[Senate Hearing 117-800]
[From the U.S. Government Publishing Office]







                                                        S. Hrg. 117-800

                        NCAA ATHLETE NIL RIGHTS

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

                                HEARING

                               before the

                         COMMITTEE ON COMMERCE,
                      SCIENCE, AND TRANSPORTATION
                          UNITED STATES SENATE

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                               __________

                              JUNE 9, 2021

                               __________

    Printed for the use of the Committee on Commerce, Science, and 
                             Transportation






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       SENATE COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION

                    ONE HUNDRED SEVENTEENTH CONGRESS

                             FIRST SESSION

                   MARIA CANTWELL, Washington, Chair
AMY KLOBUCHAR, Minnesota             ROGER WICKER, Mississippi, Ranking
RICHARD BLUMENTHAL, Connecticut      JOHN THUNE, South Dakota
BRIAN SCHATZ, Hawaii                 ROY BLUNT, Missouri
EDWARD MARKEY, Massachusetts         TED CRUZ, Texas
GARY PETERS, Michigan                DEB FISCHER, Nebraska
TAMMY BALDWIN, Wisconsin             JERRY MORAN, Kansas
TAMMY DUCKWORTH, Illinois            DAN SULLIVAN, Alaska
JON TESTER, Montana                  MARSHA BLACKBURN, Tennessee
KYRSTEN SINEMA, Arizona              TODD YOUNG, Indiana
JACKY ROSEN, Nevada                  MIKE LEE, Utah
BEN RAY LUJAN, New Mexico            RON JOHNSON, Wisconsin
JOHN HICKENLOOPER, Colorado          SHELLEY MOORE CAPITO, West 
RAPHAEL WARNOCK, Georgia                 Virginia
                                     RICK SCOTT, Florida
                                     CYNTHIA LUMMIS, Wyoming
                    David Strickland, Staff Director
                 Melissa Porter, Deputy Staff Director
       George Greenwell, Policy Coordinator and Security Manager
                 John Keast, Republican Staff Director
            Crystal Tully, Republican Deputy Staff Director
                      Steven Wall, General Counsel   
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                      
                            C O N T E N T S

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                                                                   Page
Hearing held on June 9, 2021.....................................     1
Statement of Senator Cantwell....................................     1
Statement of Senator Wicker......................................     3
Statement of Senator Blumenthal..................................    48
Statement of Senator Moran.......................................    50
Statement of Senator Schatz......................................    51
Statement of Senator Thune.......................................    53
Statement of Senator Tester......................................    55
Statement of Senator Fischer.....................................    57
Statement of Senator Rosen.......................................    59
Statement of Senator Cruz........................................    61
Statement of Senator Blackburn...................................    63
Statement of Senator Lee.........................................    66
Statement of Senator Scott.......................................    69
Statement of Senator Lujan.......................................    71

                               Witnesses

Hon. Cory Booker, U.S. Senator from New Jersey...................     4
Mark Few, Head Coach, Men's Basketball, Gonzaga University.......     7
    Prepared statement...........................................    10
Dr. Wayne A.I. Frederick, President Howard University, and Chair, 
  Mid-Eastern Athletic Conference's Presidents and Chancellors...    11
    Prepared statement...........................................    13
Rod Gilmore, College Football Analyst, ESPN......................    16
    Prepared statement...........................................    18
Dr. Mark Emmert, President, National Collegiate Athletic 
  Association....................................................    23
    Prepared statement...........................................    25
Michael McCann, Professor of Law and Sports and Entertainment Law 
  Institute Director, UNH Franklin Pierce School of Law..........    29
    Prepared statement...........................................    32
Matthew J. Mitten, Professor of Law and Executive Director, 
  Marquette University Law School................................    35
    Prepared statement...........................................    37

                                Appendix

Response to written question submitted by Hon. Raphael Warnock 
  to:
    Mark Few.....................................................    75
    Rod Gilmore..................................................    75
Response to written questions submitted to Dr. Mark Emmert by:
    Hon. Amy Klobuchar...........................................    77
    Hon. Jacky Rosen.............................................    77
    Hon. Raphael Warnock.........................................    77
    Hon. Marsha Blackburn........................................    78
    Hon. Mike Lee................................................    79
    Hon. Cynthia Lummis..........................................    80
Response to written questions submitted to Michael McCann by:
    Hon. Jacky Rosen.............................................    82
    Hon. Raphael Warnock.........................................    82
    Hon. Marsha Blackburn........................................    83
Response to written questions submitted to Matthew J. Mitten by:
    Hon. Raphael Warnock.........................................    85
    Hon. Marsha Blackburn........................................    85

 
                        NCAA ATHLETE NIL RIGHTS

                              ----------                              


                        WEDNESDAY, JUNE 9, 2021

                                       U.S. Senate,
        Committee on Commerce, Science, and Transportation,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:12 a.m., in 
room SR-253, Russell Senate Office Building, Hon. Maria 
Cantwell, Chair of the Committee, presiding.
    Present: Senators Cantwell [presiding], Blumenthal, Schatz, 
Peters, Tester, Rosen, Lujan, Wicker, Thune, Cruz, Fischer, 
Moran, Blackburn, Lee, and Scott.

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

    The Chair. [Off mic] being here today on this important 
hearing and want to welcome our witnesses as well. I first want 
to point out, the Committee has been so busy on many fronts. I 
want to thank all our colleagues for working so diligently on 
the Endless Frontiers Act and point out that the Committee will 
be very busy in the next few weeks working on our part of the 
Surface Transportation Act, and hopefully, the broadband 
legislation that we also think should be part of 
infrastructure. So, just appreciate committee member 
indiligence, and what has been a very, very busy work period. 
But I appreciate everybody's input into those important issues.
    And this morning, we have an, also, very important issue in 
front of us, which is the issue of name, image, and likeness 
that my colleagues have been working on for a long time. 
Senators Wicker and Booker, Senators Blumenthal and Moran, have 
been doing a lot of work on this issue for really, literally 
the last several years.
    So, it is our hope today that this hearing will bring focus 
and attention to how to resolve the issues that would allow us 
to grant these important rights to students. And also, make 
sure that we are taking care of our students on important 
issues like scholarship, health care, transferability, 
obviously making sure that women are treated equally within the 
sports arena, and making sure that we continue to have the 
standards that should be set to make sure that they are all 
protected.
    So, today we are going to hear from a distinguished panel. 
So appreciative that all of them are here. We are first going 
to hear from our colleague, Senator Booker. But I do want to 
say a special thanks to--we have two wonderful institutions who 
are going to be testifying today, Gonzaga University and Coach 
Mark Few, and the President of Howard University, Dr. Wayne 
Frederick. These are two great institutions. I have to say 
congratulations on a great season to Gonzaga and a great 
program. And certainly, you have produced a great colleague of 
ours, a law student, Senator Cortez Masto. So, we are very 
proud of the Spokane Institution and the whole State of 
Washington.
    And I want to say to Dr. Frederick, it must be a special 
delight and moment of the 2020 year that a former graduate of 
Howard University raised her right hand and took the oath as 
the Vice President of the United States. So, we see the Vice 
President everyday taking out the ``Truth and Service'' motto 
of Howard in how she does her job. So, you must be very proud 
of her.
    We are also going to hear from Mr. Rod Gilmore, who is a 
very articulate advocate for NIL rights and a student in his 
football history. I am sure he will elaborate a little bit on 
that. The NCAA President, Mark Emmert, who hopefully will 
illuminate some of the issues of health care, and why we should 
be covering more athletes' health care costs. And Mr. Michael 
McCann and Matthew Mitten, who will discuss some of the more 
thorny legal issues related to name, image, and likeness and 
how we can move forward.
    As I said, I really believe that this is the time to make 
progress on this issue. Mr. Mitten brought up in his testimony, 
I think, a very interesting point. Not to steal his thunder, 
but his report says, ``Prior to the 23 adoption of WADC, which 
provides the basis for International Convention Against Doping 
in the sport, and that was later ratified, that a serious 
balkanization happened with various states doing different 
things, and thereby, leaving an unfair and unjustified hometown 
favoritism''. We cannot afford that now. What we can afford is 
to take care of our students and student athletes.
    It is so important for us to listen to the voices that have 
made so many of these points clear. Dallas Hobbs, a football 
player at Washington State University, called attention to 
inadequate COVID protections and formed a group of unity with 
Pac-12 players.
    We also have heard from Sedona Prince, a college basketball 
player from the University of Oregon, who shined a spotlight on 
a persistent gender divide in college sports when she posted a 
video that, literally, compared her workout room to the workout 
room of male athletes, during the Final Four tournament. So, we 
can do better. I believe that Title IX should be part of this 
conversation and applied to the NCAA. So, we will have many 
chances today to get clarity on these issues.
    But I welcome everybody in the hopes that this discussion 
today will move us forward on legislation. So, Senator Booker, 
thank you for joining us. Thank you for your legislation and we 
look forward to hearing your comments this morning. I am 
sorry--Senator--oh my gosh.
    Senator Wicker. My name is Cory Booker.
    [Laughter.]
    The Chair. It has--it has already--it has already been a 
long week. My dear----
    Senator Wicker. It has been a long week.
    The Chair. My dear colleague, Senator Wicker, has been such 
a leader here. I so appreciate his partnership on so many 
fronts. And I turn to him for his opening statement.

