[Senate Hearing 116-591]
[From the U.S. Government Publishing Office]





                                                        S. Hrg. 116-591
 
                  EXPLORING A COMPENSATION FRAMEWORK 
                      FOR INTERCOLLEGIATE ATHLETES

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                     ONE HUNDRED SIXTEENTH CONGRESS

                             SECOND SESSION

                               __________

                              JULY 1, 2020

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation
                             
                             
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             U.S. GOVERNMENT PUBLISHING OFFICE 
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       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
                       John Keast, Staff Director
                  Crystal Tully, Deputy Staff Director
                      Steven Wall, General Counsel
                 Kim Lipsky, Democratic Staff Director
              Chris Day, Democratic Deputy Staff Director
                      Renae Black, Senior Counsel
                      
                            C O N T E N T S

                              ----------                              
                                                                   Page
Hearing held on July 1, 2020.....................................     1
Statement of Senator Wicker......................................     1
Statement of Senator Cantwell....................................     3
Statement of Senator Thune.......................................    34
Statement of Senator Tester......................................    37
Statement of Senator Cruz........................................    40
Statement of Senator Rosen.......................................    41
Statement of Senator Moran.......................................    43
Statement of Senator Blackburn...................................    45
Statement of Senator Blumenthal..................................    47
    Sports waiver for Ohio State.................................    60
    Sports waiver for SMU........................................    62
Statement of Senator Capito......................................    48
Statement of Senator Sullivan....................................    51
Statement of Senator Scott.......................................    53

                               Witnesses

Keith Carter, Vice Chancellor for Intercollegiate Athletics, 
  University of Mississippi......................................     5
    Prepared statement...........................................     7
Dr. Michael Drake, Chairman, National Collegiate Athletic 
  Association, Board of Governors................................    11
    Prepared statement...........................................    12
Dionne Koller, Law Professor, University of Baltimore............    15
    Prepared statement...........................................    17
Greg Sankey, Commissioner, Southeastern Conference...............    22
    Prepared statement...........................................    24
Eric J. Winston, Chief Partnerships Officer, OneTeam Partners; 
  former President, NFL Players Association (2014-20); former NFL 
  Athlete (2006-17); former University of Miami football player 
  (2002-06)......................................................    26
    Prepared statement...........................................    27

                                Appendix

Response to written questions submitted to Keith Carter by:
    Hon. Roger Wicker............................................    67
    Hon. Maria Cantwell..........................................    68
    Hon. Kyrsten Sinema..........................................    70
Response to written questions submitted to Dr. Michael Drake by:
    Hon. Roger Wicker............................................    71
    Hon. Maria Cantwell..........................................    72
    Hon. Jon Tester..............................................    74
    Hon. Kyrsten Sinema..........................................    75
Response to written questions submitted to Dionne Koller by:
    Hon. Roger Wicker............................................    76
    Hon. Maria Cantwell..........................................    78
    Hon. Amy Klobuchar...........................................    80
    Hon. Jon Tester..............................................    80
    Hon. Kyrsten Sinema..........................................    81
Response to written questions submitted to Greg Sankey by:
    Hon. Roger Wicker............................................    82
    Hon. Maria Cantwell..........................................    83
    Hon. Kyrsten Sinema..........................................    85
Response to written questions submitted to Eric J. Winston by:
    Hon. Maria Cantwell..........................................    86
    Hon. Amy Klobuchar...........................................    88
    Hon. Kyrsten Sinema..........................................    88


    EXPLORING A COMPENSATION FRAMEWORK FOR INTERCOLLEGIATE ATHLETES

                              ----------                              


                        WEDNESDAY, JULY 1, 2020

                                       U.S. Senate,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:08 a.m., in 
room SR-253, Russell Senate Office Building, Hon. Roger Wicker, 
Chairman of the Committee, presiding.
    Present: Senators Wicker [presiding], Thune, Cruz, Fischer, 
Moran, Sullivan, Gardner, Blackburn, Capito, Young, Scott, 
Cantwell, Blumenthal, Peters, Tester, Sinema, and Rosen.

            OPENING STATEMENT OF HON. ROGER WICKER, 
                 U.S. SENATOR FROM MISSISSIPPI

    The Chairman. All right, thank you very much. And this 
hearing will come to order.
    Today, the Committee convenes to discuss the issue of 
compensating student athletes for the use of their name, image, 
and likeness, NIL.
    I welcome our distinguished panel of witnesses, and thank 
them for appearing. Today, we will hear from Mr. Keith Carter, 
Vice Chancellor for Intercollegiate Athletics for The 
University of Mississippi, my alma mater, where I lettered in 
zero sports; Mr. Michael Drake, Chair of the National 
Collegiate Athletic Association, Board of Governors, and 
President Emeritus of The Ohio State University; Ms. Dionne 
Koller, Professor of Law and Director of the Center for Sport 
and the Law at the University of Baltimore School of Law; Mr. 
Greg Sankey, Commissioner of the Southeastern Conference; and 
Mr. Eric Winston, Chief Partnerships Officer for OneTeam 
Partners, former President of the NFL Players Association, and 
former NFL player and college athlete. College sports are a 
rich part of the fabric of America's families, communities, and 
states. College sports have long been deeply rooted in our 
culture. This is true in my home state of Mississippi, where 
there are over 30 institutions of higher learning that offer 
college athletic programs.
    Like a lot of places across the United States, college 
sports is never far from the minds and--or memories of 
Mississippians. Reliving and recounting the results of past 
contests is a common occurrence. For example, Ole Miss fans 
still talk about Senquez Golson's game-winning interception in 
the end zone to help Ole Miss knock off top-ranked Alabama in 
2014. I was there. I remember where I was sitting in Vaught-
Hemingway Stadium at the time. And it's still thrilling to 
recall Morgan William's overtime jumper to help the Mississippi 
State Lady Bulldogs end UConn's 111-game winning streak in 
2017. We just needed one more win.
    College sports contribute so much more than triumphant or 
heartbreaking memories. Sports help ingrain in our student 
athletes the values of fair play, sportsmanship, and teamwork. 
Sports have helped lead societal change, and they continue to 
help unite the country. College sports also offer valuable 
academic opportunities for students who might otherwise have 
none. With these things in mind, I approach the topic of 
today's hearing with an abundance of caution and reluctance, 
even skepticism and trepidation. On this issue, Congress might 
well heed the time-honored Hippocratic Oath, ``First do no 
harm.'' As the Committee of jurisdiction over youth, amateur, 
collegiate, and professional sports, this committee seeks 
expert advice today as we decide which direction we begin to 
take for congressional action on the issue of NIL compensation 
in college sports.
    More than 30 states have adopted, introduced, or signaled 
plans to introduce legislation allowing for student athletes to 
be compensated for the use of their NIL. I believe my 
colleagues recognize the need to avoid differences among the 
states by having a uniform set of standards by which our 
collegiate student athletes compete, a set of uniform standards 
that will strive for a level playing field. At the same time, 
we must recognize that any standards for the compensation of 
NIL must also provide protections for students, schools, and 
associations, particularly for the student athletes. We must be 
mindful of the law of unintended consequences. Human nature 
being what it is, we need to realize that some of our fellow 
mortals will seek, and likely find, loopholes for an unfair 
advantage. Over the last 4 months, I've spent hours on the 
phone with university presidents, athletic directors, and 
former collegiate athletes to help understand the current 
collegiate student athlete system and how to approach a 
national policy on NIL. As part of that process, and in 
preparation for this hearing, I sent a list of 20 questions to 
50 collegiate associations, conferences, universities, 
colleges, and service academies. We have summarized those 
responses and put that information on the Committee's website.
    Without objection, I will enter that summary document into 
the record at this point.
    Hearing none, that will be done.
    [The information referred to was unavailable at time of 
printing.]
    The Chairman. In May, the NCAA Board of Governors' Working 
Group issued a report on student athlete compensation, the 
modernization of rules related to NIL commercialization and 
recommendations, to Congress. We are grateful to have that 
input, as well.
    And I ask unanimous consent to insert that into the record 
also.
    Without objection, it will be done.
    [The information referred to was unavailable at time of 
printing.]
    The Chairman. In almost every discussion I've had, the 
topic inevitably turns to a look at the many ways this issue 
might be abused or go awry. For example, will high school 
athletes choose to attend a university in a large media market 
because they believe it will generate more NIL value? How will 
universities or their supporters be prevented from manipulation 
of NIL contracts in the recruiting process? Will businesses 
invest in student athlete NIL rights to promote a legitimate 
business, or as an avenue to create access to athletes, 
coaches, and athletic programs? Will it be easier or harder for 
the star player on a team to put the team first, even when 
showcasing individual talent may increase NIL income? Will NIL 
result in a rise in student athlete transfers to universities 
in bigger advertising markets? How will third parties 
contracting student athletes be regulated, and how will that 
impact schools' ability to ensure compliance and enforcement of 
NCAA rules? Is an 18-year-old emotionally and financially 
prepared to make all the choices required to enter into NIL 
contracts? What will be the impact on the student's academic 
obligations? Will permitting compensation for NIL further widen 
the gap between the haves and the have-nots among institutions 
for higher learning? And what about the effect on Title IX and 
women's sports? The list goes on and on.
    Let me single out Senator Moran for taking the first steps 
on this issue by holding a subcommittee hearing on NIL earlier 
this year. I know he shares with me the sense of importance and 
urgency this issue demands.
    I look forward to working with him and all of the members 
of the Commerce Committee as we move forward to seek a 
solution. Many questions remain. I hope our committee will gain 
a better understanding of these complicated issues and the 
challenging--challenges before us by means of these expert 
witnesses today.
    Let me again thank them for being here and recognize my 
dear friend and colleague, Ranking Member Cantwell, for her 
opening remarks.
    Senator Cantwell.

               STATEMENT OF HON. MARIA CANTWELL, 
                  U.S. SENATOR FROM WASHINGTON

    Senator Cantwell. Thank you, Mr. Chairman. And thank you 
for that long and thoughtful statement and a little bit of 
reminiscing about your own experiences.
    I consider myself a sports fan, and definitely a collegial 
sports fan, but certainly one that sides with wanting to have 
amateur athleticism and to make sure that we're keeping amateur 
athleticism. If anything, I feel like we should be doing more 
as a committee in our oversight of the violations of that 
athleticism and amateurism that occur all the time. And mark me 
down as not a fan of one-and-done, but somebody who really 
believes in the collegial system, as you said, of giving 
athletes an experience of leadership, teamwork, building all 
sorts of character that I hope that we can continue to preserve 
as we look at this legislation.
    And I want to thank our witnesses for being here today, 
too. I know you come from a breadth and depth of experiences on 
these issues. At the outset, I hope that we have a chance to 
talk about the current healthcare crisis. As we are moving 
closer to the beginning of the academic year and know that the 
pandemic is not relenting, I want to make sure we're putting 
into place safeguards to protect our student athletes as we 
look forward to what the collegial environment might be this 
fall. So, I'll have the chance to ask people about this.
    This issue of compensation for student athletes is a 
complex one, as the Chairman just mentioned, with strong 
feelings on both sides and growing legal battles in the 
courtrooms and State legislatures around the country. Despite 
its complexity, it is impossible to ignore the simple facts 
that these athletes do produce billions of dollars of value for 
the NCAA and member institutions, and aren't able to market 
themselves as other athlete students would be. So, the status 
quo is especially jarring as we look at this national reckoning 
on racial justice and civil rights issues, and want to 
understand the impacts of the NIL on all athletes.
    So, I look forward to the discussion and potential 
solutions that we're going to talk about today.
    I am not a fan of an NCAA antitrust exemption. I think that 
quashing all momentum for change with this blunt legal 
instrument is both unnecessary and ill-advised. Similarly, I 
oppose the Congress fully deferring to the NCAA on just coming 
up with the rules on name, image, and likeness. I think 
Congress should not abdicate its role, and I think the 
Chairman's very thoughtful discussion and hard work on this 
shows that we need to have some input and oversight to make 
sure it's done right. The Chairman just articulated a long list 
of complexity to the issue, which I very much appreciate his 
understanding and the delicate balance that so many 
institutions have already tried to achieve by complying with 
the rules that are on the books today. And so, I agree with the 
Chairman that we don't want to see a new system in which 
violations would occur because somebody sees a new avenue to 
promote a competitive edge in what is, hopefully, as balanced 
as we can get. But, again, like I said, I think we should have 
more oversight on these issues.
    So, how can we find a solution that preserves both the 
character of college sports while also providing athletes with 
well-deserved rights? So, as I said, I believe in preserving 
amateurism and that athletes would be able to grow. And I look 
forward to hearing Professor Koller's comments on this issue 
and exactly how we can achieve this.
    I believe Congress should take the time to get this right. 
It must be an open process. Hundreds of thousands of current 
athletes, and millions of future athletes and their families, 
are depending on it. And, as the Chairman said, this is a long 
tradition. It's part of our culture, these institutions, these 
athletic events, and we don't want to turn them into one more 
avenue of, again, people just gaming a system on behalf of the 
athletes and then leaving the athletes, again, without their 
own recourse.
    So, I'll look forward to seeing the set of solutions that 
we can agree on, and I hope that we can also, at some point in 
time, Mr. Chairman, look more closely at mechanisms to ensure 
that female athletes have the same opportunity to earn 
compensation as their male colleagues. I think this is an 
important issue that deserves its own hearing and deserves its 
own focus, and hopefully we can get to that at some future 
date.
    So, thank you, Mr. Chairman.
    The Chairman. Thank you very much, Senator Cantwell.
    And now the written statements by all five of our witnesses 
will be entered into the record in their entirety. We ask each 
witness to summarize their testimony in 5 minutes. And, of 
course, Mr. Winston will be joining us remotely.
    So, we'll just begin at the left end of the table here, and 
proceed down the table.
    Mr. Carter, you are recognized.

STATEMENT OF KEITH CARTER, VICE CHANCELLOR FOR INTERCOLLEGIATE 
              ATHLETICS, UNIVERSITY OF MISSISSIPPI

    Mr. Carter. Chairman Wicker, Ranking Member Cantwell, and 
the members of the Commerce Committee, good morning.
    My name is Keith Carter, and I'm the Vice Chancellor for 
Intercollegiate Athletics at the University of Mississippi, or 
more commonly referred to in athletic circles as ``Ole Miss.'' 
It's certainly an honor and a privilege to represent our great 
University, the Southeastern Conference, and other athletics 
directors and student athletes from across the country 
regarding name, image, and likeness.
    I would like to thank Senator Wicker for inviting me to 
testify today, and, to everyone on the Committee, for your 
interest and the attention as we look to work together and 
answer your questions regarding this timely and critical issue 
for student athletes across the country, the need for Federal 
legislation that provides a uniform standard for name, image, 
and likeness nationwide.
    I believe it is time for intercollegiate athletics to find 
a pathway forward. Legislation of this magnitude dealing with 
student athlete's personal image and how a compensation model 
could potentially be implemented must be done in a deliberate, 
thoughtful, and inclusive manner, as it will shape the future 
of intercollegiate athletics.
    Athletics has been a vital part of my life since I was 5 
years old. Growing up, I played baseball and basketball, and 
ultimately had an opportunity to pursue a lifelong dream of 
competing at the highest level and fulfill a goal of completing 
my undergraduate degree. I was recruited by numerous schools, 
and chose to be a student athlete at the University of 
Mississippi. When I played basketball at Ole Miss, I enjoyed 
the student athlete experience. While the schedule was 
rigorous--class, study hall, weight training, practice, and 
certainly competition--the student athlete experience shaped 
and molded me to the person that I am today.
    I also noticed, during my time as a student athlete, that 
my image and presence grew as I improved as a player and as my 
team became more successful. I was more recognized on campus 
and within the community. Interview requests increased, public 
appearances increased. And, looking back, there would have been 
some level of market value for myself and my teammates.
    Today, the landscape has drastically changed. Whether it's 
social media, endorsements, or promotions, our student athletes 
have an unprecedented opportunity to capitalize on their name, 
image, and likeness, similar to thousands of other students 
with whom they attend college.
    After finishing my basketball career in Europe, I realized 
that I wanted to be back on a college campus, working in an 
athletic department. Being a product of college athletics and 
having a real-life story of how much my student-athlete 
experience prepared me for the future, I felt a great 
obligation to give back. Special people, such as coaches, 
administrators, professors, and countless others, made a 
difference in my life. I wanted to use my experience as a 
student athlete, and the lessons I learned along the way, to 
help other young men and women achieve their goals.
    As I moved into a leadership role as athletics director at 
my alma mater, I take great pride in listening to student 
athletes. I often get questions about the opportunity to 
benefit from their NIL in the same way that their non-athlete 
classmates do, and the timing around any potential legislation. 
What does this model look like? It is obviously very complex, 
but we have an opportunity to shape what this could look like 
and ensure that unintended consequences do not cause long-
lasting ripple effects on the ability to support our almost-400 
student athletes. It is also vitally important that the 
governance structure be formed around Federal legislation to 
ensure that each state, and therefore each university in the 
Nation, has a uniform framework that continues to focus on 
education and the unique appeal of the current amateur model. 
Ensuring that our student athletes remain students and college 
athletics does not become pay-for-play--essentially, another 
professional league--is essential in any potential solution. In 
my opinion, the preferred NIL system involves third-party 
compensation only, where colleges and universities are not 
allowed to pay for, or otherwise facilitate, NIL opportunities 
for their student athletes. Another important component of any 
new legislation must ensure that NIL opportunities are kept out 
of the recruiting process. Absent sufficient regulatory 
framework, NIL opportunities could be used as improper 
inducements during recruiting that could deter prospective 
student athletes from appropriately considering the academic 
and athletic opportunities a particular university may offer 
him or her. Regulation of agents and boosters in facilitating 
or offering NIL opportunities is also essential to a healthy 
framework.
    We come before you today to speak to the need for Federal 
legislation to provide a baseline consistency for this much-
needed opportunity. Our goal is to work with you to put forth a 
national framework, and, first and foremost, protect the 
interests of all student athletes, both male and female, 
preserve the amateur model of intercollegiate athletics, 
safeguard the recruiting process, and ultimately provide equal 
opportunities for all student athletes to benefit from their 
NIL in the very same manner as their non-athlete classmates.
    Thank you again for this opportunity. Ultimately, we 
believe that more can and should be done for our student 
athletes, but it must be done in a way that continues to 
promote education and give consistent opportunities for all. I 
look forward to working toward a solution and enhancing the 
lives of our student athletes in the future.
    Thank you.
    [The prepared statement of Mr. Carter follows:]

Prepared Statement of Keith Carter, Vice Chancellor for Intercollegiate 
                Athletics, The University of Mississippi
Introduction
    Mr. Chairman and members of the committee, thank you for the 
opportunity to provide my perspective as Congress works toward 
developing a compensation framework in the best interest of 
intercollegiate athletes.
Keith Carter, VC for Intercollegiate Athletics, The University of 
        Mississippi
    My name is Keith Carter, and I am a proud long-time member of the 
University of Mississippi \1\ family. Since November 2019, I have 
served as the Vice Chancellor for Intercollegiate Athletics, a position 
I started in an interim capacity in May 2019. I began my career in the 
Ole Miss Athletics Department in 2009, later became the Executive 
Director of the Ole Miss Athletics Foundation, and then served as the 
Deputy Athletic Director for Resource and Development Acquisition.
---------------------------------------------------------------------------
    \1\ The University of Mississippi and its athletics programs are 
widely known to alumni, students, and friends under the name Ole Miss. 
The terms ``University of Mississippi'' and ``Ole Miss'' are used 
interchangeably throughout this testimony.
---------------------------------------------------------------------------
    While I was a University of Mississippi student, I was a four-year 
starter on the Ole Miss men's basketball team, which won SEC Western 
Division titles in 1997 and 1998. I earned All-American honors after my 
senior season in 1999. I received All-SEC first and second team honors 
in 1998 and 1999. I also won a gold medal as a proud member of the U.S. 
national team at the 1998 Goodwill Games and played professional 
basketball in Italy from 2001 until 2008.
    As a former Ole Miss student-athlete, former professional athlete 
and a current senior administrator at a SEC university, I hope my 
perspective will add helpful insight to this important conversation. 
Addressing NIL opportunities for student-athletes within the model of 
amateur athletics is a complex topic, and it is critical for Congress 
to consider all aspects of the issue and arrive at the best possible 
solution as these decisions will impact the futures of so many 
dedicated college students.
Role of the University
    The University's principal obligation as an academic institution is 
to provide academic excellence for all of our students. It is a 
privilege, and enormous responsibility, to earn the trust that students 
and their families place in us. It is our duty to hold all students to 
high standards for achievement including student-athletes as they are 
students first and foremost.
    Our student-athletes, like all University of Mississippi graduates, 
must enter the world prepared to thrive in a competitive environment on 
and off the field. The University is obligated to provide them with a 
foundation to experience lifelong growth and to contribute in all 
aspects of today's society.
    We are extremely proud of our accomplished Ole Miss student-
athletes who thrive in their academic pursuits and move on to great 
success in a variety of careers and professions. The University of 
Mississippi is dedicated to supporting all students and empowering them 
to reach their greatest potential, and athletics is one avenue to honor 
our commitment.
Current University Support of Student-Athletes
    Under the existing model of amateur intercollegiate athletics, 
student-athletes are not compensated for their athletic participation, 
ability or performance potential. Student-athletes are eligible for 
full or partial athletics scholarships, academic scholarships, and 
financial aid up to the cost of college attendance (i.e., tuition, 
fees, room and board, books, supplies, transportation, and other 
related expenses). Because all eighteen of the University's sponsored 
teams are fully funded, coaches may award athletics scholarships up to 
the NCAA limit for their respective sports. The University also 
provides student-athletes medical care and academic services in support 
of the recognized goal of graduation. In addition, student-athletes may 
request support from the Student Assistance Fund to mitigate any 
financial hardship they may experience.


The Need for Federal Name, Image, Likeness (NIL) Legislation
    In light of the inconsistent state laws being enacted in the NIL 
space, The University of Mississippi supports Federal legislation that 
allows student-athletes to pursue NIL promotional and marketing 
opportunities with third-parties. Intercollegiate athletics, as a 
whole, is best served by a Federal regulatory framework, where the 
amateur collegiate model is preserved and academic institutions are 
prohibited from compensating student-athletes for the use of their NIL 
or otherwise identifying, facilitating, or arranging such 
opportunities. This approach reaffirms and preserves the unique 
relationship between amateur student-athletes and their universities. 
Consequently, the existing amateur model for collegiate sports does not 
include a mechanism by which schools can license intellectual property 
rights from student-athletes or ``compensate'' their students for 
athletic services
    The University of Mississippi believes the appropriate regulatory 
authority or model is a hybrid approach, in which the NCAA retains its 
compliance enforcement authority over member institutions, and Congress 
delegates the administration, oversight, and rulemaking authority for 
any new NIL legislation to an independent body, preferably a non-
profit. This body would have nationwide oversight over the myriad of 
issues implicated by NIL, such as agent regulation and discipline, NIL 
revenue reporting and disclosure requirements, fair market valuation 
and analysis, and support services for student-athletes.
    The administration of NIL on a nationwide level remains a heavily 
debated topic. The University's views on the issues surrounding 
enforcement necessarily remain open to continued discussions with our 
conference, the NCAA and Congress.
    For the reasons above, I, along with the University of Mississippi, 
generally support the recommendations to the NCAA Board of Governors 
regarding the modernization of the NIL rules. We likewise recognize 
that while the Board has flagged multiple issues related to NIL, those 
issues warrant more analysis and development to ensure the effective 
administration and enforcement of any modernized rules.
    More importantly, some of the issues surrounding NIL also implicate 
legal and policy considerations that the NCAA has no authority to 
address. Explicit and detailed Federal guidance on these issues is 
necessary and should be codified, where warranted, to address 
conflicting state laws any conflicting state laws.
    Federal NIL legislation should provide the necessary regulatory 
framework for NIL by specifically addressing the following unresolved 
considerations, among others:

   the identity and scope of authority for the regulatory body 
        charged with administering and enforcing any Federal NIL 
        legislation,

   requirements for the certification, regulation, 
        investigation, and discipline of agents/advisors who represent 
        student-athletes,

   mandatory cooling periods and time limits on when student-
        athletes are first eligible to pursue NIL opportunities,

   prohibitions on ``lifetime'' sponsorship deals and 
        endorsement agreements that extend beyond college,

   Title IX gender equity guidance regarding NIL,

   restrictions to length of time and extent to which student-
        athletes may assign their NIL rights to trade associations for 
        commercial exploitation,

   the inclusion of opt-out clauses in NIL agreements that 
        allow student-athletes to reschedule or postpone NIL 
        engagements that interfere with their athletic commitments, 
        academic studies, and degree progress,

   disclosure requirements and reporting obligations for 
        student-athletes,

   prohibitions on universities compensating students for the 
        use of their name, image and likeness, whether such payments 
        are made directly from the university or indirectly through the 
        use of university facilities, trademarks or other intellectual 
        property or by involvement of a university-affiliated entity or 
        person,

   regulation of boosters in facilitating or offering NIL 
        opportunities, and

   clarity on the extent to which universities may provide NIL 
        education and support services (e.g., financial literacy 
        training modules).

    Federal legislation will provide much-needed clarity and a uniform 
national framework for NIL. Currently, three states have enacted NIL 
laws and more than twenty states have different versions of NIL 
legislation pending. The effective date of Florida's NIL legislation is 
July 1, 2021. A patchwork of inconsistent state legislation unless 
preempted, will disrupt the amateur model for intercollegiate sports, 
undermine the integrity of the recruiting process, and could leave 
student-athletes vulnerable to the predatory practices of unregulated 
agents. Federal legislation will ensure that all student-athletes have 
an equal opportunity to monetize their NIL in a framework that best 
protects their academic and financial interests.
Impact on Amateurism
    As a general matter, NIL would provide male and female student-
athletes an unprecedented opportunity to capitalize on the promotional 
and endorsement activities now available to all other students. Any 
such legislation, however should preserve the amateur model of 
collegiate athletics and ensure that student-athletes remain students 
and are not paid by their institutions to play sports. If properly 
regulated on a uniform nationwide basis, NIL licenses can be of 
significant benefit to student-athletes, particularly students with 
limited financial means, or those with limited to no opportunity to 
play professional sports.
    If, however, a standardized approach to NIL is not implemented on 
the Federal level, and states are allowed to supersede the NCAA's 
rulemaking authority, as some pending legislation would allow, NIL 
could negatively impact the amateur model. Absent sufficient regulatory 
framework, NIL opportunities could be used as improper inducements 
during recruiting that could deter prospective student-athletes from 
appropriately considering the academic and athletic opportunities a 
particular university may offer him or her. The unregulated involvement 
of boosters, agents and other third-parties could result in ``play for 
pay'' arrangements, in which student-athletes are impermissibly 
compensated for their participation or performance in athletics 
competitions. Student-athletes and their families are uniquely 
vulnerable, particularly considering that most students may be in high 
school when first approached by an agent for representation. The 
amateur model would be further compromised if the pending legislation 
in certain states is enacted and student-athletes are allowed to 
receive NIL payments either directly or indirectly from their schools. 
The student-athlete is effectively rendered an employee or independent 
contractor of the university, rather than one of its students.
    I am concerned that the proposed NIL legislation in some states 
creates an unfortunate dynamic where student-athletes essentially 
become talent-for-hire for their respective universities. This outcome 
will cause irreparable harm not only to the amateur model of collegiate 
athletics, but also to the system of higher education as a whole.
    A Federal framework for NIL is needed to protect student-athletes' 
interests, preserve the amateur model of intercollegiate athletics, and 
safeguard the integrity of the recruiting process. The Federal 
legislation should include reasonably tailored exemptions or immunity 
to ensure that universities can comply with the legislation without 
being exposed to multimillion-dollar lawsuits similar to those filed 
against the SEC and NCAA.
Impact on Female Athletes and Non-Revenue Generating Sports
    Whether NIL could adversely impact gender equity Title IX turns on 
the scope of the particular legislation ultimately enacted. For 
example, the NIL legislation proposed in some states will allow 
universities to pay student-athletes for the use of their NIL. If 
institutions in those states elect to pay, but fail to provide NIL 
equal opportunities to male and female student-athletes equitably, 
gender equity concerns under Title IX may be implicated.
    Under the proposed NIL legislation in other states, universities 
are prohibited from entering into NIL promotional or endorsement deals 
with student-athletes, who may only pursue such ventures with third-
parties who have no affiliation to the university. This model is 
unlikely to trigger Title IX gender equity issues, since no university 
funds or resources will be leveraged to make or otherwise facilitate 
any NIL payments. Alternatively, some states have either enacted or 
proposed NIL legislation that rejects this approach. If these various 
state laws take effect, endorsement deals between universities and 
student athletes will be legal in some states, but prohibited in 
others. As such, gender equity and Title IX implications of NIL could 
vary depending on where the university is located. In sum, Title IX 
implications are more likely if universities have a role in the 
marketing, promotion, endorsement, or disbursement of NIL funds to 
their student-athletes.
    An additional concern is that no existing Title IX regulations or 
policies address the extent to which universities should offer NIL 
education and support services to student-athletes with NIL earning 
potential. Universities likewise have no clarity on how the value of 
these NIL education and support services should be quantified and 
presented in their annual Title IX disclosures. None of the hundreds of 
pages of new Title IX regulations that take effect in August 2020 
address these issues. Federal guidance will be vitally beneficial and 
is necessary to ensure that the various state laws on NIL do not 
undercut Title IX gender equity. I encourage Congress to closely 
examine gender equity issues as Federal legislation is developed.
Conclusion
    Thank you for the opportunity to share the University of 
Mississippi's perspectives on the many complex issues involved in NIL. 
We are grateful for the thoughtful way Chairman Wicker and Senate 
Commerce Committee members are approaching the discussion and Ole Miss 
commits to being a helpful partner going forward in the best interest 
of the student-athletes.

    The Chairman. Thank you very much, Mr. Carter.
    Dr. Drake, welcome.

