student athlete experience? It is the
flashcards we take into the ice bath. It is the textbooks that
we take with us on long road trips to games. It is the term
papers that my teammates reviewed for me when we were in the
hotel rooms.
It is in this moment that we see the distinction between
college sports and the professional leagues. This is the moment
that we see the value in protecting the student athlete
experience and more importantly the welfare of all student
athletes. Here we recognize the role of education.
Members of the Committee, when it comes to protecting the
welfare and the success of student athletes, it is not enough
to get it done. We have to get it right. And this means
allowing the membership and the institutions that help guide us
to our educational goals the appropriate time to be able to
design a structure where this current innovation economy can
fit into.
So in conclusion, I would implore each of you to consider
the impact this would have on the incredible value of the
student athlete experience, what it means for intercollegiate
athletics, and more importantly, the world that student
athletes live in today. Thank you.
[The prepared statement of Mr. Spencer follows:]
Prepared Statement of Kendall Spencer, Chair, Student-Athlete Advisory
Committee, National Collegiate Athletic Association
Mr. Chairman and Members of the Committee,
My name is Kendall Spencer. Thank you for the opportunity to offer
testimony on behalf of the hundreds of thousands of current and former
student-athletes on this important issue of Name, Image, and Likeness.
For more than a decade, my efforts--as they relate to student-
athlete advocacy--focused on highlighting today's student-athlete
experience, and making sure that the impact on our welfare is not
misplaced in these discussions around emerging issues. Contrary to
popular belief, student-athletes live considerably active lives beyond
what the public streams on today's media platforms. In order to protect
the lives and experiences of these individuals, we must all ensure that
these conversations reflect the critical impact to relevant components
such as education, time demands, and gender equity. The complexity
surrounding the commercial use of Name, Image and Likeness is not
exclusive to intercollegiate athletics, but reflects the broader
societal issues that modern America faces today.
Today I am currently a third-year law student at Georgetown
University Law Center, where I am a Technology Law and Policy Scholar
focusing on Privacy and Election Security. Throughout law school, I
have continued to train competitively as a Track and Field athlete with
the expectation of competing in the 2020 Olympic Games.
Before making my way to Washington D.C., I was a Track and Field
student-athlete at the University of New Mexico. During my time on
campus I competed in the Olympic Trials, was a National Champion, and a
Two-Time Division I NCAA All-American, ultimately leading to me
securing a silver medal for my country while competing in Mexico City.
As a student-athlete I was a member of the Student-Athlete Advisory
Committee (SAAC) at the institutional, conference, and national levels,
charged with representing the voice of student-athletes on all issues
from time demands to pay for play. I served as the SAAC chair at the
national level for a number of years and became the first student-
athlete to serve on the NCAA's Board of Directors.
In this testimony, I will explain the framework that today's modern
student-athlete lives in, as well as the value of the student-athlete
experience, with emphasis on the practical application of Name, Image,
and Likeness within intercollegiate athletics.
NAME, IMAGE, AND LIKENESS
Name, Image, and Likeness (NIL) are smaller but complex elements
comprising the Right of Publicity. This right, in all of its complexity
and confusion, is the right of any person to control the commercial use
of their identity by others without their consent. Despite widespread
acknowledgement as a core right granted to every individual, there is
no single right to publicity. A consequence of our federalist system in
the U.S. is that the recognition of publicity rights is highly
decentralized, with each state responsible for its standards for
recognizing human identity--or what is left of it.
Contrary to today's discussion around NIL and the concept of this
right to publicity, the first cases delving into this complex topic
were rooted in privacy issues. Most of the causes of action around NIL
involve a variety of infractions leading to the conclusion that a
person was unduly harmed due to the commercial use of their identity
without their consent. To date, there is no uniform model for the right
to publicity to serve as a one-size fits all example suitable to cross
state lines. This creates a porous system designed to protect human
identity rather than a patch work of state laws.
Discussions surrounding the issues of commercial use of a person's
Name, Image, and Likeness is not a new conversation; however, the
discussion has continued to evolve into a popular issue with regard to
intercollegiate athletics and the professionalization of student-
athletes.
I. TODAY'S MODERN STUDENT-ATHLETE LIVES IN A WORLD DOMINATED BY
POWERFUL ACTORS THAT DID NOT EXIST UNTIL RECENTLY.
Student-athletes today live in a world that is highly complex, both
operationally and logistically. The day to day activities of athletes
on campus involve a sequence of tasks, responsibilities, and hurdles
shaping the lives of young students in ways that transcend their on-
the-field activity. Beyond the typical balancing act student-athletes
take up when they commit to an institution looms the societal framework
we all subject ourselves to in today's modern culture. In today's
social construct--driven by digital communication and emerging
technology platforms--student-athletes live lives that often go
unnoticed to today's fan and proponents who continue to call for the
recognition of Name, Image, and Likeness as a form of compensation.
Laws and regulatory frameworks providing societal boundaries for
Americans do not exist in a vacuum, rather they too manifest themselves
through the context of the times they exist in. Student-athletes are
also subject to these factors. As a result, the lives of student-
athletes, and the impact of Name, Image, and Likeness within the
constructs of intercollegiate athletics, cannot be discussed as if they
exist in a world without technology. While our rights themselves may
not change over the years, the way we express these rights is
fundamentally different. As long as the U.S. values innovation and
technological advancement, this will continue to be an emerging issue
within American public policy.
A. ROLE OF TECHNOLOGY FOR THE MODERN STUDENT-ATHLETE
The lives of today's student-athletes--like most of the nation--are
in fact dominated by the proliferation of emerging technologies.
Technology serves a dual purpose in athletics that connects student-
athlete to institutional resources (online lectures, and study
materials) on and off the field. Emerging tools in the tech space also
connect fans with the players they love to support and cheer for.
Athletic contests can be streamed, recorded, duplicated, and used for
educational purposes presenting enormous value to the student-athlete.
While the innovative benefits in the form of efficiency and access are
graciously accepted, a regulatory structure around technology and its
constructs has been difficult to create at both the state and Federal
level given the rapid growth within those spaces.
B. STUDENT-ATHLETES AND THE INNOVATION ECONOMY DRIVEN BY
SOCIAL MEDIA
This innovation economy is the idea that entrepreneurs, social
media influencers, and other content creators (as it relates to
technology) are really the ones who are helping to drive economic
growth in today's society. Furthermore, it refers to this idea that
most anyone has access to the potential for economic success but is not
guaranteed any benefit for the efforts they are putting in. The
innovation economy puts into context the world that today's student-
athletes live in, how they interact with each other, and, more
importantly, their ability to create any narrative that they choose.
Social media is a vehicle today's student-athlete uses to navigate
this new innovation economy which allows influencers, entrepreneurs and
technology authorities to become key drivers for economic growth. When
people talk about how we exercise some of the core rights granted to us
in the Constitution, such as free speech, social media is the way that
today's student-athletes and youth are expressing themselves. Around
the world, companies see this and, in recognition of its utility to
reach their target audience and potential consumers of products they
sell, have begun to redirect advertising to social media and social
media influencers. The market around social media influencers is one of
the engines powering the debate around potential financial success via
Name, Image, and Likeness. One of the many concerns regarding this idea
is the brand development, significant effort, and extraordinary talent
or niche needed to capitalize on this opportunity. These necessary
characteristics are not retained by all student-athletes however. While
some influencers can receive a very lucrative living from social media
by leveraging their network, the majority of users do not, and will
never have access to that type of brand influence. More importantly,
social media exemplifies one of the many question marks around building
a regulatory structure involving emerging technologies.
To date, social media platforms still lack significant regulation--
the current state of financial success when it comes to social media
platforms, such as YouTube, Instagram, Facebook, and Twitter, are tied
to the number of subscribers, views, or likes on a picture that any
individual might receive on their post. At any given time, however, the
individuals who run these platforms can remove any one of these
features without permission from the user or the Federal government.
Unfortunately, this would also remove one of the sources of revenue
streams for social media users.
Social media gives us access to the world around us. It allows us
(student-athletes) to connect with fans, supporters, individuals we
admire and, more importantly, the community. Despite the role social
media plays in everyone's lives, most platforms are grossly
misunderstood and often allow for the Name, Image, and Likeness of any
of its users to be misappropriated without consequence. A diligent
review of terms and conditions for many of these platforms would
illustrate this fact.
C. REGULATORY FRAMEWORK IMPACTING THE STUDENT-ATHLETE
EXPERIENCE
The Right of publicity, personality rights, and Name, Image, and
Likeness are all phrases often used interchangeably. As with other
rights, however, the way we exercise this right through technology
complicates already difficult issues. Because we live in a data driven
society, one of the floating issues is how we define Name, Image, and
Likeness. In particular, what is likeness and how can we arrive at a
definition that is both fair and inclusive?
Generally, everyone has a right to control the commercial use of
their Name, Image, and Likeness; however, the value of exercising this
right is not necessarily worth the efforts needed to protect it. Not
everyone's commercial use of their Name, Image, or Likeness will be a
lucrative endeavor. Not all student-athletes attribute the same value
to their Name, Image, and Likeness. Unfortunately, this publicity right
has become a subject of popular debate in the U.S. but not for the
reasons that it should be.
For the student-athlete, Name, Image, and Likeness has been thrown
around by the public in an attempt to justify the collegiate model for
amateurism. It has also been used as a justification for creating a
free market in intercollegiate athletics despite the negative impacts
that it would have on the majority of student-athletes. Within the
current discussion on this topic, conversations fixate around the NCAA
rather than the welfare of the student-athlete. This unfortunate truth
reflects the bitter reality that this current debate is placing
student-athletes in the crosshairs of a war between sports fans seeking
access to content, and the NCAA looking to provide a workable model
that prioritizes educational opportunity and academic stability to all
student-athletes.
NIL, like the right to publicity, also has important implications
regarding privacy rights. The right of publicity and the right to
privacy are inextricably connected. Some of the basic privacy rights we
enjoy today evolved out of disputes regarding the right to publicity.
Many privacy rights, for the most part, are, like publicity rights,
states' rights, which means they exist within the framework that states
choose to recognize them in. This is why we talk about privacy laws as
a patchwork of regulations governing protections within this country.
One of the causes for concern with regard to privacy issues and NIL is
the close relationship with technology. States are struggling to wrap
their heads around privacy, how to protect it, and what to do next. The
patchwork of privacy laws at the state level are leading to constant
petitions to the Federal government for a broad sweeping piece of
legislation that will govern privacy protections in the U.S.
Like many other rights, the right of privacy exists through the
constructs that student-athletes interact with--social media, a
platform that exists without regulation. What's important is that
privacy is intertwined through all of this. Privacy rights were created
in an environment that did not foresee the changes in society or the
regulatory structures that we see today. It also did not, or could not,
predict the growing and emerging role that technology is playing in
today's social structure. Furthermore, the U.S. reliance on digital
communications are also heavily impacted by right to privacy--this
includes streaming (music, television, athletic contests). Legally, in
intercollegiate athletics, administrators at the institutional
conference and national level need to understand how these rights and
regulations operate in order to avoid liability when it comes to
college athletics.
II. UNDERSTANDING THE STUDENT-ATHLETE EXPERIENCE AND ITS VALUE IS A
CRITICAL COMPONENT TO ASSESSING THE IMPACT OF COMPENSATION
THROUGH NAME, IMAGE, AND LIKENESS ON THE MODERN STUDENT-
ATHLETE.
The recognition of Name, Image, and Likeness as a form of
compensation for student-athletes substantially impacts the student-
athlete's experience: a critical component to intercollegiate athletics
and the overall value of participating in college sports. The
recognition of value and the substantial role that the student-athlete
experience plays within intercollegiate athletics, and society, was one
of the many reasons that the Student-Athlete Advisory Committee (SAAC)
exists and continues to have a voice throughout the membership process.
One of the many functions carried out by SAAC at both institutional and
national levels involves highlighting current changes to regulatory,
political, academic, and athletic frameworks, and analyzing their
impact on the student-athlete experience. In this regard, the work done
by SAAC at every level operates as more than a sounding board for
institutional reform, but instead stands as a principled voice of the
primary stakeholders in all of these discussions.
A. THE STUDENT-ATHLETE VOICE IS MANIFESTED THROUGH THE
STUDENT-ATHLETE ADVISORY COMMITTEES PRESENT ON EVERY COLLEGE
CAMPUS
I served on SAAC at the institutional level, I chaired the Mountain
West conference SAAC, and eventually became chair of the National
Division I SAAC. This ultimately led to my appointment as the first
student-athlete to serve on the NCAA's Board of Directors. National
SAAC creates the opportunity for student-athletes to involve themselves
in NCAA's governance, policy making, and transparency efforts as they
relate to all sports. At the national level, all of the committees
within the membership, including the Olympic committees that govern USA
Olympic team selection, receive at least one liaison from the SAAC. In
this capacity, I have served on the Competitive Safe-Guards and Medical
Aspects of Sports Committee tasked with creating and reviewing many of
the changes to concussion protocol and mental health resources. I also
served as a liaison to the Olympic Sports Committee. This was an
incredibly important role as it represents the fact that many of our
outstanding performers at the Olympic Games are current, or former,
student-athletes. How we deal with issues at the collegiate level
impacts decisions made elsewhere.
B. THE VALUE OF THE STUDENT-ATHLETE EXPERIENCE
The student-athlete experience is what gives intercollegiate
athletics, and many of our college campuses, life. It's why colleges
sponsor athletics. It's the reason student-athletes have higher
graduation rates than the regular student body. And it's the motivating
factor powering student-athletes to give their time, energy, and
attention to four years of discipline, training and success beyond the
field. The student-athlete experience encompasses components operating
beyond the touchdown passes, goals scored, and perfectly executed
technique. The way we engage with our academic advisors, our student
body, our coaches, our training staff, and perhaps most importantly,
our teammates and surrounding community, are all relevant factors that
impact the student-athlete experience.
When we arrive on campus, many of us will have an opportunity to
compete in athletic contests at the institutional level. Some of us
will have an opportunity to compete at the conference level. But very
few student-athletes will have the privilege of competing for a
national title or championship at the national level. Regardless of
whether you are a third string quarterback, or Division I national
champion, most student-athletes will find that upon graduation it's not
the trophies or the on-the-field successes that they take with them
after graduation. Instead, it's the lessons that come from
participation in intercollegiate athletics that transcend every
victory, every loss or injury, and any gold medal that a student-
athlete may experience at one point in time or another. The few
individuals outside of intercollegiate athletics that actually choose
to recognize the value of the student-athlete experience and the
valuable lessons we take away from our experiences usually hear about
time management skills, discipline, and teamwork. But what you don't
hear about are things like selflessness, patience, perseverance, and
comradery. These are themes of our experience that connect us to our
universities, our communities, and the people that support us beyond
the talents that we display on the field. These are the interactions
that student-athletes hold onto.
Unfortunately, when it comes to the current debates around Name,
Image, and Likeness, the intercollegiate model for amateurism, and the
overall value that student-athletes tap into by being a student-
athlete, the majority of individuals leave the student-athlete
experience out of the equation. This does a great disservice to the
student-athlete, the institution, and society as a whole because it is
an experience that makes the intercollegiate athletic model in the
United States as important as it is. It's also the reason why comparing
athletes at the professional level with student-athletes at the
collegiate level is so incredibly dangerous. On balance, the public
bases this comparison off of what they see. They base it off of the
performances viewed on ESPN, and the incredible value that
entertainment brings to their screens. But most viewers don't see the
experiences we share with each other before or after the game. They
don't see the flash cards we take into the ice bath. They don't see the
textbooks that we bring on the bus ride to away games. And for athletes
like myself, they'll never understand the value of surrounding
ourselves with likeminded individuals connected by an ambition for
success on and off the field.
Because the public typically only pays attention to the 2 percent
of student-athletes at the elite level, they often fail to consider the
hundreds of thousands of student-athletes who will go pro in something
other than their sport. Soccer players who win conference championships
still go to med school; football players who choose not to participate
in the draft become professors; and track and field athletes, like
myself, continue to train for the Olympics while balancing law school.
But more importantly, student-athletes that participate in
intercollegiate athletics have an opportunity of exposure that no other
organization or institution has been able to provide. Student-athletes
come to these great academic institutions and leave as scholars. The
same individuals that come to these universities thinking their value
in society is one dimensional, receive mentorship and guidance that
enable them to leave with master's degrees and other fantastic
credentials. Some of these very same student-athletes are probably in
this room today.
C. KEY FACTORS SHAPING THE STUDENT-ATHLETE EXPERIENCE
Time Demands
The student-athlete experience is tied to a variety of different
factors. This includes, but is not limited to, time demands, team
dynamics, and community engagement. The majority of fans think that our
college experience revolves around the games they see on weekends, when
in reality we are spending copious amounts of time in, and outside of,
the training room. In 2014, myself, and the rest of my colleagues on
Division I SAAC, launched the largest time demands survey in the
country, which ultimately lead to many of the playing time policies and
other athletic procedures that you see today. Unsurprisingly, we found
that student-athletes were spending upwards of 50-60 hours per week on
athletically related activities.
On top of these activities, student-athletes are also expected to
be full time students and to rise to the highest levels of academic
excellence. The presence of these standards and expectations are what
lead to the successes off the field that student-athletes are known
for, many of whom say they would not change it for the world. Name,
Image, and Likeness complicates this fragile dynamic of time demands.
NIL is only valuable if it can be controlled and protected. In order
for a student-athlete to capitalize on this dynamic, her NIL will need
to be monitored at every level: academic, institutional, conference,
national and state.
Any social media influencer will tell you that monitoring an
individual's Name, Image, and Likeness on some of these platforms can
be a hefty task. When coupled with the efforts needed to develop your
brand on social media in order to gain a profit from it, this would
place a substantial burden on the already limited time and attention
student-athletes give to the tasks in front of them. Bad actors, acting
with the malicious intent of taking advantage of this opportunity,
threaten the welfare of student-athletes.
Given the current regulatory state of NIL, student-athletes
choosing to embark on that journey would likely have to hire an
individual to monitor the use of their brand and perhaps an attorney to
regulate compliance with the porous framework of state laws governing
its use. A considerable amount of effort would have to go into the
management, development, and compliance with the state of Name, Image,
and Likeness and the regulatory framework around it. Student-athletes
do not live in world where these external pressures are non-existent.
As a result, the impact on the already burdensome time demands of
student-athletes would be exacerbated.
Team Dynamics
Another important aspect of the student-athlete experience is the
impact of the team dynamic. On the surface, student-athletes develop
teamwork and the ability to manage expectations. But teamwork and team
dynamics go a lot deeper than that. It's the value of altruism--really
being selfless and understanding that some things are more important
than you. This is understanding that regardless of what your role is,
everyone has a role to play. One of the reasons I think this lesson is
so incredibly important, and why its tie to the student-athlete
experience is so valuable, is because teamwork transcends college
athletics; teamwork is the way our country should work.
Society initially was designed to function through teamwork.
Teamwork is one of the reasons we are all here today, because we
recognize the value, and more importantly, the need to work these
problems out as a unit. On balance, I think the issues we find plaguing
intercollegiate athletics and the complexities around college sports
are the same complexities and problems that we deal with on a societal
level.
Teamwork and the relationships that I built as a track and field
student-athlete with my relay, with the other student-athletes at my
school, within my conference, and throughout the NCAA, are the lessons
that all of us actually take with us and the connections that make this
experience what it is. To this day, I still talk to my college
roommate, and I still talk to teammates that left my team after the
first year, many of whom are no longer competing. I couldn't imagine
the impact on the student-athlete experience if issues like Name,
Image, and Likeness began to put pressures on those dynamics. The
unfortunate result of this strain would fall on coaches who have to
manage, not only the success of the team, but the dynamics of this team
and the overall cohesion within the program.
Community relationships
Stepping the student-athlete experience outside of the
institutions, community engagement is often the lifeline for a student-
athlete participating in intercollegiate athletics. Many student-
athletes attend institutions far away from home--away from parents,
family, and loved ones. The communities that surround our athletic or
academic institutions serve, not only as a great resource for fan
support, but are often homes away from home. There is a kinship built
between student-athletes and the communities that they're connected to.
Many children within the community look up to student-athletes as role
models and parents look to student-athletes with a trust that they will
set the tone and example for success in every field of the human
endeavor for their children. More importantly, student-athletes are
looked to as leaders in the community, often because of the lessons
they learn while participating in intercollegiate athletics.
The bond between student-athletes and their communities is multi-
faceted, however. Outside of family dynamics, student-athletes also
form relationships with many places of business that have been
cornerstones within these communities. This is the sandwich shop owned
by the married couple that has been in the community for thirty years.
It's the diner that's been family owned and operated since before the
school even had an athletic department. And it's the bakery that always
buy seasons tickets to our games and continues to hang up posters of
their favorite athletes in their shops. For student-athletes, this has
never been about value in the commercial sense, but about creating
value in other places that transcends financial compensation.
Up until this point, most of these establishments, some of which
struggle to stay afloat, have not needed to concern themselves with
potential legal violations to the right of publicity when it comes to
their student-athletes. Name, Image, and Likeness could greatly impact
the communities that support college athletics. This is a speed bump
that comes with now potentially holding the community responsible for
supporting their student-athletes. It follows that NIL impacts the way
student-athletes experience each factor tied to the student-athlete
experience, greatly impacting the welfare of the student-athlete.
D. EDUCATION IS THE EPICENTER OF THE STUDENT-ATHLETE
EXPERIENCE
The debate around a potential pay for play model and the use of NIL
as a source of compensation for student-athletes has continued to
persist with little to no discussion of the most important aspect of
the student-athlete experience: education. The emphasis on academic
scholarship and excellence is one of the many factors separating
collegiate athletics from the professional leagues. Notwithstanding any
of the tremendous benefits serving to illustrate the value of the
student-athlete experience, education continues to play a substantial
role in our interaction with these academic institutions. Acknowledging
this reality is paramount to understanding the value of the current
collegiate model for student-athletes and the impact NIL might have on
this framework. The primary function for any of our academic
institutions is--and should continue to be--the education of students.
The potential for NIL as a means to provide compensation for
student-athletes has grown, in part, due to criticisms that the
collegiate model does not compensate student-athletes fairly. In order
to truly evaluate the merits of such a claim, institutions and other
key stakeholders have to assess, and put a price tag on, all of the
services that student-athletes currently receive. Naturally, this would
include putting a price tag on a college education for both scholarship
and non-scholarship athletes. Even if we could place an accurate price
tag on the value of education in America, we then face the situation of
what to do about the number we see. In the event that the student-
athlete experience, education, and the like are not comparable to the
value student-athletes bring to the table, NIL might not be the best
vehicle to address the disparity. Rather, if we truly value this idea
of education and the role that it plays in producing a productive and
useful member of society, it may substantially benefit the entire
nation to increase the value of the education and experiences student-
athletes take part in. I shudder to think, however, that notions around
educational opportunity and value will instead be shut down because, at
the end of the day, the viewing public has never looked at the student-
athlete as a student, but rather as a form of entertainment. Most fans
could probably never tell you what any of their student-athletes do off
the field. The respect and admiration fans have for many student-
athletes seems to only go as far as they can throw a football or, in my
case, jump into a pit full of sand. This is likely the reason why
compensation for student-athletes has centered around Name, Image, and
Likeness, and something so closely tethered to entertainment for the 2
percent of student-athletes that the fans actually see, rather than the
98 percent of outstanding student-athletes who are doing amazing things
beyond the fields of play.