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

    Senator Wicker. Thank you, Madam Chair, for holding today's 
hearing. And I appreciate your comments and subscribe to the 
tone and objective that you outlined. It is a very important 
day to discuss the issue of college athletes' name, image, and 
likeness (NIL) rights.
    Last year, the Commerce Committee held multiple hearings on 
this subject. We heard from stakeholders with a wide variety of 
perspectives, representing large and small colleges and 
universities, conferences, student athlete groups, and 
academia. As a result of that process, and because of the 
insights gained from responses to letters I sent on behalf of 
the Committee to dozens of institutions, the proper role of 
what Congress needs to do on NIL has become clearer.
    There is a broad consensus that Congress should pass a law 
that guarantees college athletes the right to enter into NIL 
agreements with third parties--the same right that all of their 
fellow non-athlete students have. Such a law should have 
guardrails in place to prevent pay-for-play schemes and to 
safeguard student athletes from being taken advantage of by 
unscrupulous actors.
    A Federal NIL law also needs to ensure that institutions, 
conferences, and athletic associations are not held liable for 
past rules governing NIL compensation during the transition to 
the new system. And it should be preemptive of State law, 
creating a single national standard providing the same rights 
and protections to all student athletes across the country.
    For my part, I sought to take the first steps toward such a 
law when I introduced the Collegiate Athlete Compensation 
Rights Act late last year. This Congress, I credit Senator 
Cantwell for moving quickly to start negotiations on a 
bipartisan path toward NIL legislation. And time is of the 
essence, because the Senate Commerce Committee has certainly 
not been the only body taking up the NIL issue.
    In recent years, 18 states have signed NIL bills into law, 
the first of them set to go into effect on July 1 of this year, 
less than 1 month away. After that date, some college athletes 
will be able to avail themselves of opportunities related to 
their name, image, and likeness, and some will not. Schools and 
programs in some states will be able to gain a recruiting 
advantage under these new laws, and some will not.
    One of those State NIL laws will be going into effect in my 
State of Mississippi, and I am glad to know that student 
athletes at Ole Miss, Jackson State, MSU, Southern Miss, and 
other institutions will not be completely disadvantaged. 
However, inconsistencies between State laws are already 
emerging. The only way to ensure that all student athletes 
across the country have the same NIL rights and protections, is 
for Congress to act.
    I understand that NIL is not the only issue of importance 
in the world of college athletics. In our bipartisan talks, we 
have spent a significant amount of time on issues such as 
providing better health care and support for educational 
outcomes among our college athletes. These issues deserve deep 
and thoughtful consideration, especially as they overlap with 
the jurisdiction and expertise of other committees. But unlike 
NIL, these issues are not subject to a July 1st deadline. Based 
on our discussions, I believe we can reach consensus on a 
focused bill addressing NIL on a much faster timetable.
    To that end, I expect the testimony of the today's 
witnesses will be quite helpful. I look forward to discussing 
with each of them the latest developments on the NIL issue and 
the need for Federal legislation. Thank you, Madam Chair.
    The Chair. Thank you, Senator Wicker, and thank you for 
your continued focus on this issue and certainly appreciate the 
bipartisan discussions that we have all been having.
    Now, we will turn to our colleague, Senator Booker. And 
again, want to point out that both Senators Moran and 
Blumenthal have also been very much a part of this discussion 
and have held many subcommittee efforts to focus on this issue 
and on our lead Democratic and Republican, as it related to the 
Olympic Reform Bill, that we passed out of this committee, as 
well. So, we have successfully passed bipartisan legislation. 
Hopefully, we can again.
    Senator Booker, welcome.