           STATEMENT OF DR. MICHAEL DRAKE, CHAIRMAN,

           NATIONAL COLLEGIATE ATHLETIC ASSOCIATION,

                       BOARD OF GOVERNORS

    Dr. Drake. Thank you very much, and good morning, Chairman 
Wicker--yes, I had a green light. I was--sorry--I was thinking 
``go.''
    Good morning, Mr. Chairman. Good to see you today. And, 
Ranking Member Cantwell, good morning. Members of the 
Committee, on behalf of the National Collegiate Athletic 
Association and The Ohio State University, where I was 
introduced as the Chairman--or the President Emeritus, which 
has been the case for about 10 and a half hours, so I 
appreciate my new short-lived status, but I appreciate your 
interest on the important issue of compensating student 
athletes related to name, image, and likeness.
    As a medical doctor and a 20-year member of the National 
Academy of Medicine, I have testified before as a subject-area 
expert, and am grateful to do so again.
    In spring 2019, interest in this issue heightened with the 
introduction of Federal and State legislation that would permit 
student athletes to be compensated for use of their NIL. The 
NCAA Board of Governors established an NCAA Federal and State 
Legislation Working Group in May 2019 to examine this issue and 
develop recommendations.
    In October 2019, the NCAA Board of Governors unanimously 
supported the Working Group's recommendations and began the 
process of modernizing its rules to allow students 
participating in athletics the opportunity to benefit from the 
use of their NIL.
    As outlined in my testimony, the Association's ability to 
move forward is hampered by three factors that we encourage you 
to focus on today. Specifically, we're asking for your 
partnership to preempt State bills on NIL with differing 
provisions and start dates so that there is a uniform standard 
and approach. Two, to protect universities and conferences from 
antitrust litigation that adversely affects our ability to 
effectively and efficiently support the evolving needs of 
student athletes. And three, to protect amateurism in college 
sports that is guided by longstanding values of education, 
opportunity, well-being, and fairness.
    I would like to recognize that--the attention that members 
of this committee and others in Congress are giving to the 
issue of name, image, and likeness in collegiate athletics. I 
also want to recognize Ohio Congressman Anthony Gonzalez, an 
Ohio State alumnus, an outstanding collegiate and professional 
football player, for his support of student athletes, and the 
work that he has done around this issue. Together, we can enact 
and implement legislation that will provide a uniform name, 
image, and likeness approach. I believe this action will result 
in fair and uniform competition for all student athletes, and 
protect and ensure opportunities for future student athletes.
    Thank you.
    [The prepared statement of Dr. Drake follows:]

 Prepared Statement of Dr. Michael Drake, President Emeritus, The Ohio 
          State University; and Chair, NCAA Board of Governors
    Chairman Wicker, Ranking Member Cantwell, and distinguished members 
of the Committee, thank you for the opportunity to submit this 
testimony in connection with today's hearing. This week, I will 
conclude my six-year tenure as president of The Ohio State University. 
It has truly been an honor to serve the students, faculty, staff and 
supporters of the Buckeye community. I am proud of what we have 
collectively accomplished at Ohio State and am confident the 
institution will continue to be a leader in research, medical 
innovation and academic excellence. For the last year, I have also had 
the honor of serving as chair of the NCAA Board of Governors, the 
highest-ranking governing body within the NCAA governance structure. On 
behalf of the NCAA Board of Governors, I would like to thank the 
Committee for holding this hearing to discuss the important issue of 
name, image and likeness.
    While it might not be a surprise that I have been intimately 
involved with college sports throughout my career in higher education, 
many are not aware of my personal connections to intercollegiate 
athletics. My father was an avid athlete and was a defensive lineman 
and captain of the 1933 Morgan State football team, which won the 
Colored Intercollegiate Athletic Association Championship. My younger 
son ran cross country and track at Stanford University and was an All-
American athlete in both sports. He ended up running in a two-time 
national championship program, and that was a dream come true. If you 
show great promise at a young age, one of the most prominent avenues 
forward is to go to a great college that has a great athletic program. 
That is the American collegiate model of sports. Through my personal 
and professional experiences, I have witnessed first-hand the 
tremendous impact that this uniquely American phenomenon has had on 
students and their families, institutions of higher education and 
communities throughout this country. While not perfect, intercollegiate 
athletics is worth preserving and its evolution should be guided by its 
long-standing values of education, opportunity, well-being and 
fairness.
    Despite the intrinsic benefits and value college sports provides to 
participants and the higher education community, it is apparent that 
the NCAA and its member schools must do more to meet the needs of the 
21st-century student-athlete. In recent years, NCAA members have 
further supported student-athletes by increasing scholarships to cover 
full cost of attendance, extending the coverage of medical expenses and 
providing unlimited meals. While these are significant steps toward 
improving the overall experience of student-athletes, leaders in higher 
education must continue to evolve without compromising the values that 
make college athletics unique and so beneficial to diverse students 
from throughout the world. As directed by the NCAA Board of Governors, 
the most recent initiative has focused on modernizing rules related to 
a student's ability to be compensated for use of their name, image and 
likeness. I look forward to discussing the important steps that have 
and will be taken to further support NCAA student-athletes.
The Modernization of Opportunities Related to Student-Athlete Name, 
        Image and Likeness
    The issue of student-athlete name, image and likeness (NIL) is 
complex and nuanced. With the effusion of recent technological and 
social media advances, it has garnered increasing attention by many in 
the Association, the public and legislators across the country. In 
spring 2019, interest in this issue heightened with the introduction of 
Federal and state legislation which would permit student-athletes to be 
compensated for the use of their NIL. These proposals expressly 
prohibited the NCAA from enforcing rules that restrict the use of a 
student's NIL and compensation provided by third parties. Further, 
state legislation threatened to create local differences that would 
make it impossible to provide student-athletes with fair, uniform 
championships, and legislation at both levels threatened to materially 
alter the principles of college sports.
NCAA Federal and State Legislation Working Group
    These legislative proposals necessitated conversations and 
agreements about how the membership should respond, and in May 2019, 
the NCAA Board of Governors appointed a Federal and State Legislation 
Working Group to examine this issue. Representing a diverse set of 
membership stakeholders, the 20-member working group was composed of 
student-athletes, presidents, faculty athletics representatives and 
athletics administrators from all three divisions, and included 
representation from each of the Division I conferences with autonomy 
(Atlantic Coast Conference, Big Ten Conference, Big 12 Conference, Pac-
12 Conference and Southeastern Conference).
    Specifically, the working group was directed as follows:

  a.  Consider whether modifications to NCAA rules, policies and 
        practices should be made to allow for NIL payments;

  b.  Remain mindful that NIL payments must not be compensation for 
        athletics participation; that paying students as employees for 
        play is anathema to the NCAA mission focused on students 
        competing against students; and that no legislation which 
        permitted either of those outcomes should be considered;

  c.  Assure that any proposed legislative solutions kept in mind that 
        student-athlete benefits must be tethered to educational 
        expenses or incidental to participation;

  d.  Examine whether any modifications to allow for NIL payments, 
        beyond what the U.S. Circuit Court of Appeals for the Ninth 
        Circuit required in O'Bannon and other court rulings, would be 
        achievable and enforceable without undermining the distinction 
        between professional sports and collegiate sports; and

  e.  Preserve the Association's ability to sponsor or host fair 
        interstate competitions and national championships.

    The Board of Governors also charged the working group with 
producing a set of Association-wide principles to provide each division 
guidance in developing a consistent approach on legislation related to 
NIL payments.
Working Group Process
    To fulfill its charge, the working group undertook an exhaustive 
study and review of the issue of student-athlete NIL, conducting four 
in-person meetings and 11 teleconferences between June 2019 and April 
2020. As part of this process, the group considered extensive feedback 
and deliberated challenges and opportunities related to the ability of 
student-athletes to be compensated for the use of their NIL. The 
working group engaged a diverse group of stakeholders through in-person 
interviews, formal presentations and hundreds of pages of written 
feedback. Included among these stakeholders were current and former 
student-athletes, faculty, presidents, conference commissioners, 
athletics administrators and coaches from Divisions I, II and III, as 
well as thought leaders and experts in the higher education and college 
sports communities.
Presidential Subcommittee on Congressional Action
    A topic that consistently emerged during the deliberations of the 
working group was the possibility that the Association's attempts to 
modernize its rules related to NIL could be deterred by state laws that 
purport to supersede NCAA rules or serial litigation which purports to 
undermine the ability of the NCAA to modernize its rules. To address 
this issue, and in response to the introduction of Federal NIL 
legislation and interest by Members of Congress, in November 2019, the 
Board of Governors Executive Committee directed that a subcommittee of 
the working group be formed. The purpose of the subcommittee was to 
provide input on potential assistance that the Association should seek 
from Congress to support any efforts to modernize the rules in NCAA 
sports, while maintaining the latitude that the Association needs to 
further its mission to oversee and promote intercollegiate athletics on 
a national scale. The subcommittee conducted a total of seven meetings 
and teleconferences between December 2019 and April 2020. Its 
recommendations are included in the working group's final report.
Working Group Reports
    The working group delivered an initial report to the Board of 
Governors on October 29, 2019, and requested an extension of its work 
through April 2020 to continue to gather feedback and work with the 
membership on the development and adoption of new NCAA legislation. The 
working group delivered its final report to the Board of Governors on 
April 29, 2020.
NCAA Board of Governors Actions
    The NCAA Board of Governors unanimously supported the 
recommendations provided in the working group's October and April 
reports and promptly took action. On October 29, 2019, the board 
recognized that the Association must embrace change to provide the best 
possible experience for student-athletes and directed the three 
divisions to immediately begin the process of modernizing its rules to 
allow students participating in athletics the opportunity to benefit 
from the use of their NIL. The divisions were directed to, not later 
than January 2021, adopt new rules related to NIL consistent with the 
following guiding principles:

   Ensure student-athletes are treated similarly to nonathlete 
        students unless a compelling reason exists to differentiate.

   Maintain the priorities of education and the collegiate 
        experience to provide opportunities for student-athlete 
        success.

   Ensure rules are transparent, focused and enforceable, and 
        facilitating fair and balanced competition.

   Make clear the distinction between collegiate and 
        professional opportunities.

   Make clear that compensation for athletics performance or 
        participation is impermissible.

   Reaffirm that student-athletes are students first and not 
        employees of the university.

   Enhance principles of diversity, inclusion and gender 
        equity.

   Protect the recruiting environment and prohibiting 
        inducements to select, remain at or transfer to a specific 
        institution.

    At its April 2020 meeting, the Board of Governors supported the 
working group's final recommendations and reinforced the importance of 
the divisions continuing to make significant progress on related rule 
changes. These rules changes, consistent with the guiding principles, 
should be adopted by January 2021 and effective no later than the 2021-
22 academic year. The board highlighted that any modernization of the 
divisional NIL bylaws must be accompanied by guardrails to ensure that:

   Any compensation received by student-athletes for NIL 
        activities represents a genuine payment for use of their NIL, 
        and is not pay for athletics participation;

   Schools and conferences play no role in a student-athlete's 
        NIL activity;

   Schools or boosters are not using NIL opportunities as a 
        recruiting inducement;

   The role of third parties in student-athlete NIL activities 
        is regulated; and

   Liberalization of NIL rules does not interfere with NCAA 
        members' efforts in the areas of diversity, inclusion or gender 
        equity.

    Provided these guardrails could be established, the board supported 
the development of legislation by the divisions which permit student-
athletes to receive compensation for use of their NIL in third-party 
endorsements; for the use of their NIL in their work product (including 
social media influencer activity, promotion of a business or work 
product or personal promotion); and to use agents, advisors or 
professional services in conjunction with the NIL activities, provided 
appropriate regulation is established.
    Further, the Board of Governors supported the recommendations in 
the report related to the work of the Presidential Subcommittee on 
Congressional Action, including the NCAA's engagement with Members of 
Congress to seek preemption of state NIL laws, safeguard the non-
employment status of student-athletes and establish a safe harbor to 
protect the Association against lawsuits filed for changes to name, 
image and likeness rules.
Next Steps and Implementation
    Since the October directive by the Board of Governors, the three 
NCAA divisions have been working thoughtfully and expeditiously to 
develop legislative proposals that will allow student-athletes to 
benefit from the use of their NIL. Following the announcement, each 
division developed a working group which included student-athletes, 
athletics administrators and conference office staff to develop initial 
concepts related to NIL and solicit feedback from the broader 
membership. Since this time, the working groups and divisional 
governance bodies have undertaken widespread education and feedback 
efforts and are considering appropriate guardrails that would accompany 
any legislation, including a focus on pre-enrollment activity, 
parameters for institutional assistance and potential disclosure 
requirements. Formal legislative proposals related to NIL are expected 
to be introduced by November 1, 2020, voted on by January 2021 and 
effective at the start of the 2021-22 academic year.
A Pressing Need for Federal Partnership
    The Association's ability to make meaningful reforms in the area of 
NIL is significantly undermined by impending state legislative action 
and outside legal factors, and underscores a compelling need for 
Federal partnership on this issue.
Impediments Posed by State Legislation
    As of the date of this testimony, 36 states have introduced bills 
which address the compensation of student-athletes for use of their 
NIL. This patchwork of state proposals includes bills with widely 
differing provisions and effective dates. Nearly all of the 36 bills 
expressly prohibit the NCAA and its member institutions from enforcing 
rules regarding the compensation of a student-athlete for their NIL, 
while some proposals under consideration would erode the NCAA's ability 
to maintain the collegiate model even further. Importantly, bills in 
California, Colorado and Florida have already passed into law and take 
effect as early as July 1, 2021.
    A patchwork of state laws creates the very real possibility that 
NCAA members in different states will be governed by different rules 
related to NIL. This would prevent the NCAA from sponsoring sports and 
championships on a truly national level. It would also gravely 
undermine the ability of the NCAA's members to achieve their shared 
goal of providing fair and uniform competition to all student-athletes. 
These state laws have interstate consequences that make Federal 
legislation far more appropriate.
Impediments Posed by Continuing Antitrust Litigation
    The history of antitrust lawsuits brought against the Association 
over the last several decades reveals that Federal antitrust law has 
frequently been used as a tool to attempt to change or undermine the 
Association's rules. While these lawsuits have, for the most part, been 
unsuccessful, the Association has been required to devote scarce and 
valuable resources to defending them, resources that could have been 
better spent on supporting student-athletes, as has been highlighted by 
the growing financial impact of the current global pandemic. Without 
appropriate protections, these antitrust challenges will continue--as 
evidenced by the most recent NIL class-action lawsuit filed against the 
Association on June 16--and will interfere with the Association's 
ability to effectively and efficiently support the evolving needs of 
student-athletes.
    For these reasons, it is appropriate and advisable for the 
Association to seek Federal preemption over state NIL laws and safe 
harbor protection for its modernization efforts related to NIL.
Conclusion
    I am proud of the experiences and opportunities that college sports 
provide to our country's student-athletes, particularly to those who 
might not otherwise have had the opportunity to earn a college degree. 
NCAA members have a long history of expanding these opportunities by 
progressively adapting to evolving student-athlete environments and 
adopting changes that support college athletes in a manner consistent 
with NCAA values and principles. It is critical that the Association 
continues to embrace change and adapt to the opportunities and needs of 
the 21st-century student-athlete.
    While the Association has taken historic steps to enhance 
opportunities for student-athletes for the use of their name, image and 
likeness, the evolving legal and legislative landscape around these 
issues could not only undermine college sports as a part of higher 
education, but also significantly limit the NCAA's ability to meet the 
needs of college athletes moving forward. With this, I urge Congress to 
enact legislation that will provide a uniform name, image and likeness 
approach that will result in fair and uniform competition for all 
student-athletes and protect and ensure opportunities for future 
student-athletes.
    I appreciate the Committee's continued and thoughtful interest in 
this issue and for the opportunity to share the work the NCAA Board of 
Governors has undertaken related to this issue. Thank you again and I 
look forward to answering any questions you might have.

    The Chairman. Thank you.
    And our next witness, I'd bet, likes to have her name 
pronounced correctly, so--``Kohler.''
    Ms. Koller. ``Kohler.''
    The Chairman. OK. You are recognized for 5 minutes.
    Ms. Koller. Thank you, Mr. Chairman.
    The Chairman. Glad to have you with us.

   STATEMENT OF DIONNE KOLLER, LAW PROFESSOR, UNIVERSITY OF 
                           BALTIMORE

    Ms. Koller. Chairman Wicker, Ranking Member Cantwell, and 
members of the Committee, my name is Dionne Koller, and I'm a 
professor of law and the Director of the Center for Sport and 
the Law at the University of Baltimore. I am also a former 
athlete and the proud parent of an NCAA Division 3 athlete. 
Thank you for inviting me here to speak with you about these 
important issues.
    For decades, Congress and courts have deferred to the NCAA 
to build the model for intercollegiate sports that has grown 
into a multibillion-dollar industry. The NCAA calls this the 
American model. Courts are increasingly calling it a violation 
of antitrust law. Today, the NCAA purports to seek legislation 
so that it can preserve what it defines as amateurism. In 
reality, it seeks to preserve the cartel profits that an 
unnecessarily restrictive amateurism model yields. This 
committee should not be moved. The action sought by the NCAA 
would not only cause further harm to athletes, but ultimately 
to the entire college sports enterprise. It is a model that is 
literally breaking under the weight of its own injustice. The 
decades of excesses and abuses perpetrated under the guise of 
amateurism are well known and, at times, have been the subject 
of congressional hearings and reports, including the series of 
reports Senator Murphy released last year. The profound 
unfairness of this model is even more apparent, considering 
that it is black men, often from socioeconomically 
disadvantaged backgrounds, who disproportionately provide the 
labor that pays predominantly white coaches and administrators 
bloated, above-market salaries. The NCAA model, therefore, is 
not just an economic issue, it is increasingly a social justice 
issue.
    Today, the NCAA and college sports interests are asking 
Congress for even more than deference, they are asking for an 
unprecedented level of insulation from the free-market rules 
that nearly every other American industry must follow. Granting 
this extraordinary request is not at all necessary to preserve 
the many benefits that intercollegiate sports provides. There 
is no urgency presented by this issue. While a Federal solution 
to the name, image, likeness issue could be useful, competitive 
balance and the NCAA model are not irreparably threatened by 
State legislation. In addition, if any guardrails are 
necessary, the NCAA should not be the ones to craft them. 
Athletes can, like other students on campus, enter the free 
market and strike deals for the use of their name, image, and 
likeness. The only guardrails needed in this situation are 
those provided by Federal antitrust law that would prevent the 
NCAA from imposing unreasonable restraints on trade in the name 
of amateurism.
    Rather than seeking protection from Congress to impose 
economic restraints on athletes, the NCAA should craft rules 
that better support athletes' health, safety, and well-being. 
Indeed, if athletes are currently able to sign waivers to 
facilitate their return to practice during a global health 
pandemic, they should be permitted to make deals to market 
their name, image, and likeness.
    The NCAA also asserts that NIL rights for athletes could 
somehow threaten the gains made by Title 9. This is assuredly 
not the case. In fact, these rights would promote and not 
undermine gender equity. To promote gender equity, the NCAA and 
its member institutions should instead focus on Title 9 
compliance, something that has yet to be fully realized.
    Perhaps most importantly, an antitrust exemption is not 
warranted here. The NCAA often asserts that an exemption is 
necessary to prevent vague, unsubstantiated predictions of harm 
to the amateurism model. Antitrust cases, however, have 
documented that the NCAA's overly restrictive rules produce 
very real, demonstrable harm to athletes and the free market. 
An antitrust exemption would, therefore, serve to shield an 
industry that has struggled to demonstrate that its 
anticompetitive restraints on athletes, in fact, are fully 
necessary to produce college sports.
    Finally, this committee is well aware that unchecked power 
by sports regulators too often leads to cultures that harm 
athletes and threaten the games, themselves. The example of the 
United States Olympic and Paralympic Committee is instructive. 
I applaud this committee for its work to address these issues, 
most recently with bills such as the Equal Pay for Team USA 
Act. Through the important leadership of this committee, 
Congress has taken significant steps to protect athletes and 
restore confidence in the U.S. Olympic movement, and it has the 
opportunity to do the same for intercollegiate sports.
    In conclusion, in nearly every context where athletes have 
advanced arguments for fundamental fairness, equality, and the 
protection of their health and well-being, sports regulators, 
like the NCAA, have countered with dire predictions that sport, 
itself, would be threatened. The predicted harm never 
materializes. History has shown that initiatives which promote 
athletes' rights have strengthened the integrity, 
sustainability, and popularity of sports, and I have no doubt 
that allowing intercollegiate athletes the right to market 
their name, image, and likeness, without unnecessary 
restriction by the NCAA, will do the same.
    I thank you, and I look forward to your questions.
    [The prepared statement of Ms. Koller follows:]

Prepared Statement of Dionne Koller, Professor of Law, Director, Center 
      for Sport and the Law, University of Baltimore School of Law
    Chairman Wicker, Ranking Member Cantwell, and Members of the 
Committee:

    My name is Dionne Koller, and I am a Professor of Law, the Director 
of the Center for Sport and the Law, and the Associate Dean for 
Academic Affairs at the University of Baltimore School of Law. I am 
also a former athlete and the proud parent of an NCAA Division III 
athlete. Thank you for inviting me here today to speak with you about 
the important issue of allowing intercollegiate athletes to enjoy the 
same rights that we all hold to earn income from our name, image, and 
likeness (NIL). As I explain below, while a national policy solution 
through Federal legislation could benefit college athletes, a solution 
that simply defers to the NCAA and its member institutions, and 
insulates them from antitrust scrutiny, is an unwarranted step in the 
wrong direction. In my view, such a step would not only hurt college 
athletes, it would substantially harm college sports. I urge this 
Committee instead to adopt a solution that rejects the NCAA's overreach 
in regulating athletes and reinforces the voice of athletes and the 
value of the free market in the enterprise that is college sports.
The Current Issue in Context
    In considering the NIL issue, it is important to situate it in the 
legal and policy landscape that has shaped intercollegiate and Olympic 
sports in the United States. To do so, this Committee should start with 
an understanding of the traditional view of Congressional involvement 
in sports. This is perhaps best captured by a quote from the late 
Senator John McCain. When asked how much the government should be 
involved in sports, Senator McCain answered: ``[A]s little as 
possible.'' \1\ Senator McCain's statement reflects the traditional 
view that the government--Congress, Executive Branch agencies, courts, 
and state legislatures--should defer to sports administrators such as 
the NCAA to regulate themselves. This view underlies today's efforts by 
the NCAA to seek a Federal legislative solution to the NIL issue.
---------------------------------------------------------------------------
    \1\ The Dan Patrick Show, NBC Sports Network television broadcast, 
May 2, 2014.
---------------------------------------------------------------------------
    Yet despite the mantra that the government should stay out of 
sports, the reality is that the government is very much a part of our 
current intercollegiate and Olympic sports models. This is because, for 
decades, Congress and courts largely have left entities such as the 
NCAA and the United States Olympic and Paralympic Committee (USOPC) to 
regulate athletes and manage their respective athletic spheres with 
little oversight or accountability. Staying on the sidelines has 
amounted to an endorsement that the prevailing model represents the 
best policy choice. I urge this Committee to take a new approach.
    Congress has deferred to the NCAA and its member institutions to 
regulate college sports since President Theodore Roosevelt responded to 
the crisis of violence and deaths in college football by calling a 
White House summit to urge colleges and universities to make the game 
safer. This deference continued through decades of persistent 
concerns--often the subject of Congressional hearings--over the 
treatment of athletes, involving issues from basic due process rights 
to athlete traumatic brain injury. Lack of Congressional regulation has 
provided powerful space for the NCAA and its member institutions to 
structure their programs, restrict athletes' rights, and profit from 
the results in such a way that what is often referred to as the 
``American Model'' of sports is widely considered unjust. 
``Amateurism,'' as self-servingly defined and re-defined by the NCAA, 
has become synonymous with a model that exploits athletes more than it 
educates.
    Traditionally, the NCAA has advanced several rationales for why it 
should be insulated from government regulation. Drawing on athletic 
programs' relationship with colleges and universities, the NCAA and its 
member institutions have resisted regulation by arguing that 
intercollegiate sport is not commerce, and Congress and courts should 
not interfere with the education process. The NCAA also has argued that 
regulation will make administering sports too costly or burdensome, 
thereby limiting participation opportunities and undermining gender 
equity. The NCAA regularly invokes patriotic values, stating that the 
collegiate sports model is a uniquely American phenomenon and an 
example to the world. Most frequently, the NCAA and its member 
institutions simply assert that they must have regulatory deference to 
freely administer intercollegiate sports to ``preserve amateurism''--an 
ever-changing, elusive concept that often serves to burden and 
disempower, and not protect, athletes.
    Congress's decades-long ``hands off'' approach to intercollegiate 
sports has provided the NCAA an opportunity to build a multi-billion-
dollar model for sports that is popular and profitable. It is also a 
model that is breaking under the weight of the unfairness and injustice 
it perpetuates.
The Results
    Today's issue once again features the NCAA arguing for deference, 
and it must be evaluated in light of the decades of examples of harm to 
athletes and the state of intercollegiate athletics today. To be sure, 
intercollegiate sports participation has significant benefits. Many 
athletes receive scholarships that cover tuition and the cost of 
attendance, avoiding the enormous student loan debt burden carried by 
many of their peers. Sports participation can provide important short 
and long-term health benefits and teach important life lessons. More 
broadly, intercollegiate sports programs can contribute to campus 
unity, alumni engagement and fundraising, and student recruitment. 
There is no doubt, and courts have regularly recognized, that some 
horizontal restraints and athlete regulation must occur to produce 
intercollegiate sports. There is also no doubt that intercollegiate 
sports are an important, long-standing feature of American culture.
    Unfortunately, the NCAA model is one that too often works for 
everyone in the intercollegiate athletics enterprise except the 
athletes whose labor makes it possible. The excesses and abuses are 
documented and well known, including through Senator Murphy's series of 
reports released last year. The excesses and abuses are persistent and 
not likely to change with further deference to the NCAA. The NCAA and 
its members schools bring in billions every year in athletics related 
revenue--little of which is shared with the athletes whose labor makes 
it possible. Athletes under current NCAA rules receive no pay beyond 
their cost of attendance and are denied the right to profit in any way 
from their athletic talent. Instead, the intercollegiate sports ``arms 
race'' drives bloated budgets that include multi-million-dollar 
coaches' and administrators' salaries (often far exceeding the salaries 
of those in professional sports), millions in severance packages, 
lavish facilities, and layers of highly compensated support staff. 
While expenses for coaches, facilities, and non-athlete administrators 
make up nearly two-thirds of athletics spending, according to a Knight 
Commission report, only a little over 1 percent of the spending is on 
athlete health care. This over-spending is not only unfair to athletes, 
it has enormous consequences for all students. Mandatory student fees 
to support college and university athletic departments are bundled into 
student loans. Some estimates are that the Nation's non-athlete 
students borrow as much as $4 billion per year to pay athletic fees.
    Yet the approximately $14 billion a year in revenue generated by 
college sports is not buying a better experience for athletes. The NCAA 
and its member institutions have done little to hold schools 
accountable for wide-ranging, persistent harms to athletes. The NCAA 
asserts that it has no legal duty to protect athletes from sexual 
predators such as former Michigan State University team physician Dr. 
Larry Nassar. There is little meaningful enforcement of sideline 
concussion protocols, with surveys of athletic trainers showing that 
athletes who suffer traumatic brain injuries are often not removed from 
play or are prematurely cleared to return to play. Athletes are not 
protected from abusive coaching and workouts that in some cases have 
required hospitalization, and in extreme and particularly tragic cases, 
resulted in death. Most recently, with the COVID-19 pandemic still 
widely active, the NCAA and its member institutions are bringing 
athletes back to campus (in many cases while non-athlete students and 
staff remain at home) to begin training for fall football season. While 
it is not at all clear that it is safe, athletes are reportedly being 
asked to sign liability waivers and ``pledges'' that purport to 
immunize their institution from any virus-related liability.
    Beyond health and safety, athletes' access to a full education, 
particularly in the revenue-generating sports of football and men's 
basketball, is substantially curtailed. The NLRB's 2015 decision on the 
Northwestern University football players' petition to form a collective 
bargaining unit noted that players spent up to 50-60 hours per week in 
team activities, practices, and games. Participation on a team often 
means an athlete is limited in the ability to register for certain 
classes, major in certain subjects, and even attend courses for which 
the athlete is registered. Athletes' educations have in some cases been 
so undermined by their participation in sports it has amounted to 
outright academic fraud. The NCAA and its member institutions have no 
duty to provide an adequate education, and graduation rates in revenue-
generating sports show that schools often fail to adequately support 
students in even attaining a degree.
    Athletes have little ability to change these circumstances. They 
are not members of the NCAA or represented by unions and have no 
meaningful administrative or legal recourse if their athletics 
experience is physically and emotionally harmful. They have little 
choice but to comply with the directives of coaches and administrators. 
They have no recourse if the demands of sports participation prevent 
them from getting the education for which they purportedly enrolled. 
They share in none of the revenue, beyond their scholarship, that is 
claimed by coaches' and administrators' salaries, and they often face 
long-term, uncompensated health expenses. Seen in this light, the 
NCAA's ``amateurism'' model is one that is profoundly unfair.
    The unfairness of the NCAA model is even more apparent when we 
consider who provides the labor that generates the billion-dollar 
revenues. In Division I, 56 percent of men's basketball players are 
Black. In contrast, most coaches and administrators are White. 
Similarly, in football, nearly half the players are Black, while the 
vast majority of coaches and staff, down to graduate assistants, are 
White. Moreover, there is a persistent graduation rate disparity 
between Black and White players, and there is also a troubling 
graduation rate disparity between Black male athletes and Black male 
non-athlete undergraduates (despite athletes having the benefit of 
financial and academic supports). These Black athletes frequently come 
from socio-economically disadvantaged backgrounds, so that the reality 
of their athletics experience is that they earn millions for White 
coaches and administrators while the athletes' own families often 
cannot afford to even travel to watch them play.
    Indeed, our current circumstances illustrate well the impact the 
NCAA model has on Black male athletes. Although evidence shows that 
communities of color are being the most severely impacted by the COVID-
19 pandemic, Black male athletes are forced to return to campus to 
train for the upcoming season. To many, this is yet another example of 
the NCAA model using Black male labor (and in this case risking Black 
men's lives) to generate the revenue that generously supports White 
coaches and administrators. Thus, while participation in 
intercollegiate athletics is frequently touted as a way to uplift and 
advance Black men and their families, it can also be seen as part of an 
American culture plagued by systemic racism. In this way, the current 
model for intercollegiate sports is not simply an NCAA regulation 
issue, it is a social justice issue.
    Put in its proper context, then, the continued deference to the 
NCAA in the face of decades of evidence of harm to athletes can no 
longer be characterized as simply taking a ``hands off'' approach to 
sports regulation. Instead, such deference puts Congress's thumb on the 
scale to weight the interests of sports administrators--those who 
manage and profit from sports--ahead of the athletes who play the 
games. The time has come for a different approach.
The NCAA Argument for Federal Legislation
    The NCAA's arguments around the NIL issue represent a troubling 
extension of the ``hands off'' logic. Through the NIL issue, the NCAA 
is not only asking Congress for deference, it is asking for an 
unprecedented level of insulation from legal accountability and the 
free-market rules that nearly every other important American industry 
must follow. It is also asking for an endorsement of a model that 
perpetuates multiple levels of injustice in the name of ``amateurism.'' 
Importantly, Congress need not defer to or endorse the NCAA's 
formulations of ``amateurism'' and the ``American Model'' to ensure 
that our country enjoys the many benefits of college sports.
    There is No Urgency. While a national solution to the NIL issue 
supplied by Federal law could be useful, it is not nearly as urgent as 
the NCAA would suggest. States are taking common sense steps to protect 
athletes' rights in this area. While the NCAA and its member 
institutions and affiliated conferences argue that state legislation 
would threaten competitive balance, and by extension, the very model 
for intercollegiate sports, there is little evidence that this is true. 
The NCAA has had decades to craft rules to promote competitive balance, 
and very few would claim that it has been achieved. There is also 
little evidence that regulating athletes' use of their NIL would do 
anything more to restore balance to a college athletics landscape that 
is characterized by schools and conferences who are clearly divided by 
the haves and have-nots. Similarly, regulating athletes' use of their 
NIL or capturing revenue from athletes' NIL is in no way necessary to 
``preserve'' the current model or for intercollegiate sports to exist.
    NCAA-Crafted ``Guardrails'' Are Not Necessary. Explicitly deferring 
to the NCAA to craft so-called ``guardrails,'' or rules for athletes to 
market their NIL is also not necessary. Athletes can, like other 
students on campus, enter the free market and strike deals for the use 
of their NIL. Athletes are no less capable of managing this process 
than any other student, and NCAA-crafted ``guardrails'' can easily 
become unreasonable barriers to the free market. In fact, the only 
``guardrails'' needed in this situation are those which prohibit 
unreasonable restraints on trade that the NCAA and its member 
institutions have too often imposed in the name of ``amateurism.''
    Similarly, the rationale that the NCAA and its member schools can 
best protect athletes from unscrupulous boosters or agents is also 
misplaced. The NCAA has failed (and indeed denies it has such a duty) 
to protect students' health, safety, wellbeing, and education. Seeking 
legislation to protect athletes should be viewed skeptically where 
athletes themselves are not asking for it. In contrast, athletes are 
asking for the types of protections that support their health and 
safety--from concussions, from abusive coaches, and most recently, from 
the COVID-19 pandemic. Indeed, if athletes are currently able to sign 
waivers to facilitate their return to practice during a global health 
pandemic, they should be trusted and permitted to make deals to market 
their NIL.
    Title IX/Gender Equity is Not Threatened. The NCAA also often 
vaguely asserts that allowing athletes free access to the market for 
their NIL would somehow threaten gender equity and the gains made by 
Title IX. Of course, Title IX has no applicability to athletes' 
transactions with third parties who would compensate them for their 
NIL. Full NIL rights also would promote, and not undermine, gender 
equity. Because women have fewer opportunities to participate in 
professional sports than men, their years as college athletes often 
provide the only opportunity they will have to earn income from their 
athletic participation. In addition, NIL marketing by female athletes 
can raise the profile of their sports, building interest along with 
women's brands. Rather than limiting with ``amateurism'' restrictions 
women athletes' use of their NIL, the NCAA and its member institutions 
should focus on Title IX compliance, something that has yet to be fully 
realized.
    In short, if the NCAA and its member institutions were to ask 
Congress for Federal legislation to protect athletes and promote gender 
equity, it would do well to start with the issues described above that 
are of the most importance to athletes. Focusing now on NIL rights does 
little to protect them, but it stands a strong chance of perpetuating 
the many harms the NCAA ``amateurism'' model engenders.
    An Antitrust Exemption is Not Warranted. The NCAA has long sought 
an antitrust exemption and granting one now, purportedly for the 
limited area of NIL rules, is particularly troubling. Antitrust 
exemptions can be statutory or non-statutory (judicially created). The 
statutory antitrust exemptions Congress has granted in sports were 
targeted and important to facilitating the growth of nascent sports 
leagues through legislation such as the Sports Broadcasting Act 
(permitting joint television broadcasting agreements) and the 
legislation permitting the creation of the modern NFL. The Curt Flood 
Act of 1998 specifically limited baseball's historic common law 
antitrust exemption by providing that major league players' issues were 
no longer covered (though they may claim the protection of the non-
statutory labor exemption).
    The rationale for granting the NCAA a statutory antitrust exemption 
is not nearly as clear. Such an exemption would not be to enhance 
consumer welfare by supporting the market power of smaller firms who 
face competition from a dominant market player. The NCAA, of course, is 
the dominant market player in intercollegiate sports. An exemption also 
would not enhance efficiency but would instead further entrench a 
system where artificially above-market salaries are possible because 
revenue is not shared, beyond the scholarship, with athletes. Viewed in 
light of recent antitrust decisions on the NCAA's ``amateurism'' 
restraints, it is clear that an exemption would simply serve to shield 
an industry that has struggled to demonstrate that its anti-competitive 
restraints on athletes are in fact necessary to produce college sports. 
In this way, the NCAA is no different than the many industries 
throughout history that have sought an antitrust exemption to avoid the 
critical accountability that the Sherman Act guarantees.
    It is, however, of course true that an antitrust exemption in 
sports can be used to promote important countervailing interests. In 
professional sports, the non-statutory labor exemption serves to 
insulate unionized sports leagues from antitrust litigation to allow 
collective bargaining to take place. In this context, athletes' rights 
and voices are protected through the operation of labor law and overall 
athlete wellbeing is enhanced. Here, intercollegiate athletes have no 
union or meaningful voice in the process that will result in NIL rules. 
An antitrust exemption would give the NCAA unchecked power to restrict 
athletes' free market rights far more than necessary without any 
accountability.
    In addition, any NCAA argument that it should not be subject to the 
burden of antitrust suits or court rulings that could invalidate its 
rules is highly troubling given the recent history of antitrust 
litigation which found that the NCAA in fact violated antitrust law and 
adopted rules that were more restrictive than necessary to achieve 
their stated purpose of ``protecting amateurism.'' Far from impeding 
the NCAA's ability to manage college sports, the integrity of the 
enterprise is enhanced, and positive change has resulted, from judicial 
checks on unfettered NCAA overreach. Under these circumstances, where 
an antitrust exemption is not coupled with unionization, the danger is 
far too great that the NCAA will once again abuse its power and 
unreasonably restrain athletes' rights. Moreover, while the NCAA often 
submits that an antitrust exemption and its overly restrictive 
restraints on athletes' rights are necessary to prevent vague, 
unsubstantiated claims of harm to the ``amateurism model,'' antitrust 
cases have documented the very real, demonstrable harm that such 
restraints have on athletes and the free market.
    Unchecked Power Leads to Abuse. Finally, this Committee is well 
aware that unchecked power by sports regulators too often does not 
enhance athlete welfare, but instead can lead to cultures of 
inequality, abuse, exploitation, and persistent athlete harm. The 
example of the USOPC is instructive. Decades of Congressional deference 
and a lack of accountability fostered a culture where the USOPC's 
monopoly over U.S. Olympic Movement sport produced high medal counts 
with an even higher price: years of mismanagement, scandals, and 
generous administrative salaries while athletes suffered sexual and 
other forms of abuse and pervasive gender inequality. I applaud this 
Committee for its work to address these issues by enacting meaningful 
reform such as the Protecting Young Victims from Sexual Abuse and Safe 
Sport Authorization Act of 2017, and more recently with bills such as 
the Equal Pay for Team USA Act that would guarantee equal pay and 
benefits for our Olympic athletes. Through the important leadership of 
this Committee, Congress has taken significant steps to replace 
wholesale deference to the USOPC with targeted, appropriate regulation 
that has improved the lives of our Olympic Movement athletes and 
strengthened public confidence in Olympic Movement sports. Congress has 
an opportunity to do the same thing for intercollegiate sports.
How Should Congress Respond
    If Congress chooses to legislate, it should do so in a way that 
seeks to promote the rights, health, and wellbeing of athletes. For too 
long, the deference to the NCAA and its member institutions has 
fostered a so-called ``amateurism'' model that privileges everyone but 
the athletes who generate the revenue. Congress therefore should use 
its power to enact comprehensive legislation that will address 
intercollegiate athletes' health and wellbeing and fully protect their 
rights to market their name, image, and likeness.