Conclusion
Today's student-athlete faces problems similar to the rest of the
American people when it comes to the issue of modernization. Regulatory
uncertainty and the rapid growth of technology places a strain on many
of the factors impacting the welfare of Americans. It is no secret that
most institutions, organizations, and legal frameworks are in desperate
need of a new approach that takes into account important components of
the world we live in today. Digital communications, social media
platforms, and other advances in technology are nestled within an
innovation economy that student-athletes must live in. NIL can only be
understood through the lens of how it is exercised by student-athletes.
Fairness is another common theme floating in the periphery of these
NIL discussions. Intercollegiate athletics looks at fairness from the
vantage point of equality between all student-athletes. By contrast,
the public evaluates these levels of fairness by comparing scholar
athletes to regular students. This comparison is misguided but not
because fairness is not important to student-athletes. Most student-
athletes do not expect to receive an experience equal to the average
student, we expect an experience that is better and our institutions
provide that experience for all of us. The current model for
intercollegiate athletics places us in the best possible position to
achieve this standard because the individuals that run college
athletics--senior women administrators, university presidents, athletic
directors, coaches, athletic trainers, and other student-athletes--
understand our needs and the value of our experiences better than
anyone. Our institutions see to the proper administration and equality
of women's athletics beyond the requirements of Title IX. Our
institutions see to it that all student-athletes have access to health
and wellness resources on their campuses. The current efforts managed
by the membership institutions of the NCAA see to it that roughly
300,000 student-athletes have access to an outstanding education.
The porous framework of NIL legislation across the country poses a
substantial threat to the welfare of today's student-athlete. These
upstream approaches to state legislation that neglect to consider the
world of technology and experiences of today's student-athlete, will
surely have downstream consequences. Student-athletes are more than the
entertainment that fans subscribe to in between professional football
games. The value of our education and welfare is no less important than
those of other students on campus. Rapid growth of state legislation
pertaining to NIL without the structural guidelines from the governing
bodies of intercollegiate athletics creates a serious problem for
student-athletes seeking to navigate this patchwork of state laws that
govern their likeness. Protecting the welfare of student-athletes is
not about getting it done, it's about getting it done right. When
regulatory frameworks that affect the education and welfare of students
get it wrong, the entire nation suffers. Are we--the student-athlete--
not worth protecting?
Senator Moran. Thank you, Mr. Spencer.
Let me start the round of questioning with a directed
question at Dr. Emmert perhaps to set the stage of where the
NCAA is and what this committee and Congress might envision for
its role.
In October 2019, the NCAA board of Governors voted
unanimously to permit student athletes the opportunity to
benefit from the use of name, image, and likeness in a, quote,
manner consistent with the collegiate model. Unquote.
While the details of the NCAA's policies will not be
established until January 2021, after additional feedback from
its members, are you able to describe the general principles
that the NCAA and its members seek to preserve as they
establish rules for name, image, and likeness compensation from
third parties to student athletes?
How do you foresee the NCAA's internal input-seeking and
policymaking timeline aligning with the actions now taking
place in states?
As has been acknowledged, states have clearly made known
their interests to be active in this matter. Is there a concern
that the NCAA's deliberation process may take too long to keep
up with the expected rate of states legislating on this issue?
Dr. Emmert. Well, thank you for the question, Senator.
I think the first point that needs to be made is to
recognize that the rules of the NCAA are made by the schools
themselves coming together through a legislative process that
is not that dissimilar from a congressional process. The
members meet on a quarterly basis on a multi-day period of
time. They have a regular legislative cycle, and they are in
the midst of that cycle right now.
The working groups that have been established by the Board
of Governors representing students and coaches and athletic
directors and faculty members are meeting as we speak. They
will be reporting back in April to the board of Governors with
the expectation that full legislation will be drafted and then
crafted and then passed to come into effect at January 2021 at
our national convention of that year.
Throughout that process, they have been working to try to
winnow down the general ideas around what is and is not
permissible, what could or could not be consistent with
intercollegiate athletics, and that is a work in progress and
we will know a lot more about as they bring out their findings
in April.
Senator Moran. Does the NCAA have other powers,
opportunities to deal with this outside that deliberation
process that is going to take the period of time that you just
outlined? Let me suggest to you that a Member of Congress
complaining about the slowness of the process is somewhat
hypocritical.
[Laughter.]
Dr. Emmert. Well, the process can be accelerated should any
of the three divisions--we do all these decisions through our
three divisional structures--decide to do so. And I and the
presidents who lead the association have been working very hard
to try and get them to move this along as quickly as possible.
As we have heard from the presenters, it is a complex topic.
The answers are not cut and dried, but I believe that the
members, the schools themselves, are working on this as
aggressively as they can under the current circumstances.
There certainly is a possibility that some State
legislators could pass legislation that could go into effect
over the course of this summer. Many states have been modifying
their proposals to have them slow down on the implementation
date. We were pleased to see that, and we hope that the states
will, indeed, provide, as California did, the association with
some time to modify their rules before their State laws are
triggered.
Senator Moran. Mr. Huma, in particular, addressed this
question, but I would ask the rest of you what role for
Congress exists to legislate on this issue? I think Dr. Emmert
indicated there may be a role for Congress. What do you each
envision as a request of us?
Mr. Bowlsby.
Mr. Bowlsby. I believe at this point our request would be
some assistance on creating a time window within which we can
complete our work. I serve on the task force that has been
working on this topic, and we continue to make progress. I
think we have a better vision of what the guardrails that have
been mentioned look like. We have some near-term implementation
dates that are problematic for all the reasons that have been
noted. So I think some set-aside that would allow us an
opportunity to have some time to work would be altogether
appropriate.
And then as we seek to shape the future of intercollegiate
athletics, we ask your consideration and indulgence in allowing
institutions to act in concert. Sadly acting in concert is
characterized as collusion by the plaintiffs bar, but we feel
like institutions acting together is the right way to make
rules. It is the right way to prepare the environment for
student athletes, and we ask that some consideration down the
road would be given to us as to whether or not our organization
can continue to function at the highest possible level, which
is what we all seek.
Senator Moran. Others want to add or subtract from Mr.
Bowlsby's comments?
Mr. Huma.
Mr. Huma. I would like to just reiterate that basically
what Commissioner Bowlsby is describing would be some kind of
antitrust exemption, which we oppose. And if you look at the
history of antitrust challenges to the NCAA, each of those
challenges brought progress. They improved the industry,
improved the lives of college athletes, starting with the 84
Board of Regents when the NCAA used to have a monopoly on TV
money, and now today, because Oklahoma stood up and challenged
that, you can see that the industry has benefited very mightily
not just the revenues but also through consumers being able to
watch TV, watch their favorite teams virtually every single
week perform.
The other benefits that have come from that are the
elimination--these are antitrust challenges against the NCAA--
the elimination on the NCAA's ban on summer workout medical
expenses. There used to be a ban.
There used to be a cap on the cost of attendance, the price
tag of the school. A full scholarship fell below that by
several thousands of dollars. In the O'Bannon case, part of the
result was that now today colleges can provide the full cost of
attendance.
A current case, Austin v. NCAA, is another area as well
that has unlocked educational opportunities as well. The U.S.
DOJ, which we helped support an investigation into the NCAA's
one-year cap on scholarships--there used to be four until the
1970s when the coaches kind of pressured the NCAA to turn it
around because the DOJ acted as a catalyst over antitrust
scrutiny. Now college athletes can have multiyear scholarships.
So again I reiterate if any of these issues it feels
require guardrails from Congress, they should be enacted
directly not through an antitrust exemption. The NCAA has been
operating as if they had an exemption, and we have seen what
they have done. Name, image, and likeness would not be on the
table. The states would not be able to even bring this issue to
light had they had an antitrust exemption. So there are a lot
of problems with that.
Senator Moran. Mr. Spencer.
Mr. Spencer. Thank you, Mr. Chairman.
I would ask this group to consider the current way student
athletes live in today. I think the world that student athletes
lived in when the NCAA was formed is entirely different than
how student athletes interact with each other now. I would ask
this group to consider the current regulatory framework that we
exist in and, more importantly, all student athletes, not just
the 2 percent that some of us might see during March Madness or
during the bowl season and the role that our education plays in
shaping that experience and how NIL fits into that equation
more broadly.
Senator Moran. Thank you.
Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman.
I want to begin by saying that I mean no disrespect to
anyone, but I think Mr. Spencer has really made the critical
point here. A lot of what I hear from the NCAA and coaches and
college officials evokes the fantasy of college sports as it
existed 50 years ago. When I was a Supreme Court law clerk, I
once visited with Byron White who played football in an era
when helmets were made of leather. I think a lot of the
rhetoric and images that we hear about college sports are as
antiquated as leather helmets. And that makes me angry because
I think that the present state of college sports is exploited.
And as I listen to the hand-wringing about states creating
a patchwork of different laws, it is coming, and the reason is
that intercollegiate programs earned a total revenue of $14
billion, rivaling the National Football League's $16 billion.
And the NCAA, by the way, grossed a billion dollars. So the
states are going to fill this gap, and frankly, I am going to
encourage them to fill it because it will provide an additional
incentive for the NCAA to move more quickly. January 2021 is
simply too late. The NCAA is late to this game.
So let me ask you, Mr. Emmert, what can you do to speed and
make more effective the NCAA's changes and initiatives so that
we simply do not wait until sometime in the distant future and
we can avoid the patchwork of different laws that rightfully
will create unfair playing fields for different colleges and
universities, as the Chancellor of the University of Kansas has
pointed out quite correctly?
Dr. Emmert. Senator, first of all, I happen to completely
agree with you that many of the approaches to intercollegiate
athletics are, in fact, embedded in history or sometimes even
grossly inaccurate notions of what the real environment is. And
I am delighted that Mr. Spencer is here providing the current
balance on the life of student athletes.
I can assure you and the members of this Subcommittee that
I will do everything in my power to encourage the schools
themselves in their decisionmaking processes to accelerate
those discussions and the decisionmaking as quickly as they
can. They are working very hard to make sure that they have
opportunities to consult with students themselves, with the
various levels of the association across its three divisions,
with all of the various programs to make sure they actually do
understand the realities on the ground to make sure that they
do not create unintentional consequences from any of the rules
that they modify and change.
Senator Blumenthal. I apologize for interrupting, but my
time is limited.
Dr. Emmert. Certainly.
Senator Blumenthal. Would you agree that the present system
of compensation is unfair and outdated?
Dr. Emmert. I certainly agree that the NIL model that is in
place needs to be modified and is appropriate for change.
Senator Blumenthal. Radically modified.
Dr. Emmert. Correct.
Senator Blumenthal. Does everyone on the panel agree with
that point? Please raise your hands if you agree.
[A show of hands.]
Senator Blumenthal. The record should reflect that all of
the witnesses today have agreed that radical modification is in
order.
Let me ask you, Mr. Spencer. What kinds of NIL compensation
do you think as a future lawyer should be provided?
Mr. Spencer. Thank you, Senator Blumenthal, for the
question.
I think this is an incredibly complex issue, and I think
part of the problem with creating a structure around this is
the definitions around name, image, and likeness are constantly
evolving. I really appreciate you acknowledging my comment
earlier about how the world that student athletes today live in
is entirely different, but I do want to highlight that a key
aspect of that statement is that this is also a world that
society as a whole is still trying to get a grasp of. I think
we see that in this rush to create regulations around
technology, whereas when we look at this patchwork of State
laws that are trying to create a boundary around this, the way
that I use social media and that I use my likeness is on the
Internet and the Internet does not have these boundaries. So
that is part of what makes it a little bit difficult. And I
think that is something that we will be taking back to our
student athletes. You know, again, some of them are right
behind me now. And we want to look at that a little bit
closely.
Senator Blumenthal. And would you agree--and I would
welcome Mr. Huma's comments as well--one of the areas that I
think the public finds most dismaying the discarding of student
athletes who have injuries and cannot continue playing? Is that
a problem that is on your mind?
Mr. Spencer. I think the way that we take care of student
athletes today is continuing to grow. The university students
that I am in touch with, the way that I see athletic training
rooms and coaching staffs take care of their athletes is quite
frankly amazing. It is one of the reasons why I am here today
not because of the scholarship that I would receive but because
of how enriching that experience was and how that was able to
propel me to where I am today.
Mr. Huma. Thank you for asking that question.
Under current NCAA rules, the minimum scholarship is a one-
year scholarship that can be non-renewed for any reason,
including injury. The injury rate in Division I athletes across
all sports is 66 percent suffer a major injury, 50 percent go
on to have chronic. Many coaches use that as an excuse to not
renew the scholarships, which is very difficult for those
players, especially some of them are being forced back into
play too early with serious medical conditions.
And you know, if you look at--again, big picture--the
nature of whether or not to entrust the NCAA with an antitrust
exemption and other things, the priorities of NCAA sports do
not align with the priorities to protect players, even on
health and safety. So it is a big concern, yes.
Senator Blumenthal. So athletes really deserve better
protection physically, financially, and otherwise. Correct?
Mr. Huma. Absolutely.
Senator Blumenthal. Thank you.
Dr. Girod.
Dr. Girod. Yes, thank you.
If I could just add a comment to that, and as a head and
neck surgeon, it is an area that I have particular interest in.
And I would say that we have actually come quite a ways in the
protection of our student athletes from robust research and
implementation of concussion protocols to most recently at our
institution, we have created a new entity to take care of our
student athletes, an entity that employs our physicians, our
trainers, and most importantly probably our strength and
conditioning coaches. They are not employed through athletics.
They are actually employed through our health system and
overseen by medical professionals to take that decisionmaking
away from--that pressure away from the coach and from the
athlete, quite frankly, to make sure that the best interests of
the student athlete is looked after.
Senator Blumenthal. And, Chancellor, I do not mean to imply
that athletic programs do not care about physical injury.
Preventing physical injury is the best way of keeping those
players on a field. Right?
Dr. Girod. Absolutely.
Senator Blumenthal. So they have an economic incentive in
making sure those players get back to the game just as
professional sports teams do.
My worry is about the lasting impacts after that student
leaves and careers cut short by injuries that simply cannot be
prevented. And I think that this whole system has to be
fundamentally reformed, far-reaching fundamental reform. And
the NCAA has a role to play but only if it gets into the game
which right now it is failing to do.
Senator Moran. Senator Fischer.
STATEMENT OF HON. DEB FISCHER,
U.S. SENATOR FROM NEBRASKA
Senator Fischer. Thank you, Mr. Chairman.
On football game days at Memorial Stadium in Lincoln,
Nebraska, we have over 90,000 fans. It becomes the third
largest city in the State of Nebraska. We have sold out every
single Husker home game since 1962, and although we are blessed
with a very incredible football history, we are also a very
rural state that is built around an agricultural economy.
I have questions about the impact of NIL on recruiting in
college athletes, particularly on the marketing and sponsorship
opportunities for star players, which may be enhanced in states
that have those larger urban areas.
Dr. Girod, how could NIL impact recruitment for schools in
rural communities with smaller media markets and less business
infrastructure?
Dr. Girod. Thank you for the question, Senator.
And as your neighbor to the south, I share entirely what
your concerns are, which is this has a strong possibility to
create a big market-small market problem where frankly states
like mine with 3 million people in it will struggle to be able
to compete in an environment where the biggest media package
for an athlete is going to win the day. And so we have serious
concerns about that, and we have serious concerns about then
what happens with the economic imbalances that follow and our
ability to support our non-revenue sports. To be quite honest
with you, I am blessed. Our athletics department is largely
self-sufficient. They take the revenues and they pump it into
the non-revenue sports. And if that dynamic changes,
particularly through an employment model, then really that
landscape will change dramatically as will our Olympic training
system.
Senator Fischer. And, Dr. Emmert, what could an imbalance
for urban versus rural-based campuses do to the concept of fair
competition in college sports both in revenue and in those non-
revenue sports that Dr. Girod mentioned. We have that in
Nebraska as well. We have successful football, volleyball.
Money is pumped back into other sports, into the university.
What is going to happen there?
Dr. Emmert. Well, Senator, I think you are asking one of
the most important and complex questions.
Again, the support that we have within the association
around finding a better model for NIL is predicated on our
ability to make sure that recruitment inequities do not occur,
and there may well be ways of doing that, but under an
unrestricted and unfettered model, you would simply wind up
with those institutions in urban areas having an extraordinary
competitive advantage both in terms of garnering sponsorship
deals which they would use as part of the recruiting
inducements for student athletes to come to those marketplaces.
And similarly, you could see--as Chancellor Girod said, if
there were no guardrails around this model, there could be some
severe disadvantages to the Olympic sports in particular
because the resources that flow into a big program like your
football program in Nebraska would no longer be available for
programs like your marvelous volleyball program.
Senator Fischer. You know, with our volleyball program--
five time national champions, one of the best in NCAA history--
Mr. Bowlsby, could NIL have any Title IX implications? I am
very concerned about that and what is going to happen with
risks that we are going to see to Title IX. Also, how are we
going to be able to preserve its integrity?
Mr. Bowlsby. Thank you very much for the question.
If you will allow me a bit of time, I really think----
Senator Fischer. You have less than a minute.
Mr. Bowlsby. I might not be able to do it in that time.
But I think what I am raising as an issue is really the
heart of the matter. The recruiting environment is absolutely
critical on this, and it will have Title IX implications,
Senator. But we will also see student athletes that come to
campus with agents and managers, and their representatives will
participate in many aspects of their life on campus. Recruits
will come to campus with preexisting agent relationships and
established business ventures, and coaches will be forced to
recruit both the player and the family as well as the agent
representative.
Boosters and donors and third parties will inevitably be
involved in the recruitment and transfer decisions, including
without the knowledge of institutional representatives, and
much of that will happen on the Internet.
Non-scholars and walk-on players will receive support from
boosters and donors and third parties and effectively increase
the scholarship allocations beyond agreed-upon numbers.
The project will commence with student athletes not using
institutional marks and logos but will eventually transition,
and the negotiations will be part of the recruitment process.
It goes on and on and on. The intersection with the
recruiting environment is the absolute epicenter of this
consideration. And given the entrepreneurial nature of coaching
staffs, they will find very effective ways of having third
party inducements to enroll and transfer a big part of the NIL
environment. And it is that integrity that I worry about the
decline of.
Senator Fischer. We need to make sure we get this right so
that every student athlete, male, female, whatever sport they
are going to be in, is going to be able to be treated fairly,
be able to have a good experience for themselves, their family
and for the school that they attend.
Mr. Bowlsby. That is absolutely correct, Senator.
Senator Fischer. Thank you.
Mr. Bowlsby. And I think also the extent to which
institutional representatives become involved in helping with
NIL reintroduces Title IX to the root of your question into the
conversation because the 13 components of Title IX certainly
bear on the recruitment.
Senator Fischer. Thank you.
Thank you, Mr. Chairman.
Senator Moran. You were slightly more effective than the
Chairman in enforcing the time limits.
Senator Tester.
STATEMENT OF HON. JON TESTER,
U.S. SENATOR FROM MONTANA
Senator Tester. Thank you, Mr. Chairman, Ranking Member. I
appreciate you holding this hearing as always. It is one of the
best hearings we will have today because of the good work of
the Chairman and Ranking Member.
I also noticed that when you pointed out all the advantages
that Kansas had in the sporting arena, you failed to mention
Kansas' Super Bowl champion, the Kansas City Chiefs.
[Laughter.]
Senator Tester. But we will set that aside.
Senator Moran. Senator Tester, we do appreciate the
President pointing out the Chiefs and its relationship to
Kansas.
[Laughter.]
Senator Moran. And second, I have told most of the
witnesses today they were all my second choice for a witness. I
was hoping for Mahomes as a witness to talk about this.
Senator Tester. That would have been good too.
So, look, I mean I think we can all agree that what is
going on right now is not working. If you want to dispute that,
I would love to hear the dispute.
I think we also agree that if you have 50 different states
having 50 different sets of rules, that is not going to work
too well either. In fact, that is not going to work at all. And
my concern here is that as tuition in colleges continue to go
up, it is whoever has the biggest wallet to pay these athletes
could really screw things up badly.
So before I get to my question that I really want to know,
I just want to say that I want to confirm what I have heard,
that if an athlete gets injured, that potentially the
scholarship could or would be taken away and that they are on
their own after that. Is that true? Go ahead, Mark.
Dr. Emmert. Senator, thank you for asking the question
because it is a very, very important one.
No, it is not true. Indeed, schools are expressly
prohibited from pulling a scholarship from a student because of
an injury.
Senator Tester. So they can make up another excuse
potentially. They are not doing that?
Dr. Emmert. Well, can you clarify what you are asking?
Senator Tester. So what I am saying is that there are a lot
of ways to skin a cat. You could figure out ways to make their
GPA go down. There is probably things in it. But the point is
this if in fact the intent of the law or the intent of the rule
is--and I assume there is an NCAA rule or you would have
responded to this, Mark. But I would assume that they are not
allowed to jerk a scholarship if a student gets hurt.
Dr. Emmert. That is correct, Senator.
Senator Tester. All right. Go ahead. Make it quick.
Mr. Huma. Because they are in the period of award. If it is
a one-year scholarship and they are injured during that year,
it cannot be removed. But as soon as that scholarship ends for
that year----
Senator Tester. It is over.
Mr. Huma.--the college can non-renew it. So a non-renewable
is a big deal.
Senator Tester. I got you.
So that is a problem. OK? I think that is a problem. If a
kid gets hurt and he is playing football, basketball,
volleyball, it does not matter. They should be taken care of.
The more important point is this. Patchwork is not going to
work. What is currently out there is not going to work.
Mr. Emmert--and by the way, sorry I called you Mark. We got
a list of states here, Kansas and Connecticut and Tennessee and
Nebraska and West Virginia. I come from Montana. Mark knows
this because he worked at Montana State University. And quite
frankly it is great athletics. It is incredible. You guys have
done a marvelous job in the NCAA making this what it is today.
But the truth is I would hate to have to compete with Alabama
or Duke because I do not think we have got thick enough wallets
to do that.
So the question is, how advanced are the talks within the
NCAA to solve this problem, this problem of students creating
an economy that is so good and not getting much, if any, reward
for it? Do you want to tell me where you are at in
conversations about solutions? Because I am going to tell you,
to be honest with you, you do not want us to solve this. You
want us to help you solve this. So the question is, where are
we at in talks? Where are we at as far as putting stuff on
paper? Because time is a'clickin' and we cannot stop the states
from doing what they are doing. So we have got to figure it
out.
Dr. Emmert. Yes, Senator Tester. Well, as I was explaining
earlier, there is a timeline in place with a target of having
this resolved by January 2021. Whether that is sufficiently
aggressive or not is in large part dependent upon----
Senator Tester. And do you have anything on paper right
now?
Dr. Emmert. We do not but we will by April.
Senator Tester. You will in a few months?
Dr. Emmert. Yes.
Senator Tester. Are you willing to share that with other
folks, the folks that are at this table and with us?
Dr. Emmert. At that time?
Senator Tester. Yes.
Dr. Emmert. Certainly.
Senator Tester. And you are willing to take input on how
you can make it better?
Dr. Emmert. Absolutely.
Senator Tester. OK.