                STATEMENT OF HON. CORY BOOKER, 
                  U.S. SENATOR FROM NEW JERSEY

    Senator Booker. Thank you very much, Chairwoman. I cannot 
say how grateful I am and humbled that you would include me in 
a formal hearing, and how appreciative I am that we have been 
having bipartisan discussions and the earnestness with which 
your office and the Ranking Member's office have been treating 
this--the seriousness with which they have been treating this.
    I want to give my gratitude to Senator Moran. I know he has 
been a champion for justice in athletics, writ large, and it is 
extraordinarily affirming to me that he is leaning into this, 
as well. And of course, my partner and friend throughout this 
whole process, I am just thankful for him, as well.
    I want to just say I am deeply sorry that we are here. I 
was a newly minted senator sitting--when the room was configure 
differently--in this room, in a hearing with a person I have 
come to have a lot of respect for, the head of the NCAA, 
talking about these issues. And nothing, or very little has 
changed. I really respect what Senator Wicker is saying. We are 
here because of the real threat to college sports as we know 
it. With a whole bunch of different cross cutting standards 
that will undermine the level playing field, or at least the 
degrees of the level playing field, we have now.
    If there is--if we do not fix this problem, sports as we 
know will change, and we all should feel that urgency. But it 
is unfortunate that these issues, that we think are ancillary, 
are really central. Because, if we do not use this opportunity 
to address the very painful issues that we see--from the gender 
issues that continue to persist, to the health and safety 
issues that continue to persist, from the exploitative issues 
around education that continue to exist, I am telling you right 
now, from my experience, in my entire arc as a senator, they 
have not changed from the hearing we had 7 years ago. There is 
no guarantee that they are going to change or that there will 
be any urgency to act on these issues. That is why we are 
drawing a line.
    Modern college athletics is a de facto, for profit industry 
that is just too often exploiting men and women, taking 
advantage of their genius, of their talent, of their artistry. 
Robbing many of them of earnings in their peak years, leaving 
them often injured with a lifetime worth of costs, sometimes 
looking back and their universities are still making profits 
off of their names. The changes we are talking about should 
allow athletes, as I think we all agree, to benefit from their 
significant commercial value that is now being cynically 
exploited to the profits in an industry that is making $15 to 
$25 billion. Large companies, even their own schools, are 
profiting off of them and they are sharing in nothing with 
that.
    But there are deeper issues that we should talk about, as 
well, that have not been fixed. Since 2000 alone, we have seen 
the death of at least 30 players who have died from heat-
related illnesses. We now have a better understanding of what 
concussion does to athletes throughout their lives. But we are 
sitting here at a time that the NCAA does not even have 
enforceable concussion protocols.
    Are our student athletes--are they really the center? If 
they were, we would do something about the forces that are 
creating such a dangerous environment for them. Because the 
truth is, the incentives are imbalanced. I have been on a 
field, where the game is on the line, where millions of dollars 
are at stakes. Win bonuses and television contracts, on whether 
we win or lose, the incentives are to keep that player with the 
concussion in.
    I know players. I have sat and talked with them. I am sorry 
there are not players here for this hearing--that have painful 
stories about spine injuries, head injuries, neck injuries, who 
are going out of pocket to pay for that, with no help from 
universities that made millions of dollars off of them.
    I have talked to people who were used to put people in 
seats and make incredible amounts of monies for the university, 
but we know that their chances of getting a college degree, at 
a time that they are spending 50, 60, 70 hours a week, they are 
robbed out of that college degree. And I know the NCAA brags 
about a 90 percent graduation rate. But in the revenue 
generating sports which, disproportionately, African-Americans 
are present in, only 56 percent of black male athletes, who 
generate the outsized amount of college sports revenue, are 
graduating within 6 years.
    These things should be painful to all of us. They have been 
talked about for decades, since the time I was playing almost 
30 years ago, and nothing has changed. Once an athlete's 
eligibility is gone, and thus, their scholarship expires, they 
are little use to this multi-billion-dollar industry. But where 
is our heart? Where is our protections from them?
    To race to just an NIL bill, and not address these 
injustices is tragic, because the theory--the story we sell is 
that this is about the kids. This is about the athletes. But 
that is fundamentally not true. And so, the expiration of an 
athlete's college career should not mean that they are 
expendable. Now is the time for the NCAA to evolve as an 
organization, to truly put the students first--their concerns 
and their needs.
    So, some people want to make this process simple as 
possible. Pass a narrow piece of legislation, as this July 1st 
deadline comes, that I admit, is an existential threat to 
sports as we know it. But I am saying, no, we cannot do that. I 
encourage this committee to focus on the broader concerns. Make 
this not about the profit, but about the people. Make this not 
about continuing a billion-dollar industry and protecting it as 
we know it, but elevating the floor to make sure that we 
address these concerns that I know--I have spoken to the heart 
of many of our colleagues on both sides of the aisle. I know we 
care about the education, the health, the well-being, and yes, 
the opportunity to make profit off of your name, image, and 
likeness.
    I want to conclude by saying this. I have come to have a 
lot of respect for people that are in this game. I am very 
close to college coaches and athletic directors. I have been so 
touched by how many have reached out to me over the last year. 
Just Notre Dame's leadership reached out to me. And I thought 
they would never do that because, for the record, I had my best 
career game against them. I think it was----
    [Laughter.]
    Senator Booker. I think it was our NCAA record--60--60 
catches, I think.
    Dr. Emmert. I think that was at 60.
    Senator Booker. At 60 catches, yes.
    Dr. Emmert. Or 70. I forgot.
    Senator Booker. Somewhere around there, sir. I hear from 
them that they are appalled that we have not changed this. My 
most recent discussion with an athletic leader was, hey, this 
should--what we do in our school should be the standard 
everywhere. But it is just not. I am telling you, what is going 
on right now is a quiet injustice.
    Senator Blumenthal and I have made a lot of time to hear 
directly from athletes--incredible women, incredible young men. 
Their stories are agonizing. We cannot trust that this will fix 
itself. This is the moment. This is the opportunity. And if we 
delay justice for those athletes, justice delayed is justice 
denied.
    I hope we will take advantage of this opportunity to fix 
these problems and make college athletics, again--or for the 
first time--truly about the athletes that are involved. Thank 
you very much.
    The Chair. Thank you, Senator Booker, and thank you for 
your passion. Thanks for joining us today and you have really 
set the crux of what we are going to try to talk about today, 
and that is, how do we cover some of these issues of healthcare 
and scholarship and have a discussion with our panelists about 
how we can get that done. I----
    Senator Wicker. Madam Chair, if could just ask a question--
--
    The Chair. Certainly.
    Senator Wicker. Before Senator Booker leaves. Just to put a 
fine point on it, and I appreciate your reference to our 
partnership and friendship, and our listening to the athletes. 
What we need here, in essence, is a Bill of Rights for college 
athletes. Would you agree?
    Senator Booker. Obviously, as you and I have been part of 
authoring an athlete's Bill of Rights. And I have talked to, 
now, lots of people and everybody agrees that the basic 
protections, on gender issues, on health and safety issues, 
this is the least we can ask in an industry that makes so much 
money. I know, when the NCAA tournament came to Newark when I 
was Mayor, I was blown away by the wealth. But then, yet, you 
have student athletes telling their stories, like we saw in the 
most recent tournament, on gender issues. How could we possibly 
be in 2021 and not have the kind of basic protections for young 
people, and fairness. From transfer rules to the ability to 
actually get an education at schools where athletes are still--
like I did--putting in more than a full-time job's worth in 
their sport.
    So, I think the word Bill of Rights, whether that is 
triggering or not to some of my colleagues, the reality is we 
need to raise the floor for the protections of these athletes. 
And again, my friend, I am grateful for you and my colleagues 
across this dais for your heart and your concern about 
athletes' needs.
    Senator Wicker. Thank you.
    The Chair. OK, thank you, Senator Blumenthal. Senator 
Booker, again, thank you so much for being here. And we are now 
going to turn to our panelists, so we can have a discussion 
about these various issues.
    I want to welcome to the dais, as I said, Head Coach Mark 
Few from Gonzaga University, Dr. Rod Gilmore--I am sorry, Dr. 
Wayne Frederick from--President of Howard University; Dr. Mark 
Emmert, the Head of the NCAA. He will be followed by Mr. Rod 
Gilmore, who is at a remote location, but will be joining us 
after the--after Dr. Frederick. Mr. Michael McCann and Mr. 
Matthew Mitten.
    Again, welcome to all of you. You can see we have been 
doing a lot of work and people have a lot of ideas about what 
the bottom line is. I think today we hope you will help us 
illuminate some ways and paths forward. And appreciate you all 
being here. Again, appreciate, certainly Coach Few being here 
and traveling from my home State, the State of Washington. So, 
welcome, Coach Few.
    I think you might have to push a red button there. Yes.

 STATEMENT OF MARK FEW, HEAD COACH, MEN'S BASKETBALL, GONZAGA 
                           UNIVERSITY

    Mr. Few. Oh, there we go. Well, hey, tough act to follow. 
But I want to thank you for allowing me to testify about the 
future of college sports and the framework for Federal name, 
image, likeness legislation for our student athletes, and I 
would especially like to thank Chair Cantwell and Ranking 
Member Wicker.
    My name is Mark Few, and I am the Head Men's Basketball 
Coach at Gonzaga. Being the son of a Presbyterian minister and 
listening to over 50 years of Dad's sermons, I understand the 
value of keeping this short. So, I am going to do my best at 
that.
    I started coaching at Gonzaga University in 1990 as a 
graduate assistant, which was basically a volunteer position. 
At that time, Gonzaga was in a really tough position 
financially, and there were discussions of moving down 
divisions and reducing athletic offerings. Since then, we have 
slowly worked our way up, over many years, and are now 
considered one of the top basketball programs in the country 
which, I think, helps give me a really, really unique 
perspective on this very difficult matter.
    As previously mentioned, we are at a critical juncture in 
college athletics. And it really is not an exaggeration to say 
the future of college sports is in jeopardy. And so, I want to 
talk about, kind of, NIL rights. We absolutely should have 
addressed these NIL rights a long time ago and I am embarrassed 
that we are here having to deal with it right now. And we 
should have handled this and--but here it is. And these changes 
are long, long overdue.
    All athletes deserve to use their own name, image, and 
likeness in commercial endorsements and on social media. And I 
am very much in favor of them profiting as much as they 
possibly can from this. They should be able to run a camp using 
their own name, sign autographs for money, or profit off their 
popularity on Instagram or Tik Tok. That absolutely needs to 
happen right now.
    We do not need an artificial cap on what a player's value 
is for NIL. We should rely on fair market value. But we do need 
some parameters to preserve the collegiate model and protect 
the recruiting environment. Without these parameters, the 
unintended consequences could be disastrous. And they could be 
disastrous especially for the non-revenue sports outside of 
football and men's basketball.
    So, my second point is, we need your help. At this point, 
this is not an issue the NCAA or individual states can fix. We 
cannot run competitive, fair championships if every state has a 
different rule. And State NIL laws go into effect in less than 
a month. We have players showing up on campus here this week. 
So, only action here by Congress can maintain some sort of 
semblance of a level playing field.
    A consistent national law is critical. For instance, I have 
the same number of scholarships to offer as my counterparts at 
universities ten times the size of Gonzaga. That is one way a 
Jesuit school with 5,300 undergraduate students competes in the 
national championship game twice in the past four NCAA 
tournaments.
    In regard to student welfare, in the last four or 5 years--
and like I said, I have been involved in college athletics for 
32 years now. But in the last four or five, I have witnessed 
the most drastic changes, in regard to student athlete welfare 
and fully acknowledging we have a long ways to go. But at 
Gonzaga, we provide out-of-pocket healthcare expenses for 2 
years after a student athlete's injury. We pay for medical 
insurance. We provide scholarship, if a student wants to return 
to school after their eligibility has expired, even if they are 
playing professionally. And we continue that, for as long as 
they want to try and finish their degree.
    We provide one on one guidance on nutrition and all the 
food they could possibly ever want to or need, access to mental 
health services, like coping with depression, suicide 
prevention, and even peak mental sports performance training. 
We offer elite strength and conditioning training equipment, 
cost of attendance stipends, access to disability insurance 
policies, extensive life skills programming, and literally, 
every bit of academic apparel and shoes that they would ever 
need.
    And it is my belief that all student athletes should have 2 
years out of pocket expenses, at minimum, covered after they 
are done playing, for any athletic injuries covered. They 
should also have the ability to come back to school and finish 
their degree after their eligibility is expired. The fact that 
we do that at Gonzaga, I guess we just, kind of, take it for 
granted. But schools that cannot afford to provide this care to 
their student athletes, should be able to get assistance from 
the NCAA because it is the right thing to do.
    In order to make that happen, the NCAA probably needs 
temporary relief from the myriad of lawsuits that might follow 
or are currently in court.
    My final point I want to talk about is the value in a 
college experience. In men's basketball, there are options 
available now to players who do not want to be a part of that 
collegiate model and would prefer to be professionals. Our top 
high school players are actively recruited to the G league, 
have opportunities to play overseas, or even play in new high 
school professional leagues, supposedly offering six figure 
salaries.
    These guys have options. If their goal is to get paid to 
play right away, they can do that. And sometimes, college 
athletics is not for everyone. However--big however, there are 
so many positive things going on in college athletics, that we 
do not hear about, and experiences that are worth preserving 
and supporting. Kids who are able to go to college and be the 
first in their family to step in a college classroom and walk 
across the stage at graduation. Students encouraged to access 
mental health counseling, that maybe, they did not realize they 
needed. Academic support and opportunities to prepare for life 
after college. Players who find a second family in the coaches 
and support staff of the university, dedicating to ensuring 
they develop into the adults they should become.
    This year alone has been an incredible challenge, and the 
guys brought amazing resilience and grit and perseverance 
because they wanted to compete. They wanted to play. They 
wanted to join their brothers and find joy again by playing the 
sport they love, at an elite level.
    While we know there are challenges that remain in college 
athletics, I do not want to forget all the good happening on 
campuses throughout the entire country. Cannot tell you how 
many times my athletes have come back, years after competing at 
Gonzaga, and told me that being here was the greatest time of 
their lives. Some of those guys are still currently playing in 
the NBA and others never played a minute, after leaving 
Gonzaga.
    In closing, the NCAA and college sports model in the United 
States is unlike anything else. There really is no comparison, 
no model to emulate and it has provided access to higher 
education to millions of students. Hopefully, we can find a 
solution that will empower, educate, and provide an opportunity 
for these students to capitalize on their own NIL without 
compromising what makes attending college and playing college 
sports, such a special and transformational experience. Thanks.
    [The prepared statement of Mr. Few follows:]