   Legislation should include a uniform, enforceable standard 
        for athlete safety to ensure that intercollegiate athletes 
        receive quality health care (including the payment of all 
        athletics related medical expenses), particularly in the 
        management of concussions and heatstroke, the prevention of 
        abusive workouts, and protection from forced participation 
        during public health crises such as that posed by COVID-19.
   Congress should affirm athletes' right to market their name, 
        image, and likeness. To the extent any ``guardrails'' are 
        deemed necessary, they should be written into legislation and 
        not left for the NCAA to craft with the protection of antitrust 
        immunity. Thus, Congress could, for instance, prohibit NIL 
        deals used for inducements to recruits or prohibit colleges and 
        universities from coordinating NIL deals for their athletes.
   If Congress is not prepared to act now to address the myriad 
        problems with NCAA regulation of intercollegiate athletes, 
        Congress would do better by doing nothing and allowing states 
        to continue to legislate in this area. A so-called 
        ``patchwork'' of state laws that provide athletes with rights 
        is not a threat to the NCAA intercollegiate sports model, and 
        it can provide important data that Congress can use to craft a 
        future national solution if warranted. A rushed Federal 
        response that takes power from states and athletes to once 
        again privilege the NCAA is not warranted.
Conclusion
    In nearly every context where athletes have advanced arguments for 
fundamental fairness, equality, and the protection of their health and 
wellbeing, sports regulators like the NCAA and USOPC have countered 
with dire predictions that their very model for sport will be 
threatened. The arguments always center on vague predictions of harm 
and shifting definitions of ``amateurism'' and ``competitive balance.'' 
Across all levels of sport, the arguments are the same and the 
predicted harm never materializes. The NCAA argued for years against 
Title IX, on the grounds that it would destroy, among other things, 
football. Major League Baseball argued that eliminating the reserve 
clause to permit free agency would irreparably harm the game. Olympic 
regulators argued that allowing professionals into the Games would kill 
the Olympic model within a few years. The PGA Tour argued that Casey 
Martin's clam to protection under the Americans with Disabilities Act 
would deal a mortal blow to golf, if not all sports. None of these dire 
predictions have materialized. Importantly, advances which serve to 
promote athletes' rights have strengthened the integrity, 
sustainability, and popularity of sports. I have no doubt that allowing 
intercollegiate athletes the right to market their name, image, and 
likeness--without unnecessary restriction by the NCAA--will do the 
same. Thank you and I look forward to your questions.

    The Chairman. Thank you very much, Ms. Koller.
    Commissioner Sankey, you are recognized, sir.

STATEMENT OF GREG SANKEY, COMMISSIONER, SOUTHEASTERN CONFERENCE

    Mr. Sankey. Thank you, Chairman Wicker, and thank you, 
Ranking Member Cantwell and distinguished members of the 
Committee. On behalf of the Southeastern Conference, I 
appreciate the opportunity to visit on the important topic of 
student athlete name, image, and likeness.
    My name is Greg Sankey, and I've served as Commissioner of 
the Southeastern Conference since June 2015. That is part of a 
33-year career in college athletics, including work on a small 
Division 3 campus in Upstate New York, a small Division 1 
football playing university in Natchitoches, Louisiana, being 
commissioner of the Southland Conference, with universities in 
Texas and Louisiana, and now with the SEC. My objective is to 
share the important view that we must get this name, image, and 
likeness issue right in order to ensure that we are able to 
provide opportunities for many young women and young men, both 
now and in the future, and that we preserve the characteristics 
of college athletics that make it unique, appealing, and 
important to so many in our country.
    In reality, this issue presents unique and challenging 
complexities that can be misunderstood and may result in those 
unintended consequences that have been identified. And so, I 
offer the following for your consideration:
    First, as we implement these NIL changes, our student 
athletes must remain students and not become employees of 
colleges and universities. We must continue to emphasize their 
academic progress as students, particularly as we add 
additional responsibilities upon an already busy schedule.
    Second, we must not allow college athletics to devolve into 
a pay-for-play system. This means prohibiting colleges and 
universities from paying student athletes, directly or 
indirectly, for their name, image, and likeness rights. The 
California NIL law, which is scheduled to take effect in 2023, 
allows just that, or even university head coaches to purchase 
student athlete name, image, and likeness rights, and provide 
that compensation to members of their team once they enroll. 
That's simply a pay-for-play model.
    Third, the reality is, there's no draft process in college 
sports, which means we must keep NIL activity out of 
recruiting. In practical terms, this means Federal legislation 
must preclude athletic department boosters from using name, 
image, and likeness compensation as a recruiting inducement for 
high school students or for college students contemplating a 
transfer to another institution.
    Fourth, we need to enact meaningful protections for student 
athletes. The realities--the reality is, outside parties will 
have great interest in taking advantage of student athletes who 
lack experience in making business decisions, selecting agents, 
determining advisors, and other experience in evaluating 
whether a deal is just too good to refuse.
    Finally, we need a Federal law to address these issues, 
because college athletics needs a uniform system for regulating 
name, image, and likeness activities, as 50 different State 
laws will not support national competition or national 
championships in a fair and effective manner.
    Also, I believe our high school athletes being recruited 
nationally by multiple universities and multiple states need to 
understand one clear standard for evaluating their name, image, 
and likeness opportunities. And we need protection from claims 
and liability arising from the implementation of new NIL 
standards, and from continual challenges to the validity of 
NCAA rules, which we have discussed in a more lengthy manner in 
my response to Senator Wicker's questions and in my written 
testimony. We seek protection from claims related to 
implementation of Federal legislation that will create 
opportunities for student athletes.
    We seek to work with this committee and others in Congress 
to produce a Federal law that provides a path for student 
athletes to benefit from their name, image, and likeness in a 
way that will preserve the key tenets of college athletics, 
create a uniform national standard, and protect the 
stakeholders from potential liability.
    In 33 years of working in college athletics, I've learned 
many things, but at the top of the list is: We're not perfect. 
Yet, we do some incredible things in college sports. We provide 
opportunities. We provide education for young people. We engage 
our public. We celebrate achievement. And we guide students as 
they transition from adolescence to adulthood. We do all of 
that very well.
    I look forward to working with you to continue these 
successes, and thank you for the opportunity to have this 
conversation.
    [The prepared statement of Mr. Sankey follows:]

           Prepared Statement of Greg Sankey, Commissioner, 
                        Southeastern Conference
    Chairman Wicker, Ranking Member Cantwell and distinguished members 
of the Commerce Committee, on behalf of the Southeastern Conference and 
our 14 member universities, thank you for providing me with this 
opportunity to testify on the important topic of student-athletes' use 
of their name, image and likeness (``NIL'').
    My name is Greg Sankey. I have served as Commissioner for the 
Southeastern Conference since June 1, 2015. My work with the 
Southeastern Conference began in 2002 and my experience includes a 
total of 33 years working in intercollegiate athletics.
    College athletics provides the path to educational opportunities 
for many young men and women, and our universities are making profound 
positive impacts on thousands of student-athletes each year. It is 
vital that we continue to provide these opportunities to all student-
athletes--both now and in the future.
    In reality, name, image and likeness presents complex and 
challenging issues. We are tasked with balancing and serving the 
interests of all student-athletes while also ensuring that we are being 
fair to a relatively small subset who may have greater marketing and 
business opportunities related to their name, image and likeness.
    I have concerns about potential unintended consequences from some 
of the proposed changes in the NIL area, such as NIL activities leading 
to student-athletes being paid to play college sports, or how we 
prevent boosters from using NIL compensation as a recruiting inducement 
to attend a particular university. To be clear, however, I am not here 
to oppose NIL change. It is clear that change is occurring as a result 
of both the enactment of state laws and the consideration of ``Name, 
Image and Likeness'' laws in many other states. My aim instead is to 
share my thoughts on the importance of getting this right to provide 
opportunities for student athletes and preserve the characteristics of 
college athletics that make it unique, appealing and important to so 
many in our country. I offer the following observations for your 
consideration.
    First, as we implement NIL changes, our student-athletes must 
remain students first and foremost, and not become employees of 
colleges and universities. We must continue to emphasize academic 
progress and success among student-athletes, particularly if NIL 
demands are added to their already busy schedules as students and 
athletes. We must continue to provide educational, athletic and career 
opportunities for the many student-athletes who otherwise would not 
have attended college. It is critical for us all to work to preserve, 
protect and enhance the academic aspect of college athletics.
    Second, we must not allow college athletics to devolve into a pay-
for-play system similar to professional sports. Central to this goal is 
the prohibition of colleges and universities paying student-athletes, 
directly or indirectly, for their NIL rights. If universities are 
allowed to pay student-athletes for NIL rights, at a minimum, the 
public will begin to perceive college athletics as a semi-professional 
sport, and the level of support for other student-athletes and their 
sports programs will decrease. This issue has not been at the forefront 
of the NIL discussion, as the focus has been on third-party endorsement 
and social media influencer activities. The fact remains that the 
California NIL law that will go into effect in 2023 allows 
universities--or even head coaches at universities--to purchase NIL 
rights and provide NIL compensation to student-athletes after they 
enroll. In addition to prohibiting such direct payments by 
universities, Federal NIL legislation must also prohibit employees or 
contractors of universities from engaging in NIL payments to student-
athletes.
    Third, we must protect the integrity of the college recruitment 
process by keeping NIL activity out of recruiting. In practical terms, 
this means Federal NIL legislation must eliminate boosters from using 
NIL compensation as an inducement to recruit high school students or 
entice enrolled student-athletes who are considering transferring to 
another institution. Without the appropriate guardrails, it is easy to 
envision boosters becoming the primary recruiters who will pursue elite 
high school athletes or reach out to college transfers, acting with no 
regard for actual NIL value but instead pursuing those individuals 
identified by the universities and coaches they support. The task of 
prohibiting such abuses is particularly complex and will require 
collaboration to arrive at the right balance.
    The Autonomy Conferences--which includes the SEC, Big Ten, Big 12, 
Pac 12 and ACC--have worked closely together throughout this process, 
and we have spent a considerable amount of time on these issues. We 
believe a strategy worth considering is to make the pre-enrollment 
process and first semester of academic courses off-limits for NIL 
activity. We must also closely monitor NIL agreements entered after 
enrollment to ensure these agreements are legitimate and related to a 
student-athlete's actual NIL value.
    Fourth, we must provide meaningful protections for student-
athletes. NIL activities will be like other commercial activities in 
that third parties will look to take advantage of student-athletes who 
might lack the experience needed in such matters. The list of potential 
bad actors includes agents, advisors, business entities and other third 
parties. We need meaningful agent certification requirements and 
disciplinary rules. The same is true of standards that require student-
athletes to promptly disclose their NIL agreements and compensation. 
This type of system will provide a level of review that protects 
student-athletes from being taken advantage of by third parties. We 
must design a structure that properly supports student-athletes who 
will, for the first time in their lives, be dealing with tax filings, 
legal contracts, accounting needs, schedule management, and an entirely 
new financial reality, while also balancing their academic 
responsibilities, engaging in high-level athletic competition and 
maintaining their own mental wellness and physical health.
    Finally, we need a Federal law to address these NIL issues and 
there are two primary reasons for this need.
    One, collegiate athletics needs a uniform system for regulating NIL 
activities, as a system of 50 different state NIL laws is not workable 
and would make it impossible to support a system for fair national 
competition and championships.
    Two, we need protection from claims and liability arising from the 
implementation of new NIL standards and from continual challenges to 
the validity of NCAA rules. History has shown us time and again that 
changes in NCAA rules to expand or improve benefits for student-
athletes results in litigation against the NCAA and conferences. We 
discussed this in more detail in our response to Senator Wicker's 
questions. Last week, we were sued again in a class action lawsuit 
seeking damages related to NIL when the current NIL rules have yet to 
be changed and have been found to be legally appropriate in prior 
litigation. You might recall that I predicted this would happen in my 
June 5 letter to Senator Wicker, only we did not expect such a lawsuit 
to be filed before any NIL changes actually occurred. We seek 
protection from claims related to the implementation of Federal NIL 
legislation, which it seems very likely will increase NIL opportunities 
for student-athletes while also incorporating some parameters to 
preserve collegiate athletics and address some of the concerns raised 
above. We should not be subject to years of litigation as a consequence 
of complying with a Federal NIL law.
    My goal is to work with this Committee and other members of 
Congress to produce a Federal NIL law that provides a workable path for 
student-athletes to benefit from the use of their name, image and 
likeness in a way that will preserve the key tenets of collegiate 
athletics identified above, create a uniform national standard and 
protect stakeholders such as the SEC and its universities from 
potential liability. It is critically important we get this right. Each 
year, the Southeastern Conference alone currently provides incredible, 
meaningful and life-changing opportunities for approximately 8,000 
student-athletes. Across the country, at the Division I level, these 
same types of opportunities are available for more than 180,000 
student-athletes--men and women, from all races and backgrounds, in a 
multitude of sports, all of which are grounded in the educational 
values of our colleges and universities. The reality is we have to get 
this right because we must preserve and improve each of these 
opportunities.
    I began my comments by sharing that my entire career has been 
committed to working, serving and leading within higher education 
through college athletics. I have learned many things during the past 
30+ years, and at the top of the list of learning is that we are not 
perfect. Yet, in college athletics, what we do--provide opportunity and 
education for young people, engage our public, celebrate achievement 
and guide young people as they move from adolescence to adulthood--we 
do all of these very well.
    In the midst of this debate, let's not lose sight of the fact that 
we are all privileged to enjoy something very special through the 
uniquely American experience of college sports.
    I look forward to working with you to achieve these objectives.

    The Chairman. Thank you very much, Commissioner.
    And now, remotely, we are joined by Mr. Eric Winston.
    Sir, can you hear us?
    Mr. Winston. Yes, I can hear you, Senator.
    The Chairman. Now, you are recognized. And we appreciate 
you being with us.

                 STATEMENT OF ERIC J. WINSTON,

         CHIEF PARTNERSHIPS OFFICER, ONETEAM PARTNERS;

      FORMER PRESIDENT, NFL PLAYERS ASSOCIATION (2014-20);

        FORMER NFL ATHLETE (2006-17); FORMER UNIVERSITY

               OF MIAMI FOOTBALL PLAYER (2002-06)

    Mr. Winston. Thank you.
    Good afternoon, Mr. Chairman, Ranking Member, and members 
of the Committee. And thank you for inviting me today and 
allowing me to attend virtually for this important discussion 
on economic rights and problem-solving.
    I join you today, not as a former college and NFL football 
player, but as an advocate for helping everyone in college 
athlete--college athletics come up with a fair and equitable 
system around the name, image, and likeness of college 
athletes.
    The conversation is one I--that I am familiar with from my 
playing days at the University of Miami in the early 2000s. 
When I was at Miami, the Orange Bowl was sold out for every 
game, we played in front of massive television audiences, and 
were covered by the national media every day. That attention 
shined a spotlight on the program, increased the popularity of 
the school, and generated large sums of revenue. Sales of team 
and player product went through the roof. Broadcasters and 
sponsors spent millions annually to be a part of the 
experience. All of those positive things were a result of the 
players' and the team's success.
    Away from the bright lights and success of the playing 
field, however, was a far different story. That side involved 
players like me struggling to maintain a full schedule of 
classes while balancing requirements for daily training, rehab, 
and preparation to remain at an elite level. While people are 
more aware today of the challenges and demands of competitive 
athletics, there is still a notion, in some corners, that we 
were--that we are merely just lucky to get a scholarship. The 
reality is that there is very little time for scholarship. In 
fact, the more successful we were, the greater the pressure and 
the demands.
    Most of us knew life would be something like that--would be 
something like once we signed up our college scholarship, 
nonstop and pressure-packed. But, what we didn't know was that, 
for our year-round effort to win games and pack stadiums, drive 
media, maximize TV contracts, raise booster money, and create 
revenue to the school, the conference, and the NCAA, we would 
hardly have enough money to pay for our basic living expenses. 
We received a scholarship check for the months that we were in 
class. Ten checks. I was forced to save a fraction of every 
check to make up the difference during the other 2 months to 
pay for all my expenses. The stipend was hardly enough to cover 
necessities. Every month, every dollar was stretched. While 
some things have changed since then, I know college athletes 
still face these issues.
    After school, I transitioned to the NFL and worked hard to 
have a distinguished 12-year career in the NFL, including a 6-
year tenure as the NFLPA president. At the NFLPA, I came to 
understand the value of group commercial activity and how 
everyone can benefit from incremental revenue generated.
    From there, my career path led me to OneTeam Partners, 
because I know that the inequities that existed during my 
college days are not fixed, and I want to be part of that 
solution. For the benefit of the Committee, OneTeam Partners 
represents the group rights of male and female athletes from 
across pro sports, from the NFL, MLB, MLS, to the WNBA, U.S. 
Women's Soccer, and U.S. Rugby. And we believe college group 
licensing is the logical first step into the NIL space and, 
frankly, low-hanging fruit, which can be implemented rather 
seamlessly.
    Our team has the experience, expertise, and resources to 
maximize the opportunities for both the athletes and the 
institutions for which they play. A thoughtful group licensing 
program is a win-win for everyone involved. Schools and 
athletic departments can benefit from new revenue streams, such 
as video games, trading cards, and the athletes can pocket some 
money to ease the worries about where their next meal is going 
to come from, and the fans can benefit from officially licensed 
products. Innovation in this space is so important right now, 
and change in college athletics is already here. We can resist 
this change and the evolving big business of college athletics, 
or we can work together to create a fair and equitable system 
that puts the headlines back where they belong: on the sports, 
themselves. Athletes are driving the business already, so we 
need to get on board and support them.
    Thank you for your time, and I look forward to your 
questions.
    [The prepared statement of Mr. Winston follows:]

  Prepared Statement of Eric J. Winston, Chief Partnerships Officer, 
OneTeam Partners; former President, NFL Players Association (2014-20); 
   former NFL Athlete (2006-17); former University of Miami football 
                            player (2002-06)
    Dear Chairman Wicker and Members of the United States Senate 
Committee on Commerce, Science, and Transportation's Subcommittee on 
Manufacturing, Trade and Consumer Protection:
    Thank you for inviting me to participate in the ``Name, Image, and 
Likeness: The State of Intercollegiate Athlete Compensation'' hearing 
on Wednesday, July 1, 2020. This is an important discussion on economic 
rights and problem solving.
    The ongoing debate around college athletes and the use of their 
name, image and likeness is one that I am intimately familiar with from 
my own experience as a college athlete. Being a Miami Hurricane in the 
early 2000s represented the dream of every boy that wanted to play 
college football. The Orange Bowl was raucous for every home game. We 
played in front of a massive television audience. We were covered every 
day on different sports and news related channels. Every radio station 
in South Florida and many around the Nation covered `Canes football 
wall to wall on their shows. Even the local television outlets were 
always at our practices to get footage for the evening news.
    All of that coverage shined a bright light on the program and gave 
fans a chance to know more about the players on the team. Much of the 
coverage also drove sales of Miami Hurricanes team and player product. 
However, few of the reports showed or addressed the other side of being 
a major college football player that existed outside of the highlights 
and games. That side involved student-athletes like me maintaining a 
full schedule of classes each semester while balancing requirements for 
daily lifting, rehab, and the overall maintenance of our bodies. No one 
saw the coaches grilling us in the film room for hours before and after 
practice, which left little time to study for assignments in those 
classes. And no one saw the frequent times I checked my bank account 
balance so I could decide how to spend the very few dollars I had 
during the fleeting moments of free time I could squeeze in if I was 
lucky. I realized then, as I do now, that I signed up for the grind. I 
also recognize that my life may have been improved if I benefited from 
the various ways that grind brought significant revenue into the 
Hurricanes' football program, the athletic department, and the 
university overall.
    To be clear, I understand that college requires young people to 
figure out how to do more with less. Anyone that has put a son or 
daughter through college knows that there are many demands and 
sacrifices. But for students who are also athletes, those requirements 
are ramped up even more. People think that being a college athlete is 
all fun, games, and good times. The struggle is not something they 
think about. But it is real. Being a college athlete was and is a grind 
no matter what sport an athlete is involved in.
    A typical weekday saw me wake before the sun for compulsory 
workouts. Afterward, I took the earliest classes on the university's 
schedule. After more classes back to back (because we had to be done 
with classes for the day around noon) you barely had enough time to eat 
lunch and get to the athletic center. Once there, you must be dressed, 
taped, and complete all other activities before mandatory team 
meetings. After a couple hours of meetings, we hit the field for 
another couple hours in the South Florida heat. Being ``tired'' was not 
in our vocabulary. After practice, we had a few minutes to shower and 
get dressed before assembling for post practice meetings. From there, I 
wolfed down dinner and went to mandatory study hall. I arrived back in 
my dorm around 9 pm. I would finish up schoolwork and try to get to bed 
at a reasonable hour so that I could get up to do it all over again the 
next day. This schedule was indicative of my Fall semesters at Miami. 
The Spring schedules loosened up some, but there was never much free 
time.
    I admit that most of us knew life would be like that: nonstop and 
pressure packed. We signed a contract with our universities, or 
specifically a national letter of intent, and later a scholarship that 
may have referenced this. Truth be told, we probably excelled in the 
structure and benefited from some of the guidance. What we didn't know, 
was that for all the year-round effort of packing the stadiums on 
Saturdays, driving the media coverage, maximizing value of the 
television contracts, helping raise booster money at events, and 
influencing all the other revenue the school, conference, and the NCAA 
benefitted from because of our hard work, was that we would not be at 
least given the resources to pay for basic living expenses. When I was 
in school, you would only get a scholarship check for the months that 
classes were in session. That meant ten checks. As you can gather, an 
athlete is forced to save a fraction of every scholarship to cover the 
other two months of rent, phone bills, and all the expenses that come 
along with living off campus. Few if any of us had skills in budgeting. 
We learned quick because every dollar had to be stretched. Usually 
stretched so thin that we couldn't imagine being able to go to the 
student store and buy an official player jersey with our number or name 
on it as a gift for our parents.
    One point that was drilled into us from the time we arrived on 
campus as freshmen was that we as athletes could never receive payments 
from anyone, for any reason, or we would be deemed ineligible. Accept a 
free meal from the local restaurant that just had a record day from the 
number of patrons there to watch you play the day before? Ineligible. 
Receive money to show up to a birthday? Ineligible. Come up with a 
crazy slogan and put it on a t-shirt that you sell? Ineligible. From 
day one, it was made very clear that receiving any extra benefit, other 
than the full scholarship and the stipend that went along with it, 
would make us ineligible.
    What was not made clear was how we were supposed to survive in the 
grind as 18 to 22-year-old student-athletes. How were we supposed to 
make up the difference required to pay for food, an apartment that was 
usually shared with fellow teammates or friends, utilities, 
transportation and other expenses? How were we supposed to eat to 
maintain health and balance? Or, go out with friends like any other 
student when we couldn't earn extra money? The stipend money we were 
provided was hardly enough to cover necessities. I understand that 
since I left college, some things have changed. The NCAA allows 
football players a second plate of food at dinner time. They even pay 
for the players' parents to see their sons in the National Title game--
a game that is watched by tens of millions and drives huge amounts of 
sponsorship revenue to the universities.
    Looking back, I realize that being broke all the time was not the 
worst part about being forbidden to explore other avenues of 
compensation. A few games into my junior year, in 2004, I suffered an 
awful knee injury. I tore three ligaments and a muscle around the knee. 
The rehab was grueling; the pain of rehab was awful. What made this 
worse was the realization that I would have to pay for my eventual knee 
replacement from that injury. So, for an injury I sustained while 
playing at Miami, where I helped the university earn millions in 
revenue every year, at some point in my future, I will have to pay to 
fix it. It would be nice if some residuals from our collective earnings 
helped, or at the very least athletes were fully compensated for that 
risk, but the current collegiate rules do not allow it and the laws 
have not addressed it.
    I am pleased for those minor changes that help athletes better 
manage life off the field. But most of those changes were put in place 
to ensure athletes perform at a high level. College athletes still 
cannot profit from fans buying their jersey or be compensated for their 
likeness from appearing in video games or on trading cards and it is 
far past time for us to address these inequities and figure out the 
solution. That is why we are here today and having this discussion. 
That is also why, after a career as an NFL player and advocating on 
behalf of my brothers across the league, I have now joined One Team 
Partners, a company that helps athletes maximize their name, image and 
likeness. Our infrastructure and expertise in the business can help 
address the old way of thinking and doing business and offer solutions 
to the problems facing colleges and student-athletes now and into the 
future.
    Attached to this testimony is brief information about OneTeam 
Partners and how the organization may be able to provide the best 
guidance for how to bring NIL to the market fairly, equitably and 
legally.
    Thank you for the opportunity to share my story and offer 
perspective on the crucial issue of name, image and likeness that will 
impact future college athletes. I remain available to the Committee or 
its Members should any follow up questions arise from your reading and 
hearing of this testimony.
            Sincerely,
                                              Eric Winston.
                                 ______
                                 
                            ONETEAM PARTNERS
    OneTeam Partners LLC (OneTeam) was formed to help rights holders, 
like athletes, monetize their name, image, and likeness. Several of the 
unions of the major sports have for-profit subsidiaries that help 
professional athletes monetize these group rights. The subsidiary must 
acquire group licensing agreements from the players because there is 
nothing inherent about being a member of a union and being in a group 
designed for commercial usage. Once the group licensing assignments are 
acquired, the for-profit subsidiary markets and negotiates on behalf of 
the group of players (think: video games, trading cards, apparel). In 
part, OneTeam was created to serve as a platform to enhance rights 
holders' abilities to fully monetize their likenesses.
    OneTeam views college group licensing as the logical first step 
into the NIL space and, frankly, low hanging fruit. Further, group 
licensing is a ``win-win'' for everyone involved, including the 
schools. A rising tide lifts all boats. Currently, each school makes $0 
from a college video game and trading cards. Further, each school 
hardly scratches the surface of what amount of revenue it could produce 
if apparel were done in a way that included the player's NIL.
    OneTeam can provide protections to the athletes that are unrivaled. 
First, protecting and maximizing group rights is our core competency. 
We represent athletes' group commercial interests across sports and 
gender. The men of the NFL, Major League Baseball, Major League Soccer, 
and U.S. Rugby, as well as the women of the U.S. Women's National 
Soccer team, the WNBA, and U.S. Rugby trust our company to serve their 
best interests. There will be many who come before you claiming that 
they can do what we are built to do. I respectfully request that you 
ask one question of them: ``When have you ever done it in the past?'' 
There is not one agency or individual who has managed and transformed 
group player licensing on the scale that OneTeam and our member 
organizations and partners have done consistently and over several 
years.
    Second, OneTeam provides transparency. Our system allows athletes 
to obtain compensation that has been cleared through NCAA regulations, 
is free of tax issues, and documented by compliance officers at their 
respective colleges. Because of our unique positioning, we understand 
exactly what athletes need and the logical fixes to these inherently 
problematic issues.
    Third, the OneTeam system provides an equitable solution for 
athletes. There are many different formulas that can be used to 
compensate different members of the group. OneTeam is amenable to 
almost any solution and we provide a long and successful track record 
of best practices. For example, the current group commercial system 
model for NFL players compensates all of them in an equitable way while 
providing some players with additional payment as it relates to 
specific items, like player jerseys. We understand that this model 
could be different for college athletes--and know how to build it and 
execute it.
    In conclusion, the OneTeam operation provides a solution to the 
main question driving our discussions: ``How does someone represent, 
protect, and pay college athletes?'' The confidence in our capabilities 
derives from our leadership and collective years of experience and 
passion for the fair and equitable treatment of ALL athletes. As I 
noted, I predict other groups will claim that they can do what OneTeam 
does. But I assure you, as a former college and professional athlete, 
these same groups have turned a blind eye over many years at the 
welfare of college athletes, and/or have or currently work for the 
schools themselves.
                         GROUP PLAYER LICENSING
    Over the past several months, we have heard arguments that are not 
based in truth. These arguments, from public and private voices, and 
many working in the current system, are purposely being proposed to 
discourage people from looking further into the rightful opportunity 
for NIL freedom for college athletes.
    Below are FAQs which address group player licensing and can serve 
as a guide for what is and is not true.
What is Group Licensing?
    Group licensing is based on a collection and assignment of 
individual athletes' name, image, and likeness rights. In group 
licensing, each athlete assigns his/her rights to a third-party 
property to license those collective rights to the marketplace for 
commercial use (e.g., consumer products like video games, trading cards 
and apparel and marketing and promotional campaigns).
Is an athlete union required to participate in a group licensing 
        program?
    No. Athletes, as well as any group of individuals, can collectivize 
a certain set of rights for a commercial purpose. By doing so, it 
allows these individuals to use their rights in ways that otherwise 
would have not been possible before such as video games, trading cards, 
and apparel at a large scale.
How many players makes up the ``group''?
    It depends. Each athlete property determines the ``group'' minimum 
threshold. For example, the NFL Players Association's group license is 
defined as 6 or more (6+) NFL players. Therefore, to use more than 6 
NFL players in a commercial capacity--whether it be 6 or 1,600--an 
NFLPA license is required. The minimum threshold varies depending on 
the athlete property, and once that minimum is met, there is typically 
no limit as to how many athletes the licensee is able to utilize or 
feature across its licensed product lines and/or brand marketing 
campaigns. For example, EA Sports utilizes every current NFL players 
under its NFLPA group license for use in its Madden video game title, 
whereas Funko (a manufacturer of vinyl toys & collectibles) releases 
roughly 25 new NFL player figures per year. In each case, the licensee 
is meeting the obligations of the group license, i.e., featuring a 
minimum of six players.
Are group licenses exclusive to the respective rights holders?
    Yes, group licensing rights are typically exclusive to the athlete 
property and a license from the property is required to use more than 
the minimum group threshold.
If an athlete participates in a group licensing program, can he/she 
        also 
        license his/her NIL rights individually?
    Yes. Individual athletes can license their individual NIL rights 
and enter endorsement agreements in addition to the rights granted 
through a group license program. An example of this is NFL player, 
Marshawn Lynch. While he was actively a part of the NFLPA's group 
license and featured across a range of NFLPA officially licensed 
products, (e.g., jerseys, name and number t-shirts, bobbleheads) 
Marshawn also developed his own in-line, trademarked brand entitled 
``Beast Mode.'' As the brand grew, Beast Mode obtained an NFLPA license 
to utilize additional NFL players across its range of branded 
merchandise.
What if a player wants to endorse a non-licensee?
    Players can endorse brands and products not under an official 
license of the group licensing property. However, a company is limited 
in how many individual athletes it may work with in this capacity by 
the minimum set by the athlete property. For example, if Nike has an 
official license to feature athlete names and numbers on jerseys via a 
group license, an athlete may also enter an endorsement deal with a 
different company, like Under Armour or Adidas. The responsibility 
resides with the company (in this case Under Armour and Adidas) to 
ensure they are not in violation of the group license minimum.
What is the process for players assigning their rights to a group 
        license?
    Traditionally, a player opts into a group license program by 
signing a group licensing assignment (GLA) issued by the rights holder.
What is the duration of a GLA?
    Varies by property; however, in the context of college athletics it 
likely makes the most sense for a GLA to last for the duration of a 
player's college eligibility.
How are players compensated under a group license structure?
    This varies; however, royalty payments to players generally come in 
one of two ways:

  1.  Group Player Royalty Payments: In this scenario, revenue is 
        shared equally by all players opted into the group license and 
        that are deemed eligible for royalty payments as defined by the 
        group license requirements.