Could you just very quickly--20 seconds--Mr. Bowlsby, just
tell me what impact a patchwork solution like California would
have something, Montana might have something, North Carolina
might have something, Texas might have something--what does
that do to the ecosystem?
Mr. Bowlsby. Well, thank you for the question.
Once again, this is the very epicenter of the challenge.
I think the coin of the realm becomes what can you offer
under the State laws that you have in effect. The description
of the California-Arizona situation that was mentioned earlier
is a good example. That is one that is within an individual
conference. But when Oklahoma comes to Texas to recruit in my
conference, if the laws are different in Oklahoma than they are
in Texas, you will find a disparate recruiting environment, and
that is problematic.
Senator Tester. So I am going to wrap this real quick, Mr.
Chairman. It was touched on a little bit about the pay of
coaches. I think we are going to end up doing the same thing
for the players if we are not careful. You are going to have
schools that can pay players a lot of money and they probably
should earn it, but the truth is that if we are not careful
what we are doing, it might on somebody else's back. I think
right now it is on all the student athletes' backs. So we got
to figure out how to make it fair for everybody moving forward.
I am not even going to get into northern latitudes or rural
schools because I think if we do not do it right, it further
puts them behind. And I do not want to see that. Education is
education. I think athletics is a part of education. I hope it
remains that way, although in a lot of cases if you are playing
football or basketball in these bigger schools, it is hard to
get an education. You can get an education, but it is hard to
get an education because so much of your time is dedicated to
that sport. And that is why we are here.
Thank you, Mr. Chairman.
Senator Moran. Senator Tester, thank you.
Senator Thune.
STATEMENT OF HON. JOHN THUNE,
U.S. SENATOR FROM SOUTH DAKOTA
Senator Thune. Thank you, Mr. Chairman, for having this
important hearing on a subject that many on this Committee and
all around the country care deeply about.
And I will get into northern latitudes and rural schools.
The Summit League, Dr. Emmert, is comprised, as you know, of
nine schools throughout seven States, and it is home to South
Dakota State University and the University of South Dakota.
Several of the states where the Summit League has schools are
contemplating legislation to address student athlete
compensation.
Are conferences today equipped to comply with a patchwork
of State laws that seek to address the issue of name, image,
and likeness?
Dr. Emmert. Thank you for the question, Senator. And I
think your question applies to both urban and rural
environments, and the answer is, in short, no, they are not. In
large part, most conferences--indeed, virtually all of them--
have interstate boundaries as does the Summit Conference.
Having conferences with multiple State rules within them would
be incredibly dysfunctional for the reasons we have been
discussing. And it is also true that it brings to bear
competition between rural and urban areas even within those
conferences that currently exist that would be very, very
problematic.
Senator Thune. Commissioner Bowlsby, the Big 12 conference,
another good example of that. Is the Big 12 prepared to comply
with several State laws?
Mr. Bowlsby. We are not.
Senator Thune. Dr. Emmert, as I understand it, the NCAA ban
on athletes profiting from the use of their names, images, and
likenesses violates Federal antitrust law. But the Federal
appellate court in the Ninth Circuit has ruled that the NCAA
essentially holds an antitrust exemption so long as it allows
its member schools the chance to offer college athletes the
full cost of attendance.
How would the name, image, and likeness rules that you are
considering likely impact the NCAA's antitrust exemption?
Dr. Emmert. Part of the conversation that is going on right
now, Senator--and again, thank you for that equally important
question. Part of the discussions that are going on right now
is to try and address precisely the question you are asking.
The association schools are deeply committed to maintaining the
college model and making sure that we can adhere to the values
that are consistent with the legal precedents that exist and
how college sports has gone on for a great deal of time. So,
threading the needle is trying to determine how can we expand
opportunities because there is a general agreement that
providing greater opportunity for students around their name,
image, and likeness is a very good thing, but doing that in a
way that does not immediately provoke antitrust litigation
around the actions of the association. How can we make sure
that we can do good without immediately being back in court is
one of the greatest problems that we have right now.
Senator Thune. I will direct this to you, Dr. Emmert, but I
want to open it up to members of the panel. It has been
suggested that there should be a limit on the amount of funds a
potential name, image, and likeness sponsor can offer a student
to protect students from inappropriate predatory actions. Do
you agree with that? And then I would like to hear others on
the panel comment on that as well. Dr. Emmert?
Dr. Emmert. Senator, I think again the question is what can
and cannot be done in the current legal context. The current
legal context in the litigation environment that we have found
ourselves in makes it extraordinarily difficult to determine
what boundaries can, indeed, be set on those forms of
compensation that might come toward a student athlete and for
what they are being compensated without turning that student
into an employee of an institution. That is part of the debate
that is in front of us today.
Senator Thune. Others?
Mr. Huma. We do not want to see caps. I mean, caps do not
protect the players. A cap would reduce the opportunity
economically.
And I think getting at the idea of competitive equity is
kind of one of the issues. But under the current rules, there
was a study over the course of 10 years that found that 99.3
percent of the top 100 football recruits chose teams in the
power conferences. That is under current NCAA rules. The power
conferences have advantages with alumni. They are the bigger
schools, bigger alumni, richest donors, and they continuously
pull the best recruits across different sports.
So one of the points I made earlier today was that to cap
players and still allow booster payments to flow to these Power
Five conferences, to allow them to continue gaining the lion's
share of the TV revenue in order to further outspend on
recruiting, outspend on coaches, outspend on facilities--they
will continue to get the recruits.
So without addressing those other issues especially--and we
are not advocating. We are just talking about what reality is.
The reality is that you are not going to change the migration
of recruiting by blocking players' opportunities. The Power
Five conferences are going to get the best recruits year in and
year out.
Senator Thune. I would just close, Mr. Chairman--my time
has expired--by saying that, Dr. Emmert, we look forward to
your working group as those activities continue--feedback from
you and hopefully on a timeline that enables us to stay ahead
of what is happening in all the states. So we look forward to
hearing more from you on this subject. Thank you.
Senator Moran. Senator Thune, thank you very much.
Senator Blackburn.
STATEMENT OF HON. MARSHA BLACKBURN,
U.S. SENATOR FROM TENNESSEE
Senator Blackburn. Thank you, Mr. Chairman.
And I want to say thank you to each of you for taking the
time to be here today and to work with us on this issue.
And, Mr. Spencer, I wish you well. I have a son who was a
track runner and ran in college and still, as an adult, is out
there competing in triathlons. And I know how important that
training is. So we wish you well in that endeavor.
I have to tell you I think that Senator Blumenthal and I
are kind of on the same page. I think that this is something
that, Mr. Spencer, you are closest to this. We have got
athletes that are coming to your schools with YouTube channels,
their Internet, social media influencers. So it is different.
And it is very important that you all get this right.
Fair, consistent, transparent. Mr. Emmert, you say that is
your priorities. But I have to tell you I was really
disappointed with our meeting last week. And I think we are
looking at a time when the NCAA has failed when it comes to
women in sports, sexual harassment, sexual assault, sexual
abuse that has occurred. And I think a question that must be
going through a lot of minds of student athletes and their
parents is how in the world are they going to be able to trust
you to get this right.
And I have to tell you I look at the issue around James
Wiseman at University of Memphis. And this is a situation where
in 2017 Penny Hardaway gave a star Tennessee player, James
Wiseman's mother $11,500 to help the family move to Memphis.
And this young man would go on and play for University of
Memphis. And then in 2018, Hardaway became the head coach at
Memphis. In 2019, Mr. Wiseman chose to play at Memphis. The
NCAA cleared him. In November 2019, NCAA suspended this
freshman basketball player from 12 games because of concerns
over the $11,500.
And I will tell you I think there has been little, if any,
transparency between James Wiseman, the University of Memphis,
and your organization. And the way you arrived at your
decision--I think when you talk student academic success,
wellbeing, and fairness, this has been a failure for you all in
the way that you have handled this.
So we are looking at a time where now student athletes are
going to be trying to figure out if they are better off going
straight to the pros and skipping college because of situations
like James Wiseman and because of a lack of transparency and a
lack of consistency and a lack of fairness that is being doled
out to them.
Dr. Girod, I see you nodding your head. Would you like to
comment?
Dr. Girod. I guess I would just comment that as probably
most of you know, we are in an episode of notice of
allegations--what is in the NCAA. I guess I would just say that
as a member organization, we are part of the organization that
makes the rules. We understand those rules. We support those
rules. Our current situation is we do not believe the evidence
necessarily supports the allegations, but actually we support
the system.
Senator Blackburn. Thank you.
Mr. Emmert, if there was a potential conflict of interest,
why was the university and the Wiseman family not informed
earlier in the process?
Dr. Emmert. Senator, first of all, I respect and appreciate
the concern that you expressed over this issue. No one anywhere
in the intercollegiate system takes any pleasure in sanctioning
or punishing a university or especially a young man or a young
woman around these issues through an enforcement action.
I am not involved in the details enough of that particular
case to be able to answer your specific question.
Senator Blackburn. But you are the CEO, and when there is a
lack of transparency or subjectiveness, the objectivity should
come to you.
I yield back my time.
Senator Moran. Senator Capito.
STATEMENT OF HON. SHELLEY MOORE CAPITO,
U.S. SENATOR FROM WEST VIRGINIA
Senator Capito. Thank you, Mr. Chairman.
And thank you all for coming today. It has been a very
interesting hearing.
I am going to diverge a little bit from what the Chairman
requested that we stay strictly on message because I have
Commissioner Bowlsby here and I wanted to ask him a question,
and Dr. Girod will probably know exactly what I am talking
about.
You recently signed a Big 12 deal to stream on ESPN Plus.
Rural State, West Virginia. We are playing Kansas tomorrow. I
have my Mountaineer colors on. And you can only view the game
in West Virginia if you pay the $4.99 monthly streaming fee and
if you have connectivity. And it has been a source of very deep
concern to West Virginia.
So I want to give you a chance to respond what a rural
state--we have no pro states. These teams are our pro teams,
and we want to see that WVU victory on our TVs on Wednesday.
And then we play Baylor, again number one team in the country,
same thing. So could you respond to that please?
Dr. Emmert. I would be happy to. And, Senator, I have had
the opportunity, not surprisingly, to respond to this question
previously.
We took a leap of faith with a new technology. We believe
that streaming and the ESPN platform is best in class. So it is
a voyage of exploration. There is not any doubt about that. We
live in states, the five of them, that have 35 million people,
and as such, we really do not have the option of a linear
network as some of the other conferences have done. And so the
digital process is the best we have available to us, and
frankly it is quite good. We are up to 8 million subscribers.
We are part of a package with Disney Plus that now has almost
30 million subscribers. We think it is an environment where the
cable universe is shrinking about one and a half to two and a
half percent a year, that we are going to end up with a lot
fewer cable households down the road than we have today, and
the digital platforms are the future.
So I was involved in the rollout of the Big 10 network and
I was involved in the rollout of the Pac 12 network. And I have
to say the number of complaints we have had have been much less
than those two rollouts.
But the objection you raise is exactly the right one. If
you do not have broadband that is capable in a rural area, it
is difficult to get it. But it is available on a multitude of
different platforms, and for the most part, that level of
broadband is available just about everywhere if you want to go
pursue it and then subscribe.
Senator Capito. This is a source of contention. You
obviously talked with our West Virginia University folks. And
maybe it is a little bit before its time, but it is a source of
irritation for us back home.
Dr. Emmert. It is.
Senator Capito. And I am sure you understand that.
Dr. Emmert. Certainly.
Senator Capito. I do not want to go back over the Title IX
issue because Senator Fischer talked about it, but it is a
source of concern for me. Our daughter played Division I sports
for 4 years in volleyball. But one of the best athletes we have
in our state is Jenny Thrasher, who was on our WVU rifle team.
She won the first Gold Medal last year. She has since
graduated.
What kind of NIL opportunities would she have, and how are
you going to keep that fair? I think that is a major challenge
for particularly women's sports that do not generate the
revenues, are not going to have the big sponsors coming in and
wanting to sponsor. Even the women's basketball team is going
to have trouble, even though they are very popular in certain
areas. So I just want to register that complaint.
And I want to ask Mr. Huma this question because you are a
former football player. He is a problem I see too particularly
if you look at football. You have got the quarterback who gets
the ball all the time, who makes the passes. You see this in
the pros. He makes the passes, gets the glory, gets the
touchdowns and all that. But the quarterback cannot do what he
does if he does not have a center who gets the ball to him.
Now, how many opportunities is the center going to have to
capitalize on something like this in comparison to what a
quarterback could have? And to me, one of the beauties--and,
Mr. Spencer, you talked about this--of intercollegiate sports
is the team aspect, the leadership, the development, the
intellectual, the camaraderie, the ability to overcome losses
and triumph in games. How are you going to handle that inequity
and keep that team element that is so critical to these team
sports?
Mr. Huma. Actually I am glad you asked that question.
Really, that dynamic already exists in NCAA sports. When
you look at many of the equivalency sports which are partial
scholarship sports, you have on the very same team maybe a few
players on full scholarships, you have some that are on partial
scholarships, some that have no scholarship that desperately
want a scholarship. And in the other leagues as well, there is
a big variety of salary differences in all the other leagues,
the other pro leagues. But whether it be on the college level
or the pro leagues, you do not hear about riots in the locker
room and that kind of discontent. It is everything you just
said. You know, the camaraderie still exists. We see it already
again in the partial scholarship sports. You see it in the
other pro leagues as well.
And I think that the opportunities for women are
extraordinary. If you have an Olympic Medal Gold winner, they
can have a lot of different exposures and opportunities. That
is a blessing. That is great in her life. There was Katie
Ledecky from Stanford, five time swimmer. She basically left
NCAA sports which, had she stayed, she could have helped grow
the visibility of the sport because little girls who are
watching these swimmers and soccer players and other people--
they are seeing these popular athletes come. It is going to
draw more attention. And historically women have not been given
the same exposure as the male sports, specifically football and
basketball. So it can definitely be an equalizer in terms of
women's sports.
Senator Capito. Thank you.
I finished my time, unfortunately, and I know the Chairman
wants to stick to the time.
But I do want to work with you, with the schools, with the
conferences to try to figure out this issue. I think having a
patchwork of 38 different regulations is just a nightmare for
our country, and I think we have got to figure out a way to
even this out and make it fair. Thank you.
Senator Moran. Senator Capito, thank you very much.
Senator Young.
STATEMENT OF HON. TODD YOUNG,
U.S. SENATOR FROM INDIANA
Senator Young. Well, thank you, Mr. Chairman. I appreciate
you holding this hearing. It is big of you, seeing as you lost
the headquarters of the NCAA a number of years ago.
[Laughter.]
Senator Young. Just responding to your earlier commentary.
We are grateful to have the NCAA in Indianapolis. I thank
our entire panel for your testimony today. It is a really
important issue that comes down to a question of fairness and
equity, and we need to tackle it intelligently.
We are trying to strike a balance here. We want to maintain
the fundamental notion of college sports, if at all possible,
while addressing this issue of name, likeness, and image that a
number of states have already gone out and proactively
addressed in different ways.
I think about a Hoosier teenager, maybe the first one to
attend college, and they go out onto the court or the field and
are able to make a real impact and create some value for the
institution, for their conference, for the NCAA.
Dr. Emmert, how can we create opportunity for kids that
bring this value to an institution to the broader constellation
of entities that are involved here without doing harm to the
collegiate model that provides so much value to roughly a half
million kids around the country?
Dr. Emmert. Well, thank you, Senator.
I think the question that you have raised is also central
to this topic, and I think this is true of all of the witnesses
before you. What we would like to do is find ways in which that
individual you are talking about can be able to take advantage
of the name, image, and likeness whether they brought it with
them from high school or whether they developed it while they
were in college, but at the same time, do so in a way that
creates sufficient guardrails that the recruiting issues that
Mr. Bowlsby raised and others have talked about, the
involvement of the institution in providing recruiting
inducements are not constrained and that indeed what we are
seeing is the real market value, if you will, of that
individual. But crafting that particular model is a challenge
and that is indeed why we are having this conversation.
Senator Young. So as we reflect on--perhaps it is premature
to ask this question, but as we reflect on what success might
look like after we have worked this out, will it be qualitative
in nature or will there be some things that we think we can
actually measure to determine whether or not we have arrived at
a fairer outcome?
Dr. Emmert. I am sorry. Could you elaborate on your
question a bit? I am not quite sure----
Senator Young. Sure. How do we measure success?
Dr. Emmert. Well, I think first of all, if we can craft a
model collectively that again provides some opportunity for
students--I cannot put a quantitative number on it--but
provides a greater level of opportunity for students so that
they can engage in activities that look and feel more like the
rest of the student body and that they are not prohibited from
participating in those kinds of activities while at the same
time providing guardrails that prevent inappropriate recruiting
inducements or the conversion of these students de facto into
employees, I think somewhere between those two parameters,
Senator, is where we want to be.
Senator Young. That is helpful. Thank you.
Commissioner Bowlsby, I keep hearing there are concerns
about California's Fair Pay to Play Act and the patchwork of
State laws that may present a challenge to the NCAA if other
states enact their own versions of NIL laws.
Can you elaborate on your specific concerns about the
California law?
Mr. Bowlsby. Thank you for the question, Senator.
I have specific concerns about the breadth of the
California law. Many of the subsequent proposals share those
same characteristics. Others have included amendments that
render something that is akin to guardrails.
But my concern has always been around the recruitment
environment. I believe that we will essentially find ourselves
in an unregulated recruitment environment because what is NIL,
name, image, and likeness, owned by the individual student
athlete or recruit will quickly become currency in the
recruiting environment, and one institution will play off the
other. The same will happen in the transfer environment. There
will be inducements made that sometimes institutional officials
will not even know about.
Senator Young. Thank you, Commissioner.
Just very briefly, does anyone disagree with the
Commissioner's concerns?
Mr. Spencer. Senator Young, I do not. Student athletes--
this is a very realistic pressure.
Senator Young. You do not disagree.
Mr. Huma. I would just say the inducements on recruiting--I
absolutely agree that there are ways to solve that. But the
whole premise that it has to be done on a Federal level--the
states are just getting started. 28 are already involved. I
think it is only a matter of time before the rest of the Nation
handles it. Our concern is that there is going to be an
overreach by the NCAA and they are going to turn it right back
to what it looks like today because in reality, they would have
never been here at this table without the states pushing.
The other thing actually, if you let me. The Board of
Governors has express authority to settle legal issues. So all
the talk about how long it would take the NCAA to come up with
something--the Board of Governors--they do not have to go
through that route that takes a long time. California has a
law. That is a legal issue. They could wake up tomorrow and
actually put uniform policies in place structured around what
is going on in the states.
Senator Young. Thank you, Chairman.
Thank you, all.
Senator Moran. Thank you, Senator Young.
We are going to have another round of questions, and I am
going to yield my time at the moment to Senator Thune.
Senator Thune. Thank you, Mr. Chairman.
Just as kind of a follow up to the discussion we were
having about how these rules might work among different sized
institutions, say, Division I, Division II, Division III, would
you envision--I guess, Dr. Emmert, starting with you--these
rules having one set of rules for all divisions, or would you
have different rules for each division?
Dr. Emmert. Currently the way NCAA legislation, the rules,
are put together is on a division-by-division basis. It is only
each individual division that has authority to pass rules
within their division.
The board of Governors can set broad parameters. The board
of Governors includes representatives, university presidents,
from all three divisions. They have the authority to set the
policy parameters, and that is what they are trying to do now.
I believe that most people are comfortable today saying if
these parameters are extant and those are well enough defined,
individual divisions can have some variations within them as
suits those divisions' philosophies and approaches to college
sports. That is what exists today. But the differentiation
between a Division III school and a Division I school is not
just financial. It is also what does that school want, what
level do they want to participate in intercollegiate athletics.
And there could be variation in how this is applied as well
depending on where those schools wanted to go.
Senator Thune. This has been suggested and, Mr. Huma, Mr.
Spencer, maybe comment on this. But this has been socialized
with the professional sports leagues, for example, the NBA or
the NFL, some discussion about perhaps removing anything that
would impede an athlete from going pro right out of high school
and just allow them to go up and take advantage and get paid
right away. Has there been discussion about that? And does that
make sense? And if not, why would it not make sense?
Mr. Huma. That is definitely something we support. Players
should have options. They should not be forced into college if
they do not want to go to college and if they have the talent
to go on another level. I know that is not an NCAA issue. It is
actually a collective bargaining agreement issue between the
unions and the sports leagues.
Now what is an NCAA issue is that if a player enters the
draft and gets drafted low, does not like where they are
drafted or does not get drafted at all, those players are not
allowed to stay in NCAA sports. And this is supposed to be
about education. Entering the draft is more of a testing the
waters kind of thing, seeing where you can be. This is about
education. Why kick those players out when they have not
stepped foot at a pro level contract, pro level practice, pro
level competition? So those are the concerns around drafting.
Senator Thune. But is there a way that that could be
structured so that athletes who have the skill level to go to
that next--I understand it is about education, but a lot of
cases, the one-and-done schools--their athletes are going up
after they fulfill their requirements at the collegiate level.
Is there not a way in which you could allow some of these
athletes, if they have that skill set--I know what you are
saying is it would take changes within leagues and in the
unions. But would that partially help solve the problem we are
talking about here, which would be allowing athletes to capture
the value of their skill?
Mr. Huma. I do not think it comes close to solving the
problem for college athletes as a whole. You know, at the end
of the day, these are freedoms that every player across all
divisions--if they want to go and throw a camp at their old
high school--if you are a college athlete, you are somebody at
your old high school. You can throw a camp at your old junior
high or elementary school, do an autograph signing back home.
You can start a small business.
And we have not got into it, but some of the restrictions
impede on freedom of speech. If you are a Christian athlete--a
fellowship of Christian athletes--and someone wants to pay you
to write a blog about your experience as a college athlete, the
NCAA would prohibit that. That is highly protected speech. We
are talking about religious speech. It is restricted by NCAA
rules.
So this is far beyond just the elite athletes. This is the
everyday athlete that really deserves the same freedoms and
rights as every other student and every other American.
Senator Thune. And I know it is a challenge for all the
reasons we are talking about this morning, but it does seem, as
someone who represents a state with major universities that are
not part of the Power Five conferences, how you structure this
in a way that is fair and that does not create disincentives
for some of those smaller but very good schools to attract and
recruit good athletes to their program. So I am sure this will
be an ongoing discussion.
Thank you, Mr. Chairman.
Senator Moran. You are welcome.
Senator Blumenthal.
Senator Blumenthal. Thanks, Mr. Chairman.
This has been a very, very instructive hearing, and I want
to thank all of you for being here today, especially the
Chairman for his leadership in bringing us together.
You know, John F. Kennedy famously said life is unfair, and
life is unfair. Not all of us are born with the athletic
prowess that others have, which I say as a college athlete of
very, very limited ability as a swimmer who never would have
had any access to any NIL compensation. But there are ways to
overcome some of these challenges in a way that is fair.
And, Dr. Emmert, let me just ask you. In 2018, the NCAA
implemented new rules to allow basketball players to sign with
agents, but those rule changes did not apply to women. Is that
unfair?
Dr. Emmert. Senator, I think the question of representation
is a very, very important one. The rule that you are talking is
an evolution that came out of our trying to address some of the
issues that Mr. Huma was just mentioning, trying to line up
more effectively the professional draft system with the
opportunities that may or may not occur for student athletes.