     Prepared Statement of Mark Few, Head Coach, Men's Basketball, 
                           Gonzaga University
    To the Senate Commerce Committee Members:

    Thank you all for allowing me to testify about the future of 
college sports and framework for Federal Name, Image, Likeness 
legislation for college student-athletes. I would especially like to 
thank Chair Cantwell and Ranking Member Wicker.
    We are at a critical juncture in college athletics, and it is not 
an exaggeration to say the future of college sports is in jeopardy. 
First, I want to thank you for taking the time and energy to help us 
develop a solution to this really complex issue. We need to make 
changes that are long overdue. I am 100 percent in favor of our players 
being able to monetize their NIL, and I appreciate your help in doing 
this at the national level.
    My name is Mark Few, and I am the Head Men's Basketball Coach at 
Gonzaga University in Spokane, Washington. I started my college 
coaching journey at Gonzaga University in 1990 as a graduate assistant. 
Early in my coaching career, Gonzaga's athletic programs were in the 
bottom 10 percent of NCAA's Division I. The University was in a tough 
position financially, and there were discussions of moving down 
athletic Divisions and reducing athletic offerings. Through a lot of 
hard work by a lot of people, first and foremost our fantastic student-
athletes, we have been able to slowly climb to the top. I have seen 
this growth from every stage on our journey, and witnessed the 
importance of investing in student-athletes' welfare.
    Having coached for 32 years I have seen a lot of change, but far 
and away the most change has taken place in the last 4 or 5 years, and 
this is especially in regards to our efforts to improve student-athlete 
wellbeing. Even 10-15 years ago, we weren't able to provide additional 
nutrition, access to mental health services, elite strength and 
conditioning, cost of attendance stipends, access to disability 
insurance policies, or the extensive life skills development 
opportunities that we offer today. At Gonzaga, we provide out-of-pocket 
healthcare expenses for two years after a student-athlete's injury, we 
pay for medical insurance, and we have a team of medical professionals 
dedicated to taking care of our student-athletes. We pay for mental 
health counseling. We do our very best to make sure our student-
athletes are safe and well taken care of. Schools that cannot afford to 
provide this care to their student-athletes should be able to get 
assistance from the NCAA, because it is the right thing to do.
    Even with all the recent change, the system is still long overdue 
for adjustments, especially in the NIL space. I really wished we would 
have addressed this a long time ago, but here we are and we need to 
make changes. My guys deserve to use their own name, image, and 
likeness in commercial endorsements and on social media, and I want 
them to make as much as they possibly can. They should be able to run a 
camp using their own name or sign autographs for money. That absolutely 
needs to happen now.
    State NIL laws go into effect in less than a month, and only action 
here by Congress can maintain the level playing field. A consistent 
national law is critical because inconsistent state laws could permit 
institutions to directly enter the NIL market leading to improper 
inducements and resulting in a recruiting advantage. As an example, 
under NCAA rules, as a men's basketball coach, I have the same number 
of scholarships to offer as my counterparts at Universities ten times 
the size of Gonzaga. That is one way a Jesuit school with 5,300 
undergraduate students competes in the National Championship game twice 
in the past four NCAA tournaments.
    There are so many positive things going on in college athletics 
that we don't hear about and experiences that are worth preserving and 
supporting. Kids who are able to go to college and be the first in 
their family to step in a college classroom and walk across the stage 
at graduation. Students that are encouraged to access mental health 
counseling that maybe they never asked for before or didn't realize 
they needed. Students are provided academic support and opportunities 
to prepare for life after college. Players who find a second family in 
the coaches and support staff at the university dedicated to ensuring 
they develop into the adults they should become. This year alone has 
been an incredible challenge, and the guys brought amazing resilience 
and grit and perseverance because they wanted to compete, they wanted 
to play, they wanted to join their brothers and find joy again by 
playing the sport they love at an elite level. While we know that there 
are challenges that remain in college athletics, I don't want to forget 
all the good happening on campuses throughout the country.
    Students that have an opportunity to compete at the collegiate 
level realize a platform and exposure college athletics provides that 
doesn't exist anywhere else and for some, more importantly, it gives 
them access to a college education. An education that opens doors for 
their future whether they play professional sports down the road or 
not.
    The NCAA and college sports model in the United States is unlike 
anything else. There really is no comparison, no model to emulate, and 
it has provided access to higher education to millions of students, an 
opportunity to form an incredible bond with a second family in their 
teammates. Let's find a solution that will empower, educate and provide 
an opportunity for these students to capitalize on their own NIL 
without compromising what makes attending college and playing college 
sports a special and transformational experience. Thank you.

    The Chair. Thank you, Coach Few. Thank you very much for 
being here and for that testimony. Very helpful.
    Dr. Frederick, thank you so much for being here. Look 
forward to hearing your statement.

   STATEMENT OF DR. WAYNE A.I. FREDERICK, PRESIDENT, HOWARD 
   UNIVERSITY, AND CHAIR, MID-EASTERN ATHLETIC CONFERENCE'S 
                   PRESIDENTS AND CHANCELLORS