  2.  Premium Player Royalty Payments: In this scenario, the player 
        featured on the product itself (e.g., jersey, bobblehead), 
        receives a majority portion (at least more than half) of 
        royalties generated, with a minority portion allocated to the 
        group player royalty pool.
Are there any usage rights and guidelines?
    Each athlete property has its own brand guidelines and approval 
processes in place that dictate how its partners can utilize players 
across product and marketing collateral.

    The Chairman. Thank you very much, Mr. Winston.
    And thank you all.
    And now we'll begin a series of questions. And we'll use 
the 5-minute round.
    Mr. Carter, you attended Ole Miss just a few years before 
Mr. Winston attended Miami. Is that correct?
    Mr. Carter. Correct.
    The Chairman. And he listed a pretty tough set of 
circumstances: little time for study, coaches grilling us in 
the film room for hours and hours, very sketchy allowance for 
expenses, and having to check the bank account to see if you 
could pay for living expenses, only receiving those checks 10 
months out of the year, rather than 12. Is that something you 
recognized, in your collegiate career? And has that changed 
since that time?
    Mr. Carter. Yes, sir. That's a great question. And I would 
agree with Eric on that, from a standpoint of, when I was in 
school, there were times when you didn't have a lot of money in 
your pocket. You know, your scholarship check, a lot of those 
things, you had the essentials. You had your room and board 
paid for. You had a lot of those things done. But, the 
extracurricular activities, sometimes you didn't have the money 
to pay for those. And, you know, again, I do think things have 
changed a lot since the late 1990s, when I was at Ole Miss. You 
know, I look at some of the things that our student athletes 
have now, with unlimited meals, with cost-of-attendance checks 
that were implemented, you know, 3 or 4 years ago. I do feel 
like there are----
    The Chairman. Is that NCAA-wide, or is that----
    Mr. Carter. Each institution, basically, decides how much 
of cost-of-attendance they want to pay. And, for us, we will--
we pay up to the full amount for each student athlete. And so, 
you know, for us, it--we think that we're providing a lot of 
resources, and obviously we're here today to discuss 
opportunities to provide, you know, potentially, more 
resources, which I think is a great thing. But, I would say, 
without a doubt, student athletes now are in a much better 
place from a lot of the things Mr. Winston mentioned than, 
maybe, when he and I were in school.
    The Chairman. Well, you provided a list of benefits for a 
scholarship athlete at the University of Mississippi in your 
written testimony. What does the average Ole Miss basketball 
scholarship recipient receive today? What's the entire 
compensation package?
    Mr. Carter. Well, for an out-of-state student, a non-
resident student, the----
    The Chairman. Like you were.
    Mr. Carter. Yes, exactly. You're looking at about $42,000 
just for the tuition and all the things that go along with cost 
of attendance there. We've calculated that there's probably 
about another $25,000 that would go to a student athlete on an 
annual basis, based on--whether it be medical situations, 
academic services, strength and conditioning, a lot of the 
things that if--for example, if these students were 
professional athletes, they would have to pay for. And so, we 
feel like that the total number at Ole Miss, at our full-ride 
headcount student athletes get is around $68,000 to $70,000.
    The Chairman. And what about--is there some provision, for 
most universities, for day-to-day living expenses, being able 
to run downtown and eat at a restaurant, things like that?
    Mr. Carter. Yes, sir. I think that, again, there are--you 
know, certainly the fact that a lot more meals are provided 
now, things that maybe, again, when Mr. Winston and I were in 
school, that we had to pay for out of a scholarship check or 
those type of things, now there are incidental meals, there's, 
basically, unlimited meals. There are snacks--you know, 
basically, our student athletes, anywhere they turn around on 
our campus, in our athletic facilities, they have an 
opportunity to grab food, which allows them to have more money 
in their pocket to spend on other things. And then, as I 
mentioned, 3 or 4 years ago, when, basically, the full cost-of-
attendance option was available, that's allowing--in the State 
of Mississippi, where we are, in Oxford, it's about $4,800 per 
student athlete, per year. So, again, more money in their 
pocket. And, you know, obviously, we're here to talk about 
doing more. But, I do feel like, over the years, we've done a 
lot to enhance the experience of our student athletes. And 
certainly, I know that it has been a good thing.
    The Chairman. What's your graduation rate among scholarship 
athletes at Ole Miss?
    Mr. Carter. We're very high. We're up in the 80 percentile, 
which is obviously higher than the normal student population. 
We have job placement. We placed 100 percent of our graduating 
seniors last year that had jobs as they left our institution. 
There are so many resources that are available to the student 
athletes, besides just the actual scholarship, itself. We talk 
about----
    The Chairman. What's that figure in the SEC, Mr. Sankey?
    Mr. Sankey. It will vary. So, we'll have programs or 
universities that are at or near 100-percent graduation rate, 
and we'll trail down into the 80s. Perhaps, I think, the 
lowest, off the top of my head, is in the high 70s, from a 
percentage rate. And that doesn't include--that's a 6-year 
window, analysis that doesn't include post-eligibility returns, 
which, over the last 5 years, are in the hundreds of 
opportunities provided for young people to come back and 
complete their degrees.
    The Chairman. Thank you very much.
    Senator Cantwell.
    Senator Cantwell. Thank you, Mr. Chairman.
    Professor Koller, I couldn't agree with you more on 
amateurism and protecting amateurism, and that we should be 
doing more oversight of this issue, not less. I feel like there 
are a lot of things that happen that don't get the bright light 
of day shone on them, and so we should take that opportunity.
    What--how do you think that name, image, and likeness and 
amateurism can work together? And what kind of oversight do you 
think is necessary to make sure that the students are--or the 
athletes are--have their rights independently protected?
    Ms. Koller. Senator, I think name, image, and likeness can 
work with the amateurism model, but where I part company with 
some of the NCAA suggestions is, Who should be in the business 
of enforcing that and writing the restrictions? And so, what 
the NCAA Board of Governors report is asking for is a blank 
check to the NCAA to write the restrictions. I think that 
either Congress can write restrictions on NIL use into 
legislation or, for instance, some have proposed an independent 
commission that could be in charge of that. So, I think the 
blank check to the NCAA to come up with restrictions on NIL use 
is suspect, given that all the terrific benefits Mr. Carter's 
talked about that student athletes now receive, those benefits 
were really the result of antitrust litigation. So, I think it 
can work together, but I think we need an independent body 
coming up with the necessary safeguards, so to speak, and 
enforcement.
    Senator Cantwell. And how do you protect the athletes, you 
know, on the amateurism issue, in and of itself?
    Ms. Koller. So, there are lots of ways to protect athletes 
in an amateurism system. So, if you're talking specifically 
about name, image, and likeness, you can have prohibitions on 
schools setting up these deals for their athletes, you can have 
prohibitions on using these deals as recruiting enhancements. I 
think there are a lot of ways that you can do that. You can 
write it into legislation, or you can have an independent 
commission do it. But, again, what the NCAA has asked for 
through its Board of Governors report is a far more, sort of, 
expansive definition of that, and I think that's unnecessary.
    Senator Cantwell. I mentioned this issue of the pandemic. 
And so, Dr. Drake, will you allow students to refuse to compete 
or participate in college-mandated activities because of COVID?
    Dr. Drake. Absolutely. The participation is voluntary. Of 
course.
    Senator Cantwell. OK. So--but, why am I seeing this thing 
called the Buckeye Pledge, returning students sign a liability 
waiver before participating in athletic----
    Dr. Drake. Well, thank you, Senator. Let me just say that 
they do not sign a liability waiver. That's just not true. It's 
a pledge that all of our students are going to be signing to, 
basically, follow the good public-health guidelines that you 
and I and everyone should follow to help protect us against 
this--against the pandemic. In fact, the guidelines are exactly 
parallel to the CDC-issued guidelines that came out just 
yesterday. And what that pledge says is that you'll wear a mask 
when you're in public, you'll wash your hands, you'll keep 6 
feet of distance, and, if you become ill, you'll report this to 
people to allow you to be protected.
    Senator Cantwell. So, a football player could say, ``I 
don't want to participate in this fall season,'' and not have 
any of his compensation or----
    Dr. Drake. Yes. A scholarship--specifically in the pledge, 
it says that this will not affect your scholarship--whether or 
not you participate will not affect your scholarship.
    Senator Cantwell. OK. So, it's----
    Dr. Drake. Specifically written to say that.
    Senator Cantwell. Ms. Koller----
    Dr. Drake. So, it's a pledge, not a--yes, not a waiver, 
which I would not support.
    Senator Cantwell. OK. Thank you.
    Ms. Koller, do you have any comments about this?
    Ms. Koller. Well, I certainly don't want to challenge Dr. 
Drake on what the intent is behind the Buckeye Pledge. And, as 
an administrator, myself, trying to bring students back to 
campus, I know that we need to have some collective 
understandings of public health. So, I think that's very 
important.
    I would say, as a lawyer and a law professor, however, the 
Buckeye Pledge--and I don't want to focus on that too much; I 
think the University of Tennessee has an actually worded 
release of liability that is deeply concerning, and other 
schools do, as well--but, even things like the Buckeye Pledge, 
which are important for public health, I think, can cross over 
and be used later on down the line to be, sort of, an 
assumption of the risk.
    Senator Cantwell. OK. Thank you.
    Thank you, Mr. Chairman.
    The Chairman. Senator Thune.

                 STATEMENT OF HON. JOHN THUNE, 
                 U.S. SENATOR FROM SOUTH DAKOTA

    Senator Thune. Thank you, Mr. Chairman.
    Mr. Sankey, would your conference today be able to comply 
with several State laws seeking to address the issue of name, 
image, and likeness?
    Mr. Sankey. It would be difficult and confusing. And a 
piece of my concern is, we have one in our region, and knowing 
the competition within my 11 States, I can foresee, quickly, 
the other 10 one-upping each other. And I think that's a 
problem for fair and equitable competition.
    Senator Thune. Is there anybody here on the panel that does 
not believe that there is a need for a nationwide standard?
    Mr. Sankey. No.
    Senator Thune. I know you've kind of suggested, Ms. Koller, 
not to the extent that others are perhaps advocating.
    Ms. Koller. Yes. It's not an emergency, but I think it's 
desirable, certainly.
    Senator Thune. OK.
    Mr. Drake, when Dr. Emmert testified before the Committee 
earlier this year, he stated that he envisioned each individual 
division having some degree of control over the rules to allow 
athletes to benefit from their name, image, and likeness, as 
long as they follow the larger set of parameters established by 
the NCAA Board of Governors. Is that how you envision the rule 
working?
    Dr. Drake. Yes. The divisions have different rules, because 
they have--they have different rules on scholarships and other 
things, so there would be a modifications to distinguish 
Divisions 1, 2, and 3, Senator. But, there would be an 
overarching framework that would guide this.
    Senator Thune. As those rules are being set, what steps are 
each of the respective divisions taking to ensure that fair and 
balanced competition continues between the larger and the 
smaller schools?
    Dr. Drake. Yes, thank you, Senator. What's happening now, 
in fact, is that each of the divisions is working on its 
recommendations for the details of the policy that will come to 
the Board of Governors in October, and those are the kind of 
details they're focusing on.
    Senator Thune. Yes. All right.
    It has been suggested that there should be a limit on the 
amount of funds a potential NIL sponsor can offer a student, to 
protect students from inappropriate predatory actions. Do you 
all agree with that? Limits?
    [Heads nod.]
    Senator Thune. OK.
    The Chairman. Well, let's let every witness answer, 
including Mr. Winston.
    Would each witness support a limit on the amount of NIL 
compensation a student athlete could receive?
    Ms. Koller?
    Ms. Koller. I don't support a limit on the amount of 
compensation. I can see a need for some commonsense limits on 
the ways that these deals come to be, so they're not 
recruitment inducements and other things, but I don't support 
limiting the compensation.
    The Chairman. That was your question, right?
    Senator Thune. Correct, yes.
    The Chairman. OK. Well, let's let the other three members 
answer.
    Dr. Drake.
    Dr. Drake. Thank you, Senator. Yes, I'd just--commonsense 
limits so that you couldn't get $50,000 for--whatever--a T-
shirt. I mean, just commonsense limits that would be--I think I 
agree with Ms. Koller on that.
    Mr. Sankey. I started to lean in, Senator, and then I was 
waiting to see how the answer was going to play out. I do 
believe there needs to be a structure around how this is 
deployed, some of which have been identified. I've not 
envisioned simply a numerical limit. I think sources are 
important to consider for limitations. I think the nature of 
those relationships that might be in legislation should be 
considered. I've had conversations, generally, about a 
numerical limit, and that's not been the focus of our thinking 
at this point.
    Mr. Carter. And I would just add to that. You know, we've 
talked a lot about market value and giving our student athletes 
the same opportunities as non-student athletes. So, I think 
that you would refer back to the market value, and certainly 
some commonsense approach in the structure needs to be there. 
But, the market value is where we would fall back to.
    The Chairman. And Mr. Winston----
    Mr. Winston. Senator, I'll jump in here. Yes, I'll jump in 
here, as well.
    Yes, I don't see a need for a limit, per se. Obviously, 
when we think about commonsense thought processes around how 
that's paid out, or the restrictions around it, I would echo 
what Mr. Carter and Ms. Koller have said on this already.
    The Chairman. And, Senator Thune, I've taken some of your 
time, so you go ahead and take another 2 or 3 minutes.
    Senator Thune. No, that's all right. I've--that's a good--
that was good to get that answer on the record in more specific 
terms.
    Let me ask you--and this is for any of you--whether you 
believe that rules around name, image, and likeness should 
affect the college athletic recruitment process? And the second 
question is, Will it affect the college recruitment process?
    Mr. Sankey. The ``Will it?'' part, it absolutely has the 
potential. And that's why, in my comments, I observed the need 
to address the issue specifically. And I view that in several 
ways. One, if this activity is around recruitment, it's simply 
an inducement, and we lose the conversations that currently 
occur in recruiting around education, around geography, around 
the nature and support of the program, and it becomes 
transactional. I think that is legitimately a concern that we 
should have.
    The difficult part is to create--whether it's guardrails, 
fencing, framework for that limitation within legislation, and 
then to monitor that activity in a way that eliminates it or 
reduces it from recruiting. And I think it's not simply an 
issue for high school students. I also think, with what will be 
a freer environment for transfer student athletes, that same 
type of recruiting activity transfers itself to the college 
level under an unstructured name, image, and likeness 
atmosphere.
    Senator Thune. Mr.----
    Dr. Drake. Yes, if I may. I am the son of a college 
athlete. My father went to college on a college scholarship, 
wouldn't have gone to college otherwise. He went because he 
wanted to play football, not because he wanted to go to 
college. And then, actually, he graduated from college, which 
he hadn't ever thought of, and then practiced medicine--got a 
medical degree and practiced medicine till he was 99 years old. 
So, it changed his life, and it changed my life and our 
family's lives. And so, the pathway was extraordinarily 
important.
    And I'm also, then, the father of a Division 1 collegiate 
athlete, now graduated and a visiting professor at NYU. But, 
he--I remember the recruitment process--he heard from 300 
colleges when he was in high school, and was recruited very 
actively by colleges in different states, and then made a 
decision of the college he wanted to go to, and it turned out 
to be a wonderful process for him, very affirming for him, and 
gave him the ability to look across the country and pick the 
best match. And I think that's a great part of this process. 
You're not drafted and pointed to one team.
    I have a nephew who played in the NFL for 6 years, and I've 
watched that process, as well. It's quite a different process 
than the recruitment process. So, I think that that's something 
that needs to be protected.
    And we've seen, with the laws that have passed already, 
that people in those states have been referring to the State of 
Florida, in particular--referring to Florida now as a place 
that students--athletes ought to come, because of the NIL laws 
that would take place in Florida before others. And so, this 
one-upsmanship, as Commissioner Sankey has mentioned, has 
already started.
    Senator Thune. And that would be one of the biggest 
concerns I have as a--representing a state where you've got 
some schools that are mid-major-conference schools, Division 2, 
NEIA, is how it could affect the ability of some of those 
really quality schools, many of which have attracted athletes 
from the region, for many of the benefits that you all have 
talked about if this becomes a money issue, how that could 
impact that recruiting process. And I think that's something we 
have to be really careful of, aware of, as we work through this 
issue.
    And I will tell you, it has come a long ways. My dad was a 
Division 1 athlete, played at the University of Minnesota back 
in the late 1930s and early 1940s. He is one of the--in fact, 
he's 100 years old, and he, I think, by far, is the only 
athlete still alive from that--when he was competing in the Big 
10. But, at that time, the idea of a scholarship was, you 
worked for your room and board. He worked at a fraternity to 
make his board. So, that was--it has changed a lot, and it's 
great that these athletes have these opportunities. But, we 
certainly want to make sure that this is done in a way that 
doesn't create a lot of potential for bad things to happen.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator Thune.
    My dad was a junior college athlete, back before World War 
II, and it--indeed, he will tell you, at age 96, that it 
changed his life.
    Senator Tester, you are next. I'm guessing you ran cross-
country in college.

                 STATEMENT OF HON. JON TESTER, 
                   U.S. SENATOR FROM MONTANA

    Senator Tester. Pretty close. Well, I was just going to 
tell you, my dad was a farmer and a meat cutter, and lived to 
be darn near 89, so it's a good thing.
    Hey, guys. First of all, I want to thank all of you for 
testifying. I appreciate it. We need to stay in touch on this 
issue.
    I agree with Senator Thune about--it has got to be 
equitable. You cannot give advantages to the moneyed 
conferences, so to speak. If it does, we haven't done our job. 
But, more importantly, it has to be fair to the athlete. And I 
think that's why we're all here.
    My first question is for Mr. Sankey. Mr. Sankey, could you 
very briefly tell me the differences that you see between the 
Florida law and the--and NCAA's proposal on NIL?
    Mr. Sankey. Well, I think the challenge with what the 
NCAA's put together right now is, it is principle-based, where 
Florida's law is operationalized. From my perspective, the 
Florida operate--the Florida law is pretty effective. I think 
it's an improvement of--over what you've seen out of 
California. We obviously, through our university, had an 
opportunity to be in conversation about that law. I think the 
challenge for the NCAA's Working Group report is how to 
actually legislate the rules, to legislate the rules in a way 
that would withstand legal scrutiny, and one that would satisfy 
the extent, for instance, of the California law, which I've 
never thought is possible. And so, my basis for believing there 
needs to be a Federal law is that these differences are 
significant. In particular, the effective date of the Florida 
law being next summer is of great significance in needing to 
move this law in a--move this along in a time-efficient manner.
    Senator Tester. I gotcha. But, what you're, basically, 
saying is, is the issue here isn't necessarily the law itself--
and don't let me put words in your mouth--it isn't necessarily 
the law itself, it's the fact that it needs to be a nationwide 
law. Any law that we have, there has to be a preempt so you 
guys know the rule of the road for every state you're 
recruiting.
    Mr. Sankey. Yes. From my perspective, Florida did what I 
would consider to be a pretty good job. They can't preempt 
other State laws, obviously, and they can't deal with some of 
the legal issues I've identified today.
    Senator Tester. OK.
    Mr. Sankey. The agent oversight is a concern, still, from 
that law. And I think that's one of the challenges that would 
be present even with a Federal law, is, How do we oversee and 
hold agents and representatives accountable to standards in the 
right sort of fashion, in real time?
    Senator Tester. Gotcha.
    Well, when Senator Moran had the hearing for--early on, a 
few months back, we talked about a catastrophic injury fund. 
Mr. Sankey, this is for you. Do you think that if we do 
something on NIL, that that would prevent--are you asking us 
to--that would prevent us from doing anything else on, like, an 
injury fund for injured athletes?
    Mr. Sankey. No, not at this time. I'm not familiar with 
that exact conversation. I know of the fund.
    Senator Tester. Yes.
    Mr. Sankey. In fact, as a conference, our institution 
explored disability insurance and loss-of-value insurance for 
student----
    Senator Tester. Right.
    Mr. Sankey.--athletes on a----
    Senator Tester. Well, I guess what I'm asking you is, if we 
do a bill on NIL that is a national bill, you do not see that 
as preempting Congress from doing something in some other area 
to help athletes outside of NIL--for example, an injury?
    Mr. Sankey. I'll do the dangerous thing, which is to say, 
``No, I don't,'' but I don't know enough of the details to be 
the expert at this point. But, no----
    Senator Tester. OK.
    Mr. Sankey.--I don't want to react to that negatively in 
this moment.
    Senator Tester. That's good enough for me.
    Ms. Koller, aside from name, image, and likeness, and 
taking care of injured athletes, do you see any other issues 
that need to be part of a conversation, discussion?
    Ms. Koller. Well, I think we've discussed the issues, in 
terms of compensation, but I think what needs to be part of the 
conversation is really athlete health and safety and well-
being, and national standards in that area, as well. So, I 
think that's part of what my testimony was, that, you know, we 
shouldn't be so rushed to simply move on NIL that we forget--
and Congress has held hearings on things like national 
standards for treatment of concussions, heat strokes, sports 
medicine. You know, we have thousands of different approaches 
to how athlete healthcare is delivered because of its--the 
NCAA's decentralized model. So, what I would say is, is that, 
as you look for a national solution and work toward a national 
solution on NIL, you not forget these other important issues.
    Senator Tester. Mr. Winston, first of all, I appreciate 
your career. You played for Tampa Bay, right?
    Mr. Winston. Houston, mostly. Houston and Cincinnati.
    Senator Tester. OK. Well, and I don't think you weigh near 
what you did back in your playing days----
    [Laughter.]
    Senator Tester. But, what I wanted to ask you is, the 
schedule that you laid out didn't include much for academics. I 
have heard this from other athletes, that if you're a 
scholarship student, that your first obligation is to that 
sport. And it's just the nature of the beast. I'm not being 
critical of college. What I'm saying is, is that--is it--I 
mean, is that pretty much it? Football comes first, in your 
case--or basketball, or cross-country, or whatever you might 
be--and academics kind of fill in the gaps?
    Mr. Winston. Yes. I always somewhat joke that I was an 
athletic student, not necessarily a student athlete. It--
listen, it's a tough schedule. It's something that I think we 
understand, from coming--even coming from high school, 
especially if you're at a big high school program. There's not 
a lot of time for extracurriculars, either. It doesn't make it 
OK, but I think it's a--it's an understanding that--you're 
right. I mean, you have a study hall until 9 o'clock, and you 
go to bed, and then you get up at 6 a.m. the next day and you 
start it again. Right? And that's something that, 
unfortunately, quite frankly, maybe we get used to. Some guys 
really thrive in that structure, to be completely frank. But, 
at the same time, you're right, it's a complete balancing act 
every day.
    Senator Tester. OK. One last----
    The Chairman. Thank you, Senator Tester.
    Senator Tester. No, I just need to get from Mr. Winston his 
college group licensing proposal, just so I can take a look at 
it and see----
    Mr. Winston. Yes, I'm happy to send it.
    Senator Tester. Thank you.
    The Chairman. Thank you, Senator Tester.
    Senator Cruz.

                  STATEMENT OF HON. TED CRUZ, 
                    U.S. SENATOR FROM TEXAS

    Senator Cruz. Thank you, Mr. Chairman.
    Thank you, to each of the witnesses, for being here, and 
for your good work.
    There are a lot of reasons people choose to come to Texas, 
and one of them is to play sports. And in Texas, we take our 
sports very seriously. Indeed, ESPN still ranks as the greatest 
national championship game ever the game in 2005, when the 
Texas Longhorns and Vince Young stunned USC, and the Heisman 
Trophy winner, Reggie Bush--and, I'll tell you, Heidi and I 
were at that game, in the Rose Bowl--and I, for one, agree with 
ESPN that there has never been a game like it.
    Texas is a home to 53 colleges and universities whose 
student athletes compete at the NCAA level. Twenty-three are 
Division 1. Of those 23 Division 1 schools, six are in the 
Power Five conferences--the ACC, the Big 10, the Big 12, the 
PAC-12, and the SEC. Four of those six are, right now, the 
reigning national champions in at least one sport.
    One of the challenges of this issue that each of y'all are 
considering is, How is it going to impact parity and 
competitiveness between big schools and wealthy schools and 
those that may not be as big and may not be as wealthy? Texas 
is home to a number of schools that are not in the Power Five. 
For example, University of Houston, a phenomenal basketball 
school, and Phi Slama Jama was as great a collegiate program--
yes, I'm using it as an opportunity to revel in old memories.
    The Chairman. Get to the point.
    [Laughter.]
    Senator Cruz. But, the University of Houston's in the 
American Athletic Conference.
    Dr. Drake, in your opinion, should the NCAA determine an 
NIL policy that will apply to all member schools? And how do 
you avoid giving additional advantages to large and wealthy 
programs?
    Dr. Drake. Well, thank you, Senator. That is one of the 
concerns in the NIL program. Their issues would be large--well, 
wealthy programs, programs in urban areas versus programs in 
rural areas, et cetera, and these are the devilish details that 
are being worked out to try to get them as much parity as there 
can be. There's not total parity, as we speak. But, the idea is 
to try to move forward to something that gives more opportunity 
for student athletes without disadvantaging institutions 
unnecessarily, but to focus on the student athlete.
    Senator Cruz. It seems to me that, if the NCAA is going to 
consider this initiative, that two guiding principles ought to 
be looked to. Number one, fairness, being fair to student 
athletes. And student athletes undoubtedly put enormous time 
and energy and dedication, and a great many of those student 
athletes are not going to go on to a professional career. And 
fairness is certainly important. A whole lot of revenue is 
being generated, often by the--quite literally, the sweat of 
their brow. And so, fairness matters. But, at the same time, 
preserving competitiveness. I think a test of success would be 
the competitiveness we see in sports today that any change in 
policy wouldn't significantly alter it to just draw all the 
money and power in a handful of schools, and disadvantage the 
others.
    How's NCAA accounting for both of those principles: 
fairness and preserving competitiveness?
    Dr. Drake. Well, thank you again, Senator. Fairness is 
extraordinarily important to us. The opportunity for student 
athletes is extraordinarily important. You mention a very 
important point. We, at The Ohio State University, have about 
1,100 NCAA athletes. So, when we think about name--the 
marketable name, image, and likeness of individuals, there 
would be a handful. I mean--a few of them would be in that 
category. And we think very much about what happens to the 
other thousand-plus athletes that we have.
    My wife and I have them over for--teams over for dinner, 
and have been doing this for 15 years. And we get to meet our 
student athletes and talk to them about their experiences. It's 
a wonderful chance, actually, to hear what they're 
experiencing, going through.
    And I will say that I also--I was a medical school 
professor for years. I was the dean of admissions at my medical 
school. And I used to look at the student athlete grades as 
they came in. And I had a--I would say, ``Gosh, if it's a 
basketball player, I'm going to give him a little bit of credit 
for the winter, because they're playing games and traveling and 
all in that.'' And that was me trying to be smart as the son of 
a college athlete. What I noticed is, as often as not, they 
would actually have better grades and test scores during the 
time that they were in season, because the discipline of 
working--I surmised, the discipline of working through what 
they were doing helped a lot. So, we think of these as great 
opportunities for the student athletes, and want to make sure 
that we maintain that fairness.
    And so, the three divisions are working on rules to be able 
to implement in a way that allows the competitive advantages to 
stay as fair as possible while providing opportunities for 
student athletes across the board.
    Senator Cruz. Thank you.
    The Chairman. Thank you very much, Senator Cruz.
    Senator Rosen joins us remotely.

                STATEMENT OF HON. JACKY ROSEN, 
                    U.S. SENATOR FROM NEVADA

    Senator Rosen. Well, good morning, everyone. I hope you can 
hear me OK.
    The Chairman. You're great.
    Senator Rosen. Thank you.
    So, thank you, Mr. Chairman, Ranking Member Cantwell, to 
all of the witnesses, for appearing here today.
    Higher education has gone through a major upheaval since 
the start of the coronavirus pandemic. School closures, of 
course, forced universities and colleges to move classes online 
and cancel all of our wonderful sporting events. I think each 
one of us could--I saw Senator Cruz--we all have some good team 
memories, so we'll have to all talk about that when we get 
together at lunch. But, we love our college sports, for sure.
    But, as college athletes begin to return to campuses for 
voluntary training, COVID-19 is on everyone's mind. So, in the 
past few weeks, a number of Division 1 schools have reported 
college athletes testing positive for the coronavirus. Although 
the NCAA has published guidelines--just guidelines for 
restarting college sports, it has left it up to individual 
schools to decide on how to implement health and safety 
policies. So, the lack of a unified response from the NCAA may 
result in what we see playing out in the states, a patchwork of 
mandatory and voluntary guidelines potentially resulting in 
spikes in transmission of the virus in some states, in some 
schools, and not in others. And some colleges test their 
students every week, others only when you have symptoms. And 
so, we need a strategy, generally, for the coronavirus, where 
we need a 50-state strategy, one for our whole country, not a 
50 one-state strategy. We have to have a nationwide approach. 
So, for Division 1 athletics, it seems advisable to have a one-
school strategy for all those 353 schools when we combat the 
virus.
    So, Dr. Drake, does the NCAA plan to issue universal 
coronavirus guidelines to all participating colleges and 
universities?
    Dr. Drake. I'll say this is under--thank you, Senator--this 
is under discussion actively on a daily basis, and we'll be 
talking about this later on in this week. I certainly support 
that.
    Senator Rosen. But, you know, you've used your oversight 
powers in the past, most notably in addressing sexual assault. 
So, I believe that, in extreme cases, such as matters of a 
global pandemic, it shouldn't--that the NCAA should step in to 
provide a nationwide framework. Not all schools have the 
resources to develop this, and we want to protect the safety--
health and safety of all our student athletes. They are our 
children, and we need to be sure that, if there are any long-
lasting effects of this virus, we don't want to expose them to 
a lifelong chronic health disease.
    And so, do you know, so far, if this lack of a uniform 
guideline, if they're impacting people's decisions to come back 
to school?
    Dr. Drake. No, I couldn't answer that, Senator. I mean, 
I'll say that the policies--because it's a 50-state 
organization with 1,100 schools, the health policies tend to be 
guided locally over the years. I mean, that's been the 
tendency. This is a new, obviously, and evolving circumstance, 
and we have guidelines that we've used at our institution, 
which I support and would recommend for everyone. And I'll--as 
I've said, the NCAA, my colleagues there and I, have been 
discussing this on an ongoing basis as the pandemic has rolled 
forward.
    Senator Rosen. Well, I hope that you address that, because 
I think that having a level playing field--we're talking about 
sports here--would be great, that all universities, colleges, 
whoever, is--are under your umbrella, they're operating off the 
same set of rules. It makes a lot of sense.
    We're going to just build off what people have spoke about 
before in, just, the remaining time that I have.
    We know that, given the time commitment that athletes spend 
in practice, training, traveling for their respective sport, 
and the comparatively small amount of time they spend in the 
classroom, is there a case to be made that some of these 
athletes are really no longer amateurs? And should we be 
consider--reconsidering how we define ``student athlete''? And 
how do we ensure that, given these demands, college and 
universities are giving student athletes the realistic time 
they need to have a quality education that's going to serve 
them the rest of their life?
    And, Dr. Drake, you can go ahead and answer again, please.
    Dr. Drake. Oh, thank you very much.
    We believe very much in the ``student'' part of ``student 
athlete.'' As Commissioner Sankey and others have said, our 
student athletes graduate at an even higher rate than our 
general student body. And for them to maintain their 
eligibility, they have to maintain progress through school, and 
we support that and think about that all the time. It has been 
an avenue toward getting to school for so many students--we 
appreciate that--an avenue toward staying in school for so 
many, but also an avenue toward graduating from school for so 
many. And that's an important part of our work.
    Senator Rosen. Well, I appreciate all of your work, and we 
want to set all of our students up for success after they 
graduate. And that's the purpose of this hearing today.
    Thank you.
    The Chairman. Thank you very much, Senator Rosen.
    Senator Moran.