So the athletes in men's basketball to be able to have
representation when they go into a draft conversation with
professional sports ranks and still have the opportunity then
to go undrafted, come back and continue to compete--that was
the very first time that it has ever been done. It is my hope
that we can have a model put in place for women and all student
athletes that mirrors and models that approach. It is one that
has been tried. It has been working successfully now for a
year. I think the members saw it as a pilot project, and I hope
that we can extend it to all----
Senator Blumenthal. Well, coming from a state that takes
great pride in our women basketball players, I think it is
desperately unfair, and I hope you will correct it.
Let me ask you, Dr. Emmert. When a school gives a one-year
scholarship and then kicks the young athlete out of school
because of an injury at the end of that scholarship, if that
injury prevents him or her from playing, that is unfair. Is it
not?
Dr. Emmert. It is in my mind, yes, sir.
Senator Blumenthal. And the kinds of practices, it seems to
me, where an athlete works hard and the name and image and
likeness become of such value that the school can make money
from it but the athlete gets nothing strikes me as unfair. Do
you agree?
Dr. Emmert. Senator, I believe that is precisely why we are
sitting here is to try to find a way to address that issue.
Senator Blumenthal. And the fact that very often athletes
exceed the 20-hour limit in practice, in fact exceeded by a lot
I am told in many schools, just compounds the unfairness. Does
it not? Because they work hard to gain that athletic ability.
Dr. Emmert. Yes, Senator. Student athletes work incredibly
hard at both their athletic and their academic endeavors. We
strive very hard to create a rules structure that creates a
more appropriate balance between their academic and their
athletic lives. Indeed, the rules were changed just this last
year to do exactly that, and we will continue to strive to do
so.
Senator Blumenthal. And in a lot of schools there is no
provision for insurance paid by the school. In other words,
athletes may be covered by insurance, but they have to pay for
it themselves. That strikes me as unfair.
Dr. Emmert. The requirement, Senator, for student athletes
is that they have insurance coverage. In many cases that is
their family's insurance policy that is already existing. In
many others, it is by the schools' insurance policies
themselves, and in all cases there is an umbrella covered by
the NCAA for catastrophic injury.
Senator Blumenthal. But as you said, many families have to
cover their athletes' insurance out of their own pockets, and
that seems unfair to me.
I want to just finish by saying that there are various
different models for dealing with the issues that Senator
Capito raised, for example, the financial inducements to
athletes who may not be stars. New York has a bill that focuses
on NIL compensation but it allows athletes to receive 15
percent of revenue made from ticket sales. If that were
distributed evenly among the team, there would be some
financial compensation even for the athletes whose names do not
become marquis attractions. There are all kinds of ways to deal
with some of these complexities.
And I think that the challenges here, although they are
difficult and complex, are less so than the challenges athletes
overcome every day to provide the performances on the field
that they do. The mental and physical challenges of athletes
doing what they do on college teams these days certainly are
extraordinarily impressive, and I think we ought to match their
courage and skill with what we do in this Congress and on this
committee. And if we do not at the Federal level, they will at
the State level. And those Florida and New Jersey and New York
bills that I mentioned are on their way to passage, if not
there, in other states. So the leadership that we need in this
area is very much urgent and immediate.
Thank you.
Senator Moran. Senator Blumenthal, thank you.
Let me run through a series of questions that I have and
perhaps we will conclude then.
Mr. Huma, first of all, you promote states making the
decisions and pursuing their path in their state. What we were
designed to talk about today was name, image, and likeness. I
would take from your testimony that if we were successful or
the NCAA was successful in developing a program that rewarded,
compensated athletes for NIL, that would be insufficient and
that would then lend itself toward the next step of additional
compensation or other ways of compensating what are today
amateur athletes?
Mr. Huma. No. My only concern with Federal law is that it
rolls back what the states are doing. And really, though there
are about 28 states in play, the legislation looks very
similar. It is independent representation and it is freedom on
name, image, and likeness. While there could be some additional
guardrails in terms of recruiting incentives, incentives for
transfer, there is not any artificial caps. It looks like what
America looks like. It looks like--you know, it is similar to
the other leagues. If you are a free agent and you go
somewhere, you are on a team, you are free without restrictions
to get endorsements in whatever area that team happens to be
in.
But the concern is if the Federal Government acts and
acquiesces and grants the NCAA an antitrust exemption, which it
has already abused without an exemption, there is an extreme
trust gap. We have seen what the NCAA has done as if it had an
antitrust exemption. So those are the issues.
But it could be positive. If it was a good bill, it could
be definitely positive.
Senator Moran. Let me ask the question a different way. If
NIL became the rule of the land, however that comes about,
Congress, the NCAA, and amateur athletes were compensated for
their name, image, and likeness, then would there be other
steps that the athletes would take for additional compensation?
And while you said the states generally have similar kinds of
legislation that are pending, New York and ticket revenue would
be and outlier. And my question is intended to get to would
this be sufficient to satisfy the problems you see for college
athletes today if NIL was addressed and addressed
appropriately.
Mr. Huma. That basically is economic justice from our
perspective. We have been advocating for. I think a lot of it
would be in the details because as we have said, this is a
multibillion industry. So if we are talking about crumbs, then
absolutely not. If players truly got real economic justice that
reflected their value, that might be a whole other
conversation. It would be hard to say without any details.
Senator Moran. I am not trying to prejudge anything. In
many of the things I get involved in, the argument against
something is do not do it. It is the camel's nose in the tent.
And I was trying to figure out if there is something more on
the horizon that then is required beyond NIL. And I take it
your testimony is NIL, if done appropriately, provides economic
justice that you are looking at for the players.
Mr. Huma. It does. Again, without the details--I think we
have different opinions about what that justice would look
like, but potentially.
Senator Moran. Thank you.
Mr. Spencer.
Mr. Spencer. Yes. Thank you, Chairman Moran.
That idea assumes that every single athlete is going to
have the brand to capitalize off of NIL. What we end up looking
at is the truth that NIL, while it might be a solution, it is a
solution to a different problem. Quite frankly, when it comes
to the compensation, if we are looking at that as the broader
issue here, we have to really evaluate how much compensation a
student athlete is actually going to be able to receive if we
go to that type of model.
Individuals earlier mentioned the New York situation. That
15 percent then would probably roll out of either the
university or other different parties, and that means that
money is not going into those athletic facilities. And for me
as a student athlete, I want that. I really appreciate having
upgrades to my facilities. They have got a new toy at
Georgetown University, when I go lift, that measures your bar
speed, and for a track and field student athletes to be able to
know how fast I am moving the weight is incredibly beneficial.
So these are the kind of things that we are looking at, but as
we move forward, we have to really examine whether or not NIL
is the appropriate model to give student athletes the adequate
compensation that is discussed.
Senator Moran. Well, Mr. Spencer, you lead me into my
second question, which is my concern is--you are in front of a
committee that has lots of members from rural states with small
schools. You, from New Mexico, have an understanding of those
schools. I want to make certain we take care of athletes who
are not necessarily in the sports that generate significant
revenues or profits at universities. And I think Mr. Huma--as
we have had this conversation, he has come back to many of my
concerns to tell me, to tell the Committee that those
disparities already exist.
So when I began the hearing, toward the top of my priority
is how do you take care of places that the schools are small,
the programs do not generate a lot of revenue, there are sports
within those schools that are not moneymakers? You want to take
care of women and the issues of Title IX.
And the question is to me is, does this, does NIL, solve--
does it create more problems in that regard? Does it create
greater disparities between the tops schools and the top
athletes and the top programs in the top sports? Is there a
greater disparity that occurs because of NIL, or do all those
problems--that disparity that I am worried about that comes
from compensation--already exist and this is not a relevant
topic to that disparity?
Mr. Spencer. Chairman Moran, if I may. You hit the nail
right on the head. Even if some of these disparities exist, we
do not create something that then exaggerates those issues.
Senator Moran. The question is this would then exaggerate
those issues.
Mr. Spencer. Absolutely. This is also one of the reasons
why this is such a complex discussion that involves all hands
on deck, the student athletes, the senior women administrators.
This is one of the reasons why it takes as long as it does
because in order to adequately answer the question of what
success looks like, you need all of the stakeholders at the
table having that discussion, and that is something that cannot
be done overnight.
Senator Moran. Mr. Huma has been strong in outlining his
belief that the disparities exist today. And I do not have any
reason to dispute that they do exist. Is there anyone, Dr.
Girod or Dr. Emmert or Mr. Bowlsby, that would comment on NIL
and those disparities? Are they exacerbated? Are the challenges
made more difficult? Or does this help address the issue?
Dr. Emmert. Yes, Senator. Well, I will ask my colleagues to
address it as well, since they are on campuses, directly.
Yes, indeed, it would exacerbate it, and that is part of
the conversation about how can we create a model that has some
form of guardrails that can mitigate some of those issues. But
there is little doubt that it would, in fact, create greater
disparities between schools and in some cases between the
athletes themselves. That in and of itself may not be a reason
not to pursue it, but it has to be done in a very thoughtful
manner.
Senator Moran. Mr. Bowlsby, you talked about Texas and
Oklahoma, a couple of schools that we are well familiar with,
and the difficulty they would have within the conference if
Texas had different rules than Oklahoma in regard to NIL
compensation. So do those advantages and disadvantages exist
today?
Texas to me is the place where the TV markets are within
our conference. So are we solving a problem or adding to a
problem with name, image, and likeness? Is recruitment more
difficult one place than another already?
Mr. Bowlsby. Thank you for the question, Senator.
I believe recruitment will be made infinitely more
contentious. There will be more disagreements among
institutions as to who did what and who offered what, or was it
the institution or was it an outside entity? Was it a third
party?
Essentially my thoughts on this are we need to modernize,
and there is not any doubt about it. We need to continue broad-
based programming that takes Title IX into account. We are not
the NFL or the NBA. We do not have a draft and we are not the
Olympics. You do not have the prerogative to compete for
anybody other than your own country. The liberalization and the
modernization is something we should absolutely do, but it
should not be per se pay for play and it should not be a proxy
for pay for play.
And so with that caveat, as I said in my statement, between
the idea and the reality there is a shadow. How do you treat
student athletes fairly? How do you put more money in their
pocket? How do you allow them to use their name, image, and
likeness without it entering into the choice of institutions or
the choice of transfer?
I would have hoped that Senator Thune was in the room for
this comment, but one of the practical outcomes of this will be
when you get to be a high profile athlete at the University of
South Dakota, you will be recruited away with inducements to
play at a higher level. And if there is no penalty for
transfer, it will be an open market of recruitment. The concept
of an unregulated recruitment environment and an unregulated
transfer environment I think is an absolute certainty in this
environment.
Senator Moran. The issue of amateurs--in other words, that
is not an employer-employee relationship--does NIL itself, with
whatever we define as appropriate guardrails--does it change an
athlete from being an amateur to an athlete being an employee
of the university or the athletic department? Is there enough
in NIL that legally changes the relationship between team and
player?
Dr. Emmert. Senator, if I might address that one. I think
it depends. Should it be the case that the institution, that a
university, was in fact orchestrating the NIL payment, if a
university was in the midst of brokering those sponsorship
arrangements, for example, I believe it would be extremely
difficult to differentiate that from an employee-employer
model. With sufficient guardrails to assure that this is being
conducted by a truly independent third party, it is certainly
possible that it might not, but that again is one of the
details and challenges of working out this model.
Senator Moran. The notes I have made today that NIL would
have a consequence on recruitment inducements is my note. What
would occur in nonprofitable areas of the country or in
specific teams, the employer-employee relationship, not
amateur, consequences to Title IX. Somewhat related to the
issue of profitability but large schools and small schools, the
consequence, the recruitment that you just outlined in regard
to South Dakota. I do not know that that list is all
encompassing, and rather than take the time of the moment, I
would ask any of you to lengthen that list or shorten that list
for me as to what concerns we ought to have about NIL.
I think I am just about done. Let me ask Dr. Girod one
question. You indicated, Dr. Girod, in your testimony about
inextricably linked with the university model, and you
highlighted some of the things that were involved in that and
what athletics means to your university or to a university in a
number of areas. I want to give you the chance to reiterate or
highlight that component of why an amateur team or teams on
campus is important to a university. We have talked about what
this means to an athlete, the ability to get an education and a
wider array of benefits. Why is having a sports team at a
university important to the university community?
Dr. Girod. Thank you, Senator, for the opportunity to
reiterate that and recognize that collegiate athletics is
unique in the world. It does not exist anywhere else in the
world. It is part of what makes our universities the envy of
the world. It is part of what keeps--it attracts students. It
attracts faculty. It keeps our alumni engaged. It keeps our
donors engaged, and it creates a campus life that really cannot
be replicated anywhere else. That benefits earlier student
athletes, and we have talked about how that is so today. But
certainly it creates tremendous benefit for our students and
the experience that they have while they are pursuing their
education and equally growing into adults.
Our athletics department does not fund the university.
Fortunately, our university does not fund our athletics
department either. So we are blessed in that regard.
But the benefits that the university gains, again, being a
Midwest university where we are reliant on out-of-state student
recruitment, being on a national stage on a regular basis--you
cannot replace that.
Senator Moran. Let me ask a question specifically related
to the University of Kansas and how it would then have a
broader consequence or an understanding. So we are a successful
basketball program at the University of Kansas historically and
currently. And the concern has been the ability for schools to
recruit athletes in other places. Even though the University of
Kansas has such a successful basketball program, what is the
consequence in regard to the ability for the University of
Kansas to compete for athletes to come play basketball with
NIL?
Dr. Girod. Well, I would not disagree with some of the
comments, that there are some disparities in the system today.
Those do have somewhat to do with the size of athletic budgets.
They also have to do with history and they have to do with the
success of student athletes that come to our institutions.
But reality is today we all play by the same rules, and
that does not completely eliminate the disparities but at least
we are recruiting on the same rules. And we could just as
easily lose a student athlete to any of the other conferences
or to non-power conferences because we all play by the same
rules, and it is about student choice and student fit.
Potentially going into an unregulated environment, as
Commissioner Bowlsby has mentioned, I think profoundly limits
the ability of a school in a town of 100,000 people to compete
in a media market.
Senator Moran. Thank you.
Mr. Huma, my last question is to you. Your testimony makes
clear that you have concerns with the NCAA representing student
athletes in NIL commercial agreements. You indicate that--I
think this is a quote--is not necessary for government to
appoint a college group licensing entity. What type of entity
is appropriate for that role?
Mr. Huma. So there are group licensing organizations.
Actually in the run-up to the California bill, when it was
imminent that the bill would pass, I wanted to make sure that
college athletes had a good vehicle for group licensing like in
some of the other leagues. So I reached out to the NFL Players
Association. They have their own licensing company called
Players, Inc. It turns out they were in the middle of a kind of
a big collaboration with major league baseball players
associations, licensing company because name, image, and
likeness globally is under-utilized. So when I discussed these
options with them, they said they would be happy to help.
If these opportunities opened up for college athletes,
group licensing is a powerful vehicle. You know, if you are
familiar with the video games, for instance, it is one of those
things where players receive an equal share of distributions
regardless of if they are the first string quarterback or the
third string lineman.
In college sports, it is very critical. In the O'Bannon
case, as matter of fact, a law, there was a group licensing
market that was recognized, which includes video games. It
includes TV broadcasts. It includes archival footage,
advertisement, merchandise. And I think it sounds like we agree
that the school should not be providing those kinds of
representations. It is possible maybe there would be an
employee-employer relationship established so they get
involved.
But in those instances, for instance, if there was
merchandise and there is a jersey, it could be up to the
apparel company to initiate some kind of a communication with
the school and with the licensing company to say, hey, we would
not be able to do these things. We are willing to pay. The
apparel company pays the licensing company. So the players get
their distribution, and they also pay separately the schools or
whatever entity, collaboration, whether it be other forms of
group licensing opportunities. But the third party is the
source of payment.
And our concern with the NCAA is that there is a big
conflict of interest that they have already acted on because by
de facto, which was also in the rulings, it showed that the
colleges, the conferences, and the NCAA are already selling
players group licenses in all these different areas. They have
given the players absolutely no money. And so that is a big red
flag when the NCAA mentions the opportunity to group licensing
as a matter of congressional Federal law.
Senator Moran. It is my practice to always give the
witnesses any opportunity to say anything that they were not
asked that they wish they were or something they were asked
they wish they were not and would like to clarify. If any of
you have anything you would like to make sure is on the record,
I would be glad to hear from you before we conclude the
hearing.
Mr. Spencer.
Mr. Spencer. Thank you, Chairman Moran.
Just a few things responding to the last comments.
First and foremost, student athletes do not know the NCAA
as the gentleman, Mark Emmert, to my right here. They know it
as the people we have on campus, our administrators, our
athletic directors, our coaches, and our staff. There is no way
that you are going to be able to convince me or any other
student athlete that group licensing organizations know more
about our welfare than the individuals that we have on campus,
and those are the individuals that I would much rather see
handle that type of issue.
Second of all, when we talk about NIL and the potential
impact that it might have on the employer-employee
relationship, we have to remember that when it comes to social
media, that is where us as student athletes are going to
leverage some of that. And so your compensation comes from NIL
in the form of the content that you produce. The content that
you produce is going to be the stuff that you demonstrate on
the field, which is going to be through your institution. So
that could have a bit of a legal issue in terms of how that
relationship actually works.
Finally, we really have to think about the way that our
rights are executed right now when it comes to technology and
the way that it comes executed when it comes to the right of
publicity, which is NIL. We live in a framework that is
digitally driven. We live in an innovation economy driven by
social media and our influencers. And we really have to
consider that playing field.
More importantly, in all of these discussions--and I know
we talked a lot about some of the failures of the system, but
one of the best successes is the simple fact that student
athletes--we are involved in each and every one of these
discussions. The student athlete advisory committee is present
on every campus in every division across the country, and that
is why it is important to make sure that we consider that
because in order to recognize the differences between schools
that are in rural neighborhoods and schools that perhaps are in
more affluent areas, we have to give student athletes the
chance to actually help craft some of these rules. And that is
what we do when we come together. For the student athlete
advisory committee at the institutional, conference, and
national level, that is what we do, and that is why we have
been able to make the strides that we have made.
Senator Moran. Mr. Huma.
Mr. Huma. I just wanted to talk about the question you had
about exacerbating the advantages and disadvantages currently.
There is really not much room to really exacerbate it. 99
percent of the top 100 football recruits go to the Power Five,
and that is a reflection of the migration all the way around.
But let us just say there are 2,500 recruits in football.
Most of the top ones end up in the Power Five. Whether or not
the Power Five--you know, and within the Power Five, there are
65 schools. Let us just say 30 to 40 of them typically get the
stronger recruits. The reason why it will not be exaggerated is
because there are still roster limits. There are still
scholarship limits. So no matter how many players want to be on
one particular basketball team, they cannot go there--or
football or basketball or any other sport. There is still going
to be a limit of where they can go. So it is not going to
magically produce double the amount of talented athletes. So
that is a built-in mechanism.
And I would suggest that Congress looking at this, knowing
there are advantages, disadvantages of today, whether that
changes a bit because of any given factors, I do not know that
it would be Congress' job to cement the status quo in whatever
power structures. We can see Clemson in the national
championship football game with Alabama or LSU--I do not know
that that should be the concern especially when we are talking
about opening up freedoms and opportunities for players. It is
much more important I think to weigh the rights of these
players rather than any particular migration of recruits that
is limited anyway and where those recruits end up.
Senator Moran. Thank you. Mr. Huma, thank you. Mr. Spencer,
thank you. Anyone else?
Dr. Girod.
Dr. Girod. Yes. I guess I would just like to, first of all,
say thank you, Senator, for your leadership and willingness to
take on this obviously incredibly complicated topic and would
just reiterate that as we look at these issues, let us not
forget the 98 percent of the student athletes who get an
education and a great launch on life and will not go into
professional athletics and have very limited ability to
generate revenue off their name, image, and likeness.
Senator Moran. Thank you.
Dr. Emmert. Mr. Chairman, just let add my words of thanks
and also let you know again that we stand ready to work with
you and the rest of the Committee to make sure that we can move
forward with this issue to provide greater opportunities for
our students and preserve all those things we love about
college sports.
Senator Moran. Thank you.
Mr. Bowlsby, you do not have to speak if you do not want
to.
Mr. Bowlsby. I will be brief. Thank you, Senator.
I think almost remarkably we agree on a number of things.
First, I think we all agree on the modernization of the model.
I think we agree about broad-based programming and compliance
with Title IX and all the opportunities that has created. I
think we all agree with fair national competition and disagree
a bit on how we get there. Indeed, one in five college athletes
is a first-generation college student. The college athletic
scholarship program is the second largest scholarship program
in the history of our country, second only to the GI Bill. And
so what we are seeking is a safe harbor to allow us to
modernize and cling to the things that we find important about
college athletics and yet make the progress that is required.
Senator Moran. Thank you.
My view is that each and every one of you have been
exceptionally helpful to us, to the Commerce Committee in
developing thoughts and about how we proceed going forward. My
personal view is that the burden lies with those of you at that
table at the moment, not us. But we stand--I was going to say
able. We stand ready and willing to be helpful as we try to
figure out how we appropriately change the status quo to the
benefit of all athletes who attend college and get an
education. So I appreciate what you all had to say, and it is
very useful for me in understanding what is ahead of us.
With that, the hearing record will remain open for two
weeks. What that means is that members of this committee can
submit questions to you during that time. Upon receipt of those
questions, we would ask you as witnesses to submit your written
answers to the Committee as soon as possible, just as we would
hope that you would do in resolving this issue just as soon as
possible.
With that, the hearing is concluded and we are adjourned.
[Whereupon, at 12:24 p.m., the hearing was adjourned.]
A P P E N D I X
Response to Written Questions Submitted by Hon. Jerry Moran to
Bob Bowlsby
Question 1. Your testimony mentioned the utility of the new
autonomy structure of the NCAA, which provides specific decision-making
authority to the ``Power 5'' conferences related to governance of
student athlete policies. What categories of issues or policies are
eligible for this type of autonomy structure model determinations?
Answer. In August of 2014, the NCAA Division I Board of Directors
adopted a new governance structure (the ``Autonomy Structure'')
pursuant to which the Atlantic Coast Conference, The Big Ten
Conference, The Big 12 Conference, Pac-12 Conference, and Southeastern
Conference, who comprise the ``Autonomy 5'' conferences in the NCAA,
were allowed the autonomy to determine future changes in the following
types of NCAA rules:
Cost of attendance stipends
Insurance benefits for student-athletes
Non-coaching staff members and volunteer coaches
The use of agents and their interaction with student-
athletes
Medical expenses during enrollment and two-years post-
enrollment
Mental health services and resources
Management of student-athletes' time in light of required
practice schedules
The following are some of the types of rule changes that must still
be adopted under the shared NCAA governance rules and cannot be adopted
under the Autonomy Structure:
Amateurism
Transfer eligibility rules
Academic eligibility rules
Enforcement and scholarship limits
Financial aid limits
Name, Image and Likeness (``NIL'') payments
Recruiting rules
Mandatory limits on time spent on sport related activities
Division membership requirements
NCAA rules to be adopted under the Autonomy Structure must be
sponsored by at least one of the Autonomy 5 Conferences, approved by a
group made up of presidents from the Autonomy 5 Conferences, and then
adopted by the vote of either:
(a) 60 percent of the representative 65 member schools in the
Autonomy 5 Conferences plus 15 student-athletes that are
appointed to that group (at least 52 of those 80
representatives) plus a simple majority of the members of at
least three of the Autonomy 5 Conferences; or
(b) 51 percent (41) of the 80 representatives plus a simple majority
of the members in four of the Autonomy 5 Conferences.