    Dr. Frederick. Chairwoman Cantwell, Ranking Member Wicker--
mm-hmm. Chairwoman Cantwell, Ranking Member
    Wicker, and members of the Senate Committee on Commerce, 
Science, and Transportation, I want to thank you for the 
opportunity to offer testimony on the issue of NCAA athlete 
rights, particularly those pertaining to name, image and 
likeness (NIL) monetization.
    Today I am representing the Mid-Eastern Athletic Conference 
as the Chair of the MEACs presidents and chancellors, but I am 
also here as the parent of a 16-year-old, who will be 17 on 
Saturday, as a soccer player that is being actively recruited 
by over a dozen universities other than mine, I might add. I am 
also representing my own institution, Howard University, which 
is the only historically Black college and university to win a 
Division I NCAA championship--and that was in the sport of 
soccer in the 1970s as well as, the more than 100 historically 
Black colleges and universities throughout the country.
    I am a practicing surgeon and, also, served as the Manager 
of that NCAA Division I team that won--that had a history of 
winning that championship.
    In our institutions, academics and athletics are each 
critical components of the education we provide. In the 
classroom and on the volleyball court, we teach our students 
the importance of transcendence and perseverance in overcoming 
any barrier they may encounter. But we also teach them to 
become their own self-advocates and to insist on fairness and 
equity. This is a balance we should seek to strike in college 
athletics, both on and off the court.
    I am here today to express the MEAC's support for 
legislation that allows collegiate athletes to receive 
compensation for use of their name, image, and likeness. We 
believe that student athletes should be able to retain agents 
and professional representatives who can help them maximize 
earnings, as well as handle certification and ensure compliance 
with regulations.
    In addition, we also support legislation that would protect 
students who face sports-related injury and medical expenses 
from incurring undue financial burdens. Student athletes put 
tremendous effort and dedication into their athletic 
activities, and they deserve to be compensated for those 
endeavors and protected, in the course of pursuing them. 
However, it is critical that we recognize that college 
athletics is not purely, or principally, a money-making 
venture. And it is neither in the best interest of the students 
or the institutions, for it to be so.
    Sports, in the landscape of higher education, is indeed a 
part of a student's education. Even as we work to provide 
student athletes with greater rights to earn compensation, we 
should also seek to protect the amateur status of these sports.
    At the MEAC, our enthusiasm for increasing the rights of 
student athletes is tempered by our concerns for lesser 
resourced institutions. Many smaller schools simply do not have 
the funds to take on additional financial responsibilities. If 
they were required to pay for additional student athlete 
medical expenses or field more staff to ensure compliance with 
rules and regulations around student athlete compensation, the 
resulting strain would inevitably force them to downsize or 
eliminate certain athletic offerings entirely.
    We desperately need Federal legislation that would 
supersede the patchwork of laws that exist on a State level and 
we need comprehensive laws that apply equally to student 
athletes across the country, while also recognizing and 
accounting for the diversity across collegiate athletic 
programs.
    As a representative of the MEAC and HBCUs, I have concerns 
about many of the proposals that would create tremendous 
burdens on smaller colleges and universities, particularly 
those historically Black institutions that do not have the same 
resources as some of our wealthier and more privileged peers. 
And I take this opportunity to remind you that Howard 
University is the only historically Black college and 
university where a five-star athlete has decided to enroll, as 
did Makur Maker this past year.
    It is important to recognize that, out of 1,100 college 
athletic programs in the NCAA, only 25 programs--some 2.27 
percent--are profitable. The overwhelming majority of colleges 
and universities extend significant institutional resources to 
support athletics. For example, each year, Howard University 
expends approximately some $14 million to support our sports 
teams. If new rules and regulations only add to the cost that 
we assume, without providing us with any additional assistance, 
we will not be able to sustain the athletic programs we 
currently have. And we offer some 21 Division I sports, at 
present.
    We have the only swimming team at a historically Black 
college and university. And that is just not about swimming, 
but it is about the African-American experience in this 
country. African-Americans are five times more likely to drown, 
for example. So, our swim team has athletes that will compete, 
hopefully, at the Olympics. But we also have athletes that are 
interested in spreading the learning of swimming throughout the 
African-American community.
    This would be a tremendous loss to our institution, as well 
as to the students whose opportunities for academic and 
athletic educational experience would be limited, as a result. 
So, it is with tremendous conviction that we at the MEAC, 
advocate for expanding student rights, to earn compensation, 
and receive much needed protections for their well-being. 
However, we strongly believe that guardrails must be 
established that would protect smaller colleges and 
universities, as well as the student athletes who are not well-
positioned to earn compensation from their athletic pursuits, 
or who play smaller sports that could be eliminated if the 
institutions lack the wherewithal to support them.
    And to piggyback on Senator Booker's presentation, the 
African-American athlete that he described, 56 percent chance 
of graduating, at Howard University that is at 80 percent. So, 
those resources, we do expend. We are very happy to expend 
those resources.
    While we recognize the complexity of these issues, we also 
believe that there are compromises to be had, that would appeal 
to all parties with a vested interest in potential legislative 
solutions.
    So, thank you, and I look forward to your questions.
    [The prepared statement of Dr. Frederick follows:]