                STATEMENT OF HON. JERRY MORAN, 
                    U.S. SENATOR FROM KANSAS

    Senator Moran. Mr. Chairman, thank you. Thank you, to you 
and the Ranking Member, for conducting this hearing. Thank you 
for the opportunity you gave Senator Blumenthal and I to have a 
hearing February the 11th related to this topic of NIL, and 
now--and in this hearing, perhaps more broadly, just the care 
and well-being of student athletes.
    Let me start. I've got so many questions and so little 
time. Mr. Sankey or Mr. Carter, I want to talk about the A5 
conferences. The requirement for providing healthcare, it's my 
understanding that among the reforms that came about, I think 
in 2015, there's a requirement that A5 schools must provide 
medical care to former student athletes for at least 2 years 
after graduation. Under this kind of--under this requirement, 
what kind of care, what kind of costs are covered, and should 
the--what's the magic number about 2 years? Is there any 
suggestion or belief that it should last longer than that?
    Mr. Sankey. I don't know the exact expenditure, so I'll 
allow Keith to share perspective from a campus. You're correct 
that we did, at the Autonomy 5 level, adopt that legislation.
    Debate about two years, as I recall, generated from 
discussion at a State level, and the PAC-12 conference, 
introduced the original concept, which we all supported. And, 
in fact, even without legislation, we have provided medical 
care at a campus level for student athletes, post eligibility. 
That's more a habit than a requirement that's taken place over 
the years prior to that legislation, which, as you noted, does 
now exist.
    Mr. Carter. Yes. And I'll just----
    Senator Moran. Does that cover all student athletes?
    Mr. Sankey. The new rule did, that's right.
    Senator Moran. OK.
    Mr. Carter. Yes----
    Senator Moran. Anything further on that?
    Mr. Carter. I'll just piggyback on that, just briefly. You 
know, obviously, for us, we're here to talk about student 
athletes. And, I think, for this particular issue, it's the 
right thing to do. And, I think, for us, we're going to make 
sure that our student athletes are healthy. We want to make 
sure that we talk to them in the recruiting process about how, 
``This is a family, and we want to take care of you, and the 
things that you need to get done.'' We want to make sure that 
we come forward with that at the end, as well. So, I think it's 
a great policy. I don't--with Commissioner Sankey, I'm not 
exactly sure on why the 2 years was a part of the policy, but 
certainly we want to take care of our student athletes.
    Senator Moran. Let me turn to transferring to other 
schools. My understanding is that, in most circumstances, after 
transferring to a different institution, the student athlete 
must sit out for a year before coming eligible to play again. 
Is there a belief that that's the appropriate requirement? Do 
you think that a student athlete should be able to transfer 
without having to sit out for that year? If not, in what 
circumstances do you believe that would be appropriate? And I 
would welcome the comments of any of our witnesses.
    Mr. Sankey. We're clearly moving in that direction, so 
there are, I think, five sports--there are really three with 
which I deal on a regular basis--football, men's and women's 
basketball--that have that 1-year residence requirement. The 
others will have the ability to have an exception to that rule. 
By January, the NCAA, nationally, has said that it will 
entertain or review legislation to alter that 1-year transfer 
withholding. We have just removed the set of restrictions on 
communication to free up communication, destination, and 
financial aid once you transfer. I think that was a good first 
step. This next consideration needs to consider issues like 
academics. I think that's an important part of the transfer 
world. I also believe the team to which an individual is 
transferring, and those student athletes, have to be considered 
in how you prepare a team and collect the team. But, I've 
certainly indicated openness to the change that you've 
identified, which is the removal of that residence requirement. 
But, I think there are some considerations that need to be 
introduced rapidly so that we can solve this problem sooner 
rather than later.
    Senator Moran. I have several other questions, but I'd 
welcome anybody else who has a quick comment on this one.
    The Chairman. Who wants to volunteer?
    Senator Moran. Don't encourage them, Mr. Chairman. I want 
to ask about scholarships.
    What's the most common reason that a student athlete's 
scholarship is revoked? And are there circumstances in which, 
if you told us why an athlete's scholarship was revoked, that 
we would find that objectionable? Are they always revoked for 
what would seem to the average American, to us on this 
committee, which may not be the same thing as average 
Americans--let me go back to average Americans. Would they find 
it objectionable for the way that student athletes are treated 
in regard to maintaining their scholarships and the 
circumstances in which they might be revoked?
    Mr. Carter. Yes, I would say that--probably a couple of 
reasons. One would be an academic reason. One would be that, if 
they were not fulfilling their academic requirements, that's 
obviously a reason. And then, certainly, if there was a 
disciplinary reason that reached a level that we deemed that 
the student athlete did not need to be at our university. Those 
are probably the main two reasons. But, obviously, you know, 
most of the time, student athletes are there, they have that 
scholarship, and they're going to be able to have that 
throughout their career.
    Dr. Drake. Senator, I think that most Americans would be 
surprised at the circumstances under which student athletes 
keep their scholarship, that it's not something that's--that 
pay on--play on the field has removed from them, and that we 
bring them in and support them through their educations 
routinely.
    Senator Moran. Thank you for that answer.
    Thank you, Mr. Chairman.
    The Chairman. And thank you, Chairman Moran.
    And, Senator Blackburn, are you with us?

              STATEMENT OF HON. MARSHA BLACKBURN, 
                  U.S. SENATOR FROM TENNESSEE

    Senator Blackburn. I'm with you. Thank you----
    The Chairman. You are recognized.
    Senator Blackburn.--so much. Thank you, Mr. Chairman. And I 
thank you for the hearing today on this.
    But, I will tell you, for our guests that are there--and we 
thank you for the time that you're giving us--it ought not to 
take a--another congressional hearing to have the NCAA address 
NIL issues. And, as Chairman Moran mentioned, this is the 
second time we have had a hearing on this. And we had Dr. 
Emmert in front of us earlier this year for what proved to be a 
very unsatisfactory hearing and approach.
    So, I want to do some yes-and-no questions. And, Mr. 
Carter, we're going to start with you. Full disclosure, my son 
ran cross-country there at Ole Miss. My daughter is also an Ole 
Miss grad. But, let me work through a series of questions, and 
just starting with you, going to--all the way through the list, 
to Mr. Winston. A simple yes or no. Do you believe student 
athletes should be able to profit from their NIL? Yes or no?
    Mr. Carter. Yes.
    Senator Blackburn. OK.
    Mr. Drake?
    Dr. Drake. I'm sorry. Yes. I've got it.
    Senator Blackburn. Yes.
    Ms. Koller. Yes.
    Mr. Sankey. I'm working on moving to a yes.
    Mr. Winston. Yes.
    Senator Blackburn. OK. All right. Thank you.
    And second question. Has the NCAA adequately handled this 
situation?
    Again, Mr. Carter, start with you. Yes or no?
    Mr. Carter. Not yet. No.
    Senator Blackburn. OK.
    Dr. Drake. Not completed, so--you know, we're in process.
    Ms. Koller. No.
    Mr. Sankey. It's a work in progress.
    Mr. Winston. No.
    Senator Blackburn. OK.
    And the third question. Will a patchwork of State laws be 
problematic?
    Mr. Carter. Yes.
    Dr. Drake. Yes.
    Ms. Koller. Not as much as they say.
    Mr. Sankey. It will, yes.
    Mr. Winston. I agree with Ms. Koller. It's overstated, the 
issues that will happen from a patchwork.
    Senator Blackburn. OK.
    Well, what we know is that the NCAA has not adequately 
addressed this, they have--that a patchwork would present some 
problems, and that student athletes should be able to be 
compensated for their name, image, and likeness.
    Let's see. I--Mr. Carter and Mr. Sankey, let me come to 
you. And Ms. Koller touched on this with putting things in 
legislation being a little bit prescriptive. And I think we've 
all looked at the report that came from the NCAA, and that was 
not satisfactory, to say, ``Here are some guidelines. We may or 
may not take a vote.'' That is not addressing the issue. And I 
think you all have to agree, this is an issue that has gotten 
away from you.
    So, Mr. Carter and then to Mr. Sankey, how can Congress 
help ensure accountability and transparency in this 
legislation, in NIL legislation, expecting that the NCAA is not 
going to, on their own, come up with something? So, how do we 
ensure accountability? How do we ensure transparency in this?
    Mr. Carter. Well, I think, obviously, that's why we're here 
today, to talk about a lot of these potential solutions. And I 
think that we've outlined a framework that makes a lot of 
sense. There are certainly some things that we need to be 
cautious of. And we talked about those. But, I do think that 
putting our foot on base at some point--obviously, we have a 
timeframe. You know, we've got about 12 months before this goes 
into effect in Florida. So, you know, I think that doing that, 
and then certainly, you know, coming back to what--where does 
the final enforcement and monitoring lie? And I think that ends 
up with a hybrid--you know, a hybrid approach, where the NCAA 
is involved, the Congress is involved, and then, ultimately, 
probably a third party is involved to help administer this when 
it's all said and done.
    Senator Blackburn. Do you think that there should be a 
morality clause included in legislation so that there would be 
a way to deal with bad actors?
    Mr. Carter. Absolutely. Yes, I think we're going to have to 
anticipate those type of things. I think that, certainly, with 
the recruiting issues--the potential issues that we've talked 
about, with agents and different people that are going to be 
involved in the process, I think there has got to be some 
guardrails there to protect against that.
    Senator Blackburn. OK.
    Mr. Sankey?
    Mr. Sankey. I think Keith identified the need for a third 
party. I would absolutely be open to that approach. As 
currently structured, I'm not convinced the NCAA enforcement 
model is designed to handle this issue in real time. Where that 
authority rests, I think, remains for conversation, and I think 
it is an important conversation.
    Senator Blackburn. So, you see a third party, as opposed to 
a committee from the NCAA, handling this.
    Mr. Sankey. Senator, I'm open to that. I've not seen other 
models that solve the problem beyond that part of the 
conversation.
    Senator Blackburn. Thank you.
    Yield back.
    The Chairman. Thank you, Senator Blackburn.
    Senator Blumenthal.

             STATEMENT OF HON. RICHARD BLUMENTHAL, 
                 U.S. SENATOR FROM CONNECTICUT

    Senator Blumenthal. Thanks, Mr. Chairman.
    We come here in the context of a history of athletes, 
unfortunately, being used as profit centers. They are a source 
of revenue to the colleges. Very often, they are unable to 
benefit from their name, image, and likeness. By now, I think 
we've thoroughly established it in this committee, through our 
subcommittee hearing back in February, and now in this one, but 
there's just abundant evidence of the profiting by schools, at 
the expense of athletes. It may be for causes that are regarded 
as worthwhile, like financing other sports or the cause of 
athleticism and the university in general. But, I think the 
question for us is, How do we protect the athletes? How do we 
make sure that they are not, maybe inadvertently, victims of 
the process that puts them behind profits?
    And I think the latest example, frankly, are these waivers. 
Senator Booker and I have introduced legislation that 
essentially would prohibit them. And, President Drake, you and 
I spoke yesterday about the Buckeye Pledge. I've since reviewed 
it. I know, in good faith, you told me it was a pledge. But, it 
says, very explicitly, that, quote, ``I understand that, 
although the university is following the coronavirus guidelines 
issued by the CDC and other experts to reduce the spread of 
infection, I can never be completely shielded from all risk of 
illness caused by COVID-19 or other infections.'' And then it 
goes on to say that, ``The signer''--and the athlete signs this 
document--``acknowledges that,'' quote, ``these expectations 
and pledge are a condition of my participation,'' et cetera. 
The other pledges are even more explicit. University of 
Tennessee, which we have, for example; University of Missouri. 
I understand we're trying to get SMU. But, all of them, as the 
University of Missouri says, quote, ``I pledge to accept the 
responsibility to abide by these guidelines in order to keep 
myself, my teammates,'' et cetera, ``safe.'' They use the word 
``risk,'' and they provide for an assumption of risk by the 
athlete. That is, in effect, a waiver, from my standpoint as a 
lawyer.
    And I guess my question to the panel is, Isn't it unethical 
to ask a college athlete to assume the risk of participating, 
which has the effect of waiving rights in court if that athlete 
becomes sick and if his or her future is imperiled, not to 
mention their health, if they are affected by coronavirus? 
Isn't that unethical? And shouldn't it be illegal? Don't you 
think that the measure that Senator Booker and I have 
introduced should be passed forbidding these kinds of waivers?
    We can begin with you, or any of you.
    Dr. Drake. Well, let me speak, maybe, first. And, Senator 
Blumenthal, I appreciate your question and our conversation.
    And I'll say that I don't support a waiver or an assumption 
of risk, in a legal sense. What we want to do is to make sure 
that people are behaving in a responsible fashion to protect 
themselves and their community. And----
    Senator Blumenthal. So, on behalf of Ohio State University, 
if any athlete ever sued--your institution--you would say, ``No 
rights have been foregone or waived or sacrificed.''
    Dr. Drake. I certainly would say that.
    Senator Blumenthal. As a result of this document.
    Dr. Drake. Yes, just--I mean, period. I would say that 
we're--that we would not want this--anyone to sign any of 
their----
    Senator Blumenthal. I hope your lawyers----
    Dr. Drake.--rights.
    Senator Blumenthal.--agree with you.
    Dr. Drake. Well, I hope so, too. But, I--again, we--our 
goal really was to make sure that the students took their 
individual behavior as an important thing that they were going 
to follow to make sure they were doing what they could to 
protect themselves.
    The Chairman. Thank you, Senator Blumenthal.
    Senator Capito.

            STATEMENT OF HON. SHELLEY MOORE CAPITO, 
                U.S. SENATOR FROM WEST VIRGINIA

    Senator Capito. Thank you, Mr. Chairman.
    Thank all of you for being here today.
    Mr. Sankey, when that question was asked, ``Should athletes 
be able to be compensated for their name, image, and 
likeness,'' and you said you're leaning toward--you're trying 
to get to yes. I'm with you. I'm trying to get to yes, here. 
But, I'm also a realist. I realize this train has left the 
station, and we've got to do it right.
    So, briefly, I would--I have several concerns. One is on 
the Title 9 issue. And many of you mentioned this in your 
statements. But, I am concerned for the women athletes. My 
daughter was a Division 1 athlete. I was actually one, back in 
the day, myself. And we've come a long way, obviously, since 
the 1970s. But, I am concerned of what I could see as 
developing inequities in the ability to earn from your name, 
image, and likeness, for a female athlete, as opposed to the 
more higher-profile sports that the male athletes are playing.
    Mr. Sankey. I'll ask everybody a question on that.
    Mr. Sankey. It's a bit of a hypothesis. And my assumption 
is, football being what football is, there will be a great deal 
of this activity driven there. But, we've had women's 
basketball teams when national championships do play at the 
same time in a national championship contest with highly 
prominent young women involved, or gymnastics----
    Senator Capito. Right.
    Mr. Sankey.--on our network every Friday night has drawn 
attention. But, I am concerned that the amount of NIL activity 
around football and men's basketball will pull away funding 
from women's sports.
    Senator Capito. Ms. Koller.
    Ms. Koller. Senator, I think this is an area where there's 
just a gender-equity opportunity. So, Title 9, of course, does 
not apply at all to name, image, and likeness deals that are 
provided by third parties. So, if colleges get involved, which 
I don't think anybody on this panel supports, then we'd have a 
Title 9 problem, a direct Title 9 problem. But, the types of 
deals talked about now present no Title 9 issue.
    In terms of promoting gender equity generally, the main 
time when women athletes can profit from their name, image, and 
likeness is in college sports. They very often don't have 
professional opportunities. And I think the SEC is a great 
example. I mean, these women can really monetize what they 
have. And I think it would promote gender equity, not hinder 
it.
    Senator Capito. Dr.----
    Dr. Drake. Yes--Drake.
    Senator Capito.--Drake. Yes.
    Dr. Drake. Thank you, Senator. Yes, I--we, in our 
principles that we've brought forward----
    Senator Capito. Right.
    Dr. Drake.--preserving the gains we've made, and continuing 
to move forward in this area, is important in anything that is 
developed in name, image, and likeness----
    Senator Capito. I think Mr. Sankey----
    Dr. Drake.--monetization.
    Senator Capito.--though, is--there's going to be--well, 
we'll see. I hope not. But----
    Dr. Drake. Yes----
    Senator Capito. I have no faith it's going to be a 50-50 
deal, here.
    Mr. Carter. Yes, just quickly. I think that there are going 
to be--if we can get to the framework that we all hope to get 
to, there will be, hopefully, an equal opportunity for both men 
and women. I think that there were some models that came out, 
maybe last month, that showed some of the high-profile athletes 
and what their value--their market value might be, and there 
were some women's gymnasts on the West Coast----
    Senator Capito. Based on their social media, right?
    Mr. Carter. Correct.
    Senator Capito. Yes.
    Mr. Carter. Correct. And so, where I think, individually, 
you know, women could certainly do very well, but I do kind of 
echo what the Commissioner said, that I do think that it could 
potentially take away from the overall aspect of women's 
sports.
    Senator Capito. OK.
    Mr. Winston, did you have a comment?
    Mr. Winston. Yes, Senator. Thank you, Senator.
    One thing, I think, to remember, too, is that NIL is 
incremental. We're not taking from a--pie. We're trying to add 
to it, especially for the players and allowing the players and 
athletes to use their likeness to benefit more. So, I want to 
make sure that that's out there.
    And then, number two, I agree with Ms. Koller, there's--I 
think--and, you know, when you look at female athletes, they 
might be at the height of their market ability to produce 
profit for themselves, or benefit for themselves, whether it's 
in social media or appearances, especially when you think about 
certain sports that don't have professional ranks yet.
    Senator Capito. I appreciate that. And I thank you for that 
perspective.
    I do think that if the male athlete has the pro leagues 
ahead of him, it's in his best interest to even really ramp 
himself up in college, in terms of his worth, through social 
media and other things, performance, to be able to, ``Hey, this 
guy, you know, he's really going to bring it in, he's going to 
sell the tickets,'' and all that kind of stuff. So, I have some 
skepticism around this particular question.
    My other issue is the agents. I mean, we read every day 
about some college athlete who has--parents have been moved to 
the city, shoe deals, shirt deals. The NCAA is not really able 
to police that as efficiently and as effectively. And I 
understand they are--you know, they're cracking down. There 
have been some very high profile cases. But, you know, when 
does the agent approach the athlete? When they're in ninth 
grade? When does the agent approach the athlete on campus to 
help them? I mean, this, to me, is--you know, I want to be yes. 
I want to be yes, but I think this is going to be an issue on 
campus.
    Mr. Sankey, do you have----
    Mr. Sankey. It will.
    Senator Capito. And even earlier.
    Mr. Sankey. It is an important part of the conversation, 
and the oversight of agents is important. We have a Uniform 
Agent Act that--its enforcement varies from state to state, 
depending on where that enforcement responsibility is signed 
and how it's funded. We have had those issues arise in my 
conference, where people are trying to go----
    Senator Capito. Everybody has.
    Mr. Sankey.--through a backdoor. If there can be sunshine 
and transparency brought to the relationships, that's healthy, 
but how far back can that go? And I would simply observe the 
activity around Zion Williamson. I don't know the details. I 
simply know what I've read in the media, where there are 
lawsuits around marketing deals after his eligibility at Duke. 
They had a year to plan. Whether people like one-and-done, you 
had a year to plan and prepare. And it's still difficult, even 
in that circumstance.
    Senator Capito. Thank you.
    Mr. Sankey. It's not going to be easier for a 16- or 17-
year-old.
    Senator Capito. No. No, it's not.
    Thank you.
    My time is expired. Thank you.
    The Chairman. Thank you, Senator Capito.
    Commissioner Sankey, this agents' law is a suggested 
uniform State law that is adopted, or not adopted, by the 50 
States. Is that what you're saying?
    Mr. Sankey. That's the existing Uniform Agent Act. I think 
the focus for this conversation has been SPARTA, which is a 
Federal law. I will confess to not being an expert, but has 
been identified as a potentially more effective mechanism----
    The Chairman. OK. We'll try to get up to speed on that, 
too.
    Senator Sullivan is next.

                STATEMENT OF HON. DAN SULLIVAN, 
                    U.S. SENATOR FROM ALASKA

    Senator Sullivan. Thank you, Mr. Chairman.
    And thank you all for being here.
    It's a really important topic. I think it's an interesting 
topic. It's a hard topic. I mean, I love college athletics. I 
think we all do. It's a great part of our universities and our 
American culture.
    But, my question is going to just--it's just one question, 
really for all the panelists. And it really is just expanding 
on what Senator Capito is asking about.
    You know, the way in which we're moving forward--or it 
looks like we're moving forward--on the NIL issues, are we 
thinking enough about either--whatever you want to call it--
inequities or unintended consequences in different categories? 
Let me throw out just three, and then I'll throw the question 
open to all of--all the panelists.
    What Senator Capito mentioned, which is, kind of, the male-
female sports and Title 9 issues. The second one is, What about 
smaller divisions, smaller universities, right? We have Ohio 
State here, obviously Big 10, but, you know, I--my State, the 
great state of Alaska, has wonderful college athletics, but 
it's not always in the conferences that, you know, get the big 
TV deals. And then, even more fundamentally, you know, the 
mission of the university system and colleges, which we have in 
America--and it's a great advantage of ours, right?--so many 
great universities throughout our country, relative to any 
other country--but, it's about higher education, about 
educating Americans. And I have the privilege of sitting on the 
Board of Visitors for the U.S. Naval Academy, part of my duties 
on the Armed Services Committee. And, you know, we discuss a 
lot this issue of education, leadership, character, and then 
balancing college athletics, which, at the Naval Academy, are 
serious, but you never--in my view, you don't want to create an 
institution that emphasizes college athletics so much that you 
start to actually undermine the more important mission, which I 
think we would all agree on, which is education, character, 
leadership of the next generation of Americans.
    So, that's a broad question. I'll throw it out to all the 
panelists, but I'd like you take a crack at it. Unintended 
consequences on those areas that I just mentioned and, 
potentially, inequities--not just male-female, but big-school, 
small-school.
    The Chairman. Who'll go first?
    Mr. Sankey. I'll jump----
    The Chairman. Mr. Sankey.
    Mr. Sankey.--in. I do think there are these unintended 
consequences, or unimagined, I think, is maybe a better phrase, 
because the need to think about this, even while we have a time 
deadline looming because of State law becoming effective, it 
needs to be considered. I think the educational aspect, when 
young people talk about their time demands, which, by the way, 
they said to me, ``I'd love to have those time demands right 
now, because I've been disrupted in my spring,'' but you add 
running your own business effectively, your name, image, and 
likeness business on top. If you're stressed now, between 
athletics and academics, and now you have economic activity on 
top of that, I'm concerned about where that time is drawn. I'm 
concerned it comes from academics. I think that is a proper 
conversation. And I shared earlier----
    Senator Sullivan. And the message it sends about the 
importance of economics----
    Mr. Sankey. That's right. This is your economic 
opportunity. Where we have viewed, whether you fault it or not, 
that we will educate you, help you grow as a leader and as a 
person through your educational experience. As I said before, 
we're not perfect in that. We do that very well. And I spent 11 
years of my career in the 1AA world of football--FCS, as it's 
known--smaller State universities in small towns. And I still 
represent small towns in the SEC. And those economic demands 
and expectations are going to vary from place to place. And if 
I were still commissioner of the Southland Conference, I think 
my schools would be asking me how am I going to manage this 
with my student athletes. Not that they're running it, but how 
do they manage town-and-gown relationships? And all of a sudden 
that economic activity is now added to the relational issues in 
a small college community. Those are real challenges under this 
concept.
    Ms. Koller. Senator, I'd say----
    Mr. Winston. Senator, I'll----
    Ms. Koller.--I'd say that I think--as I said before, I 
think we do a lot in the name of sports prospectively, worried 
about unintended consequences, and we're overly restrictive in 
our restraints when we do. And what I would say is, every 
student on campus currently that is not an athlete enjoys these 
rights. And campuses are well positioned to work with student 
athletes, to counsel them on time management. We, in higher ed, 
do that every day. And I know from my kids, being a social 
media influencer or an Instagram star is actually a career. So, 
these student athletes can learn to balance these things, and 
this can be a long-term entry into productive employment for 
them.
    And, finally, on the Title 9 issue, again, this really has 
the possibility of enhancing gender equity and drawing a 
spotlight onto women's sports where it hasn't existed before.
    Mr. Winston. I'll go next, Senator, if you don't mind.
    Senator Sullivan. Sure.
    Mr. Winston. There's a--there's a perceived, it seems like, 
fallacy going on right now that there isn't already massive 
inequity in the college athletic system. Take a look at the 
facilities at Ohio State compared to Ohio University, at Ole 
Miss compared to Southern Miss. There's massive disparities 
already. So, acting as if we're going to give college students 
some rights to make money, as if that's going to create some 
massive inequity in a system that already has a massive 
recruiting inequity already is--I think, is a big fallacy that 
is being, kind of, perpetrated, not necessarily by--
intentionally by the members here, or by the witnesses here. 
I'm just saying that it seems like we're pretending that there 
is some sort of equity across the playing field of college 
athletics right now that simply does not exist. The--just 
simply look at the facilities of some of these big-time 
colleges compared to the smaller D1 colleges, UT to University 
of Houston, even. There's massive differences here.
    And then, I would also say there's a little bit of--I don't 
know if hypocrisy is the right word that--we're asking kids to 
sign waivers to deal with an epidemic, but yet they're--or a 
pandemic--but they can't balance tweeting something out for 
$100 and still go to class.
    So, I get--I want to give the college athlete, while he has 
to balance, and she has to balance, a lot, more credit than 
that, and also point out that inequity that already exists in 
the system, and that this NIL would be incremental and not take 
away from anything that--currently happening.
    The Chairman. Thank you.
    Other members of the panel may want to supplement their 
answers to Senator Sullivan's question.
    Senator Scott.

                 STATEMENT OF HON. RICK SCOTT, 
                   U.S. SENATOR FROM FLORIDA

    Senator Scott. Thanks for being here.
    The--I was Governor of Florida from 2011-2018, and one 
thing we did was, we really focused our university system and 
our State college system on results. And so, we actually 
allocated $580 million to our university system, primarily tied 
to three things: What's it cost to get a degree? So, we knew, 
you know, our students were going to get degrees. Number two, 
did you get a job? And how much money do you make?
    Now, my understanding is, the NCAA keeps track of 
graduation rates, but not, you know, with--people are employed 
afterwards, or how much money do they make. So, the way I look 
at this is, anything we're going to do, it ought to be tied to 
somebody having success. And that means be employed--having a 
job after school and making as much money as they're interested 
in making. So, what do you think about that? And do you think 
that makes any sense? If we're going to do anything, shouldn't 
it be tied to job creation and compensation after graduation?
    Mr. Sankey. The NCAA just released a Gallup survey that 
tracked, I think, satisfaction. I think some of that was job 
success for student athletes, which was, by comparatives, 
higher than the general student population. I'm not an expert 
on that report, but it was released last week. For the 
Southeastern Conference, when I began as Commissioner, one of 
our issues was, How do we help young people transition in their 
careers? And our universities have led in that. Vanderbilt 
University, through an internship program during the summer, 
rather than just being in summer school, to prepare people for 
that transition. We have a career tour that, unfortunately, was 
disrupted in the spring, where we would have been in Dallas, 
Texas, with a group of football student athletes, introducing 
them to corporate leaders there. And we've had success in 
exploring what is really a new activity for a conference office 
for that purpose, Senator.
    Dr. Drake. I'd say that, when--at Ohio State, we--and I am 
President of Ohio State for 6 years. I was the Chancellor at 
the University of California--Irvine for 9 years. So, a 
different level of competitive focus there. I'd say, at Ohio 
State, when we arrived, we actually changed the Athletic 
Director's contract so that he was compensated for the job 
placement or going to graduate school or serving in the 
military for our student athletes when they finished, rather 
than for success in----
    Senator Scott. That's great.
    Dr. Drake.--Olympic sports, because we think that's 
critically important.
    Senator Scott. That's great. I didn't know that.
    Mr. Carter. And I'll just add, too, I think--I'm short-term 
AD at Ole Miss. I'm in the first year. But, doing recruiting 
presentations to parents and potential student athletes, we 
always talk about, ``We want you to come in and be a part of 
our family. We're going to put you in a position to succeed. 
And that means not only getting a degree, but getting a 
meaningful degree, something that you can go out, after you 
finish your playing days, and be successful.'' And, as I 
mentioned to the group earlier, with our class last year that 
graduated, we placed 100 percent of those into jobs. Some were 
professional athletes, others going into just the normal 
working world. But, that's what it's all about. And so, if 
there's any way we can tie back any of this potential 
legislation to that education piece, I'm all for it.
    Senator Scott. All right. Thank you.
    The Chairman. Thank you, Senator Scott.
    The term ``booster'' is a term of art under the NCAA. Dr. 
Drake, what does--what--in short, what is a booster?
    Dr. Drake. I think that's someone who supports the athletic 
program, and the term of art is used because sometimes that 
support can be overly aggressive.
    The Chairman. Would you support legislation, as we move to 
NIL, to prohibit boosters from paying student athletes for NIL?
    Dr. Drake. Well, again, it's a term of art, and broadly 
described. But, I would say that the--any compensation for NIL 
should be market-based and appropriate. And, if I could use a 
term ``boosterism'' to make the term a little larger, when one 
got beyond normal market-based support, then that would be the 
thing that I'd be concerned about.
    The Chairman. Well, I think you--Dr. Drake, you said you 
think it will end up that a ``handful'' of student athletes 
will benefit from NIL if this goes forward. And it appears it's 
going forward. Could you put a percentage on that?
    Dr. Drake. Yes. And I'll say this, that there are--we--you 
know, we've heard about group licenses, which would be a 
different thing, which would potentially benefit more. I was 
thinking more of individual licenses and the number of those 
athletes that we have that are--have a marketable image, and 
then those who might make it on social media as influencers----
    The Chairman. Say you have 22 starters on a football team.
    Dr. Drake. Well, how many would you be able to name, you 
know, if I asked you? I mean, I'm--forgive me, Senator, not to 
reverse the questions, but--in our own university----
    The Chairman. Offensive tackles.
    Dr. Drake. Yes.
    The Chairman. We like them.
    Dr. Drake. We would--we think that the real potential might 
be for, again, a handful; three, four students might be the 
ones who'd be able to do commercials or those kinds of things.
    The Chairman. Mr. Carter, what about this? What do you 
think? Would it be just----
    Mr. Carter. Well, I----
    The Chairman.--a handful?
    Mr. Carter. Yes. I think, overall, it's probably a handful 
that end up with these larger sponsorship deals. But, I think 
it's certainly nuanced. Because you could have the offensive 
guard that you referenced that maybe it doesn't--isn't as well 
known, but, back in their hometown, they are well known. And 
so, they could go back to their hometown and do something that 
maybe they couldn't currently do now. So, I think it could 
extend a little farther than maybe just the nationally 
recognized players, because I think there's an opportunity for 
some other people, back with their own constituencies.
    The Chairman. Well, isn't it easy to envision a hometown 
guy or gal having some sort of little sweet deal in every 
little hometown, and it approaches pay-for-play pretty quick?
    Mr. Carter. Yes, absolutely. And I think that's where the 
proper structure and the proper framework has got to be in 
place, where we do have, kind of, that hybrid approach, where 
NCAA is working with--you know, working with Congress, working 
with this third party, and certainly with our athletics 
departments to talk about compliance and making sure that we're 
following the right protocols and procedures.
    The Chairman. And if any of you want to follow on--I'll ask 
Ms. Koller first. Give us for-instances. And I was particularly 
interested in your point that collegiate women players had 
significant opportunities to monetize their fame and 
popularity. Would you give us some examples of that so that we 
can understand it?
    Ms. Koller. Yes. I think the car dealership hometown-hero 
model is an outdated model, in the sense that that's always 
going to happen. But, if you look at women athletes, if you 
look at Katelyn Ohashi, from UCLA, the 10.0 floor routine that 
went viral for gymnastics fans last year, she could have really 
monetized that. She could have been an Instagram influencer, 
social-media star, started a YouTube channel. These are things 
that my kids could explain to you probably better than I can. 
But, I think this is where women athletes can really use 
digital platforms to launch brands, to create brands. Nutrition 
podcasts. I mean, there are any number of things. If you look 
at NCAA waivers on this issue that is in the Board of Governors 
report, you can see women athletes trying to seek waivers so 
that they can do these types of things.
    So, maybe women athletes aren't going to be, necessarily, 
endorsing the car dealerships, but they are going to have a 
viral floor routine, they are going to have a great softball 
game, they're going to have something where they can take their 
personality, elevate their sport, and elevate themselves.
    The Chairman. Do you agree with Dr. Drake that this will 
affect only a handful, or do you think, as--on the surface, I 
imagine that this is going to be almost everybody by the time 
it's over with.
    Ms. Koller. Yes. I think, when we have discussions about 
this, we tend to focus on the super-superstars in the revenue-
generating sports. And I think what's exciting about name, 
image, likeness and legislation is that this opens up new 
frontiers. Students from small schools, from under-appreciated 
sports--again, women's sports--people can become stars on the 
Internet that maybe aren't stars that you and I always see. And 
so, I think, actually, there are many, many more athletes that 
could capitalize on these rights.
    The Chairman. Fifty percent? Seventy percent?
    Ms. Koller. It's hard to put a number on it, but what I 
would say is, if the restrictions were lifted, what we are--
what's happening is that the free market goes to work. And so, 
50 percent or more, I think, students will try. I think they 
will try and launch their podcast, I think they will try and 
become Instagram influencers, I think they will try and take 
advantage of these rights that, in some cases, can lead to 
long-term careers, because I think that the lift is so easy 
when we're talking about digital platforms. So, I do think it's 
far greater than a handful, but, you know, whether it's half or 
75 percent, I don't know. I think a lot of people will try. How 
many succeed, the market will sort out.
    The Chairman. Who was this example you mentioned, I think, 
at Ohio State?
    Ms. Koller. Oh, I mentioned Katelyn Ohashi, the gymnast 
from UCLA.
    The Chairman. From UCLA, OK.
    Ms. Koller. Yes.
    The Chairman. And without embarrassing her, what do you 
think she could have received, had she been able to monetize 
her success in social media?
    Ms. Koller. I'm going to defer to Mr. Winston to talk about 
actual numbers. What I will say is, you can look at the 
millions of views she got for that one floor routine that was 
put out on Twitter. And so, you can be paid $400, $200, you can 
be paid for social media posts. It's a great way to make a 
living. So, I think, after that floor routine went viral, she 
could have had a lot of digital endorsements, she could have 
had a lot of, sort of, brick-and-mortar-type situations.
    So, I think Mr. Winston can probably put a number on it 
better than I can. But, if you look at the millions of views 
she had, she could have turned that into real dollars.
    The Chairman. OK. Well, we'll take an answer from Mr. 
Winston.
    We're going to take a second round, Senator Blumenthal, and 
so you'll be recognized next, sir.
    But, Mr. Winston, you want to weigh in on an estimate of 
how she might have monetized her----
    Mr. Winston. Well, I don't think anybody can be certain, 
because the market's not--hasn't been available. But, if you 
look at influencers--professional influencers, not even just 
athletes, but other entertainers or people that have built 
followings, you know, we could be talking about several 
thousand dollars even in, you know, into, like, a small five-
figure amount, because of that following. And what Ms. Koller's 
saying is right on.
    And it is nuanced, as Mr. Carter said, as well. You know, 
if somebody, when I was in college, said, ``Hey, I'll give you 
$100 to tweet something out, an ad for a local restaurant or 
something like that,'' that would have been great, too. So, I 
also think, when we talk about, you know, what kind of 
compensation will be available for how many people, it is a 
wide-ranging scale, but that--Ms. Koller is spot-on that 
technology will be driving a lot of this for a lot of people, 
because, obviously, their audiences will be similar-aged and 
they will be able to create content themselves. And the list 
really goes on into the possibilities.
    The Chairman. Well, you know, if I were--if I had the 
money, as a local businessman, and I could do it, I would want 
to pay $100 to every member of the Ole Miss football team to 
tweet something out on my behalf. And I just wonder if that's 
where we're headed.
    Mr. Winston. Possibly. I don't--I can't--you know, it's--
obviously, it's impossible to see the future. I'm not sure if 
you're referring to some sort of pay-for-play scheme. I don't 
look at it like that, but I--obviously, if there's a local 
restaurant that wants to associate himself with the offensive 
line, perhaps, obviously--you know, could it have an appearance 
by the offensive line at the--at their restaurants, pubbing up 
their steaks or their ribs would probably be a good venture for 
them, or even simply Instagram, a picture of them eating at the 
restaurant or being in front of the restaurant, or whatever. 
There's so many different ways to do this, actually, in a very 
streamlined and time-efficient way now, that it's--I don't 
think anybody's realized, maybe, all of the possibilities that 
are out there.
    The Chairman. Thank you very much.
    Senator Blumenthal, for round two.
    Senator Blumenthal. Thanks, Mr. Chairman. And thank you 
again for the hearing, and for the second round.
    I just want to pursue this line of questioning that I 
began, because it is so immediately concerning. According to a 
June 26th VICE report, and I'm quoting, ``more than 150 players 
at NAAC--at NCAA Division 1 revenue sports have tested positive 
for coronavirus,'' end quote. These numbers are almost 
certainly lower than the actual number, because only 64 of the 
130 relevant schools are publicly reporting their positive 
COVID-19 cases. Just as we're seeing astronomic rises in 
certain states among the general population, we're seeing, 
unquestionably, rising numbers among college athletes reporting 
back to school.
    And so, number one, I'd like to ask Mr. Drake, Will you 
commit to requiring all colleges to disclose the number of 
COVID-19 cases that occur at their schools?
    Dr. Drake. Yes. I mean, I--that's a--you know, HIPAA and 
other issues are in effect, so I think that disclosing 
information is useful. So.
    Senator Blumenthal. So, you will commit to requiring them 
to report those cases?
    Dr. Drake. I don't know that I commit to requiring--forgive 
me, Senator. The----
    Senator Blumenthal. Commit to require the disclosure of the 
number of positive COVID-19 cases?
    Dr. Drake. I'm just--I don't want to be difficult. How--who 
would I commit to do--what--I don't know what authority I'd 
have to----
    Senator Blumenthal. To disclose publicly, to require them 
to report, and for you to disclose publicly.
    Dr. Drake. I believe it's appropriate for the schools to 
report. And with proper privacy protections for the individuals 
in place, I think that's a reasonable thing.
    Senator Blumenthal. But, general numbers, they should be 
reporting.
    Dr. Drake. Yes.
    Senator Blumenthal. And on the issue of waivers, is there 
anyone here who does not support the legislation that Senator 
Booker and I have introduced that would prohibit waivers of 
rights on the part of college athletes if they contract COVID-
19?
    Mr. Carter. I'll just tell you our experience at Ole Miss. 
We did not ask our student athletes to sign a waiver when they 
came back. And, obviously, all workouts are voluntary. We felt 
like the procedures and protocols that we put into place were 
very good. And what we found is that, as student athletes 
returned, we had a few positive cases. As they spent time 
together, the cases spiked some, and now we're seeing it go 
back down. I think they've--they're starting to realize the 
protocols are needed, they need to do the things----
    Senator Blumenthal. So, you saw some positive cases?
    Mr. Carter. We did, yes, sir. And--but, again, I think our 
protocols were there. What we did, we tested for both COVID and 
antibodies when they arrived, and, from there, we basically 
test based on symptoms.
    Senator Blumenthal. But, you would support what we've 
introduced as the College Athlete Pandemic Safety Act to 
address this concern that the colleges are asking them to waive 
rights? And I understand that you have not asked any--for any 
such waiver, but you would have no problem with the 
legislation.
    Mr. Carter. Well, I would probably have to know a little 
bit more about the legislation to put my foot on base. But, 
based on our actions, we did not require the waiver, and will 
not require the waiver.
    Senator Blumenthal. I understand that the NCAA would like 
broad Federal preemption over State laws concerning athlete 
compensation and guardrails for athlete earning streams, and, 
in addition, would like an antitrust exemption, and to be the 
oversight body and regulator of NIL deals. In the past, the 
NCAA has really, in many ways, failed to protect the athletes. 
Wouldn't it be better, Mr. Drake, to have an independent body 
to oversee these deals, rather than have the NCAA do it?
    Dr. Drake. Well, I certainly would support continuing 
discussions about how the oversight should be done, and would 
certainly be open to an independent body being part of that. 
Sure.
    Senator Blumenthal. Let me ask you, Professor Koller, what 
do you think about those issues, the antitrust exemption, the 
oversight, independence, and so forth?
    Ms. Koller. Well, I strongly oppose a blanket antitrust 
exemption for the NCAA, for the fact that what we've seen in 
recent antitrust cases is, it has produced good for student 
athletes. I mean, what Mr. Carter talked about with increased 
food availability, stipends, cost of attendance, this is as a 
result of antitrust cases. And I think that's an important 
accountability check on the free market and on the NCAA.
    But, second of all, I don't think they should get a blank 
check, here, because we don't know yet exactly what they're 
going to do. The Board of Governors report is very, very 
squishy, as I would say to my law students, in terms of 
principles. They've had years to come up with pointed, guiding, 
you know, concrete steps. We don't have that. And what they're 
asking for now in their report is a broad-based antitrust 
exemption, which would be extraordinary even in sports.
    Senator Blumenthal. Well, it would be, certainly, 
extraordinary in college athletics. As you well know, NHL, 
Major League Baseball, and so forth, have antitrust exemptions.
    Ms. Koller. That's with the presence of a union, Senator. 
That's the non-statutory labor exemptions, where athletes have 
a voice. That's a very, very different scenario than what we 
have here.
    Senator Blumenthal. That is a--an excellent point. And, in 
fact, in my view, those antitrust exemptions ought to be 
reviewed and scrutinized, because they are highly exceptional. 
And I think it could be argued that those leagues have failed 
to live up to the public-interest trust that they are 
conditioned on.
    So, I have more questions. I'll submit them for the record.
    I'd like these waivers to be submitted for the record.
    The Chairman. And without objection, that will be done.
    [The information referred to follows:]