Question 1a. How are policies that are implemented at the ``Power
5'' conferences through the autonomy structure considered and
translated, if appropriate, to the other NCAA conferences?
Answer. The NCAA conferences other than the Autonomy 5 conferences
may decide to opt-in on any NCAA rule changes adopted by the Autonomy 5
conferences under the Autonomy Structure so that they are applicable to
their conference members.
Question 2. In the case that NIL payments were permitted to be
paid, what are appropriate or necessary protections for our student
athletes?
Answer.
Academic services, academic counseling and tutoring because
even if student-athletes are permitted to commercialize their
NIL, they are not professionals, and it is critical that the
academic mission of collegiate athletics remain a point of
emphasis
Top quality medical care, including mental wellness support,
which could be particularly important with the added pressures
that come with receiving compensation from third parties
Career services and professional counseling
Financial literacy training because student-athletes who
receive NIL payments may not have experience managing such
large sums of money
Personal development support, coaching and mentorship
Question 2a. Is it possible these payments open our student
athletes up to wider predatory circumstances?
Answer. Yes, particularly if agents are permitted to interact with
student-athletes. Unscrupulous agents may seek to incentivize student-
athletes to enroll at particular universities for the benefit of the
agents themselves, instead of acting in the best interest of their
clients, the student-athletes. We have already seen several incidences
of such behavior in recent years. Indeed if agents are permitted, we
may find ourselves in an environment with even more unscrupulous third
parties (including agents, financial advisors and the like) than exist
today because more and more individuals consider themselves to be
qualified agents. A much more vigorous agent preparation and
certification process would be vital, but likely of marginal success.
Even if agents are not permitted to participate in the collegiate
model, boosters or sponsors who have relationships with a given school
will be involved in recruitment and transfer decisions and may
similarly attempt to induce recruits or transfer students to initially
enroll in or transfer to a given school, as applicable. Such an open
system would be very difficult to regulate.
Question 3. While California's Fair Pay for Play Act does not
authorize payment by the educational institution to student athletes,
there are examples of other state legislation that do. The New York
Collegiate Athletic Participation Compensation Act would require a
percentage of revenue from tickets sales be distributed among the
student athletes. Do you believe student athletes should receive
compensation in any form from the institution or its athletic
department?
Answer. NCAA rules allow the school at which a student-athlete is
enrolled to provide extensive benefits allowing schools to provide
student-athletes up to the full cost of attending and pursuing
completion of a degree at that institution in his or her chosen course
of study. The rules defining what benefits can be provided by the
school within this standard has been reviewed and revised by the NCAA
membership from time to time, and additional changes can be considered
in the future by the NCAA membership. However, I believe that it would
be inconsistent with the collegiate sports model for those changes to
allow payments to be made to student-athletes that constitute direct or
indirect ``pay to play'' compensation, payments to induce them to
initially enroll in or transfer to a specific school, or payments that
would make them employees of the school.
Question 4. In 2015, the ``Power 5'' conferences, including the Big
12 Conference, voted to increase scholarships to include the full cost
of attendance for student athletes, and these reforms also included
coverage of medical care for athletics-related injuries at least two
years out of college, increased reimbursement to family members to
attend certain events, and allowing student athletes to borrow against
their future professional earnings to purchase loss-of-value insurance
to protect athletes financially should a potential career-ending injury
occur. These all appear to be appropriate benefits to offer student
athletes, and while I understand that the institutions that make up the
``Power 5'' conferences are more likely to be able to offer such
benefits to their student athletes, is it the policy of some
institutions outside of the ``Power 5,'' including non D-1 programs, to
offer any of these types of benefits to their student athletes?
Answer. I completely concur that the list of additional benefits
for student athletes you've listed are entirely appropriate and were
long overdue when enacted by the Autonomy 5 in 2015. As I referenced in
my earlier response to Question 1 above, the member institutions within
the Autonomy 5 are required to offer the full cost of attendance to
student-athletes. The other colleges and universities in Division I
outside of the Autonomy 5 are given the option of providing the same.
It is my understanding that the majority of those schools and an
additional number of ``non D-1 programs'' do, in fact, offer full cost
of attendance to many of their student-athletes.
Question 5. If Congress decided to pursue Federal legislation
regarding NIL payments to student athletes, a critically important
component of such legislation would be determining what types of
arrangements, activities, and agreements would be eligible for the
categorical definition of an NIL payment. Do you have suggestions for
this subcommittee as it relates to defining the NIL in statute?
Answer. The California Fair Pay for Play Act and other proposed
state laws require that the NCAA allow student-athletes to receive
virtually unlimited compensation relating to their NIL, which could
undermine the current collegiate sports model. If Federal legislation
is enacted to preempt an unworkable patchwork of potentially
inconsistent if not contradictory state laws, then it will be critical
that the Federal legislation establish which existing or new body will
determine which types of NIL compensation will be permitted, the
limitations (or ``guardrails'') on these payments to ensure that they
are consistent with the collegiate sports model, and how these
determinations may differ for NCAA members of different sizes and
resources in the three Divisions of the NCAA, consisting of 347
colleges and universities.
I am a member of a Federal and State Legislation Working Group
appointed by the NCAA Board of Governors in May of last year to focus
on exactly these NIL issues. We have collectively spent thousands of
hours on conference calls, in in-person meetings, and in consultation
with our members to consider many very complex and rapidly evolving
issues involving NIL and the interrelated rules that permit student-
athletes to transfer from one school to another on a conditional basis
after beginning their eligibility. Based on this work, I can only tell
you at this point that I am confident that progress can be made within
the spirit of the college sports model to modernize our rules for the
benefit of student-athletes, but the analysis is complex, the possible
unintended and interdependent consequences of any one action are hard
to predict, and the best path forward has not yet become clear.
Therefore, I respectfully suggest that instead of putting the
burden on Congress to draft into legislation the specifics of a
permissive NIL structure, Congress ``deputize'' in this legislation an
existing or new body to establish and oversee this new NIL structure
and to modify it as circumstances change in the future (without the
need--within certain parameters -to come back to Congress) based at
least in part on the work of the three divisional NCAA working groups
when it is complete. If the Federal statute provides 1) the appropriate
framework for mandating that permissive NIL compensation rules be
adopted by this body within a reasonable time frame, 2) appoints the
body to define the framework for these rules and any limitations
thereon and future changes thereto, 3) provides preemptive protection
from a patchwork of inconsistent and possibly contradictory state laws
and safe harbors from ongoing antitrust attack of actions taken in
compliance with the rules adopted under this Federal legislation, and
4) a framework for and body authorized to enforce the statue's mandate,
then I believe that prompt and constructive progress can be made toward
adopting a modernized NIL compensation structure that aligns the
benefits that can be earned by student-athletes for use of their NIL
going forward with the corresponding rights of other students that are
not athletes in a manner consistent with the underlying principles of
the college sports model.
You asked: ``Do you have suggestions for this subcommittee as it
relates to defining the NIL in [the] statute.'' I find it interesting
that few, if any, of the enacted or proposed state NIL statutes define
what constitutes a student-athlete's ``name, image, and likeness,'' and
to my knowledge no other state laws define these terms in the context
of collegiate sports.
However, the NCAA working group referred to above, of which I am a
member, has discussed this extensively without definitive resolution to
this point and based in part on that discussion, I offer the following.
The concept of a student-athlete's ``name'' is relatively clear in its
basic form: ``Jane B. Athlete.'' However, does it include nicknames
taken by the student-athlete, nicknames proclaimed by the press or
other outside persons, stylized adoptions of the name (such as ``J-
Bee'')--or the like? What types of uses of the name are covered: use in
typed and broadcast print, Internet blogs, sponsorship advertisements,
signing autographs, placement of the name on the back of souvenir
uniforms (using the school's proprietary logos and colors), the
student-athlete's name being used in product promotions or the student-
athlete appearing in ``influencer'' Facebook videos for which
advertisers pay the student-athlete a fee for each ``click''?
The concept of the ``image'' of a student-athlete also may appear
to be fairly straight forward, such as any still photograph or moving
video of or in which the student-athlete is included. Many of the same
questions noted in the preceding paragraph of the types of uses of a
student-athlete's name that are permitted could also apply to the use
of his or her image. However, care must be taken to differentiate use
of a student-athlete's name and image in legitimate news and
promotional activities relating to his or her voluntary participation
as a public figure in the sporting and other related activities of his
or her team and school. Payment to the student-athlete for these
traditional ``news'' and ``publicity'' purposes would clearly cross the
line into ``pay for play.'' In contrast, certain uses of names and
images could be commercialized without undermining the traditional
concepts of collegiate sports, such as when a student-athlete gives
lessons to youngsters in his or her sport at ``market rates'' or
publishes a book on subjects not related to his or her sport.
The ``likeness'' of a student-athlete could include much broader
concepts and potential uses that may be much more challenging to
define. Presumably it would include drawn or painted (in any medium) or
virtually-created electronic depictions of a student-athlete that are
clearly recognizable representations of what he or she looks like,
perhaps in uniform, perhaps in sports action. Beyond this, does it
include stylized depiction of an athlete that do not attempt to
recreate his or her image, but include certain characteristics of the
athlete (hair style, size or shape, characteristic athletic move, etc.)
that could cause a viewer to conclude that likeness as being of a given
student-athlete? Or, does it include non-stylized images, such as stick
figures or ``automaton'' robot-like figure that just happens to use the
jersey number of, hair and skin color of, and have statistics similar
to those of a real student-athlete, such as might be used in an online
or video game?
These just illustrate a few of the complicated issues that would be
involved in a compressive definition of what falls within the ``name,
image, or likeness'' of a student-athlete. As a result, although a
Federal NIL statute could include a broad and general definition of the
concepts of ``name, image, and likeness,'' I respectfully suggest that
the detailed evaluation and definition of these many permutations may
be beyond the scope of a legislative structure and perhaps also could
be delegated to the entity that is ``deputized'' to create the overall
NIL structure and guardrails, as I described earlier in this answer to
Question 5.
Question 5a. What types of commercial arrangements, activities or
agreements should this subcommittee remain wary of?
Answer. The NCAA Federal and State Legislation Working Group on
which I participate has identified a number of types of commercial
arrangements that could be misused to damage the collegiate sports
model. These include arrangements that would undermine the bilateral
national recruiting model on which colleges and students have
traditionally and successfully used to determine the schools at which
students will matriculate and participate in the co-curricular activity
of intercollegiate sports. Unlike most professional sports leagues,
which force athletes to play for a specific pro team without them
having any choice through a unilateral ``draft'' structure, or the
Olympic model, in which an athlete may play only for the team of the
country of citizenship, the long-standing, highly-competitive and
highly-regulated collegiate model allows any student (regardless of
where they live) to be recruited by any college that is a member of the
NCAA.
This bilateral choice structure (much like the graduate medical
education residency matching program by which future doctors decide
where to serve their medical residencies and which is subject to a
congressional antitrust exemption), allows the student to decide to
accept an offer to play at a given school based on the level of
competitive experience, academic program, size, location, and student-
athlete experience that best fits his or her vision for their future.
If the rules were to change to allow boosters or sponsors who have
relationships with a given school to provide direct or indirect
``compensation'' to a recruit or transfer student to induce him or her
to initially enroll in or transfer to a given school, then the benefits
to student-athletes of this open and bilateral recruiting process would
be undermined.
Other types of structures with student-athletes that masquerade as
commercial ``endorsement'' or ``sponsorship'' arrangements that do not
bear an economic relationship with the market value of the services
provided by the student-athlete may in fact be arrangements disguised
to compensate the student-athlete to play or continue to play for a
given school, thus constituting ``pay for play'' arrangements that are
clearly inconsistent with the traditional collegiate sports model.
Although possibly an exceptional example, it is not at all
inconceivable that a sponsor (such as a sports equipment supplier) that
has strong sponsorship ties with a given school might tell a top high
school recruit that if he enrolls in and plays at that school through
his eligibility period, then upon graduation (or the later completion
of his professional career) they would hire him for a four year ``paid
internship'' (at a pay level significantly above the market rate for
other graduate interns) to advance education.
I am of the firm opinion that these and many other similar types of
commercial arrangements constitute ``pay for play'' arrangements that
would significantly damage the very underpinnings of the collegiate
sports model that is so popular with collegiate sports fans.
Question 6. According to the 2018 financial data collected by USA
Today, there were only 12 athletic departments in the country that did
not receive any support from its own institution or the state in which
it is located. Furthermore, approximately 90 percent of athletic
departments received over $1 million in support, and for nearly 80
percent of departments, this support accounted for more than a quarter
of their revenue. For instance, 91 percent of the revenue for the
University of California-Riverside came from outside the athletic
department, and James Madison University athletics received $41.7
million in assistance. This demonstrates that the vast majority of
athletic departments rely upon funding resources outside of the
department. How will legislation like that of California affect the
operation of athletic departments?
Answer. As noted by the question, it has been well-documented by a
variety of reputable sources that very few athletic departments make a
profit and that most athletic departments rely upon a number of funding
sources outside of the department, including student fees. I suggest
those interested to consult the essay attached to my written statement
by Dr. Kevin Blue, Director of Athletics at the University of
California-Davis, which lays out the dramatic increases in expense
trends.
On the revenue side of the equation, mine is a discordant voice as
I believe we have nearly reached the pinnacle of revenue growth for
Division I intercollegiate athletics. Legislation like the newly-
enacted law in California could negatively impact the operation of
athletic departments by diverting monies intended for athletic budgets
directly to student-athletes and to their unregulated agents. Moreover,
if laws like that of California become a proxy for pay-to-play and
student-athletes are actually compensated for their performances, I
believe you will see a further decline in attendance, season ticket
sales and donor donations as college sports fans will balk at
supporting what they deem to be professional athletes at their alma
mater or home-state school.
Question 6a. What are the negative impacts you foresee?
I anticipate any number of negative implications in an open NIL
system. Boosters, donors and other third parties will be involved in
the recruitment and transfer decisions and we will find ourselves in a
largely unregulated recruitment system. Non-scholarship and walk-on
players will receive support from boosters, donors and third parties to
effectively increase scholarship allocations beyond agreed upon limits.
In addition to the tax consequences of outside income from NIL,
there will be legitimate questions regarding taxation of other elements
of the athletics scholarship, creating a business transaction for a few
players and the potential for an unfunded obligation for a large
majority of non-NIL scholarship recipients. A few football and
basketball players will capture the vast majority of NIL opportunities
greatly diminishing the shared experiences of the team environment.
I believe the number of sports offered on campuses will eventually
decline and Olympic and non-revenue sports will give way to the reality
of Division I schools competing in a few high popularity sports causing
an overall reduction in scholarship opportunities. As such, the
academic priorities of some student-athletes will become an even lower
priority on the path to the subsequent professional opportunities.
I also envision the limitations on when student-athletes can enter
the professional drafts will be eliminated in favor of open access
beginning in high school.
Lastly, while many dismiss Title IX implications as a nonissue,
some legal experts are raising red flags. (Please see ``What Title IX
Fallout Might NIL legislation Pose,'' Paul Steinbach, Athletic
Business, January 2020.). I foresee institutional personnel at
universities, acting in the best interest of a school's student-
athlete, will participate in arranging NIL opportunities for selected
players and will thereby reintroduce questions about the 13 components
of Title IX.
Question 7. Amateur athletics has major participation through the
NCAA but it also covers many athletes who participate on our Olympic
teams. What impact could these NIL payments have on U.S. Olympics?
Answer. Having served two terms on the United States Olympic
Committee, I have significant concerns that an open, unregulated NIL
system will weaken our Olympic sports on campus and compromise our
Nation's desire to send our country's best athletes to international
competitions. As my written statement predicts, while all college
sports participants might be alleged to have equivalent opportunities
to profit from name, image and likeness activities, I believe that the
present discussion is principally about football and men's basketball
players. It is my strong belief the participants in these two sports
will harvest the vast majority of NIL opportunities. It follows that
this disparity in NIL payments will ultimately diminish other sports on
campus. This diminishment could come in the form of reduced
scholarships, budget declines or even sport eliminations. Because more
than 80 percent of our Summer Olympians come through college programs,
any damage to Olympic sports on campuses could have a profoundly
negative outcome for our international Olympic efforts.
______
Response to Written Question Submitted by Hon. Dan Sullivan to
Bob Bowlsby
Question. What role do you foresee Sports Agents playing in college
athletics after the State laws begin taking effect?
Answer. Senator, your question suggests the absence of a uniform
Federal standard and that scenario is extremely problematic. Some of
the state initiatives share similar provisions with each other; others
are radically different. Many of the proposed measures at the state
level have effective dates well in the future and provide the NCAA
Working Group with ample time to create a workable NIL system. Other
states have immediate effective dates. Such a patchwork of disparate
laws would present an enormous challenge to the NCAA and its member
institutions. My concern has always been focused on the unique national
recruitment environment currently in place and an NIL system with
unregulated sports agents will favor an institution in one state over
another, depending upon that state's law.
In addition, the real-world impact of ``sports agents playing in
college athletics'' are significant and disturbing. Student-athletes
will have agents and managers and their representatives will
participate in many aspects of their lives on campus. College recruits
will come to campus with pre-existing agent relationships and
established business ventures. Coaches will have to recruit the player,
his family, and the prospective student-athlete's agent. Boosters,
donors and other third parties will develop relationships with sports
agents in an effort to impact the student-athlete's recruitment and
transfer decisions. An open NIL/pay-for-play model evokes unscrupulous
and unworkable scenarios. It is my belief that a patchwork of state
laws will not be successful in governing interstate competition and,
therefore, Federal regulation will eventually be required.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
______
Response to Written Questions Submitted by Hon. Roger Wicker to
Dr. Mark Emmert
Question 1. There are a growing number of states that have adopted,
introduced, or signaled plans to introduce legislation similar to the
law in California. How would the NCAA handle a potential situation
where there are 50 state laws governing the use of student-athletes'
name, image, and likeness?
Answer. Conducting intercollegiate athletics with a patchwork of 50
state laws is untenable. Absent a national standard, the NCAA would
need to examine a variety of options, including a potential
constitutional challenge based on violations of the commerce clause.
Collegiate athletic competition and the recruitment of student-athletes
is an inter-state activity, and the success of intercollegiate
athletics is based on the concept of national competition and national
championships.
For example, if a prospective student-athlete who lives in Oklahoma
is being recruited by institutions in Oklahoma, Florida, and Maryland,
it is unclear which state's rules would apply. The student might be
subject to inconsistent rules, which would be difficult and unfair for
the student to navigate without jeopardizing his or her eligibility to
play. An institution might be subject to one set of rules when
recruiting a student in one state and another set of rules when
recruiting a student in another state, creating confusing and
burdensome compliance obligations, jeopardizing the eligibility of
individual players and even the entire team. And any discrepancies
between states would advantage or disadvantage an institution based on
its location or the location of a recruit. That uneven playing field
would then undermine the fairness of intercollegiate athletic
competitions.
Question 2. How will athlete compensation impact non-revenue
generating sports at universities?
Answer. As the NCAA works to modernize its rules to allow student-
athletes to take advantage of NIL opportunities, we worry about the
consequences to student-athletes playing non-revenue generating sports,
including whether women would have equitable opportunities. There is
the possibility that student-athletes in sports attracting larger fan
bases would dominate the NIL opportunities. Further, those few students
might detract from an institutions overall athletics budget, which
could result in the elimination of varsity sports.
Question 3. What policies and procedures does the NCAA have
implemented to prevent and eliminate doping in college athletics?
Answer. The NCAA is committed to the prevention of drug and alcohol
misuse and to protecting the integrity of its competitions. The NCAA
Drug Testing Program, clear policies, and education programs protect
and deter student-athletes from using both performance-enhancing and
recreational drugs.
As a condition and obligation of membership, institutions
must abide by the requirements set forth in NCAA legislation
(Constitution 3.2.4.8) which requires, among other things, that
all active member institutions educate athletics staff (e.g.,
administrators, coaches) and student-athletes about banned drug
classes and banned substances including the risks of
nutritional supplement use.
The NCAA Drug Testing Program is robust, executing well over
12,500 tests annually. Testing occurs year-round (including
summer), and during championships. Individuals selected for
testing are given less than 24-hour notification. Should a
student-athlete fail to appear or provide a sample, they are
sanctioned as if they had a positive test for a performance-
enhancing drug.
The NCAA Committee on Competitive Safeguards and Medical
Aspects of Sports (CSMAS) is an Association-wide committee
which has oversight of the NCAA drug testing program. This
committee includes physicians and other health care providers
with expertise in drug testing and drug education. CSMAS,
working in concert with the NCAA Sport Science Institute (SSI)
staff consistently reviews and evaluates data and emerging
science to ensure that the NCAA drug testing program policies
and procedures reflect contemporary and appropriate standards.
The NCAA Drug Program Booklet includes all NCAA drug testing
program policies and procedures and is used by those on campus
responsible for assisting with execution of the drug testing
program. Campus personnel are made aware of any changes to the
program prior to the start of each academic year. In addition,
the booklet provides a drug education framework for member
schools to use and assists them in conducting adequate drug
education for their student-athletes.
SSI has also developed a Substance Abuse Tool Kit, which is
endorsed by 14 leading higher education and medical
organizations in the country. It provides recommended
approaches and evidence-based resources for administrators to
address the use of alcohol, cannabis, prescription drug abuse
and more.
Question 3a. How are the NCAA's anti-doping policies different from
those of the U.S. Anti-Doping Agency?
Answer. The NCAA generally aligns with the U.S. Anti-Doping Agency
because it understands the importance of shared and internationally-
recognized standards. It also regularly consults with the director of
UCLA's drug testing lab (one of only two WADA-accredited labs in the
United States) regarding emerging trends and evidence-based science
related to banned substances and lab analysis.
For reasons that are unique to the NCAA, like the fact that our
athletes are also students, or because our 1,100 member institutions
have unique and varying philosophies, the NCAA drug testing program has
some differences in purpose and policy from USADA. Such differences
include:
USADA tests only Olympic-level athletes. In contrast, the
NCAA oversees drug testing for 500,000 student-athletes, and
only one-percent of these student-athletes become Olympic or
professional athletes
USADA provides advanced notice to those Olympic athletes who
may be tested year-round. The NCAA provides no advance notice
to ANY student-athlete, and we conduct year-round out-of-
competition testing in addition to championships testing.
The NCAA tests more athletes out-of-competition than does
USADA.
The NCAA has a more rigid marijuana/cannabis policy in place
than USADA, and uses a threshold that aligns with professional
sports. This means that a student-athlete will be disqualified
at a lower level than USADA, and it is a threshold that has
more evidence basis than that of USADA.
The NCAA has in place a more rigorous pain management/opiate
deterrence model in place--one that was created by the NCAA
Chief Medical Officer, who was also co-Chair of the
International Olympic Committee's summit on pain management in
elite athletes.
The NCAA does not share information in the same way as USADA
because of FERPA rules.
The NCAA utilizes a different threshold for testosterone,
which is based on the scientific analysis of thousands of test
results. However, for any world record, the NCAA works with
USADA and they oversee drug testing in these circumstances.