Prepared Statement of Wayne A. I. Frederick, Charles R. Drew Professor 
                of Surgery, President, Howard University
Introduction
    Chairwoman Cantwell, Ranking Member Wicker and members of the 
Senate Committee on Commerce, Science and Transportation, thank you for 
the opportunity to offer testimony on the issue of NCAA athlete rights, 
particularly those pertaining to name, image and likeness (NIL) 
monetization.
    Howard University is part of the Mid-Eastern Athletic Conference 
(MEAC) and one of 107 historically Black colleges and universities 
(HBCUs) in the United States. Howard offers 21 intercollegiate sports 
across men's and women's athletics. On our campus, academics and 
athletics are each critical components of a Howard education. In the 
classroom, our students acquire knowledge and understanding, vision and 
perspective. On the volleyball or basketball court, they learn to 
translate comprehension and preparation into action--a vital skill that 
they will need when they leave our campus and make their way in the 
world.
    Many of our students come from limited means. They don't have the 
same privileges and opportunities as other people. But that doesn't 
mean that we require less of them--instead, we ask more. The same goes 
for our institution as well as other HBCUs and our peers in the MEAC. 
While we might have fewer resources than other colleges and 
universities, we assume a tremendous responsibility to our students, 
our community and our society. We all have to counter inequality with 
excellence.
    Transcendence and perseverance are natural elements of sports, and 
they are integral to the Howard pedagogy. But sports also teach our 
students to become their own self-advocates. While we want them to 
learn to overcome any barriers they encounter, we also teach them to 
insist on fairness and equality. That's why sports are mediated by 
impartial referees and umpires so all athletes can begin on an equal 
footing, and they can use their talent and tenacity to rise above the 
competition.
    College athletes must combine an insistence on what they are 
entitled to with a determination to earn everything they receive. We 
should seek to strike this balance both on and off the court.
    Howard University and the colleges and universities in the MEAC 
support legislation that allows collegiate athletes to receive 
compensation for use of their name, image and likeness. We also support 
legislation that would protect students who face sports-related injury 
and medical expenses from incurring undue financial burdens.
    At its core, this issue is about basic fairness. Collegiate 
athletes should have the right to share in the revenue generated from 
their accomplishments and marketability. They put tremendous effort and 
dedication into their athletic activities, and they deserve to be 
compensated for those endeavors and protected in the course of pursuing 
them.
    However, it is critical we recognize that collegiate athletics is 
not purely or principally a money-making venture. Sports in the 
landscape of higher education is indeed a part of a student's 
education. We are cultivating leaders on the sporting field as much as 
we are in the classroom.
    In addition, Howard and our fellow HBCUs as well as our peers in 
the MEAC have concerns that smaller and lesser-resourced institutions 
would be unable to cope with changes in collegiate athletics that 
require the institution to endure a heavier load in supporting student 
athletes, both in terms of insulating the athletes from extraneous 
costs as well as assisting them in earning revenue. While we 
desperately need Federal legislation that applies equally to student-
athletes across the country, this legislation must recognize the 
diversity across collegiate athletic programs. We cannot have 
legislation that privileges the already privileged institutions while 
placing further burdens on colleges and universities that are already 
struggling to bear our heavy loads.
    College athletes certainly deserve more rights than they currently 
possess. But there should be guardrails put in place to ensure that 
greater rights for all college athletes do not come at the expense of 
other athletes who are not equally positioned to benefit from those 
rights or smaller colleges and universities who lack the resources to 
support and facilitate them.
    While we recognize the complexity of these issues, we also believe 
that there are compromises to be had that would appeal to all parties 
with a vested interest in potential legislative solutions.
Enhancing Student Rights to Monetize their Name, Image and Likeness
    Many students who attend Howard University, HBCUs and institutions 
in the MEAC come from low-income homes and communities. It is an 
unfortunate reality that many of them, at some point during their 
educational careers, will have to choose between pursuing their 
passions and chasing an income. Students should never be in a position 
where they cannot play collegiate sports because they cannot afford to 
engage in activities that require so much of their time and energy 
without adequate compensation and protection.
    We believe that student-athletes should be able to retain agents to 
allow them to receive compensation for their name, image and likeness. 
These professional representatives can help athletes maximize earnings 
as well as handle certification and ensure compliance with regulations.
The Need for Federal Legislation Rather than State-by-State Rules and 
        Regulations
    We urge Congress to act swiftly in enacting Federal legislation to 
enable student-athletes to monetize their name, image and likeness that 
would supersede the patchwork of laws that exist on a state level. Six 
states have already enacted legislation on this issue; 23 states have 
introduced NIL legislation this legislative session; and 37 states have 
introduced some form of NIL legislation recently.
    Intercollegiate athletics absolutely constitutes interstate 
commerce. Student-athletes are not restricted in choosing colleges and 
universities by the state they happen to live in. On the contrary, they 
are empowered to explore any and all institutions across the country to 
find the one that best meets their needs and expectations.
    States are motivated to pass laws that benefit their state over 
others rather than drafting legislation that balances the need to 
support the rights of all athletes while protecting smaller-market 
athletes and lower-resource institutions. Comprehensive national laws 
would level the playing field as states compete with each other in 
recruiting top student-athletes and ensure greater parity across the 
entire landscape of higher education athletics.
Safeguarding the Amateur Status of Collegiate Sports and Maintaining 
        Title IX
    Even as we work to provide student-athletes with greater rights to 
earn compensation for their time spent in collegiate sports, we should 
also seek to protect the amateur status of athletics in higher 
education. If student-athletes are principally motivated by their 
ability to earn revenue from participating in sports, they will choose 
schools that provide them with the greatest opportunity to do so at the 
expense of other institutions that might be better equipped to support 
their other needs.
    We at the MEAC believe that it is important that we restrict pay-
for-play situations. While students can still receive compensation for 
their time as student-athletes, they should be able to do so in a 
manner that does not compromise their amateur status. Not only will 
this allow college athletics to retain an integral quality that 
distinguishes it from professional sports, but it will ensure greater 
parity and equality for all student athletes both within the same sport 
and across different sports.
    If college sports were professionalized, this would mitigate the 
ability for students to walk on and play on teams. It would also cause 
undue harm on the ability of smaller universities to recruit top 
athletes to come to their schools, further restricting equality across 
NCAA divisions and schools, which would undermine the level of 
competitive play in college athletics.
    We also must place certain limits on how student athletes can 
market their images to ensure alignment with the mission and values of 
the universities they represent. We support sensible restrictions on 
how a student-athletes' name, image and likeness can be used.
    In addition, we have to consider the additional expenses that will 
arise for institutions as we seek to comply with these new Federal or 
NCAA rules and regulations. Athletic compliance departments at the 
University level will require additional staffing to monitor and 
regulate student athlete adherence to the guidelines and any additional 
reporting requirements. Compliance teams at lower-resource institutions 
are already understaffed and overburdened. To ensure compliance without 
taxing already strained athletic departments, we should consider 
increasing NCAA or Federal assistance.
Protecting Student-Athletes' Health and Wellbeing without Burdening 
        Institutions
    The health and physical wellbeing of student-athletes must be a 
paramount concern. Considering the bodily strain athletes endure, they 
must be protected from the liability of financial distress that could 
arise from any injury they sustain during the course of their athletic 
participation.
    However, it is vital that we recognize that not all institutions 
are able to bear the same level of financial responsibility for their 
student-athletes' health. Added financial strain caused by requirements 