    
    
    
    
    
    

    Senator Blumenthal. And I would like to ask every one of 
the witnesses--first of all, let me say for the record that I 
would like your response in writing on this legislation. I 
understand that only Mr. Carter expressed any objection here, 
and asking to review it. But, I understand that the others may 
want to review it, as well. If you'd give me your views, I 
would greatly appreciate it.
    And I would like for the witnesses to submit to me any 
other waiver documents that you become aware of. This will 
apply, I think, particularly to Mr. Sankey and----
    The Chairman. Well----
    Senator Blumenthal.--Mr. Drake--Dr. Drake.
    The Chairman. OK, thank you, Senator Blumenthal.
    And clearly, questions for the record will be submitted by 
Senators, including Senator Blumenthal. And witnesses will be 
asked to cooperate in getting us a timely response.
    So, thank you very much.
    Our next questioner is Senator Moran, for round two.
    Senator Moran. Mr. Chairman, thank you. Thank you for the 
second round.
    Let me express my gratitude to you in your cooperation with 
our subcommittee, and Senator Blumenthal, the Ranking Member of 
our subcommittee, for our dealings on this topic. It's a 
difficult one that does absolutely need our attention.
    I just have one question. I want to have a better 
understanding of the financial consequences to athletic 
departments, a better understanding of what--I'm talking about 
with an--with the legislation dealing with NIL, what that 
legislation might mean to nonrevenue-generating sports. And I'm 
asking this question of all of our witnesses.
    My understanding is that, looking at 2018 financial data 
that was developed by USA Today, the publication, only 12 of 
230 athletics departments analyzed produced a profit on an 
annual basis. The remaining departments received additional 
support from other sources, such as their institutions, student 
fees, or State support. Approximately 91 percent of athletic 
departments received over a million dollars in support. And, 
for nearly 80 percent of the departments, that support 
accounted for more than a quarter of their revenue.
    So, the question is, How does NIL legislation affect the 
financial circumstances of an athletic department? Is it 
positive, negative? How--why would it have a consequence to a--
to the department's revenues, either positive or negative? And 
what should we be worried about when it comes to the 
consequences of NIL legislation to non-revenue-producing 
sports?
    The Chairman. Shall we just go down the line, there, 
Senator Moran?
    Senator Moran. That would be fine, Mr. Chairman, thank you.
    The Chairman. Mr. Carter.
    Mr. Carter. A very good question. I think that the answer, 
and the hope, is that it would be a neutral effect. You know, I 
think that if we could find the right framework, that the 
monies Mr. Winston mentioned would be new revenue.
    However, I do think that, using our market as an example, a 
small market, where our media-rights partner, Learfield, may go 
out to a local sponsor to do a sponsorship through our 
partnership--well, that may--that sponsor may then have the 
decision to make, Do I spend that money through the Ole Miss 
athletic department and Learfield, or do I give it to a student 
athlete? And, obviously, we want the best for our student 
athletes. And if that was the direction that they went, we're 
all for that. But, it would decrease the amount coming into our 
department, which could have trickle-down effects to some of 
our sports and some of our programming. So--and again, 
unintended consequences, things that we've talked about a lot, 
but there could be some of those that we don't foresee.
    The Chairman. Dr. Drake.
    Dr. Drake. Thank you. I would expect it to be, essentially, 
neutral, if it's third-party money coming in from outside. I've 
overseen two programs, one that's a high-resource program, and 
then one that was a deficit program of about 10-or 11-million 
dollars a year. So, I've seen it from both ways. And this 
should be money coming in from the outside.
    The Chairman. Professor Koller, college athletics is still 
going to be a multibillion-dollar business for the universities 
and for the media, whether this goes through or not, correct?
    Ms. Koller. Correct. That's correct. I--in response to the 
Senator's question, what I think is, is, to the extent that--
and I think the colleagues here on the panel have said it's not 
clear that it would affect non-revenue sports, but, to the 
effect we do have problematic effects, then college athletic 
departments need to be better stewards of their budget, maybe 
look at the salaries for strength and conditioning coaches and 
support your volleyball team instead.
    The Chairman. Mr. Sankey.
    Mr. Sankey. Finally forgot to press the button.
    We support our programs very well across the board in the 
Southeastern Conference. But, we've also had questions about 
the range of college and university athletic programs. It will 
not be simply a neutral impact across the board.
    Now, Mr. Carter describes the third-party-rights activity 
that happens with local advertising sales. Is that an impact? 
Sure. But, in the scope of millions and billions, probably not 
the largest impact. Yet, we're here talking about the range of 
Division 1, Division 2, Division 3 universities, and others, 
where it will be impacted, because it's not an unlimited pool 
of resources locally. What happens in social media is a 
different world, so that's almost a different conversation, but 
the local impact that we transitioned to in one of the earlier 
conversations will be felt, and it'll depend on the scope of 
that program to be able to identify the results. We're also in 
a really interesting economic time to make predictions about 
what will or won't happen.
    The Chairman. Certainly true.
    Mr. Winston.
    Mr. Winston. Yes. Thank you, Senator.
    I would say neutral to additive. Obviously, when you think 
about how much money the programs are making now from video 
games, that's zero dollars; how much they're making from 
trading cards, being able to license their marks to trading 
cards, that's zero dollars. So, that's completely additive. 
Obviously, if a student athlete is tweeting something or doing 
something, that's--you know, that's additive to them. I would 
even submit, on the sponsorship front that Mr. Carter broke up 
that--brought up--you know, I've heard that, and I understand 
the argument. I would also say, though, that, when you combine 
the player marks with the school marks on the sponsorship 
front, that's even more valuable, right? It's even more 
valuable to both sides. You can look at professional sports on 
the sponsorship model. They'll tell you that if you have the 
athlete with the professional marks, that's worth more. So, 
again, I would say that, at the very least, it's going to be 
neutral, but I think it's going to--I think people will be 
creative, and I think it will be additive for both sides.
    The Chairman. Thank you.
    And thank you, Senator Moran.
    Senator Moran. Thank you.
    The Chairman. Let me ask. In terms of agents, does anyone 
wish to weigh in on the question of whether an agent should be 
able to approach a high school athlete before he signs with a 
college or university? Any opinions on that?
    Surely--Mr. Winston, surely you have a--an idea on that.
    Mr. Winston. Yes.
    The Chairman. Should we limit it in----
    Mr. Winston. Senator, no, I would agree with that. Yes, I 
wouldn't--you wouldn't want agents in this process, especially 
at the high school level. Obviously, when you're talking about, 
you know, a star player that would be considered in a--some 
sort of deal--right?--you would want professional 
representation, or at least the family, I'm guessing, would 
want professional representation, whether that be a lawyer or 
an agent. But, you know, I think we can probably all agree that 
anything--any sort of--and I would even go as far--and this was 
a previous remark--we wouldn't want to see any inducements, 
obviously, to go to college from that. Now, I wouldn't want to 
use that--those words against me on--in--from derivative side, 
either. Right? I mean, obviously, the market's going to dictate 
certain behavior. But, at the same time, I wouldn't want a 
college or someone saying to a player, obviously, ``You'll make 
this much money if you come here.''
    The Chairman. Anybody else want to weigh in on the issue of 
agents?
    [No response.]
    The Chairman. OK. I think we're about finished, Senator 
Blumenthal.
    Dr. Drake, I understand you have been President Emeritus 
now for some 12 hours and 20 minutes. Is that correct? So--and 
I assume, based on how you look, that it was a rather modest 
retirement party.
    Dr. Drake. COVID--yes--COVID-controlled, yes.
    The Chairman. Thank you very much.
    And, Mr. Carter, does the date February 14, 1998, mean 
anything to you?
    Mr. Carter. It does.
    The Chairman. How many three-pointers did you get against 
the University of Kentucky in that 73 to 64 victory?
    Mr. Carter. Several.
    [Laughter.]
    The Chairman. Well, you'll be allowed to submit that 
question for the record.
    I want to thank the panel for a very interesting and, I 
think, important hearing, and for providing us with quite a bit 
of expert testimony.
    As I alluded earlier, the hearing record will remain open 
for two weeks. During this time, Senators are asked to submit 
any questions for the record. Upon receipt, the witnesses are 
requested to submit their written answers to the Committee as 
soon as possible, but by no later than Wednesday, July 15, 
2020.
    And, with that, I conclude the hearing. I thank the 
witnesses. And this hearing is adjourned.
    [Whereupon, at 12:21 p.m., the hearing was adjourned.]

                            A P P E N D I X

    Response to Written Questions Submitted by Hon. Roger Wicker to 
                              Keith Carter
    Question 1. Maintaining fairness and an even playing field among 
all states and universities is a key part of name, image, and likeness 
(NIL) discussion. Could you please discuss how the recruitment process 
for high-school student-athletes could be impacted by the 
commercialization of NIL?
    Answer. The current recruitment process focuses on educational 
opportunities, a prospective student's fit within a college and 
athletics program, and geographical location. NIL, by adding an 
economic consideration into that mix, could alter the process in 
problematic ways. For a prospective student, a short-term economic 
decision may come at the expense of the best educational and 
experiential option and ultimately supersede what would be the best fit 
for the prospect. Without a national framework, this could include 
prospects choosing a particular school solely because the state's NIL 
legislation goes into effect first or choosing a school solely because 
the state has NIL laws that are most advantageous to student-athletes. 
Furthermore, even with national legislation done correctly, boosters 
can still present problems and potentially give undue influences and 
inducements to prospects. Ultimately, the goal must be to give student-
athletes the ability to capitalize on their economic value but not at 
the expense of making a college decision that will offer them the most 
beneficial educational opportunities, the best fit within the college 
and athletics programs, and the most ideal geographical location.

    a. What safeguards should be considered in Federal legislation to 
ensure that there is fairness among all universities and colleges 
during the recruitment process?
    Answer. There are a number of safeguards that could be implemented, 
such as:

   Agent/advisor certification requirements

   Timing of when NIL agreements can be signed

   Prohibition of ``lifetime'' sponsorship deals

   Disclosure requirements and reporting obligations for 
        student-athletes

   Prohibition on universities compensating students for their 
        NIL directly or indirectly

    One additional safeguard that would separate NIL from the 
recruiting process would be to allow NIL awards to occur only after the 
student-athlete is enrolled in the institution; for example, the 
student-athlete would have to complete an academic semester before 
becoming eligible to enter into an NIL contract.

    Question 2. As Congress considers Federal legislation on the 
commercialization of NIL, once rules are developed, they will need to 
be enforced. Who should be responsible for enforcing new NIL rules? 
Should it be universities, divisions, conferences, or the NCAA? Is 
there a role for the Federal Trade Commission or should an independent 
commission be formed to enforce NIL activities?
    Answer. We consider a hybrid approach to be the best option, 
incorporating the NCAA, Congress, and ultimately an independent 
commission. In our opinion, it is critical that whatever enforcement 
agency is established has the ability and resources to enforce in a 
timely and consistent nature. The NCAA likely does not have the 
capability to enforce in real-time, and therefore an independent 
commission option makes more sense. The independent commission would 
work closely with both the NCAA and individual institutions but 
ultimately have governing power over the NIL process.

    a. If an independent commission is formed to enforce NIL 
activities, how should Congress determine who is a part of the 
Commission?
    Answer. The independent commission could be selected through a 
process that solicits recommendations from athletics directors, 
athletics conferences, the NCAA, and former student-athletes, including 
professional athletes.

    Question 3. Given your experience as a former college athlete and 
now Athletics Director, do you have any concerns about how NIL 
activities could impact internal team dynamics if one athlete has more 
NIL opportunities than another? Have you heard concerns from coaches 
about how NIL activities may impact the coach-player relationship?
    Answer. NIL could bring about negative team dynamics as some 
players with a higher market value signing NIL contracts could create 
new issues in the locker room. However, we already have some of these 
dynamics in place now, as some players naturally get more attention 
based on their status or profile on the team. Marketing materials are 
largely based on the more high-profile student-athletes as they are 
more recognizable. Also, the presence of both scholarship and non-
scholarship athletes on a team creates some level of division. In non-
head count sports, athletes have different equivalencies of 
scholarships, which at times can lead to negative dynamics as well. 
Overall, NIL may just present another layer of dynamics similar to some 
of the ones referenced above. However, for the most highly marketable 
athletes, it could present different challenges in the framework of the 
team.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                              Keith Carter
    Many of the witnesses mentioned that they would support an 
independent legislative body or commission to overview the 
implementation of NIL compensation for student athletes.
    Question 1. If an independent commission were set up to overview 
the process of NIL legislation, specifically in terms of recruiting, 
who would you recommend be appointed to the independent commission and 
why?
    Answer. Ideally, the independent commission will be a cross-
disciplinary team of professionals from various backgrounds with 
experience or subject-matter expertise in the following areas: agency 
administration and regulatory oversight, intercollegiate athletics, the 
operational aspects of a public universities, NCAA compliance, the 
regulation of sports agents, and the licensing of the name, image, and 
likeness of athletes, influencers, or other high net worth individuals. 
These individuals could be government officials and former university 
presidents, athletics directors, athletics conference commissioners, 
university compliance officers, professional athletes, attorneys, or 
accountants.
    The independent commission should be one component of a hybrid 
approach to NIL, in which the NCAA retains its compliance authority 
over member institutions while Congress delegates the administration, 
oversight, and rulemaking authority for any new NIL legislation to this 
independent body, preferably a nonprofit. This independent body or 
commission would have nationwide oversight over the myriad of issues 
implicated by NIL, such as agent regulation and discipline, NIL revenue 
reporting and disclosure requirements, fair market valuation and 
analysis, and support services for student-athletes.

    If support grew for the independent commission to overview the 
process of implementation, there would be many stipulations that come 
with that idea. One concern involves the appointment of the members, 
some of which may have ulterior motives to the success of the 
commission.
    Question 2. Who would you recommend be put in charge of appointing 
the members of this independent commission?
    Answer. The independent commission could be selected through a 
process that solicits recommendations from athletics directors, 
athletics conferences, the NCAA, and former student-athletes, including 
professional athletes.

    Question 3. What steps or consequences would you recommend putting 
in place to prevent boosters of an athletic program from using future 
endorsement promises as part of a recruiting pitch? How might 
legislation assist in keeping boosters away from the recruiting 
process?
    Answer. Federal NIL legislation could deter boosters from offering 
impermissible recruiting inducements by imposing fines or monetary 
penalties for booster misconduct or voiding the NIL license or NIL 
agreement to which the booster is a party. Federal NIL legislation 
could further deter boosters from interfering in the recruitment 
process by reaffirming the NCAA's existing authority to sanction 
boosters and impose non-monetary penalties for booster misconduct.
    As an added measure, Federal NIL legislation should prohibit 
impermissible recruiting inducements altogether and impose reasonable 
limits on the extent to which student-athletes may pursue NIL 
opportunities with boosters. For example, the legislation should:

   prohibit a prospective student-athlete from accepting 
        compensation or a future promise or commitment from any person 
        or entity as an inducement to enroll or remain enrolled at a 
        specific academic institution, and

   prohibit a prospective or current student-athlete from 
        granting an NIL license or entering into an NIL agreement with 
        any person or entity that has made a financial donation to the 
        athletics department or the athletics foundation of the 
        student-athlete's prospective or current academic institution 
        within the last five (5) years.

    Question 4. How closely do you envision schools working with an 
independent commission to come up with the proper definitions regarding 
use of NIL to deal with ambiguous instances to set precedent going 
forward?
    Answer. Universities and colleges should be afforded a meaningful 
opportunity to help the pertinent NIL oversight body or commission 
define the permissible scope of NIL opportunities allowed under any 
Federal legislation. The commission should also serve as a resource to 
assist universities, student-athletes, athletics conferences, agents, 
and the NCAA with rules interpretation and unanticipated or ambiguous 
circumstances not otherwise contemplated by any existing Federal NIL 
legislation. This approach will allow the pertinent NIL body or 
commission to implement the additional rules necessary to set precedent 
and ensure consistent treatment of similar future circumstances.

    Question 5. A change in athlete monetization of this magnitude is 
sure to change the relationship that student athletes have with their 
schools. Given the NCAA's stance on compensating student athletes in 
the past, do you envision schools taking issue with student athletes 
receiving compensation for use of their NIL and pursuing legal action 
against their student athletes or another relevant party?
    Answer. Ole Miss does not take issue with and will not pursue legal 
action against student-athletes and those individuals or entities who 
may assist them with pursuing legitimate NIL opportunities. Ole Miss 
strongly supports the enactment of NIL legislation that will allow its 
student-athletes the same opportunities as other students to monetize 
their NIL under a uniform national framework that protects student-
athletes from unscrupulous bad actors, preserves the amateur model of 
collegiate athletics, and safeguards the integrity of the recruiting 
process, including the autonomy of students to select a college or 
university of their choice.
    Ole Miss also supports the creation of a national office, agency or 
commission charged with the certification, regulation, and discipline 
of any agents or advisors who seek to represent student-athletes, 
particularly in relation to NIL opportunities. This approach ensures 
that all agents or advisors for student-athletes are held to the same 
certification requirements, standards of conduct, investigative 
process, and disciplinary procedures nationwide.
    Mississippi's Uniform Athletes Agent law (MUAA) authorizes 
litigation against former student-athletes and agents, but not merely 
because the student was compensated for NIL. Under the MUAA, Ole Miss 
has a right to sue agents and former student-athletes who engage in 
misconduct in violation of that law when it results in Ole Miss being 
penalized, disqualified or suspended from participation in athletics 
competitions by the NCAA. Therefore, if an agent or former student-
athlete engages in affirmative misconduct in relation to NIL that also 
violates the MUAA, and that misconduct results in the NCAA sanctioning 
Ole Miss, the University necessarily has the right to seek recourse 
against the bad actor under Mississippi law. Under this scenario, Ole 
Miss would not be pursuing legal action merely because a former 
student-athlete received compensation for use of their NIL. Quite 
differently, the agent's or former student-athlete's illegal conduct 
that ultimately culminated in NCAA sanctions and damages to Ole Miss 
would be the impetus for any suit.

    Question 6. Would you support a section of potential NIL 
legislation to include health insurance and medical coverage for 
student athletes provided by the NCAA or from ticket sales revenue?

    Question 7. Would you support a student athlete trust fund created 
from ticket sale revenue to assist athletes who have undergone career 
ending or career altering injuries?
    Answer. Questions six and seven are answered as follows. Health 
insurance for existing student-athletes and other long-term care 
benefits for individuals who have experienced career-ending or 
disabling injuries are issues of critical importance. Historically, Ole 
Miss has voluntarily procured health insurance and other benefits for 
its student athletes, including AD&D insurance, that exceed the minimum 
policy limits contemplated by the NCAA. Without the benefit of 
reviewing the proposed legislation, the University is unable to say 
whether it supports a law that mandates the use of ticket sales revenue 
for health insurance or a student-athlete trust fund. The University 
welcomes an opportunity to comment on any proposed legislation that 
provides additional measures of protection for student-athletes.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Kyrsten Sinema to 
                              Keith Carter
    As you may know, an Arizona State University swimmer, Grant House, 
is a named plaintiff in a Federal antitrust lawsuit regarding athletes' 
ability to be compensated for their name, image, and likeness. The 
issue of antitrust liability protections was raised multiple times 
during the hearing and has been referenced as a possible provision in 
Federal legislation.
    Question 1. In your opinion, are antitrust liability protections a 
necessary aspect of Federal legislation related to NCAA athlete 
compensation? Please explain your position. If you believe that 
liability protections should be included, how broad should the 
liability protections be?
    Answer. Antitrust liability protections are an essential and 
necessary component of any NIL Federal legislation. Universities could 
soon find themselves parties to similar NIL litigation recently brought 
against the SEC and NCAA. NCAA member institutions must abide by any 
amateur rules on NIL that the NCAA ultimately adopts. Universities 
nationwide could be accused of acting in concert in violation of 
Federal antitrust laws for doing nothing more than complying with NCAA 
rules. Antitrust class actions typically last several years. The 
defense costs in those cases are often exorbitant. In addition, the 
prevailing party in an antitrust case may be awarded monetary damages, 
and the court may also award reasonable attorney's fees and costs. In a 
real sense, a university's potential financial exposure in an NIL 
antitrust class action could be reasonably unquantifiable.
    The various pending state laws on NIL create an additional 
complicating factor. Unless preempted by a Federal NIL law that 
implements a uniform national standard, multiple states will continue 
to enact NIL laws that either conflict with NCAA rules or proscribe the 
NCAA's rulemaking authority. This outcome creates confusion and 
uncertainty for student-athletes and an additional, unnecessary 
litigation risk for universities, athletics conferences, and the NCAA. 
To avoid this unfortunate outcome and those discussed above, any 
Federal NIL legislation should provide for reasonable yet narrowly 
tailored immunity from antitrust liability. Specifically, no antitrust 
litigation should be allowed against any intercollegiate athletics 
association, athletics conference, or any academic institution for 
either complying with any Federal NIL legislation, or the adoption, 
implementation, or enforcement of any NIL rule in accordance with the 
legislation.

    As a vocal supporter of athletic opportunities for women and girls, 
I am reviewing the potential impacts of proposed name, image, and 
likeness legislation on Title IX and women's collegiate athletics on 
the whole.
    Question 2. What potential impacts on women's collegiate athletics 
should lawmakers study when considering name, image, and likeness 
legislation, and how can we ensure that any changes to NCAA athlete 
compensation rules will empower women athletes and strengthen women's 
athletics?
    Answer. When considering NIL legislation, lawmakers should study 
and eventually adopt a uniform national standard, where universities 
are prohibited from entering into NIL licensing, promotional, or 
endorsement deals with student-athletes. This approach promotes women 
collegiate athletics, because female and male student-athletes have an 
equal opportunity to pursue NIL opportunities with unaffiliated third-
parties, within a framework that preserves the amateur model of college 
athletics in the United States. This approach also ensures that the 
Federal NIL legislation does not otherwise implicate any other Title IX 
gender equity issues, since no university funds or resources will be 
leveraged to make or otherwise facilitate any NIL payments to any 
students (whether male or female). This approach has the added benefit 
of preserving the amateur model of collegiate sports by ensuring that 
student-athletes remain students and are not compensated for services 
rendered as university employees or independent contractors.
    To ensure no adverse impact on women's athletics, NCAA athlete 
compensation rules must be implemented within the existing regulatory 
framework for gender equity in collegiate sports. Under Title IX, 
universities that receive Federal funding have a continuing obligation 
to provide female and male student-athletes equitable opportunities for 
publicity, including the availability and quality of sports information 
personnel, access to publicity resources, and the quantity and quality 
of publications and other promotional devices featuring men's and 
women's sports programs. Universities, as a matter of Federal law, are 
prohibited from implementing any rules--NCAA NIL rules or otherwise--
that violate the gender equity requirements of Title IX. Notably, the 
NCAA has issued meaningful guidance to its member institutions 
regarding their Title IX gender equity compliance obligations. See, 
e.g., NCAA Gender Equity Planning Best Practices. Given the NCAA's 
prior attention to this issue, the NCAA should reasonably contemplate 
that all of its NIL rules must align with the gender equity 
requirements of Title IX, so as not to erode the protections 
necessarily afforded female student-athletes under the statute. As it 
engages in NIL rulemaking, the NCAA should likewise know to update its 
Title IX equity planning best practices, to account for any new issues 
or concerns its NIL rules may implicate.
    I readily acknowledge that the interplay between Federal NIL 
legislation and Title IX gender equity is a meaningful concern. Title 
IX is administered by the Department of Education (DoEd). 
Presumptively, the DoEd will issue Dear Colleague letters or other 
guidance to address any open issues implicated by NIL legislation, such 
as the extent to which universities may offer NIL education and support 
services to student-athletes with NIL earning potential, and how those 
NIL education and support services should be quantified and presented 
in a university's annual Title IX disclosure.