The NCAA does not perform blood tests at present because of
concerns with the general student-athlete body. We are actively
investigating performing finger sticks as an alternative to
venous blood drawing. Because of blood drawing concerns, we do
not test for human growth hormone at present but hope to do so
once we can utilize the finger stick method. However, for world
level athletes, as noted above, blood testing under the
direction of USADA may be performed.
The NCAA widely socializes the Substance Abuse Prevention
and Intervention Tool Kit (referenced above). This tool kit is
endorsed by 14 of the leading higher education and medical
organizations in the country. USADA does not have in place such
an endorsed educational program.
Question 3b. Has the NCAA considered aligning its anti-doping
policies with those developed by the U.S. Anti-Doping Agency?
Answer. Please see answer to previous question. Despite the
identified distinctions, the NCAA is very aligned with USADA. Both
organizations test for and ban the same category of drugs. It is
especially noteworthy that both organizations ban and test for
erythropoietin.
______
Response to Written Questions Submitted by Hon. Jerry Moran to
Dr. Mark Emmert
Question 1. In the case that NIL payments were permitted to be
paid, what are appropriate or necessary protections for our student-
athletes?
Answer. The NCAA Board of Governors provided its initial direction
about the safeguards necessary to preserve college athletics, but some
of those potential safeguards may leave the NCAA vulnerable to legal
attack without Congressional action. The NCAA believes that the
following safeguards will help protect the student-athlete:
Transparency around the NIL activity.
Avoidance of transactions intended to induce a young person
to choose to play for an institution based on financial
motives.
Avoidance of using NIL activities as a means to pay a
student for his or her athletic performance.
Question 1a. Is it possible these payments open our student
athletes up to wider predatory circumstances?
Answer. Unfortunately, there are those who already try to lure
student-athletes to sign long-term contracts with onerous terms without
visibility and accountability and allowing student-athletes to benefit
from certain NIL activity may bring the temptation to engage in similar
predatory conduct in the NIL context. To help protect student-athletes
from such practices and to help them achieve financial benefits in a
more equitable manner across the race, gender, and economic spectrums,
the NCAA would impose transparency requirements on any permitted NIL
activities and allow student-athletes to use professional services with
appropriate institutional and NCAA oversight.
Question 2. While California's Fair Pay to Play Act does not
authorize payment by the educational institution to student athletes,
there are examples of other state legislation that do. The New York
Collegiate Athletic Participation Compensation Act would require a
percentage of revenue from tickets sales be distributed among the
student athletes. Do you believe athletes should receive compensation
in any form from the institution or its athletic department?
Answer. Any compensation by an institution raises structural
challenges, as all agree that the intent of allowing NIL opportunities
is not to make student-athletes employees of his or her institution.
New York's legislative proposal to compensate student-athletes based on
athletics department revenue would lead to a variety of unintended
consequences, including employment consequences. A state law
requirement to compensate student-athletes beyond permissible benefits
amounts to ``pay for play,'' which the NCAA's governing bodies do not
believe is appropriate. For the vast majority of athletics programs, a
revenue sharing model with student-athletes could divert funds now used
to provide educational and sports participation opportunities resulting
in a reduction in both.
Question 3. If Congress decided to pursue Federal legislation
regarding NIL payments to student athletes, a critically important
component of such legislation would be determining what types of
arrangements, activities, and agreements would be eligible for the
categorical definition of an NIL payment. Do you have suggestions for
this subcommittee as it relates to defining the NIL in statute?
Question 3a. What types of commercial arrangements, activities or
agreements should this subcommittee remain wary of?
Answer. The NCAA believes that legislation does not need to have
specific provisions that regulate the permissible NIL transactions of a
student-athlete. Rather, Congress can recognize the extensive
engagement by the NCAA's governance boards and validate their
discretion to make reasonable rules. Further, rapid advancements of
technology could make NIL definitions outdated at the time of passage
or soon after. Congressional recognition of the NCAA's authority to
regulate in this space would allow for more nimble adjustments to
student-athlete opportunities as circumstances change.
Question 4. According to the 2018 financial data collected by USA
Today, there were only 12 athletic departments in the country that did
not receive any support from its own institution or the state in which
it is located. Furthermore, approximately 90 percent of athletic
departments received over $1 million in support, and for nearly 80
percent of departments, this support accounted for more than a quarter
of their revenue. For instance, 91 percent of the revenue for the
University of California-Riverside came from outside the athletic
department, and James Madison University athletics received $41.7
million in assistance. This demonstrates that the vast majority of
athletic departments rely upon funding resources outside of the
department. How will legislation like that of California affect the
operation of athletic departments. What are the negative impacts you
foresee?
Answer. Most institution athletics budgets rely upon third-party
program and sport sponsorships to provide maximum participation
opportunities for their male and female students. Individual,
permissible NIL payments from third parties to student-athletes will
not go to benefit the program and there is some concern that those
individual payments will reduce sponsorship opportunities for the
institution. The NCAA should be given the authority to protect campus
athletics budgets or allow conferences and institutions to pass
policies that would protect maximum participation opportunities so that
new sports can continue to be added and student-athletes' academic,
health and safety, equipment, and nutritional needs will continue to be
met.
Question 5. Your testimony mentions the unique principle of
student-athlete recruitment in which the student-athlete is empowered
with the choice of where to attend school, and that no other model in
sports is like it, professional sports nor the Olympics. Why is this
such an important fact to consider? How could laws at the state or
Federal level impact this principal unintentionally?
Answer. Many of the NCAA rules on student well-being and
competitive balance address aggressive school booster and coach
recruiting tactics. There are bad actors for whom regulation is needed,
just like in any other environment. Techniques to ``buy'' student-
athlete participation, to choose to play for a school or to transfer to
a new school, are especially pernicious. Inducing students through
payment disrupts their school choice and perhaps even their progress
toward graduation. These impermissible payments devalue the academic
mission of our campuses. Federal legislation giving the NCAA clear
authority to prohibit NIL payments that are disguised ``pay for play''
payments will be vital to the success of offering appropriate NIL
opportunities to students.
Question 6. The NCAA has a process of determining the amateurism
status of a current or prospective student-athlete at a Division 1 or 2
institution. This process includes an ``amateurism certification''
initiated by registration with the NCAA's Eligibility Center. What are
the major functions of the Eligibility Center, particularly as it
relates to the'' amateurism certification?''
Answer. The NCAA Eligibility Center is charged with certifying the
academic and amateur status of incoming NCAA Divisions I and II
student-athletes in accordance with NCAA Bylaws 12 and 14. For
amateurism certifications (NCAA Bylaw 12), students respond to a series
of Eligibility Center registration questions regarding their sports
participation history. Upon review, additional information may be
requested. Students must also submit a request for their final
amateurism certification beginning April 1 (fall enrollees) or October
1 (winter/spring enrollees). Outcomes of the amateurism review are
either Final Certified, Final Not Certified or Final Certified with
Conditions. A member institution may submit a waiver request if it
believes relief from the application of NCAA legislation is warranted
for a particular student.
Question 6a. Is there an ongoing eligibility oversight and
compliance responsibility that the Eligibility Center is required to
uphold?
Answer. The NCAA Eligibility Center's oversight is limited to
initial academic certifications (based on the student's high school
academic record) and initial amateurism certifications (based on
activities that occurred before the student's request for final
amateurism certification or initial full-time enrollment at a Division
I or II school, whichever occurred earlier). However, it may re-
evaluate a final academic or amateurism certification if new
information is subsequently received that calls into question the
information on which the final certification was based.
Question 6b. What is done by the Eligibility Center in terms of
educating student athletes on the rules pertaining to amateurism and
eligibility?
Answer. The NCAA Eligibility Center employs a variety of outreach
measures to educate college-bound student-athletes (e.g., via the
registration process, our website, social media, presentations at
schools and events). Further, high school counselors and coaches
receive educational newsletters regarding Eligibility Center resources
and updates, and they can access resources via our high school portal.
The Eligibility Center also conducts live presentations at a variety of
academic and athletic organizational meetings each year.
______
Response to Written Questions Submitted by Hon. Mike Lee to
Dr. Mark Emmert
Question 1. The NCAA was formed in 1906 after President Theodore
Roosevelt convened a conference to address football injuries. This
conference concluded with the presidents of 62 colleges and
universities founding an association to create uniform rules. While
President Roosevelt encouraged the meeting, he did not expressly ask
that the Federal government take an active role in the regulation of
college sports. The NCAA has now helped govern college sports for 115
years with minimal Federal government intervention. In fact, it's well
known that the NCAA has long resisted congressional involvement in
college sports for numerous reasons.
Question 1a. Is it still the NCAA's position that college sports
should remain free of congressional involvement?
Answer. The NCAA has supported Federal direction on matters of
national importance, and we think attempts by individual states to
regulate student-athlete NIL is one of them. We have supported Title IX
legislation, and we supported Federal efforts to keep sports wagering
regulated, among other Congressional actions that have had a positive
impact on college athletics and higher education.
Question 1b. The NCAA has long prided itself on having its own
``legislative bodies'' that are made up of volunteers from all member
schools, who debate, resolve, and set rules and standards to address
its own emerging issues. What unintended consequences could result from
Congress instituting ``one-size-fits-all'' Federal standards on college
sports?
Answer. The NCAA hopes that Congress will provide a general
statutory framework that will allow the NCAA governance processes to
continue to make responsible decisions regarding NIL benefit regulation
that will preserve the collegiate model, reaffirm that student-athletes
are not employees of the institution, and not result in a ``pay for
play'' environment. We think the Federal solution is superior to a
state-by-state approach, which would subject college sports to an
unmanageable patchwork of regulation that would disrupt the
Association's ability to conduct fair national competition and
championships.
Question 2. The NCAA is currently developing ``Name, Image,
Likeness'' rules that would permit student-athletes to benefit from use
of their name, image, and likeness.
Question 2a. When do you anticipate completion of these rules?
Answer. The NCAA Board of Governors has asked each division to vote
on new rules related to NIL no later than January 2021.
Question 2b. If Congress decides to move on legislation prior to
the release of the NCAA's new rules, could that inhibit the NCAA's
efforts to modernize rules?
Answer. We urge Congressional action as soon as possible so that
our rules are in sync with the intent of Congress.
Question 2c. What is the NCAA's most challenging or complex
consideration in the crafting of these rules?
Answer. The issues are complex, but Congressional support to allow
the NCAA to responsibly regulate NIL activity will help. The NCAA will
need to be able to enforce transparency of NIL activities so that
related compensation does not become a disguised recruitment incentive
or ``pay for play.'' There are concerns that unrestricted NIL activity
will dilute athletics budgets to shift compensation to individual
student-athletes in a way that will diminish participation
opportunities or resources available for supported teams. There also
are concerns that academics will suffer through efforts by third
parties to induce students to pursue short-term economic opportunities.
Congressional validation of NCAA rulemaking will help alleviate those
concerns and others.
Question 2d. Why is it important for the NCAA to preserve student-
athlete ``amateur'' status rather than treating athletes as
``employees''? What consequences do you foresee if you shift student-
athletes to a ``professional athlete'' status?
Answer. Were student-athletes to be employed to perform on the
court or field, we believe that the incentive to be compensated for
performance--as with any job--would dominant student-athletes' and
coaches' motives and accordingly fundamentally alter the nature of the
experience. As amateurs, student-athletes participate in
intercollegiate athletics for the love of the sport and to derive many
non-pecuniary benefits, such as camaraderie, the opportunity to develop
discipline, leadership, and teamwork skills, and the opportunity to
obtain a higher education that could be transformational but might
otherwise be unavailable. We think there is widespread agreement in
Congress and the public that this collegiate model is valuable and
should be preserved.
______
Response to Written Questions Submitted by Hon. Dan Sullivan to
Dr. Mark Emmert
Question 1. As you may or may not know, the University of Alaska
Fairbanks has won eleven National Rifle Championships. How should we
regulate those student athletes who want to endorse, or pose with a
rifle or ammunition manufacturers' product?
Answer. We do not foresee Congress regulating at a level that would
determine permissible and impermissible categories of student-athlete
sponsorship. In our view, the Association and its members are best
situated to identify permissible categories and rules of NIL activity,
and that--within that regulatory framework--decisions about specific
endorsements would be made by the student-athlete and his/her
institution.
Question 2. What role do you foresee Sports Agents playing in
college athletics after the State laws begin taking effect?
Answer. We do not believe that sports agents, whose primary mission
is to negotiate and secure a professional sports career for an athlete,
should have an expanded role with NIL opportunities. However, we do
recognize that a student, whether an athlete or not, may need
professional services of lawyers, accountants, business advisors, and
others to navigate NIL proposals in a manner that fairly protects the
student. Students engaged in business ventures and entrepreneurial and
artistic activities already are entitled to utilize these types of
services, and the NCAA is considering adopting rules that would allow
for such services specific to NIL opportunities.
______
Supplemental Information for the Record:
Sen. Blumenthal:
In 2018 the NCAA implemented new rules to allow basketball players
to sign with agents, but those rule changes did not apply to women.
Isn't that unfair?
In response to the September 2017 announcement of a Federal
investigation into fraud in college basketball, the NCAA formed an
independent Commission to examine critical aspects of Division I men's
basketball. The Commission, chaired by Dr. Condoleezza Rice, developed
a range of recommendations to improve the environment for prospective
and current student-athletes and member schools. Among the legislative,
policy and structural changes put forth by the Commission was a
recommendation that men's basketball student-athletes be allowed to
contract with NCAA-certified agents without jeopardizing their
eligibility. The Commission found that due to the NBA's draft
eligibility rules, many students were considering whether to declare
for the draft during the early stages of their collegiate athletic
experience. Allowing Division I men's basketball student-athletes to
contract with an agent would enhance their access to beneficial
information to better assess their professional prospects. This
recommendation was unanimously endorsed by the NCAA Board of Governors,
approved by the Division I Board of Directors and took effect August
2018.
While this rule currently applies to only Division I men's
basketball student athletes, NCAA member schools continue to discuss
whether Division I women's basketball student-athletes should be
afforded the same opportunity. As these discussions continue, member
schools will examine whether the issues that led to changes in men's
basketball also exist in women's basketball. This includes examining
whether earlier agent involvement would be beneficial based on factors
such as the draft eligibility rules of the WNBA. For example, to be
eligible for the NBA draft, a player must be at least 19 years old
during the calendar year in which the draft is held and at least one
NBA season must have elapsed since the player's graduation from high
school. In contrast, to be eligible for the WNBA draft, a player must
be at least 22 years old and have no remaining NCAA eligibility or have
renounced remaining eligibility.
Sen. Blumenthal:
Let me ask you, Dr Emmert, when a school gives a one-year
scholarship and then kicks the young athlete out of school because of
an injury at the end of that scholarship. If that injury prevents him
or her from playing, that's unfair, isn't it? It is in my mind.
Current Division I bylaws do not allow any institution to reduce or
cancel athletics aid for an injury or other athletically related reason
during the period of the award. The period of an athletics aid
agreement must be at least one academic year, and may be up to a
student's full five-year period of eligibility. Further, autonomy
conferences adopted legislation prohibiting the non-renewal of
athletics aid for any athletics reason or injury. This effectively
ensures that student-athletes at autonomy institutions are provided a
financial aid agreement for the student's full period of eligibility
unless the student fails to meet academic or other institutional
standards.
Institutions outside the five autonomy conferences may be required
to adopt this legislation by their conference governance board, may
choose to adopt this legislation at their own initiative, or may
continue to follow bylaws that allow institutional discretion on
renewing awards on a yearly basis. However, if an institution outside
the five autonomy conferences elects to not renew the athletics aid of
a student-athlete, or renews at a reduced amount, the institution's
financial aid authority is required to notify the student-athlete in
writing by July 1 and provide the student-athlete with written policies
and procedures to appeal the athletics department decision to an
institutional authority outside of athletics. The athletics department
decision to not renew athletics aid is not final until the outside
appellate authority reviews and affirms the decision.
Additional Division I bylaws are also in place to minimize any
competitive incentive to exercise nonrenewal or reduced renewal
discretion relative to a student-athlete with an injury or medical
condition. Athletics aid received by a student-athlete who suffered a
career-ending injury or illness (including mental illness) will not
count against team financial aid limitations during the academic years
following the medical determination that he or she is unable to
participate. Further, the Division I Academic Performance Program
incentivizes institutions to renew the athletics aid of all student-
athletes through penalties for institutions that fail to retain
scholarship student-athletes. These penalties are assessed on a team-
by-team basis and have included ineligibility for NCAA championships.
Sen. Moran:
And rather than take the time of the moment I would ask any of you
to lengthen that list or shorten that list for me as to what concerns
we ought to have about NIL?
Disrupting the Recruiting Environment: The recruitment process is
unique to college athletics, where prospective and transfer student-
athletes have the ability to select an institution that offers the best
academic and athletic opportunities for that individual. It is
distinctly different than professional leagues, where athletes are
drafted, and the Olympics, where participants compete for their
country. NCAA rules have been designed to protect this freedom of
choice and to ensure that each of the NCAA's 1100 diverse institutions
has a fair chance of pursuing recruits by adhering to a uniform set of
regulations.
If NIL opportunities are not carefully and uniformly regulated,
they could undermine the fairness within the recruiting environment and
exacerbate competitive imbalance that exists between institutions due
to a range of factors including geographical location and booster
involvement. The lure of the best financial NIL prospects--likely from
schools with the greatest name recognition or in the largest media
markets--may add a detrimental layer to the decision-making process for
student-athletes about which school to attend. As a result, recruits
may prioritize where they have the most marketing opportunities--and
diminish the focus on the best academic and personal fit. The focus on
financial gain could lead some student-athletes to move from school to
school in search of the best earning possibilities instead of being
focused on the best personal and academic fit. This could inevitably
have a negative impact on a student-athlete's progress toward a degree.
Carefully crafted and uniform guardrails are necessary to allow
student-athletes an opportunity to benefit from their NIL, while
preserving the collegiate model, protecting student athletes from bad
actors, ensuring student-athletes' freedom and incentives to choose the
educational institution that will serve them best overall, and
preserving competitive equity in the recruitment of prospective and
transfer student-athletes.
Converting Student-Athletes into Employees: College athletics is
about competition between participants who are students first but who
also participate in athletics as a co-curricular activity. Allowing
student-athletes to use their NIL to in effect be paid to play or
otherwise treating them as employees would fundamentally alter their
athletic and academic experience and harm the nature of intercollegiate
athletics.
Title IX and Gender Equity: One of the NCAA's principles of conduct
for intercollegiate athletics focuses on gender equity. Some
legislatures are considering NIL models that would have Title IX
implications, particularly if the NIL payments were to be made by the
educational institutions. Even without institutional involvement, there
could be gender imbalance of opportunities.
Team Dynamics: College athletic teams succeed in large part due to
the philosophy that all team members receive access to the same
coaching, facilities, health and safety resources, and tutoring
resources. Competition among teammates to land an endorsement deal
could lead to self-promotion and create division within the team.
Impact on Athletic Department Budgets and Opportunities for
Student-Athletes: Allowing student-athletes to be compensated for their
NIL could lead to conflicts with an institution's existing endorsement
contracts (e.g., a school with an apparel contract could have student-
athletes enter into contracts to wear apparel from another company).
This could result in a reduction in value of existing endorsement
contracts, which would inevitably have a negative impact on athletic
department budgets and force schools to reduce the number of sports and
participation opportunities.
Tax Implications: Some state legislatures are considering NIL
models where money would be passed through an institution to student-
athletes. These models could have adverse tax implications for student-
athletes, including making athletic scholarships taxable or student-
athletes ineligible for important educational benefits.
______
Response to Written Questions Submitted by Hon. Richard Blumenthal to
Dr. Mark Emmert
Our Committee has heard testimony that the NCAA anti-doping program
is deficient. As we evaluate what the NCAA's role should be, if any, in
coordinating lucrative licensing deals for college athletes, I am
concerned about conflicts of interest exacerbating the NCAA's deficient
oversight of its anti-doping program.
Question 1. Why does the NCAA not use blood testing in its anti-
doping program?
Answer. The NCAA does not believe the inclusion of blood testing is
justified in its drug testing program because the advantages provided
by blood testing (primarily the detection of human growth hormone) do
not outweigh the privacy interests of NCAA athletes, all of whom are
students first and foremost. Unlike USADA, which tests only Olympic-
level athletes, the NCAA oversees drug testing for 500,000 student-
athletes. Of these, only one-percent will become Olympic or
professional athletes.
The NCAA conducts extensive survey data of our student-athletes,
and these data have been validated by multiple mechanisms, including
how they match with random, out-of-competition testing for numerous
substances. For NCAA student-athletes, 0.5 percent have used hGH in the
past year. The detection window of hGH is less than 24 hours, and there
remain scientific discrepancies as to its validation accuracy. We
continue to monitor hGH use through our validated surveys, while also
exploring less invasive ways to obtain blood samples (e.g., a finger
stick).
At present, given the much larger pool of athletes subject to NCAA
drug testing as compared to USADA, the very low rate of hGH use among
our student-athletes, the cost and privacy issues of venous blood
draws, the extremely narrow window of detection coupled with validation
accuracy issues, and the methodological certainty of our monitoring of
drug use among student-athletes, we are continuing with urine sample
testing while exploring alternative methods of drug use detection,
including saliva and finger stick analysis.
It is also important to note that NCAA athletes who go on to
compete at the Olympic level, or who set American/world records, are
automatically subject to blood testing under the direction and
authority of USADA.
Question 2. In the absence of blood testing, how do you ensure that
athletes are not using human growth hormone?
Answer. The NCAA conducts very detailed surveys of drug use among
student-athletes. The methodology and results of our surveys have been
validated, including by comparing the survey results with drug-testing
results for substances that are detectable in urine. We monitor both
the incidence and prevalence of hGH use and are confident that use of
this substance remains very low and is not increasing over time.
Question 3. The USADA program and the world standard for the ratio
of testosterone to epitestosterone is 4:1 whereas the NCAA uses a 10:1
ratio. Why do you use a different, more lenient ratio?
Answer. The purpose of establishing a T/E ratio is to accurately
screen those samples that should be subjected to subsequent IRMS
testing. IRMS is a very expensive and time-intensive test, and so it is
important that it be employed judiciously and intentionally. The NCAA
T/E threshold was established at 10:1 as a result of a focused
scientific analysis of the results of thousands of NCAA drug tests.
That analysis demonstrated that a T/E ratio of 4:1 was producing too
many false positives--in other words, samples with a T/E ratio of 4:1
were not being confirmed by subsequent IRMS testing. The frequency of
these false positives was effectively reduced with a T/E ratio of 10:1.
It is also important to note that for any situation in which a
world record is ratified, the NCAA works collaboratively with a WADA
signatory (e.g., USADA), who then directs doping control in these
circumstances.
Question 4. Does the NCAA test for erythropoietin? If not, why not?
Answer. Yes, the NCAA does test for EPO, which it recognizes as a
banned substance in the category of peptide hormones, growth factors,
related substances and mimetics. A full list of substances banned by
the NCAA can be found here.
Question 5. Is it true that the NCAA has not implemented an Athlete
Biological Passport program, testing an individual athlete over time
and comparing the results?