to pay for student-athlete medical expenses not covered by insurance 
could cause devastation to smaller schools, especially those athletic 
programs that have smaller revenue margins. Without adequate protection 
and safeguards for these institutions, we could be forced to downsize 
or eliminate certain sports offerings entirely.
    It is important that we limit the liability of colleges and 
universities with limited means to support student-athletes' health 
care costs. Whether it is by limiting health coverage to those that 
problems that arise during participation in sporting events or ensuring 
that the NCAA is able to provide additional financial support, we must 
find a system that both serves the health interests of the athletes 
while protecting institutions financially.
    Current proposals, such as the College Athletes Bill of Rights 
(CABOR), also include excessive penalties that would cause undue harm 
to numerous institutions who already generate limited revenue from 
their athletics programs. These proposals would penalize institutions 
that are not able to meet certain high standards of support for 
student-athletes. Unfortunately, the result of these ideas would not be 
greater support for student athletes, but rather would force 
institutions to eliminate athletic offerings in order to preserve their 
financial welfare. The CABOR would mandate a 20 percent revenue fine 
for programs that are not in compliance with its enumerated standards. 
Since many colleges and universities in the MEAC and other conferences 
could never abide by these standards, a fine of this magnitude would 
almost certainly compel us to end many of our athletic programs, 
preventing many students from participating in sports they would 
otherwise benefit from.
Conclusion
    Once again, I would like to thank the committee for holding this 
hearing and its willingness to bring forward a variety of perspectives 
on this issue. As a representative of the MEAC and HBCUs, I have 
tremendous concerns about many of the proposals that would create 
tremendous burdens on smaller colleges and universities, particularly 
those historically Black institutions that do not have the same 
resources as some of our wealthier and more privileged peers.
    It is important to recognize that, out of 1,100 college athletic 
programs in the NCAA, only 25 programs (2.27 percent) are profitable. 
The overwhelming majority of colleges and universities extend 
significant institutional resources to support athletics. For example, 
each year Howard University expends approximately $14 million to 
support our sports teams. If new rules and regulations only add to the 
costs that we assume without providing us with any additional 
assistance, we will not be able to sustain the athletic programs we 
currently have. This would be a tremendous loss to our institutions as 
well as to the students whose opportunities for academic and athletic 
educational experiences will be limited as a result.
    While increasing student-athlete rights would certainly benefit 
many of our students, we must consider expanding their rights without 
sacrificing the needs of other student-athletes and the institutions 
that work so hard to support them. Thank you for your interest in this 
issue and your willingness to seek much-needed compromises.

    The Chair. Thank you so much for your testimony and for 
advocacy for your institution and, apparently, your soccer 
skills, too. So, something new to--new to look up about Howard 
University.
    We are now going to turn to Mr. Rod Gilmore who is joining 
us remotely.

    STATEMENT OF ROD GILMORE, COLLEGE FOOTBALL ANALYST, ESPN

    Mr. Gilmore. Thank you, Madam Chair. My name is Rod 
Gilmore, and I am pleased and honored to testify today. I 
played college football and baseball at Stanford University and 
graduated in 1982, a little bit before my friend, Senator 
Booker. He was a much better player, by the way. I graduated 
law school in 1986 and I have practiced law for 35 years. I 
have also worked in sports media and have covered college 
football since 1990. The last 25 years with ESPN.
    I am deeply familiar with the on-field and off-field issues 
facing college athletics, given that I have covered games 
across the country, and had relationships with coaches and 
players over the last 30 years. During those 30 years, I have 
watched the NCAA and its universities avail themselves of our 
country's free market economic [inaudible] and compete for 
entertainment dollars and television revenues, competing 
against professional leagues like the NFL and NBA. It is a 
billion dollar a year--a $14 billion a year industry. And 
despite the claims that almost no one makes money, people keep 
rushing into this enterprise. For example, in 1984 there were 
105 college football teams in the top division of college 
football. Today, that number has increased to 130.
    While the NCAA, universities, coaches, and administrators 
have benefited handsomely from this lucrative marketplace, the 
NCAA stripped football and basketball players of their rights 
to share in this market. This restriction is arbitrary, does 
not help competitive balance, and is an affront to our free 
market system.
    Players are frustrated and upset. For more than 15 years, 
they have been asking for the right to market themselves like 
everyone else, including their fellow students. Remember, 
monetizing name, image, and likeness rights does not require 
any payment from the NCAA or a university. Rather, money is 
paid by an unrelated third party to a player for being 
permitted to use that player's name, image, or likeness in 
promotions or advertisements.
    However, the NCAA believes, and I have had coaches and 
administrators tell me this, that third parties will pay less 
to the athletic departments if those third parties are allowed 
to pay players directly. In other words, the athletic 
departments want to protect their revenue stream, which is why 
the NCAA wants a national name, image, and likeness law.
    Today, I remind the Committee that, college football and 
basketball players have no ability to negotiate, nor change, 
NCAA rules and have no legal authorized entity that can 
negotiate on their behalf. This has allowed the NCAA to focus 
on its self-interest and economic well-being, often at the 
expense of players. Players have been treated like second-class 
citizens, without the right to enjoy the freedoms and the 
rights that the NCAA, every other student, and every other 
American enjoys--the right to fully participate in a free 
market.
    To me, this is also a Civil Rights issue. It is disturbing 
that the $14 billion a year revenue is made, in large part, on 
the backs of black players. About half of the college football 
players in the top division and the richest conferences are 
black. Fifty-six percent of the players in Division I 
basketball are black. But when their careers are over, and 
former players look for opportunities in this lucrative 
industry, black players find that it is not welcoming. It is an 
overwhelmingly white industry. According to recent studies 
[inaudible] in leadership positions are 85 percent white. Name, 
image, and likeness may be the only true way players can share 
in this lucrative market.
    I believe the Committee should really do the following--the 
following three things. First, one, represent the players. The 
NCAA and its members do not need your protection, the players 
do. The NCAA is sophisticated, has experts, consultants 
supporting their efforts. Any action by this committee should 
be with an eye toward the best interest of the players, who 
lack a formal organization, or union, to speak for them.
    Second, only create a national law if it benefits the 
players. Right now, the states have taken action that provide 
players with name, image, and likeness rights, and those laws 
give players choices. If the states have different rules, 
players have a choice to look at different jurisdictions in 
which to play college athletics. There is no compelling need 
for national image and likeness law if the players already have 
that right given by the states. We are seeing the market act. 
The market is creating what the NCAA would not create.
    Third, only create a national law if it gives players 
something they do not have under the State laws, for example, 
group licensing. None of the State laws allow players to come 
together and promote a single product and share the benefits of 
having promoted that.
    Second, we need better healthcare protection during off-
season workouts. You heard Senator Booker mention that we have 
had about 30 players die since the year 2000, often related to 
heat stroke. During that same period, only one NFL player has 
passed away. Something has to be done on this front.
    And then, the final point, we need better post-eligibility 
healthcare for players. Most of the Power 5 conferences only 
provide two years of support. You heard Coach Few speak about 
Gonzaga and their ability to provide for two years. The Pac 12 
provides for 4 years. It is just an inadequate time for chronic 
injuries and things that occur in players and something has to 
be done about the state of concussions. There are 100 plus 
concussion lawsuits pending against the NCAA currently. And as 
we heard earlier, there is not a consistent concussion protocol 
that is being used.
    If nationally named image and likeness laws only give the 
NCAA protections and guardrails and uniformity, then the 
players will have been let down. I hope this committee takes 
action and really focuses on the benefits of the players. Thank 
you.
    [The prepared statement of Mr. Gilmore follows:]