    Question 3. What is the appropriate role for agents and what sort 
of oversight and regulation of agents should be established in name, 
image, and likeness legislation?
    Answer. Qualified and certified agents can assistant student-
athletes with recognizing, negotiating, and procuring legitimate NIL 
opportunities that do not constitute impermissible ``pay for play'' 
arrangements, improper recruiting inducements, or otherwise impair a 
student-athlete's NCAA eligibility.
    Agents should be subject to meaningful oversight and regulation to 
protect student-athletes and the integrity of amateur collegiate sports 
from unscrupulous practices. For example, agents should be subject to: 
(a) examination and agent certification requirements, (b) agent 
standards of conduct and ethics rules, (c) limitations on the form, 
duration, and requirements for student-athlete agency contracts, and 
(d) disclosure requirements related to third-party licensing agreements 
and agency contracts. Agents should be required to develop and 
disseminate educational materials to student athletes. These materials 
should cover, among other issues, the implications of long-term 
licensing agreements, the possible tax consequences of licensing 
agreements, and the implications of contractual provisions that purport 
to limit a student-athlete's choice of institutions. Agents should also 
face investigation and discipline for agent misconduct. This discipline 
may include fines, civil penalties, and the suspension, revocation, or 
non-renewal of agent certifications. Where the circumstances warrant, 
criminal penalties should be imposed against agents engaged in illegal 
conduct.
    Some, but not all, of the above limitations are provided for under 
the Sports Agent Responsibility and Trust Act. Some states, but not 
all, have adopted the Uniform Athletes Agents Law, which regulates 
agents in the manner proposed above. The Uniform Athletes Agents Law 
was revised in 2015 to impose even more limitations on agents, but the 
revised law has not been uniformly adopted in every state. Because of 
this, the specific limitations and requirements imposed on a student-
athlete's agent could vary depending on the state where he or she 
conducts business. Federal NIL legislation should require all agents 
who represent student-athletes to adhere to a uniform national set of 
agent regulations. For example, Congress could amend the Sports Agent 
Responsibility and Trust Act to incorporate the necessary requirements, 
restrictions, and limitations sufficient to protect student-athletes. 
Congress should also create a specific office or agency that would have 
complete oversight and rulemaking authority over agents who represent 
student-athletes.
                                 ______
                                 
    Response to Written Question Submitted by Hon. Roger Wicker to 
                           Dr. Michael Drake
    Question. One recommendation in the NCAA Board of Governors' report 
included establishing an antitrust exemption for the NCAA. Could you 
please elaborate on why the NCAA is seeking an antitrust exemption in 
Federal NIL legislation and how that would benefit student-athletes?
    Answer. A narrowly tailored safe harbor provision which would 
prohibit recurring litigation and allow the Association to continue to 
make rules to meet the needs of the 21st century athlete is an 
important part of Federal legislation. Without that protection, the 
ability to modernize rules for the benefit of student-athletes and the 
ability to preserve academic and athletic opportunities for college 
athletes would be greatly impaired.
    Throughout the Board of Governors' deliberations related to the 
modernization of NIL rules, it became apparent that potential 
impediments posed by outside legal factors could significantly 
undermine the Association's ability to take meaningful action in this 
area. As I mentioned in my testimony, the history of antitrust lawsuits 
brought against the Association over the last several decades reveals 
that Federal antitrust law has frequently been used as a tool to 
attempt to undermine the Association's ability to govern and our 
schools' decisions about how to provide benefits to student-athletes 
without turning college athletics into professional sports. The 
Association has been required to devote valuable resources to defending 
the broader attack against NCAA rules, resources that could have been 
better spent on supporting student-athletes. Current antitrust lawsuits 
are creating further strain on our schools' ability to provide athletic 
opportunities in the current global pandemic. Without appropriate 
protections, these litigation challenges will continue and will 
interfere with the Association's ability to effectively and efficiently 
support the evolving needs of student-athletes.
    Student athletes will benefit directly from granting the NCAA 
limited safe harbor protection against litigation challenging the 
membership's appropriate implementation of name, image and likeness 
rules. Indeed, without such protection, the NCAA and its members will 
be unable to create and sustain a viable system--without it getting 
tied up in litigation--that can assure that student athletes, 
regardless of school, sport, or state, can participate fairly and 
equitably in an NIL market within the context of college sports. For 
these reasons, I, along with my Board of Governors colleagues 
steadfastly believe that it is appropriate and advisable for the 
Association to seek Federal safe harbor protection for its 
modernization efforts related to NIL. I appreciate and agree with the 
idea that the NCAA should not be immune from antitrust scrutiny in all 
of its actions. Likewise, however, it is untenable for NCAA rules to be 
judged as unlawful and subject to repetitive antitrust lawsuits each 
time the Association attempts to make a rule change.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                           Dr. Michael Drake
    Many of the witnesses mentioned that they would support an 
independent legislative body or commission to overview the 
implementation of NIL compensation for student athletes.
    Question 1. If an independent commission were set up to overview 
the process of NIL legislation, specifically in terms of recruiting, 
who would you recommend be appointed to the independent commission and 
why?
    Answer. The composition of an independent commission overseeing the 
implementation of NIL legislation is critically important. I believe it 
is imperative that members of the commission possess the expertise, 
professionalism and impartiality to ensure that student-athletes take 
advantage of a wide range of significant NIL opportunities without 
compromising the integrity of the recruitment process and amateurism. I 
would encourage the NCAA and Members of Congress to consider 
individuals who have direct experience within intercollegiate 
athletics, including student-athletes, faculty athletics 
representatives, chancellors and presidents, directors of athletics, 
compliance administrators, marketing executives, external thought 
leaders in college sports, former coaches with recent coaching and 
recruiting experience and individuals with dispute resolution such as 
attorneys and judges.

    If support grew for the independent commission to overview the 
process of implementation, there would be many stipulations that come 
with that idea. One concern involves the appointment of the members, 
some of which may have ulterior motives to the success of the 
commission.
    Question 2. Who would you recommend be put in charge of appointing 
the members of this independent commission?
    Answer. Every aspect of the commission must be as independent as 
possible--from the selection of commission members to the way it 
operates. I would recommend allowing the NCAA and a group such as the 
Knight Commission to put forward a minimum of 50 names each selection 
cycle and allow Republican and Democrat leadership in the House and 
Senate to appoint members from that group.

    Whoever is appointed to lead the independent commission would have 
to enforce the rules set up for the athletic programs under the 
umbrella of the NCAA. With the recruiting scandals that have come out 
in the last couple of years, especially in college basketball, there 
would have to be strict enforcement of the legislation to prevent 
improper recruiting from boosters of the programs.
    Question 3. What steps or consequences would you recommend putting 
in place to prevent boosters of an athletic program from using future 
endorsement promises as part of a recruiting pitch? How might 
legislation assist in keeping boosters away from the recruiting 
process?
    Answer. Protecting the collegiate recruiting process, in which 
prospective and transfer student-athletes have the freedom to select an 
institution that offers the best academic, athletic and personal 
opportunities for that individual, is one of the guiding principles for 
NIL modernization identified by the NCAA Board of Governors. Members of 
any independent commission should have a keen understanding of the 
significant role that recruiting plays in the success of an 
institution's athletics program and the involvement of individuals 
associated with the program attempting to secure the enrollment of 
prospects who can contribute to such success. With this, the engagement 
of boosters must be carefully considered to ensure the integrity of 
this process is not compromised and to ensure compensation to student-
athletes for use of their NIL does not become a substitute form of 
payment for their athletics performance. Currently, leadership groups 
in all three divisions--including a Division I subgroup with 
representation from each of the five conferences with autonomy--are 
working to develop appropriate legislation to mitigate these concerns 
including the possibility of using a third-party entity to assist in 
the administration of NIL-related activities--such assistance could 
include monitoring booster involvement. Legislative proposals are on 
track to be introduced by November 1, 2020.

    The enactment of NIL compensation legislation will make it 
extremely important that the relationships between athletic programs 
and the legislative body remain positive to prevent issues from 
occurring.
    Question 4. How closely do you envision schools working with an 
independent commission to come up with the proper definitions regarding 
use of NIL to deal with ambiguous instances to set precedent going 
forward?
    Answer. As we collectively seek to further our shared interest in 
expanding opportunities for student-athletes and protecting the 
longstanding educational values of college sports, I wholly support the 
full engagement of member schools in working with an independent 
commission. The NCAA is a school-led organization with a diverse 
membership of nearly 1,100 institutions which have vastly different 
enrollments, localities and resources. It is essential that any process 
which supports the modernization of NIL rules reflect the deep 
heterogeneity which makes up the Association and the expertise embedded 
within each school, student-athlete, administrator and conference 
office. Further, processes will have to be developed to ensure proper 
application and interpretation of existing NCAA legislation, 
interpretations and case precedent.

    Question 5. A change of this magnitude in athlete monetization is 
sure to change the relationship that student athletes have with their 
schools. Given the NCAA's stance on compensating student athletes in 
the past, do you envision schools taking issue with student athletes 
receiving compensation for use of their NIL and pursuing legal action 
against their student athletes or another relevant party?
    Answer. The NCAA membership has a long history of modernizing its 
rules to meet the evolving needs of student-athletes. More 
specifically, Division I, II and III member schools have taken 
meaningful steps to modernize their rules to enhance NIL opportunities 
for college athletes. Each division is on track to develop legislative 
proposals by November 2020, meet the January 2021 deadline established 
by the Board of Governors to adopt these proposals and implement any 
rule changes for the 2021-22 academic year. All schools, as a 
fundamental obligation of their membership, must adhere to and conduct 
their activities consistent with the Association's rules, including any 
updates to NCAA rules related to the ability of student-athlete to be 
compensated for their NIL. NCAA rules that may be passed regarding NIL 
would govern the relationship between institution and student-athlete, 
which would foreclose the need for any legal challenges between them.

    Over 30 states have put legislation forward for student athlete 
compensation. Some of those pieces of legislation, such as what has 
been introduced in Alabama or Massachusetts, have allowed for insurance 
and medical coverage.
    Question 6. Would you support a section of potential NIL 
legislation to include health insurance and medical coverage for 
student athletes provided by the NCAA or from ticket sales revenue?
    Answer. Importantly, the Association has several established 
mechanisms to support the health care costs of student-athletes. 
Existing NCAA legislation requires that college athletes have health 
insurance in order to participate in intercollegiate athletics and 
schools are permitted to pay for these costs. Additionally, the five 
conferences with autonomy are required to extend the medical coverage 
of student-athletes for two years after graduation. The Association 
also has a Catastrophic Injury Insurance Program designed to cover 
instances in which a student-athlete might be catastrophically injured 
while participating in intercollegiate athletics or to cover a student-
athlete whose medical expenses exceed $90,000.
    The NCAA's nearly 1,100 member schools have a wide range of 
fiduciary approaches to, and resources available for, funding their 
athletics programs. Notably, only a small fraction of NCAA schools 
generate a net revenue from ticket sales; the overwhelming majority of 
colleges and universities across all three divisions subsidize part or 
all of their athletics programs. Federal legislation which takes a one-
size fits all approach and prescribes the allocation of resources for 
the college athletic programs ignores this existing revenue structure 
and the great diversity in financial resources available to each 
school. Thus, this approach would eliminate the independence of schools 
to manage their own unique budgets and preclude their ability to 
allocate funds in a way that meets the individual priorities of each 
campus and the holistic needs of all student-athletes.

    Question 7. Would you support a student athlete trust fund created 
from ticket sale revenue to assist athletes who have undergone career 
ending or career altering injuries?
    Answer. The NCAA has an existing structure in place to assist 
athletes who have experienced a career-ending or career-altering 
injury. This program, the Catastrophic Injury Insurance Program, is 
designed to cover a student-athlete who is catastrophically injured 
while participating in intercollegiate athletics or to cover a student-
athlete whose medical expenses exceed $90,000.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Jon Tester to 
                           Dr. Michael Drake
    The NCAA has proposed guardrails around payments for name, image, 
and likeness to prevent pay-for-performance and to maintain recruiting 
integrity.
    Question 1. How do you envision the compliance responsibilities 
being distributed among the universities, the NCAA, and other 
stakeholders?
    Answer. There is no question we will need a collaborative effort to 
ensure compliance integrity. I expect much of the responsibilities 
associated with new NIL legislation would mirror the existing structure 
to ensure compliance with NCAA rules. This structure--in which member 
schools propose and adopt legislation then monitor and self-report 
violations--coupled with NCAA investigations and enforcement--would 
likely continue to be an appropriate approach for NIL-related rules. 
Member schools are currently exploring additional structures that might 
prove valuable to monitor and comply with any changes to NCAA rules, 
including the use of a third-party entity to maintain disclosure, 
ensure contractual integrity, monitor involvement of agents and 
boosters and possibly handle dispute resolution responsibilities. Use 
of a third-party administrator could provide an opportunity to 
prioritize objective administration while reducing the compliance 
burden for many of our campuses. This burden is especially relevant for 
our Division II and III memberships and lower-resourced Division I 
institutions, particularly in the current financial environment.

    Question 2. Do you foresee any conflict-of-interest risks in 
relying on universities for enforcement, to the extent that a student 
athlete's endorsement deals may complement or clash with those of the 
university?
    Answer. NCAA schools in all three divisions are considering 
protections which ensure any new rules related to NIL are consistent 
with guiding principles developed by the Board of Governors, including 
principles which ensure rules are transparent, focused and enforceable. 
Among the protections being considered are provisions which would 
restrict institutional involvement with a student-athlete's NIL 
activity as well as consider the use of a third-party entity to assist 
in the compliance and enforcement of NIL contracts. While additional 
discussion is needed, one model could specify that if a conflict is 
identified, the third-party administrator or the national office--
rather than the relevant institution--could assume all enforcement 
responsibilities related to a particular activity. Member schools are 
in the process of drafting such protections and are on target to 
introduce proposals in November 2020.

    Many of your stated concerns seem muted or absent in the group-
licensing context: it is harder to imagine boosters or other 
unscrupulous actors using group-licensing deals as veiled recruitment 
incentives or performance pay.
    Question 3. Why do the NCAA's recommendations not include a 
mechanism to support group-licensing opportunities? Do you believe that 
individual and group licensing rights can coexist in intercollegiate 
athletics?
    Answer. I believe that individual and group licensing opportunities 
can coexist, if not thrive, in college sports. The Board of Governor's 
principles around NIL, however, require that institutions are not 
involved with providing compensation for students' name, image, and 
likeness. Group licensing of professional athletes' NIL is accomplished 
because the athletes are employees who have collectively bargained for 
an agreed upon equitable distribution of payments. That legal structure 
does not exist in college sports because student-athletes are not 
employees, and the student's institution is not allowed to determine a 
compensation structure that would create fixed payments related to that 
employment. The Board of Governors welcomes an open dialogue with the 
Committee to discuss solutions to this issue.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Kyrsten Sinema to 
                           Dr. Michael Drake
    As you may know, an Arizona State University swimmer, Grant House, 
is a named plaintiff in a Federal antitrust lawsuit regarding athletes' 
ability to be compensated for their name, image, and likeness. The 
issue of antitrust liability protections was raised multiple times 
during the hearing and has been referenced as a possible provision in 
Federal legislation.
    Question 1. In your opinion, are antitrust liability protections a 
necessary aspect of Federal legislation related to NCAA athlete 
compensation? Please explain your position. If you believe that 
liability protections should be included, how broad should the 
liability protections be?
    Answer. A narrowly tailored safe harbor provision which would 
prohibit recurring litigation and allow the Association to continue to 
make rules to meet the needs of the 21st century athlete is indeed an 
important part of Federal legislation. Without that protection, the 
ability to modernize rules for the benefit of student-athletes and the 
ability to preserve academic and athletic opportunities for college 
athletes would be greatly impaired.
    Throughout the Board of Governors' deliberations related to the 
modernization of NIL rules, it became apparent that potential 
impediments posed by outside legal factors could significantly 
undermine the Association's ability to take meaningful action in this 
area. As I mentioned in my testimony, the history of antitrust lawsuits 
brought against the Association over the last several decades reveals 
that Federal antitrust law has frequently been used as a tool to 
attempt to undermine the Association's ability to govern and our 
schools' decisions about how to provide benefits to student-athletes 
without turning college athletics into professional sports. The 
Association has been required to devote valuable resources to defending 
the broader attack against NCAA rules, resources that could have been 
better spent on supporting student-athletes. Current antitrust lawsuits 
are creating further strain on our schools' ability to provide athletic 
opportunities in the current global pandemic. Without appropriate 
protections, these litigation challenges will continue and will 
interfere with the Association's ability to effectively and efficiently 
support the evolving needs of student-athletes.
    Student athletes will benefit directly from granting the NCAA 
limited safe harbor protection against litigation challenging the 
membership's appropriate implementation of name, image and likeness 
rules. Indeed, without such protection, the NCAA and its members will 
be unable to create and sustain a viable system--without it getting 
tied up in litigation--that can assure that student athletes, 
regardless of school, sport, or state can participate fairly and 
equitably in an NIL market within the context of college sports. For 
these reasons, I, along with my Board of Governors colleagues 
steadfastly believe that it is appropriate and advisable for the 
Association to seek Federal safe harbor protection for its 
modernization efforts related to NIL. I appreciate and agree with the 
idea that the NCAA should not be immune from antitrust scrutiny in all 
of its actions. Likewise, however, it is untenable for NCAA rules to be 
judged as unlawful and subject to repetitive antitrust lawsuits each 
time the Association attempts to make a rule change.

    As a vocal supporter of athletic opportunities for women and girls, 
I am reviewing the potential impacts of proposed name, image, and 
likeness legislation on Title IX and women's collegiate athletics on 
the whole.
    Question 2. What potential impacts on women's collegiate athletics 
should lawmakers study when considering name, image, and likeness 
legislation, and how can we ensure that any changes to NCAA athlete 
compensation rules will empower women athletes and strengthen women's 
athletics?
    Answer. The NCAA and its member schools are committed to conducting 
intercollegiate athletics in a fair and equitable manner. That is why 
the Board of Governors identified gender equity as one of its guiding 
principles related to the modernization of NIL rules. To avoid any 
Title IX implications, NCAA legislative proposals are being considered 
which would not allow for institutional involvement with NIL 
opportunities. However, as the Association moves toward modernizing its 
rules to allow student-athletes to be compensated for use of their 
name, image, and likeness, there remain some unknowns about how it 
might impact women, less resourced and rural institutions and non-
revenue sports. While compensation provided by third parties would be 
outside the protections of Title IX and the purview of member schools, 
NCAA member schools are considering mechanisms--such as transparency 
and educational requirements--to address potential imbalances created 
by the market's offerings. It is important for all stakeholders to 
avoid implementing rules and regulations that will reduce the range of 
collegiate athletic opportunities currently being made available for 
all student-athletes, and this is a top priority for member schools in 
all three divisions.

    Question 3. What is the appropriate role for agents and what sort 
of oversight and regulation of agents should be established in name, 
image, and likeness legislation?
    Answer. In an effort to further support student-athletes, the Board 
of Governors supported the use of agents and professional service 
providers to assist exclusively with NIL opportunities. While 
modernizing rules related to NIL will provide student-athletes with new 
and exciting opportunities, there is concern with how bad actors might 
negatively impact student-athletes and their collegiate experience. I 
believe it is important that these individuals be certified through a 
state or federally mandated registration process to ensure that 
qualified and high character individuals serve in this capacity for 
student-athletes. Use of a third-party administrator would facilitate 
disclosure and monitoring of the use of professional-service providers 
and perhaps include a registration/competency requirement that could be 
aligned with the NCAA' current agent-registration program.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Roger Wicker to 
                             Dionne Koller
    Question 1. During the hearing on July 1, 2020 you stated in your 
testimony that there is little evidence that state legislation on NIL 
would threaten the competitive balance in sports. Would you please 
provide more information on this assertion?
    Answer. There is currently little ``competitive balance'' in NCAA 
sports. The Power-Five conference teams enjoy an enormous advantage 
over smaller programs, with some studies noting a $4 billion dollar 
revenue gap between Power-Five schools and Group-of-Five Schools. 
Resource-rich schools regularly deploy private jets, upscale hotels 
during team travel, and facilities upgrades that consistently lure top 
athletic talent to the wealthiest programs. A recent Drake Group Report 
stated that ``all 31 five-star football recruits from the class of 
2020'' have signed with Power-Five schools. Similarly, ``23 out of 27 
five-star recruits'' in basketball have committed to a Power-Five 
program. This is not an anomaly. The Drake Group goes on to note that 
the massive recruiting advantages translate to championships, as Power-
Five schools dominate national championships in football and 
basketball. Thus, we are not currently in an environment of 
``competitive balance.'' Restoring NIL rights for athletes cannot harm 
competitive balance that does not exist. Indeed, serious efforts at 
maintaining competitive balance, such as in the professional leagues, 
focus on team spending and not restrictions on athletes' rights.
    The real issue is whether restoring athletes' NIL rights will 
change what is currently an unbalanced situation. I do not believe this 
would be the case. First, states that are concerned that their 
institutions will not be equipped to compete for top athletic talent 
can simply provide that athletes, like all state citizens, may benefit 
from their NIL rights. Second, the number of athletes for whom NIL 
rights would potentially make a difference in the college decision is 
quite small. For these students, NIL rights might provide additional 
reason to join an already high-profile program. However, this is highly 
speculative, and does not account for the majority of athletes who 
could marginally benefit from NIL rights, but who likely would not find 
such rights to be determinative. Recruiting athletes is a process that 
encompasses many factors. Proximity to home, general comfort level with 
the coach and program, projected playing time, ability to get a degree, 
and many, many more issues are significant. In addition, recent events 
this summer demonstrated that athletes are interested in issues such as 
the racial justice views of coaching staff and the campus climate. As a 
result, I do not think it can be said at this point that NIL rights 
would be the deciding factor even for the small group of athletes for 
whom it might matter most.
    There are also persuasive arguments that restoring NIL rights for 
athletes will actually promote competitive balance. Social media has 
dramatically changed the NIL marketplace. The barriers to entry are low 
and time involved is relatively small. A small program with an athlete 
whose personality draws a social media following can give a school 
attention it might not otherwise have had. Similarly, social media 
followings in athletics often depend on the position (e.g., starter, 
quarterback, etc.). Thus, being a starter on a small program's team can 
lead to a social media presence that can be monetized in a way that 
being the second-string player may not. This provides opportunities for 
schools to potentially land athletic talent because enhanced NIL 
presence, along with, for instance, being a starter, could be a 
determinative factor in the recruiting process.
    Finally, my concern over using competitive balance as a prospective 
justification for limiting athletes' rights is problematic because 
there simply is not credible data that show this is the case. Recent 
antitrust cases have demonstrated that NCAA justifications of athlete 
restrictions based on harm to ``consumer interest'' and ``competitive 
balance'' have not been substantiated. Indeed, a recent study found 
that providing additional benefits to college football players (post-
O'Bannon) did not in any way diminish fan interest, as the NCAA argued 
it would. In my view, rather than prospectively restrict athletes' 
rights based on the concern over future harm, the better approach is to 
enact legislation where necessary to mitigate actual harm.

    Question 2. During the hearing and in your written testimony, you 
stated that an antitrust exemption for the NCAA is not warranted, 
either to enhance consumer welfare or to protect the organization from 
lawsuits regarding NIL rules it may promulgate.
    a. Do you believe that antitrust suits would not or could not 
interfere with NIL rules promulgated by the NCAA at the direction of 
Congress? Or, do you believe the harm of granting the NCAA an antitrust 
exemption would outweigh any benefits of eliminating interference to 
NIL rules caused by antitrust lawsuits? Please explain.
    Answer. First, I generally do not believe that antitrust lawsuits 
are necessarily a harm to be avoided. The current antitrust analysis 
applied to the NCAA is quite deferential and takes account of the 
unique nature of the education-based sports model. Historically, the 
NCAA has won the majority of antitrust lawsuits filed against it. 
Moreover, the benefits to athletes that witnesses cited at the hearing 
(e.g., full cost of attendance, additional stipends for meals, other 
educational benefits) came as a result of antitrust litigation. Indeed, 
there seemed to be a consensus that the results of these recent 
successful suits have produced positive outcomes for college sports.
    With that said, it is of course inefficient and costly to make 
change with litigation. This can be avoided if Congress does not defer 
to the NCAA to make the rules for NIL rights. Courts have found that 
the NCAA takes an overly restrictive approach to athletes' rights, with 
recent cases finding that the NCAA was so restrictive that it amounted 
to an ``unreasonable'' restraint on trade. This can be avoided by 
Congress simply legislating to provide rights directly to athletes and 
not deferring to the NCAA to craft the rules.
    Finally, even if the NCAA legislated in this area and Congress did 
not provide an antitrust exemption, it is not at all clear that such 
rules would trigger antitrust scrutiny. Restoring athletes' NIL rights 
in the fullest way possible, with only narrow limits to these rights, 
could easily pass antitrust muster. Again, the NCAA is asking for a 
blank check remedy for a problem that has not yet manifested itself.

    b. In your testimony you highlighted the distinction between 
statutory and judicially-created antitrust exemptions. Understanding 
that Congress can only act via statute, are there solutions to the 
antitrust issue that are better suited to one type of exemption or the 
other?
    Answer. In sports, statutory antitrust exemptions have worked best 
for discrete areas that generally do not affect athletes' rights (e.g., 
Sports Broadcasting Act of 1961; Football Merger Act of 1966). These 
exemptions increased consumer welfare, strengthened sports, and did not 
harm athletes. A statutory antitrust exemption here would not fit this 
pattern. The non-statutory antitrust exemption has worked best for 
issues that involve athletes' rights because labor law and the 
collective bargaining process provide athletes with power and a voice 
on issues that will directly impact them. Here, NCAA athletes have no 
union, so the non-statutory labor exemption would not apply. However, 
the lessons from this exemption are useful in this context. With labor 
law providing athletes with a means to address issues that affect their 
health, wellbeing, and athletic careers, antitrust law is not as 
crucial to provide a vehicle for athletes to seek redress. In the 
context of college sports, athletes are powerless. As a result, we see 
the use of antitrust law as the only mechanism by which they can 
address the serious issues that impact the conditions of their sports 
participation.
    Seen in this light, it is clear that an antitrust exemption for the 
NCAA would not strengthen the college sports enterprise. It would 
render athletes even more powerless, while schools, coaches, and 
administrators continued to profit. This imbalance has been described 
as exploitation, and without a means to address it, the enterprise 
itself will be threatened. Fans are increasingly disturbed by these 
conditions and alternatives to NCAA participation are being developed 
in revenue-generating sports. Rather than grant the NCAA an antitrust 
exemption, Congress could strengthen college sports by providing rights 
to athletes and a mechanism whereby they can have a meaningful voice in 
their experience.

    c. In your written testimony, you stated that an antitrust 
exemption would give the NCAA ``unchecked power to restrict athletes' 
free market rights far more than necessary without any 
accountability.'' Do you believe a more limited statutory antitrust 
exemption could be crafted to address your concerns by limiting the 
NCAA's power and providing appropriate oversight? If so, what would 
such a provision look like?
    Answer. I do not support giving the NCAA any antitrust exemption. 
If Congress determined that exempting NIL rules from litigation was 
warranted to address this issue, I support granting a truly independent 
entity exclusive jurisdiction to create rules for and oversee 
enforcement of athlete NIL issues, with athletes having the benefit of 
seeking arbitration. A similar model is used for the American Olympic 
Movement, with the USOPC having exclusive authority over such matters 
and athletes having the ability to seek relief through commercial 
arbitration.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                             Dionne Koller
    Many witnesses mentioned that they would support an independent 
legislative body or commission to overview the implementation of NIL 
compensation for student athletes.
    Question 1. If an independent commission were set up to overview 
the process of NIL legislation, specifically in terms of recruiting, 
who would you recommend be appointed to the independent commission and 
why?
    Answer. First, I would recommend that 30 percent of the members of 
such commission be recent athletes. This could be achieved through a 
process of appointing individuals who were within 5 or 10 years of 
graduating as NCAA athletes (similar to the process used for athlete 
representation in the U.S. Olympic Movement). I do not believe that an 
adequate athlete voice can be present on such a commission by simply 
relying on sports administrators or others who at one time were 
athletes.
    Second, I believe 30 percent should be full-time, tenured faculty 
from different sizes and levels of NCAA schools. Since one of the main 
thrusts of the NCAA's argument against restoring athletes' NIL rights 
is the unique model of sports programs embedded in education programs, 
those with a stake in the educational mission should have a seat at the 
table. In addition, tenured faculty can provide any level of expertise 
thought necessary for such a position (e.g., economics, business, 
marketing). Moreover, educators are in a strong position to evaluate 
what supports or restrictions would best enhance athletes' education. 
Finally, tenured faculty operate outside of athletic departments and 
have job protections so can exercise a needed level of independence.
    Third, 30 percent should be college sports administrators (again, 
across levels of NCAA schools) to provide a voice about the needs and 
workings of sports programs.
    Finally, the remaining members should be independent members of the 
public. Ultimately, NIL rights, which we all enjoy, are free market 
rights. Independent members who are both consumers of college sports 
and/or sellers of NIL opportunities, can provide an important 
perspective.

    If support grew for the independent commission to overview the 
process of implementation, there would be many stipulations that come 
with that idea. One concern involves the appointment of the members, 
some of which may have ulterior motives to the success of the 
commission.
    Question 2. Who would you recommend be put in charge of appointing 
the members of this independent commission?
    Answer. I would suggest two possibilities. First, the commission 
could be a private body funded through NCAA revenues and with a stipend 
from Congress. Like the United States Olympic and Paralympic Committee, 
United States Anti-Doping Agency or the United States Center for 
SafeSport, the entity could have an organizational structure approved 
by Congress to include the categories of appointees I suggested above. 
Such a commission would operate as a quasi-governmental entity. A 
second possibility is a commission with members appointed by the 
Executive Branch. In this case, I would suggest a process that is 
managed through the Department of Education that would include 
eligibility prerequisites. Specifically, for the categories I mentioned 
above that would derive commission members from colleges and 
universities, the Department of Education could ensure that to be 
eligible to nominate a commission member, the school is Title IX 
compliant and graduates athletes at a pre-determined threshold.

    Whoever is appointed to lead the independent commission would have 
to enforce the rules set up for the athletic programs under the 
umbrella of the NCAA. With the recruiting scandals that have come out 
in the last couple of years, especially in college basketball, there 
would have to be strict enforcement of the legislation to prevent 
improper recruiting from boosters of the programs.
    Question 3. What steps or consequences would you recommend putting 
in place to prevent boosters of an athletic program from using future 
endorsement promises as part of a recruiting pitch? How might 
legislation assist in keeping boosters away from the recruiting 
process?
    Answer. I do not support deferring to the NCAA to craft rules for 
implementation by an independent commission. An independent commission 
should operate entirely independent from the NCAA. I believe Congress 
should craft the least restrictive rules possible and any independent 
commission should implement those.
    The NCAA currently has rules limiting booster conduct. Using NIL 
deals as a recruitment pitch in a way that contravenes current rules 
can be sanctioned through the NCAA and does not need independent 
enforcement. If there is concern that certain high-profile recruits 
could be involved in fraudulent NIL deals, a narrowly tailored 
requirement for disclosure can ensure that such deals come to light 
(e.g., deals involving top recruits in revenue sports over a certain 
dollar threshold must be disclosed).

    The enactment of NIL compensation legislation will make it 
extremely important that the relationships between athletic programs 
and the legislative body remain positive to prevent issues from 
occurring.

    Question 4. How closely do you envision schools working with an 
independent commission to come up with the proper definitions regarding 
use of NIL to deal with ambiguous instances to set precedent going 
forward?
    Answer. If an independent commission is charged with crafting rules 
for NIL deals, I believe the guidance for such rules should come from 
Congress. The commission, with membership as I have proposed, can then 
draft specific provisions if necessary. I strongly support a model like 
that used for the anti-doping movement. The United States Anti-Doping 
Agency is independent of the United States Olympic and Paralympic 
Committee, and it is this independence that restored integrity to the 
American anti-doping program. Similarly, any entity writing and 
enforcing rules for NIL rights should be independent and not subject to 
undue influence or regulatory capture by NCAA member institutions.

    Question 5. A change in athlete monetization of this magnitude is 
sure to change the relationship that student athletes have with their 
schools. Given the NCAA's stance on compensating student athletes in 
the past, do you envision schools taking issue with student athletes 
receiving compensation for use of their NIL and pursuing legal action 
against their student athletes or another relevant party?
    Answer. I do not agree with the premise of this question. Other 
students on campus are able to monetize their NIL and this does not 
interfere with their relationship with their schools--in fact, they 
often become celebrated alums. I also do not think that schools would 
take legal action against their athletes. The rights of schools and 
athletes can be made clear through legislation (e.g., schools can be 
required to provide a disclosure to athletes that define the rights 
schools and students have so that students understand their rights do 
not conflict with team's rights to broadcast and publicize the team). 
In addition, the number of students who would command noteworthy NIL 
deals is likely quite small. For the rest, it is like the relationship 
between any student to his or her educational institution.

    Over 30 states have put legislation forward for student athlete 
compensation. Some of those pieces of legislation, such as what has 
been introduced in Alabama or Massachusetts, have allowed for insurance 
and medical coverage.
    Question 6. Would you support a section of potential NIL 
legislation to include health insurance and medical coverage for 
student athletes provided by the NCAA or from ticket sales revenue?
    Answer. I strongly support a more comprehensive approach to 
regulating college sports and protecting athletes. Restoring athletes' 
NIL rights is an important part of this. I support requiring NCAA 
schools to provide more comprehensive medical insurance and payment for 
athletics-related medical expenses. I also support requiring schools to 
meet the standard of care for managing conditions such as heatstroke 
and concussions or face sanctions (i.e., instead of sports medicine 
``guidelines,'' I support requiring schools to provide a minimum level 
of care and face sanction if they do not).