Answer. The NCAA does not employ an Athlete Biological Passport
program. There are several reasons for this. First, ABPs include a
hematological component, and for reasons described above, the NCAA has
chosen to not include testing requiring venous blood draws. Moreover,
ABPs can require an average of three annual blood tests, and if an
athlete's passport is atypical/suspicious, they are subject to more
testing than those with normal passports.
Lastly, the NCAA population of athlete poses several unique
challenges to the ABP concept. First, the typical college career is
usually 4-5 years, a relatively small window of time in which to
maximize the advantages offered by ABPs. Second, the selection process
for the biological passport pool is quite complex and would be
difficult to implement in the current NCAA organizational structure.
Lastly, the timing of sequential testing may be difficult to coordinate
considering the multitude of factors that impact the student-athlete
educational experience (e.g., campus calendars, academic obligations,
professional internships, travel, etc.). That being said, the NCAA
utilizes a deterrence model for its year-long, out-of-competition drug
testing. Unlike USADA, which selects their athlete pool for out-of-
competition drug testing (and therefore this pool of athletes know in
advance that they are subject to drug testing at some point during the
year), our pool of out-of-competition drug testing includes ALL
Division I and Division II student-athletes. With our deterrence model,
many schools and student-athletes are randomly drug tested up to three
times in a single academic year.
Question 6. Does the NCAA have an out-of-school testing program? If
not, why not?
Answer. Yes, the NCAA drug testing program includes a year-round
component. This means that student-athletes are subject to testing
outside of both championship/tournament competition and outside of
their competitive season. Indeed, the NCAA out-of-competition,
unannounced drug testing program is the largest program in the country.
Member schools and student-athletes receive notification of random drug
testing within the conceptual framework of a deterrence model with less
than 1-day notice. If an athlete does not submit to such testing, they
receive the same penalty as testing positive for a banned substance.
Question 7. How often are NCAA urinalysis tests conducted without
notice to the athlete or their school?
Answer. In any NCAA drug testing situation, notice is given to the
school no more than 24 hours in advance. This is the minimum amount of
time necessary to ensure that the school can inform the student-athlete
of the pending test and to provide the facilities necessary for
implementation of testing procedures. The NCAA conducts over 12,000
random drug tests within the deterrence model framework. The deterrence
model (originally developed in consultation with USADA during an NCAA
task force that USADA attended) relies on our extensive survey data and
analysis of drug testing results over time. This means that in addition
to random drug testing for student-athletes, certain pools of athletes
(e.g., Division I football) are tested up to three times in an academic
year.
In 2017, the NCAA released a study on college athlete time demands
and found that it is not uncommon for athletes to exceed the 20-hour
weekly practicing limitation.
Question 1. How are schools currently able to circumvent the NCAA's
weekly practicing limitation?
Answer. There are different types of athletically related
activities a student-athlete may be involved in at different times
throughout the year--some voluntary and others required for
participation in intercollegiate athletics. Members in each division
set limits on required athletically related activities consistent with
that divisions' values and approach to college athletics. Divisions I
and II institutions have legislated daily and weekly limits for
countable athletically related activities and require schools, on a
daily basis, to record any countable individual or group athletically
related activity. Schools educate their student-athletes and
administrators about what activities are and are not permissible and
head coaches have a legislated responsibility to promote an atmosphere
for compliance within their program and to monitor activities regarding
compliance. Failure to comply with these standards could result in a
range of penalties through the NCAA infractions process.
Question 2. What are the total number of hours that athletes spend
practicing their sports in season? Include all time spent in sport
related activities, including administrative meetings, weight-lifting,
film study and other game preparations, voluntary activities, and
travel.
Answer. We do not have information that covers all activities
listed in the question. However, information from our GOALS (Growth,
Opportunities, Aspirations and Learning of Students in college) study
provides some insight. The 2019 GOALS study, which will be released in
the spring, is the study's fourth iteration. It was previously
conducted in 2006, 2010 and 2015. For the 2019 GOALS study, 560 faculty
athletics representatives assisted us in collecting data from more than
22,000 current student-athletes. As part of the 2019 GOALS survey,
student-athletes were asked to consider a ``typical'' weekday on campus
while school was in session during their season and share the number of
hours they spent on a variety of activities, that fall within two
categories of sport commitments: athletic activities (practicing,
training, competing, athletic training room etc.) and non-athletic
activities (meetings with coaches, team functions, film study, etc.).
Student-athletes were also asked to consider a typical weekend on
campus during their season and share the number of hours spent on the
same types of activities. Based on the responses received, current
college student-athletes are generally reporting slightly less time
devoted to athletics pursuits when compared to what was reported in
2015. In Division I, the median time reported as spent on athletics
decreased from 34 hours/week in-season in 2015 to 33 hours/week in
2019. Division II student-athletes reported a decline from 32 hours/
week to 31 hours/week. And, Division III student-athletes reported a
decline from 28.5 hours/week to 28 hours/week.
Question 3. What actions is the NCAA taking to close the loopholes
in its 20-hour weekly practice limitation?
Answer. Student-athlete time demands is a topic all three NCAA
divisions recognize as an important component of student-athlete well-
being and have taken several steps to address concerns in this area.
Beginning with the 2017-18 academic year, schools in Division I
autonomy conferences adopted legislation requiring them to create a
student-athlete annual time management plan for each varsity sport in
which the Association sponsors a championship or that is an emerging
sport for women. The plan must, at a minimum, include policies to
ensure (1) student-athletes are provided adequate notice of all
countable athletically related activities and other required
athletically related activities; (2) schedules for all countable
athletically related activities and other required athletically related
activities are developed through a collaborative process involving
student-athletes, coaches and senior athletics department staff members
and (3) student-athletes are provided adequate notice of changes to a
previously established schedule for countable athletically related
activities and other required athletically related activities. The plan
is required to be reviewed annually by the school's director of
athletics, faculty athletics representative, the sport's head coach and
at least one student-athlete representative. If a sports program acts
in a manner that clearly demonstrates a disregard for the school's
stated policies, the institution can be held accountable through the
NCAA infractions process. The NCAA Division I Council recommended that
all Division I schools create a student-athlete time management plan as
a best practice.
In addition to the student-athlete time management plans, other
autonomy conference legislation that took effect for the 2017-18
academic year prohibits student-athletes from participating in required
athletically related activities other than competition for a continuous
eight-hour period between 9 p.m. and 6 a.m.; prohibits a travel day
from being considered as a day off; prohibits required athletically
related activities for a seven-day period beginning the day after a
student-athlete's or team's last contest of the championship segment;
and requires an institution to provide each student-athlete with 14
additional days off during the playing season or outside the playing
and practice season when classes are in session.
The GOALS study continues to provide valuable information for our
membership as they continue to consider the time demands faced by
student-athletes. The governance structure in each division is well-
positioned to act on future recommendations in this area from our
student-athletes and athletics administrators.
In 2018, the NCAA implemented new rules to allow basketball players
to sign with agents, but those rule changes did not apply to women.
When asked about this rule during the hearing, you acknowledged that
the purpose of the rule is to ``allow athletes in men's basketball to
have representation when they go into a draft conversation with
professional sports ranks'' and that it is working successfully. It is
highly unfair that women basketball players are not being treated the
same as men.
Question 1. When will the NCAA modify its representation bylaws to
allow women basketball players the same access to agents as their male
counterparts?
Question 2. Why does the NCAA not allow other college athletes,
such as football and soccer players, to have access to agent
representation?
Answer. In response to the September 2017 announcement of a Federal
investigation into fraud in college basketball, the NCAA formed an
independent Commission to examine critical aspects of Division I men's
basketball. The Commission, chaired by Dr. Condoleezza Rice, developed
a range of recommendations to improve the environment for prospective
and current student-athletes and member schools. Among the legislative,
policy and structural changes put forth by the Commission was a
recommendation that men's basketball student-athletes be allowed to
contract with NCAA-certified agents without jeopardizing their
eligibility. The Commission found that due to the NBA's draft
eligibility rules, many students were considering whether to declare
for the draft during the early stages of their collegiate athletic
experience. Allowing Division I men's basketball student-athletes to
contract with an agent would enhance their access to beneficial
information to better assess their professional prospects. This
recommendation was unanimously endorsed by the NCAA Board of Governors,
approved by the Division I Board of Directors and took effect August
2018.
While this rule currently applies to only Division I men's
basketball student athletes, NCAA member schools continue to discuss
whether Division I women's basketball student-athletes and student-
athletes competing in other sports should be afforded the same
opportunity. As these discussions continue, member schools will examine
whether the issues that led to changes in men's basketball also exist
in other sports. This includes examining whether earlier agent
involvement would be beneficial based on factors such as the draft
eligibility rules that are created by the professional leagues and
their respective players associations. For example, to be eligible for
the NBA draft, a player must be at least 19 years old during the
calendar year in which the draft is held and at least one NBA season
must have elapsed since the player's graduation from high school. In
contrast, to be eligible for the WNBA draft, a player must be at least
22 years old and have no remaining NCAA eligibility or have renounced
remaining eligibility.
______
Response to Written Questions Submitted by Hon. Jerry Moran to
Douglas A. Girod, M.D.
Question 1. In the case that NIL payments were permitted to be
paid, what are appropriate or necessary protections for our student
athletes?
Answer. This is an important question and gets to the heart of the
matter. As we work to develop an NIL framework in the months ahead, our
guiding priority must be to do what is in the best interest of student-
athletes and their families. This includes protecting them from
external influencers and agents who may not be acting in the student's
best interests.
Question 1a. Is it possible these payments open our student
athletes up to wider predatory circumstances?
Answer. Yes, this is a real possibility if an NIL model is not
properly constructed. That is why it is important that we get it right.
Question 2. While California's Fair Pay for Play Act does not
authorize payment by the educational institution to student athletes,
there are examples of other state legislation that do. The New York
Collegiate Athletic Participation Compensation Act would require a
percentage of revenue from tickets sales be distributed among the
student athletes. Do you believe athletes should receive compensation
in any form from the institution or its athletic department?
Answer. First, this question highlights the reality that a
patchwork of different state laws is not workable. This is why
President Emmert and other witnesses asked the subcommittee to consider
national legislation to create an even playing field and unified
standards upon which to build a new NIL framework. While there are many
plausible NIL frameworks in which student-athletes could profit, we do
not support any model that creates an employment relationship wherein a
student-athlete would receive compensation from the institution or its
athletic department. This type of arrangement could have serious
consequences that would effectively end the collegiate athletic model,
as we know it.
Question 3. If Congress decided to pursue Federal legislation
regarding NIL payments to student athletes, a critically important
component of such legislation would be determining what types of
arrangements, activities, and agreements would be eligible for the
categorical definition of an NIL payment. Do you have suggestions for
this subcommittee as it relates to defining the NIL in statute? a. What
types of commercial arrangements, activities or agreements should this
subcommittee remain wary of?
Answer. There is no concise answer to this question. The reality
is, there are many plausible NIL frameworks for our community to
consider in the months ahead, and each framework would present its own
unique opportunities and challenges, requiring unique policies and
procedures. As you will recall from testimony, both the Big 12
Conference and the NCAA have initiated working groups to consider this,
and these processes are ongoing.
Question 4. According to the 2018 financial data collected by USA
Today, there were only 12 athletic departments in the country that did
not receive any support from its own institution or the state in which
it is located. Furthermore, approximately 90 percent of athletic
departments received over $1 million in support, and for nearly 80
percent of departments, this support accounted for more than a quarter
of their revenue. For instance, 91 percent of the revenue for the
University of California Riverside came from outside the athletic
department, and James Madison University athletics received $41.7
million in assistance. This demonstrates that the vast majority of
athletic departments rely upon funding resources outside of the
department. How will legislation like that of California affect the
operation of athletic departments? a. What types of commercial
arrangements, activities or agreements should this subcommittee remain
wary of?
Answer. Nationally there is tremendous variability in the financial
arrangements between universities and their athletic departments.
Therefore, I am unable to provide a succinct answer to this question.
As I testified, Kansas Athletics is a self-sufficient entity that
receives about 1 percent of its operating budget from the university,
and this amount is only provided to comply with Kansas Board of Regents
policy related to institutional control. However, your question
highlights the key point that I addressed in my testimony: ``The
actions we take on NIL have the potential to transcend athletics and
impact every aspect of our university mission--from education, to
service, to research. For better or worse, a major athletics department
at a university like KU is inextricably linked with the entire
university model and everything we do. For example, athletics is
important to student recruitment, especially for Midwestern
universities that rely on out-of-state student enrollment. Athletics is
crucial to our engagement with donors, whose support is essential to
our most important academic and research initiatives. In addition,
athletics enhances our work to improve access to education and campus
diversity by enrolling students from diverse backgrounds. Again, the
decisions we make on Name, Image and Likeness have implications that
extend beyond the athletic playing field and into virtually every
aspect of what we do as universities.
Question 5. Since Kansas is not one of the states to have
legislation currently introduced or enacted, how could the unintended
consequences of enacted laws that allow for NIL payments in other
states impact the student-athlete recruiting outcomes at the University
of Kansas?
Answer. First, it should be noted that Kansas lawmakers did
introduce NIL legislation earlier this year. However, this question is
a good one and highlights the reality that a patchwork of different
state laws is not a workable solution because it will put some states
(and their universities) at an advantage or disadvantage relative to
their national peers. This is precisely why President Emmert and other
witnesses asked the subcommittee to consider national legislation to
create an even playing field and unified standards upon which to build
a new NIL framework.
Question 6. What role do you foresee Sports Agents playing in
college athletics after the State laws begin taking effect?''
Answer. While the collegiate model has, for the most part,
insulated itself from the influence of sports agents, we believe that
they will become a necessity should many of the proposed state laws
take effect. We anticipate that most student athletes lack the
expertise and time to negotiate NIL deals with third parties, and as
such will need agents/lawyers to protect their interests. This will
likely necessitate the licensing/certification and oversight of sports
agents both by States and by the NCAA. Additionally, it should be noted
that under current proposed state legislation, it is possible that many
prospective Student Athletes (specifically blue-chip/5-star prospects)
will already have NIL agreements and agents prior to the recruitment
process.
Again, thank you for the opportunity to testify before the Senate
Committee on Commerce, Science, and Transportation's Subcommittee on
Manufacturing, Trade and Consumer Protection. If you should have any
additional questions or need further clarification, please do not
hesitate to contact me.
______
Response to Written Questions Submitted by Hon. Jerry Moran to
Ramogi Huma
Question 1. The recently enacted Fair Pay to Play Act in California
allows college athletes to hire agents and other representatives to
assist them in negotiating and securing commercial NIL opportunities.
Do you foresee any unintended consequences arising from allowing agents
to represent student athletes?
Question 1a. Are there ways to thoughtfully allow for agent
representation of student athletes with certain protections to prevent
bad actors from taking advantage of student athletes?
Answer to 1. According to the Uniform Law Commission, 42 states
have adopted legislation regulating sports agents. Many of the same
states are pursuing legislation to allow college athletes the ability
to secure sports agents and other representation, and the ability to
earn NIL compensation. This demonstrates states' interest and
capability to address anything they would view as an unintended
consequence. Given these facts, I do not anticipate unintended
consequences that the states cannot address.
Also, I'd like to clarify that the California Fair Pay to Play Act
does not limit athlete representation to NIL opportunities. The law
places no limit at all on areas in which college athletes' interest may
be advanced by their representatives. This is a positive aspect of the
state legislation that should be protected.
Answer to 1a. I believe proposals to protect college athletes from
bad actors can include ensuring that college athletes know whether or
not an agent meets any required legal standards to serve as an athlete
agent; have access to a recent background check for a prospective agent
and their own agent; have easy and timely access to information about
claims made against an active agent related to college athlete
representation (and the outcomes of such claims); and each agent should
have a clear understanding about what will and will not jeopardize
college athletes' intercollegiate athletics eligibility.
In addition, prohibiting college personnel, colleges, athletic
conferences, athletic associations, and their business partners from
certifying agents, arranging player representation, or representing
players themselves is a very important provision to protect college
athletes. They currently impose and/or adhere to a prohibition on
college athlete representation, and capitalize financially from it.
These organizations have been bad actors in this area by any reasonable
measure. This protection would also ensure that college athletes'
representation does not have a conflict of interest.
Question 2. While California's Fair Pay for Play Act does not
authorize payment by the educational institution to student athletes,
there are examples of other state legislation that do. The New York
Collegiate Athletic Participation Compensation Act would require a
percentage of revenue from tickets sales be distributed among the
student athletes. Do you believe athletes should receive compensation
in any form from the institution or its athletic department?
Answer. I appreciate this question, and I have had time to consider
the thoughtful question you posed to me during the hearing regarding
whether or not NIL freedom would satisfy the economic equity piece of
college sports reform. The answer to this question requires a broader
look at important areas that affect college athletes' finances, and
parallels to other multibillion-dollar commercial sports leagues.
In the hearing, members of the Subcommittee raised concerns about
the ability of colleges to end college athletes' athletic scholarship
opportunities due to permanent injury; the prevention of injuries and
abuse, which play a role in the 66 percent injury rate among current
players and 50 percent chronic injury rate among former players; and
the lack of due process and fairness in NCAA investigations that can
end a college athlete's educational opportunity and compromise their
athletic future. In addition, whether or not a college athlete has a
fair and realistic opportunity to complete his or her degree--and in
their major of choice, has a profound economic impact on that player's
finances. College sports is a $14 billion enterprise that enjoys tax
free money because of its educational mission. The truth is that little
of that revenue is used to foster an environment whereby college
athletes, especially those on football, basketball, and baseball
rosters, can complete a quality education. In addition to Part 1 of
Senator Chris Murphy's ``Madness, Inc.'' report on NCAA sports
economics that I submitted as part of my original written testimony, I
am including his second report regarding academics in NCAA sports as
part of my response to this question.
The NCAA's limit on the amount and types of compensation colleges
can provide directly to players have been ruled in violation of Federal
antitrust laws in both O'Bannon v. NCAA and Alston v. NCAA, which is
currently under appeal in the 9th Circuit. I served as an advisor in
each of these lawsuits. In O'Bannon v. NCAA, the court found that the
NCAA unreasonably prevented colleges from allowing compensation that
covers the full cost of attendance as part of a full athletic grant-in-
aid scholarship. As a result, college athletes now receive direct
payments in the form of stipends worth several thousands of dollars per
year. In Alston v. NCAA, the court found that NCAA bans on numerous
forms of compensation, such as travel abroad expenses, are illegal. The
illegal NCAA price-fixing of college athlete compensation has had a
disastrous economic consequence for college athletes.
In 2013, the NCPA and the Drexel University Sports Management
Program published a joint study finding that the fair market value of
college football and men's basketball players in the FBS Division was
$137,357 and $289,031, respectively; the value of an average full
athletic scholarship at an FBS college was $23,204 per year, and over
80 percent of college athletes receiving a full scholarship lived below
the Federal poverty line. Collectively, the study found that NCAA
price-fixing denied college athletes $6.2 billion between 2011-2015.
This glaring disparity is at the core of why state lawmakers from
both parties and approximately 66 percent of the public support
allowing college athletes to earn compensation from their NIL rights.
It's worth noting that 52 percent of the public supports college
athletes receiving a portion of the lucrative media rights generated by
their talents and sacrifice.
At the time of this submission, Florida HB 7051 introduced by
Florida State Representative Chip LaMarca, is expected to soon receive
a House floor vote. HB 7051 would not only guarantee Florida college
athletes the freedom to secure representation and NIL compensation, it
would require Florida colleges to pay for players' sports-related
medical expenses, medical insurance premiums for uninsured or
underinsured college athletes, and scholarships and disability benefits
for permanently injured players. Representative LaMarca and Florida
lawmakers deserve much praise for seeking these additional player
protections, protections that are forms of direct compensation from
colleges to their athletes. At times, colleges nationwide opt to
provide such forms of direct compensation.
Similarly, the NCPA sponsored a California bill signed into law in
2012 requiring colleges receiving at least $10 million per year in
media rights revenue to pay for medical premiums for low-income college
athletes and out-of-pocket sports-related medical expenses for all
athletes for up to two years after the expiration of their
intercollegiate athletics ability. Colleges have had the options to
provide these forms of compensation since the White v. NCAA class
action lawsuit settlement in 2008, and the U.S. Department of Justice
antitrust investigation on the NCAA's 1-year scholarship limit led to
the NCAA's approval of allowing multiyear scholarships in 2012. Prior
to these developments, the NCAA prohibited colleges from providing
comprehensive medical coverage, sports-related medical expenses during
summer workouts, and guaranteed scholarship continuation for
permanently injured college athletes.
State legislation that allows or requires additional direct
compensation from colleges to their athletes, such as the proposed New
York legislation that would give college athletes a portion of ticket
sale revenue, are positive and I support it. I also believe that states
have a right to address college athlete compensation in a manner that
they deem appropriate. Such provisions can be an avenue to help resolve
the economic inequity NCAA rules impose on college athletes.
The focus of the Subcommittee hearing and almost all of the adopted
and proposed state legislation nationwide has been on a 3rd party
compensation model. I believe it is possible to implement a 3rd party
compensation model that is the core of a financially equitable
arrangement for college athletes, even if revenue streams such as
ticket revenue are included. For instance, ticket transactions can be
conducted by a 3rd party which, in turn, could distribute revenue to
colleges and college athletes/college athlete representatives
separately. It would be similar to how EA Sports, a 3rd party,
distributes revenue separately to the NFL and the NFL Players' group
licensing entity.
When considering college athletes receiving other forms of revenue
such as ticket sales, it is important to address the false NCAA
narrative that such compensation would require colleges to cut
nonrevenue sports. If significant commercial/ticket revenue is required
for colleges to field nonrevenue sports, then NCAA Division II and III
would not exist. The NAIA would not exist. All of the sports in these
divisions are nonrevenue, yet they field teams with hundreds of
thousands of athletes without any significant commercial revenue and at
a fraction of the cost.
Economic equity for college athletes is inextricably tied to not
only college athlete NIL freedoms and a significant portion of
commercial revenue that their talents generate, but it is tied to their
freedom from medical expenses, freedom from preventable sports-related
injury and abuse, freedom from serious obstacles that impede degree
completion, freedom to transfer once without punishment in pursuit of
better academic and athletic opportunities, freedom from unfair
athletic association investigations that can harm their economic
stability and future, and freedom from illegal, cartel activity that
stifles their economic opportunities.
Question 3. If Congress decided to pursue Federal legislation
regarding NIL payments to student athletes, a critically important
component of such legislation would be determining what types of
arrangements, activities, and agreements would be eligible for the
categorical definition of an NIL payment. Do you have suggestions for
this subcommittee as it relates to defining the NIL in statute?
Question 3a. What types of commercial arrangements, activities or
agreements should this subcommittee remain wary of?
Answer to 3. I suggest that, if Congress pursues Federal
legislation, it should state that any payment to a college athlete for
use of his or her name, image, likeness, or received because of his or
her athletics reputation is protected with the following exceptions:
I. NIL payment offers and arrangements used as inducements to lure
high school recruits or college transfers to a particular
college.
II. NIL deals arranged by colleges. This would be similar to other
league's prohibitions on teams luring free agents with pre-
arranged 3rd party NIL deals in addition to a salary as a way
to circumvent salary caps.
III. Predatory NIL loans. Perhaps legislation could exclude any loan
issued to a college athlete conditioned upon the use of the
college athlete's NIL that has a prime interest rate and lender
spread that exceed the United States Small Business
Administration's Loan limits.
IV. *Possibly. . .NIL arrangements with select industries, entities,
and products as discussed in 3a. below.
As I stated in my written and oral testimony on 2/11/2020, NIL
arrangements with boosters, alumni, and college sponsors should not be
banned in the name of competitive equity because competitive equity
does not exist in college sports. These same sources already give
athletic programs money that is used to recruit the best recruits, win
the most games, and generate the biggest TV deals that allow rich
athletic programs to continue their dominance. In their most recent
report to the Department of Education, Ohio State reported $203 million
dollars in athletic revenue while Florida Atlantic reported only $28
million in athletic revenue. They are both in the FBS Division. How can
anyone suggest that these two colleges compete on an equal playing
field? How can colleges, conferences, and the NCAA justify denying
college athletes economic freedoms in the name of competitive equity
when this severe disparity among colleges exists and is held up as the
system that should be preserved? Colleges, conferences, and the NCAA
have not moved to address these inequities--they haven't banned booster
payments to colleges and they don't share athletics revenue equally in
the name of competitive equity. In addition, other leagues do not ban
3rd party NIL deals with fan clubs and those leagues operate very well.
Any Federal legislation should not sacrifice college athletes'
freedom so that the NCAA and its colleges can pretend that competitive
equity exists. Additionally, roster and scholarship limits keep the
inequity from getting worse. There is a finite number of recruits each
year and the top recruits already flow to the Power 5 Conferences. If
legislation inadvertently changes recruiting migrations to where some
of the top recruits begin to flow away from some of the Power 5
Conferences, it would actually increase competitive equity compared to
where it is today. Also, Federal legislation should not exclude the
group licensing market as described in my answer to Senator Fischer
question 1.a. below.
Answer to 3a. In my communication with various states pursuing
similar legislation, I've heard concerns about whether or not college
athletes should be restricted from NIL opportunities in certain
industries. Most have stayed away from excluding select industries
because it may unjustly reduce players' NIL freedoms and lead to
conflicts in political ideology that may undermine proposed NIL
legislation that otherwise enjoys bipartisan support. This may be a
correct assessment, but I do not think the risk should stifle
discussion in this area.
The exclusion of some industries and products may have bipartisan
support. For instance, there may be bipartisan support to exclude
college athlete NIL opportunities in the adult entertainment industry.
There may also be bipartisan support to exclude NIL deals related to
prescription pain medicine like oxycodone. Exclusions that have been
discussed by state legislators that may be more controversial include
possible prohibitions on college athlete NIL deals with the gun,
tobacco, and marijuana industries.
Additionally, prohibitions on college athletes receiving some
portion of sports gaming revenue would be controversial given players
in the NFL and other sports leagues may soon receive a portion of
revenue generated by legal in-stadium gambling activities, another form
of 3rd party commercial activity that capitalizes off of players'
commercial value. Colleges seeking additional revenue may soon include
such activities in their stadiums, sell players' statistics to gaming
companies, or otherwise benefit financially from gaming entities. The
NCPA remains neutral on sports gaming, but college athletes should not
be excluded from commercial gaming revenue from sources that have
commercial arrangements with their colleges.
Similarly, while a ban on college athlete NIL deals with alcohol
companies may make sense, many would be surprised to learn that a
number of colleges sell alcohol during college football bowl games,
NCAA championships, and on-campus college sports events. Some colleges
even have direct sponsorships with alcohol companies and allow them to
place university logos on alcohol products. In short, it may be
unjustifiable to impose industry, entity, or product-specific NIL deal
prohibitions on college athletes if the same prohibitions are not
placed on deals with colleges, athletic conferences, and athletic
associations.
The goal for Federal NIL legislation should be to maximize college
athletes' economic freedoms with the least government regulation, and
without giving colleges, conferences, and athletic associations the
discretion to prohibit players' opportunities.
______
Response to Written Questions Submitted by Hon. Deb Fischer to
Ramogi Huma
Question 1. In October 2019, the National College Players
Association announced that it would explore a partnership to market
college athlete group licensing rights to companies, ranging from the
gaming to apparel industries. Would you provide the Subcommittee with
more details of this effort and its status?
Answer. The National College Players Association entered into a
collaboration with ``One Team'', a partnership that includes the NFL
Players Association and the Major League Baseball Players Association,
to ensure college athletes of all sports have experienced and robust
group licensing representation.
One Team represents group licensing rights for all athletes in the
NFL, Major League Baseball, Major League Soccer, the WNBA, the Women's
National Soccer Team, and other professional sports.
Proper group licensing representation is essential for college
athletes. Federal court antitrust rulings in O'Bannon v. NCAA recognize
that a group licensing market for college athletes' NIL rights exists
and declared the following:
NCAA's prohibition on athlete name, image, and likeness
compensation violated Federal antitrust law and deprives
college athletes compensation that they would otherwise
receive.
If the NCAA did not have a prohibition on athlete
compensation for use of their name, image, and likeness,
athletes would be able to create and sell valuable group
licenses;
3rd parties purchase groups of athletes' NIL rights for
commercial purposes including for use in live game telecasts,
sports video games, game rebroadcasts, advertisements, and
other archival footage to ensure they have the legal right to
use groups of athletes' NIL rights.
The NCPA is positioned as a steward in this collaboration and has
since formed an Oversight Board. Over 75 percent of the NCPA Oversight
Board is comprised of former college athletes who are industry experts
and notable college athlete advocates.
Question 2. How do you plan to secure the marketing rights from the
players and universities?
Answer. The NCPA-One Team collaboration does not intend to secure
any university marketing rights and any entity that represents a
university should not represent college athletes. That would be a
conflict of interest that truly should not be allowable.
Securing player's group licensing rights is currently not allowable
under NCAA rules and the California NIL law is not effective until
January 1, 2023. Other states may choose to allow their college
athletes the ability to secure representation prior to that date. While
there are continuous discussions related to this question, I would not
disclose specific details at this early stage in the process. However,
I can assure you and members of the subcommittee that the NCPA would
not consider being involved in any actions that would violate a law.
Question 3. Will all universities and athletes be compensated
similarly from group licensing contracts? Additionally, will the
revenue from these group licensing agreements affect the competitive
parity among Division I athletic conferences?
Answer. To clarify, the use college athletes' group licensing
rights should not be a source of university revenue. For instance, the
NCAA faced an antitrust lawsuit for generating profits not only from
licensing its own properties, but for selling college athletes' NIL
rights in video games created by EA Sports. The court found that
essentially, the NCAA and its colleges were operating as defacto group
licensing representatives of their athletes, but providing their
athletes no compensation. In the face of the lawsuit, the NCAA chose to
terminate the video game instead of allowing the players to receive any
group licensing compensation. This conflict of interest harmed players
economically and underscores why college athletes must have independent
representation--including group licensing representation. The NFL has a
similar video game with EA Sports whereby the NFL Players Association's
licensing company sells NFL players' bundled NIL rights to EA sports
and distributes equal group licensing revenue checks to each NFL
player. It's important to note that equal group licensing distributions
among NFL players does not eliminate individual NFL players' ability to
secure individual NIL deals that are not uniform.
There may be a number of group licensing entities that surface
after the effective dates of state legislation and the likelihood that
all distributions will be similar in that environment is not likely. I
believe some group licensing distributions may be similar from sources
such as a video game featuring players of each school. However, Federal
legislation would likely be necessary if the goal is to ensure that all
athletes within each sport and division are compensated similarly from
all group licensing contracts.
Without Federal legislation requiring similar group licensing
distributions among college athletes in the same sport and Division, I
believe parity among conferences will be similar to parity among
athletic programs as described in the last two paragraphs of my Answer
#3 to Chairman Moran's Question #3 above.
Question 4. What, if any, steps will be taken to ensure a clear
distinction between collegiate athletes and professional athletes in
such potential group licensing agreements, so as not to blur the lines
between the two groups?
Answer. Those who believe that these lines have already been
blurred and those who do not will likely continue to maintain their
beliefs regardless of any group licensing agreement or Federal
legislation. However, college athletes receiving revenue from group
licensing representation provided by colleges or colleges'
representatives NIL brokers (i.e., conferences, athletic associations)
may be additional evidence of college athletes' employee status. That
is a designation that has not yet been clearly established as a matter
of law.
Question 5. Can you assure the Subcommittee that all revenue
generated from these group licensing agreements will flow back to the
athletes and/or the universities, or will some portion of such revenues
be diverted elsewhere?
Answer. Again, college athletes' group licensing revenue should not
be a source of university revenue. Ultimately, the NCPA's goal is to
ensure current college athletes are empowered by the NCPA's Oversight
Board to make informed decisions related to their group licensing
revenue. In addition to direct group licensing player distributions,
college athletes may also want to consider using funds to make sure all
athletes can participate in a financial skills program so that players
can make the most of their NIL earnings, assistance for injured
athletes stuck with sports-related medical expenses, or other
considerations.
However, there could be a number of group licensing entities that
come into existence that structure things much differently.
Additionally, group licensing entails overhead expenses needed to
promote, secure, and execute group NIL arrangements.
______
Response to Written Question Submitted by Hon. Dan Sullivan to
Ramogi Huma
Question. What role do you foresee Sports Agents playing in college
athletics after the State laws begin taking effect?
Answer. I envision sports agents playing a critical role in college
athletics once state laws become effective. Agents can help prevent 3rd
parties from taking advantage of unsuspecting college athletes through
unfair or predatory contracts. Agents can also play the primary role in
proactively pursuing NIL deals for college athletes whose time demands
would otherwise make it more difficult to manage. Additionally, agents
can represent college athletes in disputes with their college or
athletic association. Finally, agents can help some players make
important decisions about whether or not to play with potentially high-
risk injuries and whether or not to enter a professional draft. These
examples are not intended to be an exhaustive list, but they represent
what I see as the central roles that agents will play after state laws
take effect.
Thank you each again for allowing me to answer your questions.
Again, I would like to continue these important discussions with each
of you and the Subcommittee as ideas for Federal legislation progress.
______
Response to Written Question Submitted by Hon. Richard Blumenthal to
Ramogi Huma
Question. Do you agree that an antitrust exemption is necessary or
desirable? Please explain.
Answer. I do not agree. An antitrust exemption is not necessary or
desirable when considering NIL reform. Because the NCAA has been
operating as if it already has an antitrust exemption, its record
clearly demonstrates how it would negatively wield such power. Federal
courts have determined on multiple occasions that the NCAA's
restrictions on interstate commerce have been overly burdensome and has
caused significant financial harm to both college athletes and
colleges.
In the 1984 NCAA v. Board of Regents of Oklahoma lawsuit, the U.S.
Supreme Court ruled that the NCAA's control and restraints on college
football television broadcasts violated Federal antitrust laws. This
lawsuit was triggered when the NCAA threatened an illegal group boycott
against colleges that formed an organization to broker their own TV
deals. The NCAA argued that it's TV limits were beneficial to college
sports because it fostered live attendance. The U.S. Supreme Court
struck down the NCAA's restraints on TV broadcasts, which significantly
advanced the college sports revenues and consumer benefits. Decades
after the Supreme Court's ruling, fans can regularly watch their
favorite college teams either on TV or through streaming services while
college sports revenue has exploded by billions of dollars.
In 2005, former Stanford football player Jason White filed a class-
action antitrust lawsuit against the NCAA for price-fixing full
athletic grant-in-aids below the cost of attendance. Though the lawsuit
was settled with no change in that price-fixing amount, the NCAA
eliminated its limits on colleges paying for comprehensive medical
coverage and out-of-pocket medical expenses.
After a U.S. Department of Justice antitrust investigation into the
NCAA's 1-year athletic scholarship limit, the NCAA relented and began
allowing colleges to provide multiyear athletic scholarships in 2012.
The NCAA could not defend its 1-year limit, which was clearly
unnecessary and harmful to college athletes. In particular, college
athletes suffering permanent injury from their sports were especially
vulnerable. Antitrust scrutiny in this area led to an important
advancement for college athletes.
In 2015, the U.S. Court of Appeals for the 9th Circuit upheld a
ruling in the O'Bannon v. NCAA antitrust lawsuit finding that the
NCAA's rule capping full athletic grant-in-aids below the cost of
attendance violated Federal antitrust law and struck down that limit.
As a result, colleges nationwide can pay their athletes an additional
$2000-$5000 per year to cover expenses deemed educationally necessary.
In 2019, the same district court once again found the NCAA in
violation of Federal antitrust laws for illegally price-fixing
compensation to college athletes. In its remedy, the court struck down
NCAA prohibitions on thousands of dollars of educational-related
athlete compensation that exceeds the cost of attendance. This case is
on appeal in the 9th Circuit.
Also in 2019, California adopted SB 206, the Fair Pay to Play Act,
which will allow college athletes to secure representation and receive
name, image, and likeness compensation beginning in 2023. It is
estimated that 28 other states are pursuing similar legislation, some
of which may become effective as early as July 2020. Such legislation
is receiving overwhelming bipartisan and public support. However, these
laws contradict NCAA rules. If the NCAA had an antitrust exemption, the
states would not have had the option to address this issue.
Finally, on March 2, 2020, the National Association of
Intercollegiate Athletics (NAIA), an intercollegiate athletic
association comprised of more than 250 colleges and 65,000 college
athletes, announced a NIL proposal that mirrors the pillars of SB 206
and virtually all of the other proposed state NIL legislation. The
proposal would allow college athletes to secure representation and
receive NIL compensation. The only condition would be that college
athletes would have to report such agreements to their athletic
director in a timely manner. This is significant. This proposal
undercuts the NCAA's notion that the ``Collegiate Model'' must impose
overbearing restrictions and exclude various economic freedoms that the
states are pursuing. Additionally, the NAIA embodies what the NCAA
touts as the core of The Collegiate Model--athletes playing for the
love of the game and prioritizing education. This proposal offers proof
that athlete compensation and freedom can be compatible with these
aspects of college sports. Whether or not this proposal survives the
NAIA's vote (expected to take place on April 1), it is a strong example
of a collegiate model that Congress should support.
It would not be fair or reasonable for Congress to give a badge to
the NCAA (which has regularly violated Federal law) in hopes of
bringing justice to the college athletes who are economically harmed by
the NCAA's illegal price-fixing. The NCAA must be subject to the law,
not above it.
Alternatively, Congress can address certain restraints on trade
directly through legislation. For instance, Congress can prevent NIL
agreements from being used as inducements to lure high school recruits
and college transfers to a particular college. It can ensure that
colleges do not directly arrange NIL deals for their athletes. Congress
doesn't need to give the NCAA an antitrust exemption to accomplish
these things.
______
Response to Written Question Submitted by Hon. Amy Klobuchar to
Ramogi Huma
Question. In your view, what are the most important factors to
consider in assessing proposals that would enable college athletes to
receive this type of compensation?
Answer. I believe that the core tenants of economic freedoms being
pursued by the states should be upheld. They include allowing college
athletes the freedom to secure representation and earn NIL
compensation.
Representation
Proposals to protect college athletes from bad actors can include
ensuring that college athletes know whether or not an agent meets any
required legal standards to serve as an athlete agent; have access to a
recent background check for a prospective agent and their own agent;
have easy and timely access to information about claims made against an
active agent related to college athlete representation (and the
outcomes of such claims); and each agent should have a clear
understanding about what will and will not jeopardize college athletes'
intercollegiate athletics eligibility.
In addition, prohibiting college personnel, colleges, athletic
conferences, athletic associations, and their business partners from
certifying agents, arranging player representation, or representing
players themselves is a very important provision to protect college
athletes. They currently impose and/or adhere to a prohibition on
college athlete representation, and capitalize financially from it.
These organizations have been bad actors in this area by any reasonable
measure. This protection would also ensure that college athletes'
representation does not have a conflict of interest.
According to the Uniform Law Commission, 42 states have adopted
legislation regulating sports agents. Many of the same states are
pursuing legislation to allow college athletes the ability to secure
sports agents and other representation, and the ability to earn NIL
compensation. This demonstrates states' interest and capability to
certify athlete agents.
NIL Compensation
I suggest that, if Congress pursues Federal legislation, it should
state that any payment to a college athlete for use of his or her name,
image, likeness, or received because of his or her athletics reputation
is protected with the following exceptions:
I. NIL payment offers and arrangements used as inducements to lure
high school recruits or college transfers to a particular
college.
II. NIL deals arranged by colleges. This would be similar to other
league's prohibitions on teams luring free agents with pre-
arranged 3rd party NIL deals in addition to a salary as a way
to circumvent salary caps.
III. Predatory NIL loans. Perhaps legislation could exclude any loan
issued to a college athlete conditioned upon the use of the
college athlete's NIL that has a prime interest rate and lender
spread that exceed the United States Small Business
Administration's Loan limits.
IV. *Possibly . . . NIL arrangements with select industries,
entities, and products as discussed below . . .
In my communication with various states pursuing similar
legislation, I've heard concerns about whether or not college athletes
should be restricted from NIL opportunities in certain industries. Most
have stayed away from excluding select industries because it may
unjustly reduce players' NIL freedoms and lead to conflicts in
political ideology that may undermine proposed NIL legislation that
otherwise enjoys bipartisan support. This may be a correct assessment,
but I do not think the risk should stifle discussion in this area.
The exclusion of some industries and products may have bipartisan
support. For instance, there may be bipartisan support to exclude
college athlete NIL opportunities in the adult entertainment industry.
There may also be bipartisan support to exclude NIL deals related to
prescription pain medicine like oxycodone. Exclusions that have been
discussed by state legislators that may be more controversial include
possible prohibitions on college athlete NIL deals with the gun,
tobacco, and marijuana industries.
Additionally, prohibitions on college athletes receiving some
portion of sports gaming revenue would be controversial given players
in the NFL and other sports leagues may soon receive a portion of
revenue generated by legal in-stadium gambling activities, another form
of 3rd party commercial activity that capitalizes off of players'
commercial value. Colleges seeking additional revenue may soon include
such activities in their stadiums, sell players' statistics to gaming
companies, or otherwise benefit financially from gaming entities. The
NCPA remains neutral on sports gaming, but college athletes should not
be excluded from commercial gaming revenue from sources that have
commercial arrangements with their colleges.
Similarly, while a ban on college athlete NIL deals with alcohol
companies may make sense, many would be surprised to learn that a
number of colleges sell alcohol during college football bowl games,
NCAA championships, and on-campus college sports events. Some colleges
even have direct sponsorships with alcohol companies and allow them to
place university logos on alcohol products. In short, it may be
unjustifiable to impose industry, entity, or product-specific NIL deal
prohibitions on college athletes if the same prohibitions are not
placed on deals with colleges, athletic conferences, and athletic
associations.
Ignore the Competitive Equity Myth
As I stated in my written and oral testimony on 2/11/2020, NIL
arrangements with boosters, alumni, and college sponsors should not be
banned in the name of competitive equity because competitive equity
does not exist in college sports. These same sources already give
athletic programs money that is used to recruit the best recruits, win
the most games, and generate the biggest TV deals that allow rich
athletic programs to continue their dominance. In their most recent
report to the Department of Education, Ohio State reported $203 million
dollars in athletic revenue while Florida Atlantic reported only $28
million in athletic revenue. They are both in the FBS Division. How can
anyone suggest that these two colleges compete on an equal playing
field? How can colleges, conferences, and the NCAA justify denying
college athletes economic freedoms in the name of competitive equity
when this severe disparity among colleges exists and is held up as the
system that should be preserved? Colleges, conferences, and the NCAA
have not moved to address these inequities--they haven't banned booster
payments to colleges and they don't share athletics revenue equally in
the name of competitive equity. In addition, other leagues do not ban
3rd party NIL deals with fan clubs and those leagues operate very well.
Any Federal legislation should not sacrifice college athletes'
freedom so that the NCAA and its colleges can pretend that competitive
equity exists. Additionally, roster and scholarship limits keep the
inequity from getting worse. There is a finite number of recruits each
year and the top recruits already flow to the Power 5 Conferences. If
legislation inadvertently changes recruiting migrations to where some
of the top recruits begin to flow away from some of the Power 5
Conferences, it would actually increase competitive equity compared to
where it is today.
Group Licensing
Federal legislation should not exclude the existing college athlete
group licensing market which, according to Federal court rulings,
includes but is not limited to video games, live television broadcasts,
archival footage, and advertisements. I believe some group licensing
distributions to college athletes from different teams would be similar
from sources such as a video game that features players of each school.
If the goal is to ensure that all athletes within each sport and
division are compensated similarly from all group licensing contracts,
Federal legislation would likely be necessary.
Economic Equity
In the hearing on February 11, 2020, Chairman Moran asked me
whether or not college athlete NIL freedom would satisfy the economic
equity piece of college sports reform. The answer to this question
requires a broader look at important areas that affect college
athletes' finances, and parallels to other multibillion-dollar
commercial sports leagues.
In the hearing, members of the Subcommittee raised concerns about
the ability of colleges to end college athletes' athletic scholarship
opportunities due to permanent injury; the prevention of injuries and
abuse, which play a role in the 66 percent injury rate among current
players and 50 percent chronic injury rate among former players; and
the lack of due process and fairness in NCAA investigations that can
end a college athlete's educational opportunity and compromise their
athletic future. In addition, whether or not a college athlete has a
fair and realistic opportunity to complete his or her degree--and in
their major of choice, has a profound economic impact on that player's
finances. College sports is a $14 billion enterprise that enjoys tax
free money because of its educational mission. The truth is that little
of that revenue is used to foster an environment whereby college
athletes, especially those on football, basketball, and baseball
rosters, can complete a quality education.
State legislation that allows or requires additional direct
compensation from colleges to their athletes, such as the proposed New
York legislation that would give college athletes a portion of ticket
sale revenue, can also help bring forth economic equity.
The focus of the Subcommittee hearing and almost all of the adopted
and proposed state legislation nationwide has been on a 3rd party
compensation model. I believe it is possible to implement a 3rd party
compensation model that is the core of a financially equitable
arrangement for college athletes, even if revenue streams such as
ticket revenue are included. For instance, ticket transactions can be
conducted by a 3rd party which, in turn, could distribute revenue to
colleges and college athletes/college athlete representatives
separately. It would be similar to how EA Sports, a 3rd party videogame
maker, distributes revenue from its NFL video game separately to the
NFL and the NFL Players Association's group licensing entity.
When considering college athletes receiving other forms of revenue
such as ticket sales, it is important to address the false NCAA
narrative that such compensation would require colleges to cut
nonrevenue sports. If significant commercial/ticket revenue is required
for colleges to field nonrevenue sports, then NCAA Division II and III
would not exist. The NAIA would not exist. All of the sports in these
divisions are nonrevenue, yet they field teams with hundreds of
thousands of athletes without any significant commercial revenue and at
a fraction of the cost.
Economic equity for college athletes is inextricably tied to not
only college athlete NIL freedoms and a significant portion of
commercial revenue that their talents generate, but it is tied to their
freedom from medical expenses, freedom from preventable sports-related
injury and abuse, freedom from serious obstacles that impede degree
completion, freedom to transfer once without punishment in pursuit of
better academic and athletic opportunities, freedom from unfair
athletic association investigations that can harm their economic
stability and future, and freedom from illegal, cartel activity that
stifles their economic opportunities.
Thank you both again for allowing me to answer your questions.
Again, I would like to continue these important discussions with each
of you and the Subcommittee as ideas for Federal legislation progress.
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