    Question 7. Would you support a student athlete trust fund created 
from ticket sale revenue to assist athletes who have undergone career 
ending or career altering injuries?
    Answer. I strongly support legislation that would require schools 
to provide full insurance and payment for all athletics-related medical 
expenses. However, I cannot comment on a proposal for a trust fund to 
``assist'' athletes with career-ending injuries. Athletes in revenue-
generating sports with professional potential are situated differently 
from athletes in sports with no professional potential. Adopting a 
blanket rule that every injured athlete be ``assisted'' for an 
indeterminate period is likely to be financially unworkable. Instead, I 
endorse greater supports for those athletes for whom loss-of-value 
insurance does not provide a remedy. This should include greater 
educational benefits (e.g., truly guaranteed scholarships). I also 
support a trust fund that would be used to fund (on an applicant basis) 
a return to school for athletes who did not complete their degree.
    I do not support any trust fund to hold athletes' NIL income for 
later distribution--athletes should be permitted to earn income from 
their NIL rights and enjoy that income immediately.
                                 ______
                                 
    Response to Written Question Submitted by Hon. Amy Klobuchar to 
                             Dionne Koller
    Reports that U.S. Women's National Soccer Team players continue to 
earn less than their male counterparts has brought attention to the 
persistent gender pay gap in U.S. sports. In your testimony, you noted 
that providing full NIL rights to student-athletes would help close the 
gender pay gap in U.S. sports.
    Question. In your view, would allowing student athletes to profit 
from their name, image, and likeness help close the gender pay gap in 
sports?
    Answer. College athletes do not get paid to play, so NIL rights 
would not affect a literal pay gap at that level. However, I believe 
that restoring NIL rights to athletes would have a very positive effect 
on women athletes. First, they could build interest in their sports and 
their individual ``brands.'' This would undoubtedly have the effect of 
building interest in women's sports generally and in specific women 
athletes that could lead to enhanced professional opportunities in the 
future and increased fan interest in their sports at the college level. 
Second, allowing women to earn income from their NIL during what is for 
most women athletes their prime athletic years can benefit them 
tremendously. Currently, due to the lack of professional opportunities 
in most women's sports (and lower pay opportunities where professional 
leagues exist), women do not have the same ability to earn income from 
their athletic abilities as do men. NIL legislation can help level the 
playing field.
                                 ______
                                 
     Response to Written Questions Submitted by Hon. Jon Tester to 
                             Dionne Koller
    Question 1. If a Federal law narrowly preempts state legislation on 
compensation for name, image, and likeness, what rights would it need 
to guarantee for intercollegiate athletes, in order to earn your 
support?
    Answer. Federal legislation should restore athlete NIL rights with 
little or no qualification. I do not support caps on NIL payments, 
delays or waiting periods for athletes to enjoy their NIL rights, or 
restrictions on deals that athletes can do based on existing or 
proposed school or conference partnerships. I would support a 
disclosure requirement and a limited restriction for deals that trigger 
sport integrity concerns (e.g., sponsorships for gambling, performance-
enhancing drugs).

    Question 2. If a Federal law broadly preempts state legislation on 
all aspects of intercollegiate athlete compensation, what other 
provisions would need to be included for it to earn your support?
    Answer. If Federal law is to be used to displace state authority 
and provide the NCAA the ``national solution'' it seeks, it should 
impose uniform, enforceable standards for athlete health and safety 
(e.g., for concussion management and sports medicine care generally), 
should set standards for athlete training conditions (e.g., enforceable 
limits on hours per week spent on sport), ensure Title IX compliance, 
and protect academic integrity. Congress should not give the NCAA a 
Federal law bail out without seeking to protect athletes.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Kyrsten Sinema to 
                             Dionne Koller
    As you may know, an Arizona State University swimmer, Grant House, 
is a named plaintiff in a Federal antitrust lawsuit regarding athletes' 
ability to be compensated for their name, image, and likeness. The 
issue of antitrust liability protections was raised multiple times 
during the hearing and has been referenced as a possible provision in 
Federal legislation.
    Question 1. In your opinion, are antitrust liability protections a 
necessary aspect of Federal legislation related to NCAA athlete 
compensation? Please explain your position. If you believe that 
liability protections should be included, how broad should the 
liability protections be?
    Answer. An antitrust exemption is not necessary. Congress can 
restore athletes' NIL rights, protect schools' right to broadcast games 
and publicize its programs, and simply allow the free market to 
operate. The NCAA argues that liability protections are necessary 
because courts recently have found its rules limiting athletes' rights 
were more restrictive than necessary to maintain the college sports 
model and therefore an unreasonable restraint on trade. Because the 
NCAA's proposed regulations of athletes' NIL rights appear to have the 
same problems, they seek liability protection.
    In this context, I do not believe that antitrust lawsuits are 
necessarily a harm to be avoided. The current antitrust analysis 
applied to the NCAA is quite deferential and takes account of the 
unique nature of the education-based sports model. Historically, the 
NCAA has won the majority of antitrust lawsuits filed against it. 
Moreover, the benefits to athletes that witnesses cited at the hearing 
(e.g., full cost of attendance, additional stipends for meals, other 
educational benefits) came as a result of antitrust litigation. Indeed, 
there seemed to be a consensus at the hearing that the results of these 
recent successful suits have produced positive outcomes for college 
sports.
    With that said, it is of course inefficient and costly to make 
change with litigation. This can be avoided if Congress does not defer 
to the NCAA to make the rules for NIL rights. Courts have found that 
the NCAA takes an overly restrictive approach to athletes' rights, with 
recent cases finding that the NCAA was so restrictive that it amounted 
to an ``unreasonable'' restraint on trade. This can be avoided by 
Congress simply legislating to provide rights directly to athletes and 
not deferring to the NCAA to craft the rules.
    Finally, even if the NCAA legislated in this area and Congress did 
not provide an antitrust exemption, it is not at all clear that such 
rules would trigger antitrust scrutiny. Restoring athletes' NIL rights 
in the fullest way possible, with only narrow limits to these rights, 
could easily pass antitrust muster. Again, the NCAA is asking for a 
blank check remedy for a problem that has not yet manifested itself.

    As a vocal supporter of athletic opportunities for women and girls, 
I am reviewing the potential impacts of proposed name, image, and 
likeness legislation on Title IX and women's collegiate athletics on 
the whole.
    Question 2. What potential impacts on women's collegiate athletics 
should lawmakers study when considering name, image, and likeness 
legislation, and how can we ensure that any changes to NCAA athlete 
compensation rules will empower women athletes and strengthen women's 
athletics?
    Answer. The biggest threat to women's college athletics is not NIL 
rights. It is the lack of budgetary discipline by athletic departments 
and--nearly 50 years after the law was passed--a persistent failure to 
take the steps necessary to fully achieve Title IX compliance. 
Restoring women athletes' NIL rights will strengthen women's sports by 
allowing women to promote themselves and their sport, and allow women 
to earn income from their sports, something that, due to few 
professional opportunities, most women currently cannot do. Congress 
should study the many ways women college athletes can earn income from 
their NIL and build brands and skills that will serve them in the 
future.

    Question 3. What is the appropriate role for agents and what sort 
of oversight and regulation of agents should be established in name, 
image, and likeness legislation?
    Answer. There is a role for agents and advisors to give advice, 
particularly to elite college athletes, on potential marketing deals. 
Existing NCAA regulations and Federal and state laws regulate athlete 
agents and could apply in this context.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Roger Wicker to 
                              Greg Sankey
    Question 1. A part of our responsibility is to ensure that any NIL 
legislation protects student-athletes from deceptive business practices 
in this new market. What kinds of protections should Federal 
legislation provide to student-athletes engaging in NIL activities to 
make sure they are not taken advantage of or exploited?
    Answer. The Southeastern Conference (SEC) agrees that Federal NIL 
legislation must include safeguards and protections for student-
athletes. These protections are needed in several areas. First, Federal 
NIL legislation must provide for meaningful agent certification 
requirements, and where agent misconduct occurs, serious penalties must 
be administered by an independent entity. Second, Federal NIL 
legislation must protect student-athletes to the extent possible from 
entering unfair or unfavorable agreements, perhaps by providing review 
of the terms and conditions of NIL agreements by an independent third 
party for fairness and to ensure the agreements are legitimate and not 
being used as pay-for-play or inducements for a student-athlete to 
attend a particular institution. When student-athletes enter 
unfavorable agreements without the benefit of sound representation, 
they should have the ability to escape these unfair agreements at the 
conclusion of their college careers. Having a qualified, neutral entity 
charged with the duty to review agreements for fairness will provide 
additional protection for student-athletes, which they need and 
deserve.

    Question 2. Do you believe universities in rural areas will face 
recruiting disadvantages compared to those in larger cities and states 
that may have larger media markets, if there are no safeguards in 
place?
    Answer. Yes. Several SEC member institutions have expressed this 
concern to me.

    Question 3. During the hearing on July 1, 2020 you discussed in 
your testimony how boosters should be prohibited from using NIL 
compensation as an inducement to recruit high-school students. Are 
there other ways Congress should consider regulating the involvement of 
boosters in college sports to prevent ``play for pay'' arrangements?
    Answer. It is critical that NIL not serve as a means by which 
boosters and other third parties provide recruiting inducements to high 
school students or potential transfer student-athletes in exchange for 
their enrollment at a particular institution. The SEC realizes that a 
recruit might consider the particular circumstances of an institution 
(such as location, athletics success, academic reputation, support 
structure, fan base and potential NIL marketing opportunities) in 
making his or her choice of schools, but provision or promises of NIL 
compensation in exchange for attendance at a particular institution 
must be prohibited.
    SEC has identified the following as key in prohibiting pay-for-play 
of student-athletes by boosters, including but not limited to the 
recruitment process, to the extent possible:

   Prohibit abuses by boosters:

     No NIL agreements or offers to high school students 
            prior to enrollment

     NIL agreements may not be used to induce an enrolled 
            student-athlete to remain at or transfer to an institution

   Student-athletes may not sell memorabilia items (uniforms, 
        equipment, etc) until they complete their college careers, as 
        promised or actual funds for such items from boosters would 
        amount to pay-for-play.

   Student-athletes must actually perform contractual 
        obligations to receive NIL compensation.

    Question 4. Professor Koller stated in her written testimony that 
an antitrust exemption would give the NCAA ``unchecked power to 
restrict athletes' free market rights far more than necessary without 
any accountability.'' Do you believe a more limited statutory antitrust 
exemption could be crafted to address Professor Koller's concerns by 
limiting the NCAA's power and providing appropriate oversight? If so, 
what would such a provision look like?
    Answer. Yes. The SEC believes narrow and targeted liability 
protections are necessary in Federal NIL legislation. Contrary to 
remarks made by some during the July 1, 2020 hearing, we do not seek a 
broad antitrust exemption or antitrust immunity. Instead, we believe 
Federal NIL legislation should include a provision that protects the 
SEC, NCAA, other conferences and institutions from legal claims or 
liability for claims that arise from compliance with the Federal NIL 
legislation. To put into context, the NCAA, SEC and other Autonomy 
Conferences have been sued in two class actions in the past 6 weeks 
where student-athletes seek monetary damages for NIL-related claims. 
The current NIL rules have been validated as legal under antitrust laws 
in prior litigation, and if Congress chooses to allow student-athletes 
to receive NIL compensation, the SEC (and other conferences and NCAA) 
should not be subject to potentially significant legal exposure arising 
from the act of complying with Federal NIL legislation. This is the 
liability protection we seek. We do not seek a broad antitrust 
exemption or antitrust immunity.
    The SEC also submits the written testimony of Matt Mitten, 
Professor of Law at Marquette University Law School and Executive 
Director of the National Sports Law Institute, on the issue of 
liability protection. Professor Mitten testified at the Senate 
Judiciary Hearing on July 22, 2020.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                              Greg Sankey
    Many of the witnesses mentioned that they would support an 
independent legislative body or commission to overview the 
implementation of NIL compensation for student athletes.
    Question 1. If an independent commission were set up to overview 
the process of NIL legislation, specifically in terms of recruiting, 
who would you recommend be appointed to the independent commission and 
why?
    Answer. The Southeastern Conference (SEC) is open to having an 
independent commission or entity oversee the implementation of Federal 
NIL legislation. Of the many issues we have been discussing related to 
NIL legislation, the enforcement of provisions related to recruiting, 
and in particular, provisions that prohibit NIL compensation from being 
used as recruiting inducements to attend a particular institution, is 
the area the NCAA is best equipped to handle. If oversight of 
recruiting provisions is assigned to an independent commission, we 
believe the commission should be staffed with persons knowledgeable of 
college sports and the recruitment of student-athletes, who also are 
experienced in conducting investigations. Congress should also decide 
whether the commission will have the authority to compel testimony 
under oath and subpoena documents, as the absence of these powers often 
currently impedes the NCAA in its ability to investigate potential 
rules infractions.

    If support grew for the independent commission to overview the 
process of implementation, there would be many stipulations that come 
with that idea. One concern involves the appointment of the members, 
some of which may have ulterior motives to the success of the 
commission.
    Question 2. Who would you recommend be put in charge of appointing 
the members of this independent commission?
    Answer. The SEC believes the members of the commission should 
represent a breadth of experience, ethnic diversity and geographical 
location, and could be appointed initially by a Federal agency based 
upon the recommendations of the athletics conferences and the NCAA. It 
is important to avoid partisan politics and maintain objectivity, both 
in actuality and in public appearance, in the investigation process.

    Whoever is appointed to lead the independent commission would have 
to enforce the rules set up for the athletic programs under the 
umbrella of the NCAA. With the recruiting scandals that have come out 
in the last couple of years, especially in college basketball, there 
would have to be strict enforcement of the legislation to prevent 
improper recruiting from boosters of the programs.
    Question 3. What steps or consequences would you recommend putting 
in place to prevent boosters of an athletic program from using future 
endorsement promises as part of a recruiting pitch? How might 
legislation assist in keeping boosters away from the recruiting 
process?
    Answer. It is critical that NIL not serve as a means by which 
boosters and other third parties provide recruiting inducements to high 
school students or potential transfer student-athletes in exchange for 
their enrollment at a particular institution. The SEC realizes that a 
recruit might consider the particular circumstances of an institution 
(such as location, athletics success, academic reputation, support 
structure, fan base and potential NIL marketing opportunities) in 
making his or her choice of schools, but provision or promises of NIL 
compensation in exchange for attendance at a particular institution 
must be prohibited.
    The SEC has identified the following as key in prohibiting pay-for-
play of student-athletes by boosters, including but not limited to the 
recruitment process, to the extent possible:

   Prohibit abuses by boosters:

     No NIL agreements or offers to high school students 
            prior to enrollment; and

     NIL agreements may not be used to induce an enrolled 
            student-athlete to remain at or transfer to an institution.

   Student-athletes may not sell memorabilia items (uniforms, 
        equipment, etc) until they complete their college careers, as 
        funds promised or actually provided by boosters for such items 
        would amount to pay-for-play.

   Student-athletes must actually perform contractual 
        obligations to receive NIL compensation.

    The enactment of NIL compensation legislation will make it 
extremely important that the relationships between athletic programs 
and the legislative body remain positive to prevent issues from 
occurring.
    Question 4. How closely do you envision schools working with an 
independent commission to come up with the proper definitions regarding 
use of NIL to deal with ambiguous instances to set precedent going 
forward?
    Answer. We envision universities and their conferences working 
closely with such a commission to establish proper definitions and 
framework to address ambiguous or difficult areas. We have found 
through the NCAA process that often it is easier for a conference to 
canvas its members on certain issues, determine the prevailing view of 
those members and then speak on their behalf with a single voice.

    Question 5. A change of this magnitude in athlete compensation is 
sure to change the relationship that student athletes have with their 
schools. Given the NCAA's stance on compensating student athletes in 
the past, do you envision schools taking issue with student athletes 
receiving compensation for use of their NIL and pursuing legal action 
against their student athletes or another relevant party?
    Answer. We do not envision our universities pursuing legal action 
against student-athletes. One potential exception to this statement is 
related to the use of university trademarks and logos without proper 
consent or authorization.
    It is unknown what disclosure requirements will be implemented or 
what the consequences will be for failure to comply.
    With regard to ``another relevant party,'' we assume you mean legal 
action against third parties for misconduct toward student-athletes 
related to NIL activities. If this assumption is correct, we do not 
anticipate universities being involved in those disputes, as the 
universities will not be parties to those agreements, and student-
athletes will choose their own professional representation and be 
responsible for handling issues related to NIL activities.

    Over 30 states have put legislation forward for student athlete 
compensation. Some of those pieces of legislation, such as what has 
been introduced in Alabama or Massachusetts, have allowed for insurance 
and medical coverage.
    Question 6. Would you support a section of potential NIL 
legislation to include health insurance and medical coverage for 
student athletes provided by the NCAA or from ticket sales revenue?
    Answer. The SEC is not able to answer this question yes or no 
without more information, but we are open to discussion of extending 
existing health insurance and medical coverage for student-athletes. 
Contrary to statements made during the July 22, 2020 hearing of the 
Senate Judiciary Committee, our institutions (and other institutions in 
Autonomy Conferences) are already required to provide medical care for 
all athletically-related injuries from the time a student-athlete 
enrolls until two years after he or she separates from the institution 
(i.e., transfers to another institution, graduates, eligibility 
expires, or drops out of school). This extended care also includes 
mental health services.

    Question 7. Would you support a student athlete trust fund created 
from ticket sale revenue to assist athletes who have undergone career 
ending or career altering injuries?
    Answer. The SEC is not able to answer this question yes or no 
without more information about how the trust fund would function but 
does not support a system where disability or similar benefits are 
dependent on or tied to ticket sale revenues. Student-athletes 
currently are covered under the NCAA's catastrophic injury insurance 
coverage. In addition, SEC universities already provide support for 
student-athletes who suffer such injuries. For those who suffer a 
career-ending injury, under NCAA rules, these student-athletes maintain 
their athletics scholarships, as well as medical care for two years 
after they separate from the university. The same is true for student-
athletes who suffer injuries that alter their careers. Institutions 
also are allowed to provide funding for disability and loss of value 
insurance policies for elite student-athletes in certain sports.

    Given the unprecedented nature of this legislation, and the fact 
that an independent commission has never been formed by the NCAA, there 
are many questions to address. Given the statements made in the 
hearing, you would support Federal legislation as opposed to individual 
state legislation.
    Question 8. What would be your primary concerns of formal 
legislation creating an oversight commission overseeing providing 
students with greater NIL rights?
    Answer. Without knowing the composition or authority of the 
independent commission, our concerns would be to ensure that commission 
members are knowledgeable of and have meaningful experience in college 
sports and matters related to NIL. We also would be concerned how the 
commission members are selected and want protections to avoid partisan 
or politicized appointments. Finally, we would be concerned about the 
scope of government presence and authority on an ongoing basis in 
college sports.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Kyrsten Sinema to 
                              Greg Sankey
    As you may know, an Arizona State University swimmer, Grant House, 
is a named plaintiff in a Federal antitrust lawsuit regarding athletes' 
ability to be compensated for their name, image, and likeness. The 
issue of antitrust liability protections was raised multiple times 
during the hearing and has been referenced as a possible provision in 
Federal legislation.
    Question 1. In your opinion, are antitrust liability protections a 
necessary aspect of Federal legislation related to NCAA athlete 
compensation? Please explain your position. If you believe that 
liability protections should be included, how broad should the 
liability protections be?
    Answer. Yes, the SEC believes limited liability protection is 
necessary in Federal NIL legislation. Contrary to remarks during the 
July 1, 2020 hearing of the Senate Commerce Committee and the July 22, 
2020 hearing of the Senate Judiciary Committee, we do not seek a broad 
antitrust exemption or antitrust immunity. Instead, we ask that we not 
be subject to legal claims or liability for claims that arise from 
compliance with the Federal NIL legislation. To put into context, the 
NCAA, SEC and other Autonomy Conferences have been sued in two class 
actions in the past 6 weeks where current and former student-athletes 
seek monetary damages for NIL-related claims. The current NIL rules 
have been validated as legal under antitrust laws in prior litigation, 
and if Congress chooses to allow student-athletes to receive NIL 
compensation, the SEC (and other conferences and NCAA) should not be 
subject to potentially significant legal exposure arising from 
complying with Federal NIL legislation. This is the liability 
protection we seek. We do not seek a broad antitrust exemption or 
antitrust immunity.

    As a vocal supporter of athletic opportunities for women and girls, 
I am reviewing the potential impacts of proposed name, image, and 
likeness legislation on Title IX and women's collegiate athletics on 
the whole.
    Question 2. What potential impacts on women's collegiate athletics 
should lawmakers study when considering name, image, and likeness 
legislation, and how can we ensure that any changes to NCAA athlete 
compensation rules will empower women athletes and strengthen women's 
athletics?
    Answer. This question is particularly important and difficult to 
answer without knowing the structure of the NIL system in the future. 
The collegiate athletics model is unique in many ways. First and 
foremost among these traits is the fact that sports programs are not 
run as individual businesses, with only those sports generating net 
revenue continuing to exist. In the SEC, football, men's basketball and 
some in baseball are the only programs that consistently produce 
revenue (from different sources) that exceeds expenses. The revenue 
from these sports provides financial support and opportunities for the 
remaining programs (women's sports and non-revenue men's sports). As 
athletics revenues have increased, so have the support and 
opportunities provided for women's sports. It is critical that these 
advances in women's sports be preserved as part of collegiate 
athletics.
    Against this backdrop, we offer a few observations, some perhaps 
less speculative than others:

   First, if institutions are allowed to make NIL payments 
        directly to student-athletes, it seems likely that these 
        payments will primarily be made to student-athletes in higher 
        profile sports that generate revenue (football and men's 
        basketball). It seems inevitable that these payments will 
        reduce the financial support for remaining sports programs, 
        including women's sports, or perhaps result in the elimination 
        of some sports programs in a manner that complies with Title 
        IX. This is true whether the NIL payments by institutions are 
        subject to Title IX or not, as under either scenario, there 
        likely will be significant impact on the institutions' 
        athletics budgets.

   We believe institutional NIL payments to student-athletes 
        will be likely to damage fan interest in collegiate athletics, 
        as the differentiation between college and professional sports 
        will be decreased. It is important that institutions be 
        prohibited from making NIL payments directly to student-
        athletes.

   The same threat to Title IX advances exists if boosters and 
        third parties are allowed to use NIL compensation as 
        inducements for a student-athlete to play sports at a 
        particular institution, as this is an indirect form of pay-for-
        play. Although not directly impacting funding for all athletics 
        programs as institutional NIL payments, it seems likely that 
        payments by boosters to student-athletes will decrease their 
        donations to support athletics programs, reducing the funds 
        available to support all programs, including women's sports.

    The uncertainty surrounding the COVID-19 pandemic has already 
resulted in numerous Division I members discontinuing sports programs, 
thereby reducing opportunities for young people to participate as 
student-athletes at a Division I member university. We do not want to 
experience additional sports being dropped and see even more 
opportunities lost.
    Question 3. What is the appropriate role for agents and what sort 
of oversight and regulation of agents should be established in name, 
image, and likeness legislation?
    Answer. Many agents have demonstrated a long history of complying 
with regulatory expectations and properly interacting with student-
athletes. We also have seen numerous circumstances of agents--or the 
representatives of agents--inserting themselves into the life of a 
talented high school student-athlete, without regard to legal or 
ethical considerations. Given the meaningful concerns present, I see 
merit in having such an entity serve in some of these oversight roles, 
particularly in collecting NIL agreements. I envision NCAA enforcement 
being responsible for enforcement of the prohibitions on institutions 
paying NIL compensation directly to student-athletes and prohibitions 
on boosters and other third parties using NIL compensation as 
inducements to attend or remain at an institution. The envisioned 
neutral entity may be expected to enforce the procedural requirements 
of Federal NIL legislation (such as disclosure requirements and 
certification requirements for agents and advisors). While I have 
serious concerns about the impact of widespread introduction of agents 
into collegiate athletics, I believe it to be inevitable, as many 
student-athletes will want to have individual representation of their 
own choosing. Protecting student-athletes from unscrupulous agents will 
be a critical component of any Federal NIL legislation.
    We must be creative in developing meaningful protections for 
student-athletes to prevent exploitation by agents, advisors and other 
third parties. We need meaningful agent certification requirements, and 
where agent misconduct occurs, serious penalties must be administered 
by an independent entity. Whether this is performed by an existing or 
newly created Federal body, or by the NCAA or conferences, is open for 
discussion. Protecting student-athletes from entering unfair or 
unfavorable agreements is an additional priority that must be addressed 
through Federal legislation. When student-athletes enter unfavorable 
agreements without the benefit of sound representation, they should 
have the ability to escape these unfair agreements at the conclusion of 
their college careers. Having a qualified, neutral entity charged with 
the duty to review agreements for fairness will provide additional 
protection for student-athletes, which they need and deserve.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Maria Cantwell to 
                            Eric J. Winston
    Many of the witnesses mentioned they would support an independent 
legislative body or commission to overview the implementation of NIL 
compensation for student athletes.
    Question 1. If an independent commission were set up to overview 
the process of NIL legislation, specifically in terms of recruiting, 
who would you recommend be appointed to the independent commission and 
why?
    Answer. In our view, the primary group to look to when considering 
these positions would be former collegiate athletes, coaches, and 
athletic directors that have no current affiliation with the NCAA. This 
would allow them to be close enough to the subject matter without being 
too close to make the correct call. That group should be supported by 
thoughtful executives and industry professionals with a bonus 
consideration given to those who participated college athletics 
themselves. A viable pool of candidates must also include other thought 
leaders in the space that are not beholden to schools, conferences, or 
the NCAA. Why? Because this is an interesting space that requires the 
knowledge and experience within it to truly understand the nuances of 
it.

    If support grew for the independent commission to overview the 
process of implementation, there would be many stipulations that come 
with that idea. One concern involves the appointment of the members, 
some of which may have ulterior motives to the success of the 
commission.
    Question 2. Who would you recommend be put in charge of appointing 
the members of this independent commission?
    Answer. While we do not have a specific person or people in mind, 
much like the profile listed above, the best fit would be an executive 
with experience participating in sport as an athlete. It is important 
the person chosen is not, and has not been, involved with the NCAA, its 
board of governors, or its advisory committees.

    Whoever is appointed to lead the independent commission would have 
to enforce the rules set up for the athletic programs under the 
umbrella of the NCAA. With the recruiting scandals that have come out 
in the last couple of years, especially in college basketball, there 
would have to be strict enforcement of the legislation to prevent 
improper recruiting from boosters of the programs.
    Question 3. What steps or consequences would you recommend putting 
in place to prevent boosters of an athletic program from using future 
endorsement promises as part of a recruiting pitch? How might 
legislation assist in keeping boosters away from the recruiting 
process?
    Answer. There must be a robust system of checks and balances for 
booster activity. Such a framework may be built on the ground already 
established by the Sports Agent Responsibility and Trust Act. The 
framework would require boosters to live under the same standards as 
professionals, such as contract advisors and financial advisors, that 
seek to recruit these athletes. Consequences should vary based on the 
level of activity and the scope of the harm. Again, enhancing SPARTA 
may provide fertile ground for such a framework.

    The enactment of NIL compensation legislation will make it 
extremely important that the relationships between athletic programs 
and the legislative body remain positive to prevent issues from 
occurring.
    Question 4. How closely do you envision schools working with an 
independent commission to come up with the proper definitions regarding 
use of NIL to deal with ambiguous instances to set precedent going 
forward?
    Answer. If established, the Commission should set the rules and a 
system of arbitration to handle disputes. The Commission may also need 
legal authority to offer opinions for clarity. The space we are moving 
into will have emerging technologies and relationships--some of which 
may move, grow or develop faster than the regulatory process. I might 
argue it would behoove all those involved in the process to have a 
living and breathing organization that may need to grow and evolve with 
the space it is servicing. This would also allow outside practitioners 
to learn and grow with the space as well.

    Question 5. A change in athlete monetization of this magnitude is 
sure to change the relationship that student athletes have with their 
schools. Given the NCAA's stance on compensating student athletes in 
the past, do you envision schools taking issue with student athletes 
receiving compensation for use of their NIL and pursuing legal action 
against their student athletes or another relevant party?
    Answer. In our view, this should be a positive and welcome change. 
Students who participate in athletics should have the same access to 
their earning ability for their skills as other students on the same 
campus. Your work in this space will help that happen. Do we envision 
schools taking issue with that or raising legal actions? Hope springs 
eternal that they will be true to their word and that we have moved 
past such actions, but history seems to demonstrate some may not be 
willing participants.

    Over 30 states have put legislation forward for student athlete 
compensation. Some of those pieces of legislation, such as what has 
been introduced in Alabama or Massachusetts, have allowed for insurance 
and medical coverage.
    Question 6. Would you support a section of potential NIL 
legislation to include health insurance and medical coverage for 
student athletes provided by the NCAA or from ticket sales revenue?
    Answer. Yes. Student-athletes deserve to have their health care 
covered. Every day student-athletes strain and push their bodies to 
compete at the highest level possible. Because of this fact, student-
athletes are more likely to have acute physical injuries, and face 
other medical issues (e.g., mental health problems related to the 
combined pressure from school and sports) that need to be treated. 
Further, the absence of health insurance likely can put a strain on the 
athlete's family that is unwarranted and unfair to them.

    Question 7. Would you support a student athlete trust fund created 
from ticket sale revenue to assist athletes who have undergone career 
ending or career altering injuries?
    Answer. Yes. Student-athletes deserve to have their injuries 
treated regardless of when that treatment occurs. Further, several 
injuries, like the knee injury I suffered in college, will probably 
require a replacement at some point. The colleges should help. Finally, 
for those athletes who sustained injuries in college, and lost the 
opportunity to generate revenue during a full college career like their 
teammates, I believe they should be eligible to earn in some way, too.

    Student athletes will have their lives both in college athletics 
and potentially their image on campus changed considerably with this 
type of legislation. That would likely require looking at this 
legislation from their viewpoint in more depth.
    Question 8. What should be taken into consideration to address any 
concerns to student athlete wellbeing and what protections should be 
put into place?
    Answer. Students who use their name, likeness, and image for 
monetary gain already exist on campus. Athletes are usually well 
marketed and known already on and around their campus. Additional 
protections and safeguards may be necessary for both populations. 
Legislation should include consideration for the general safety of 
students with an emphasis on protecting the rights of privacy as well 
as the rights of publicity. The main consideration should be what is in 
the best interest of the student within this educational environment. 
Consideration should be given to protecting the student population from 
harm or being taken advantage of by others.
                                 ______
                                 
    Response to Written Question Submitted by Hon. Amy Klobuchar to 
                            Eric J. Winston
    In your testimony, you discussed your views on allowing student-
athletes to benefit from their NIL.
    Question. In your view, what are the most important factors to 
consider in assessing proposals to enable college athletes to receive 
compensation for their NIL?
    Answer. I would start my consideration through the lens of these 
four questions--How does it treat students? How many may participate? 
What happens if they do well? What happens if they do not? Were it me, 
I would focus on rebuffing any restrictions that prevent athletes from 
receiving the market value of their NIL. For example, preventing 
schools from creating restrictive sponsor categories that are off 
limits from working with athletes if those same companies are working 
with the schools. This would create another system of restriction on 
the rights given to the athletes if not properly moderated or 
eliminated.
    I might also take steps to maximize the number of students who may 
participate individually and through a group licensing vehicle. Some of 
the eligible students will choose to take things to the next step by 
working hard to buildtheir own brand that is valuable in the 
marketplace. If they are willing to dedicate themselves to that, they 
should be rewarded. With respect to other students who may choose to 
focus simply on working hard and winning games, I believe they should 
also be able to participate in the upside potential captured within the 
group licensing structure.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Kyrsten Sinema to 
                            Eric J. Winston
    As you may know, an Arizona State University swimmer, Grant House, 
is a named plaintiff in a Federal antitrust lawsuit regarding athletes' 
ability to be compensated for their name, image, and likeness. The 
issue of antitrust liability protections was raised multiple times 
during the hearing and has been referenced as a possible provision in 
Federal legislation.
    Question 1. In your opinion, are antitrust liability protections a 
necessary aspect of Federal legislation related to NCAA athlete 
compensation? Please explain your position. If you believe that 
liability protections should be included, how broad should the 
liability protections be?
    Answer. Anti-trust exemptions should not be given to the schools. 
They are not needed and give the schools the ability to restrict a 
specific group of students' earning power in the free market in a way 
they would not attempt to restrict other students on the same campus. 
The schools could also restrict the availability of vendors an athlete 
could do commercial activity with and that would cause a serious 
chilling effect on the market.

    As a vocal supporter of athletic opportunities for women and girls, 
I am reviewing the potential impacts of proposed name, image, and 
likeness legislation on Title IX and women's collegiate athletics on 
the whole.
    Question 2. What potential impacts on women's collegiate athletics 
should lawmakers study when considering name, image, and likeness 
legislation, and how can we ensure that any changes to NCAA athlete 
compensation rules will empower women athletes and strengthen women's 
athletics?
    Answer. Women students will not be harmed by allowing NIL in any 
way. In fact, it may very likely have the opposite effect. Much like 
the current exposure the WNBA and its players are receiving as the 
world enjoys their return to sport, so too is the world clamoring for 
more access to women college athletes. Title IX dictates how and where 
schools will spend the revenue it produces. An athlete's NIL 
compensation will not run through the school.
    Further, the highest earning potential many women athletes have is 
during college days because they do not have the same number of 
professional opportunities in our American marketplace. Lifting the 
unfair ban placed on women college athletes will allow them to earn 
compensation for their abilities at a time when it can be both helpful 
and beneficial to all parties. For example, a volleyball player should 
be able run a camp, do a promotional activity with a ball maker, or 
negotiate some sort of apparel deal should she chose. She may also be a 
great math student and could potential start a streaming podcast about 
math and court advertisers like any other student on the campus. Both 
should be viable options for the athlete and the math major. Schools 
have no place restricting either.

    Question 3. What is the appropriate role for agents and what sort 
of oversight and regulation of agents should be established in name, 
image, and likeness legislation?
    Answer. Agents are well regulated by the various players' 
organizations and a myriad of state laws dedicated to monitoring their 
activity. If there is a desire to do more, enhancing the protections 
available under SPART seems to be a good starting point.