   Prepared Statement of Rod Gilmore, College Football Analyst, ESPN
    Dear Hon. Sen. Cantwell,

    Thank you for the opportunity to testify before the Senate 
Committee on Commerce, Science & Technology Hearing on NCAA Athlete NIL 
Rights. It is an honor and privilege to do so. This is my written 
testimony prepared in connection with the hearing.
I. Introduction
    My name is Rod Gilmore and I'm pleased and honored that the 
Committee asked me to testify today. I played college football and 
baseball at Stanford University and graduated in 1982. I graduated from 
the University of California at Berkeley Law School in 1986 and have 
been a practicing business lawyer for 35 years. I have also worked in 
the media since 1990 as a college football analyst, covering college 
football games across the country (for all major conferences and 
others) and appearing on studio shows, national and local radio 
broadcasts, podcasts, and social media. I have worked at ESPN for the 
last 25 years as a college football analyst and am deeply familiar with 
the on-field and off-field the field issues the sport faces.
    Over the last 30 years I have watched the NCAA and its member 
institutions, universities that are non-profit entities with academic 
missions, avail themselves of our country's free market economic system 
and compete for entertainment dollars and television revenues in the 
sport and entertainment business, competing against professional 
leagues like the NFL and NBA. Since universities and conferences gained 
control of television rights through a 1984 Supreme Court decision, 
university athletic departments have relied less on money from their 
universities by turning what was once local campus activity into a 
mammoth $14 Billion a year industry. And many universities have rushed 
in to share in the money. For example, in 1984 there were 105 football 
teams in the top division of college football.\1\ That number has now 
grown to 129. Few of those teams in 1984 appeared on live television 
because the NCAA limited televised games to a few games each week and 
limited appearance to just the most popular universities. Now, thanks 
to that 1984 decision, scores of live college football and basketball 
games (men's and women's) are shown almost every day of the week at 
various hours. Thus, universities have added football teams in this TV 
era despite the public claim that almost all athletic departments lose 
money.
---------------------------------------------------------------------------
    \1\ ``Division 1'' now consists of two subdivisions, the ``Football 
Bowl Subdivision'' or ``FBS,'' which is the most popular and lucrative 
and includes the most well-known college football teams, and the 
``Football Championship Subdivision'' or ``FCS.''
---------------------------------------------------------------------------
    While the NCAA, its members, coaches, and administrators have 
benefited handsomely from this very lucrative marketplace \2\, the NCAA 
stripped players of their right to participate in this market--
particularly restrictive of football and basketball players.\3\ The 
NCAA rules that stripped players of their right to monetizing their 
Name, Image and Likeness (``NIL'') have been (i) arbitrary, (ii) have 
had no impact on competitive balance, and (iii) are an affront to our 
free market system. Players are frustrated and upset by the NCAA's 
hypocrisy and failure to remove the NIL restrictions. Remember, 
monetizing NIL rights does not require any payment from the NCAA or its 
member institutions to players. Rather, money is paid by an unrelated 
third party to a player for being permitted to use that Player's NIL 
rights in promotions, advertisements, etc. However, the NCAA believes, 
and I have had coaches and administrators tell me this, that third 
parties will pay less to the NCAA and universities if they are allowed 
to also pay players directly. In other words, the NCAA wants to protect 
its revenue stream and wants NIL legislation that will protect them 
from the marketplace or having to partner with players. The NCAA wants 
protections that are inconsistent with a free market.
---------------------------------------------------------------------------
    \2\ The University of Texas Athletic Department was the leader in 
revenue for 2018-19, the most recent available year, with $223,879,781. 
Two other universities had over $200 Million in revenue (Texas A&M and 
Ohio State). Forty university athletic departments had more than $100 
Million in revenue. Alabama Head Football Coach Nick Saban is the 
highest paid Head Football Coach ($9.3 Million). Ten other Head 
Football Coaches earn more than $6 Million per year. At least 56 of the 
130 FBS (defined later in this Written Testimony) Head Coaches earn 
more than $3 Million per year. Former Big Ten Commissioner Jim Delaney 
retired after the 2019 season and received a $20 Million bonus. 
(Source: USA Today.)
    \3\ While the NCAA has prohibited football and basketball players 
from receiving any third-party payments for their NIL rights or their 
athletic performance, the NCAA has allowed athletes in certain 
``Olympic Sports'' to cash in from their performances in recent 
Olympics: Swimmer Katy Ledecky, Stanford ($355,000); Wrestler Kyle 
Snyder, Ohio State ($250,000); and Wrestler Joseph Schooling, 
University of Texas ($740,000). Also, the NCAA has for years allowed 
tennis players to retain up to $10,000 in prize money from events 
without losing any eligibility. See Alston v NCAA 958 F. 3rd 1239 (9th 
Cir. 2020).
---------------------------------------------------------------------------
    Today, I want to remind the Committee that, while college football 
and basketball players have principally created this $14 Billion 
industry, players \4\ have had NO ability to negotiate or change 
oppressive NCAA rules and have no NO legally authorized entity that can 
negotiate with the NCAA on behalf of players.\5\ This has allowed the 
NCAA to determine for itself what is best for players and have 
prioritized its own self-interest and economic well-being at the 
expense of players. Players have not been allowed to enjoy the freedoms 
and rights that the NCAA, every other student and every other American 
enjoys: the right to fully participate in a free market.
---------------------------------------------------------------------------
    \4\ According to the NCAA, in 2020 there were 34,783 Division 1 
college football and basketball players (29,234 football and 5,549 
basketball).
    \5\ This has forced players to rely on the judicial system and 
State legislatures to have their issues addressed.
---------------------------------------------------------------------------
    Non-athlete students can and have monetized their NIL rights to 
promote themselves and earn money on social media, start businesses 
while in college, and do any other myriad of things to earn money--
whether they are on scholarship (academic or other non-athletic 
scholarship). Those students are treated like every other citizen in 
this country. However, the NCAA has made college football and 
basketball players second class citizens by stripping them of their NIL 
rights.\6\ The NCAA's approach is so Draconian that even players who 
earned local scholarships for their high school performance (whether 
academic or athletic) have been forced to forfeit those scholarships 
when they accept a college athletic scholarship. Those local 
scholarship can range from hundreds of dollars to a few thousand 
dollars, money most recipients desperately needed.
---------------------------------------------------------------------------
    \6\ For example, in 2017 the NCAA stripped University of Central 
Florida kicker Donald De La Haye, Jr., of his eligibility for 
monetizing his popular YouTube channel that tracked his daily life, 
including his athletic life.
---------------------------------------------------------------------------
    I also see the NCAA prohibiting players from monetizing their NIL 
rights as a Civil Rights issue. It is disturbing that the $14 Billion 
in revenues is generated in large part on the backs of Black players. 
About half of FBS College Football Players are Black, in the Top 5 
Conferences (Power 5) about half are Black; in the Southeastern 
Conference, which is recognized as the most lucrative and most 
successful conference, that number is about 61 percent.\7\ And, when 
the playing careers of Black players end, there are few opportunities 
available to them in this lucrative industry. It is an overwhelmingly 
White industry from coaches to administrators, which, as noted above, 
is where most of the money from this enterprise ends up being 
distributed.
---------------------------------------------------------------------------
    \7\ Sources: ncaa.org and vox.com.
---------------------------------------------------------------------------
    The NCAA, its member institutions and their coaches do not need the 
help of this Committee or Congress to address NIL rights. They are 
sophisticated parties with sophisticated professional advisors who have 
helped them become very successful in this lucrative college sports 
industry. They are asking for protections from the free market. But it 
is the players who need your help--not the NCAA. If this Committee 
chooses to act on NIL and other issues, it should do so with an eye 
towards representing and protecting college players.
    Do not allow the NCAA to continue to treat college players as 
second-class citizens. Require the NCAA to lift its prohibition so that 
players may fully use their NIL rights and fully participate in our 
free market as intended for every American citizen.
II. If This Committee Addresses Only NIL, Then The NCAA Will Be the 
        Major Beneficiary of That Legislation--Not The Players
A. Do we need a national NIL law?
    The threshold question to be asked is whether Federal legislation 
of NIL rights is necessary. For more than fifteen years there has been 
a push to have the NCAA remove its restriction of players having the 
right to monetize their NIL rights. Since the NCAA failed to act on 
this issue, the States have been acting to solve this problem. The 
State of California created the first legislation to address NIL in 
September 2019, and since then over 40 States have contemplated NIL 
legislation and 18 States have fully enacted such legislation with half 
of those laws going into effect by July 1, 2021. (Only 9 states appear 
to have not contemplated any NIL action at all.)
    In other words, States have made it clear that they want players to 
be able to monetize their NIL rights. States like California have heard 
from players and experts and understood that they needed to help 
players. The State of California did its due diligence and found the 
same facts that I found during my private discussions with players and 
coaches over the years and while working for ESPN, that: (a) many 
players are struggling financially and some use their scholarship 
(including Cost of Attendance money) to help their families \8\; (b) 
for almost all college football players, their college years will be 
their best opportunity to monetize their NIL rights \9\; and (c) all 
athletes, including women \10\, will benefit from the State 
legislation.
---------------------------------------------------------------------------
    \8\ Many players have privately told me about their tough financial 
situations over the years, in confidence, and I do not have permission 
to publicly discuss their private situations. However, there are 
several published reports that illustrate this problem. For example, 
see https://www.kansascity.com/sports/article86062912.html (Missouri's 
men's player and women's player estimate that 10 teammates send money 
home); http://www2.kusports.com/news/2016/jul/24/what-if-kansas-paid-
its-basketball-players-it-alre/?templates=desktop (Kansas men's 
basketball player pays some of his mother's bill with his Cost of 
Attendance money); see also https://www.providencejournal.com/article/
20150124/SPORTS/301249983 (Men's basketball player in Rhode Island 
sends money home to family in East Lansing, MI)
    \9\ For example, former Stanford Running Back had a tremendous 
junior season in 2017 in which he ran for 2,178 yards and was 
considered a potential 1st or 2nd round NFL draft pick. He was at the 
height of his popularity and NIL rights earning potential in 2017. He 
returned to Stanford for his senior season in 2018 and suffered a knee 
injury. He slipped to the 4th round of the 2019 draft by the Washington 
Football Club. Unfortunately, Bryce never fully recovered from his knee 
injury and was released in 2020, which ended his football career. He 
never had the opportunity to monetize his NIL rights.
    \10\ Despite the public perception that only a handful of star 
football and basketball stars will benefit from NIL legislation, 
studies have shown that female athletes will benefit greatly--and 
perhaps greater than their male counterparts. For example, see Temple 
University School or Sport, Tourism and Hospitality Management study 2/
21; and Villanova Sports Law/NIL Symposium 3/25/21.
---------------------------------------------------------------------------
    Some States have included protections for the NCAA from the free 
market and have adopted laws that are overly paternalistic of players. 
Some prohibit players from entering into contracts with third parties 
with whom the university also has a contract, such as a sports apparel 
company like Nike, Under Armour, Adidas, etc. Others require players to 
take financial classes as a condition to being able to monetize their 
NIL rights. No other students are subject to these restrictions. Such 
restrictions may be well intended, but they are anti-free market and 
treat players as less--less than other students and less than other 
citizens. If this Committee enacts NIL rights for players, it should 
override such provisions.
    In a short period of time, we have seen States react and create a 
market in which players will have choices. Players will now be able to 
factor in how a university will handle his/her NIL rights in 
determining which university and in which State he/she chooses to play. 
However, the NCAA believes that if universities can offer different NIL 
rights to players, it will destroy competitive balance and there will 
no longer be ``level the playing field.'' Competitive balance is a red 
herring because competitive balance does not currently exist and has 
not for a long time.
    Competitive balance is already so lacking that FBS Playoff 
officials and conference commissioners recently publicly admitted that 
they are considering expanding the Playoff to drive more interest and 
access. How uncompetitive is it now? The same teams win their 
conference each year and play for the national championship. For 
example, in the 7 years of the current 4 team College Football Playoff, 
there have been a total of 28 spots in the Playoff. Only 11 of the 130 
FBS football playing colleges have made the Playoff. And 22 of the 28 
spots have been held by only 5 teams: Alabama (6), Clemson (6), Ohio 
State (4), Oklahoma (4) and Notre Dame (2).
    Those same 5 schools are annually ranked in the top 10 recruiting 
rankings. In other words, a handful of teams compete for the 
championship each year and they replenish their rosters with the best 
young talent each year. Each year the ESPN highest ranked top 50 
players overwhelmingly select the same elite teams.\11\ For example, 
the 2021 recruiting class is generally like previous classes: Alabama 
signed 7 of the ESPN top 50 players; Ohio State landed 5; Clemson 
signed (5); USC (4); and Oklahoma signed (3). About half of the top 50 
are concentrated on 4 teams. How much does recruiting matter and create 
a competitive advantage? Alabama turned its 6th ranked 2018 recruiting 
class into six players drafted in the first round of the NFL draft, 
tying the previous record set in 2004 by the University of Miami. Any 
college football expert will tell you that there is no competitive 
balance in college football and NIL rights are unlikely to 
significantly change that.
---------------------------------------------------------------------------
    \11\ In recruiting today, the ``NFL Dream'' is the dominant theme 
sold to the top high school recruits. The message is that the player 
should be focused on achieving that dream, and the university has the 
elite facilities, coaches, and development plan to help that player 
achieve that dream. The elite programs have those things, and the 
competitive balance is unlikely to be altered by the inclusion of NIL 
rights because those programs have shown that they are committed to 
competing for elite talent. The ``NFL Dream'' pitch is a marked 
departure from the days when the academic benefits were a bigger 
component of the recruiting narrative.
---------------------------------------------------------------------------
    The NCAA also raises the fear factor that some teams will violate 
recruiting rules and offer exorbitant NIL rights to high school players 
and transfers to induce them to join their team. First, the NCAA 
already has existing recruiting rules to cover this situation and the 
ability to enforce these rules if it so chooses. Second, even if there 
is an abuse with offers that exceed market value, in our country we 
allow the free market to work its magic over time and solve these 
issues. For a recent example, consider the wide swings in value for 
purchases of bitcoin. Again, the NCAA is fearful of the free market.
    While the NCAA might find it inconvenient to address various State 
NIL laws, that is not a compelling reason to enact Federal legislation 
to assist the NCAA. It is normal and customary in this country for 
businesses that operate nationally to comply with various State laws. 
That is the norm--whether it is laws addressing the manufacture, 
production, distribution, and sale of products, or raising capital for 
a new or existing business. Businesses regularly must comply with 
various laws enacted by States where they want to conduct business. 
There is no compelling reason to exempt the NCAA from the ordinary 
course of business and various State laws.
B. Group Licensing.
    If the Committee intends to provide a benefit in a Federal NIL law 
that is not covered by the recently enacted State laws, it should 
consider granting players the right to have group licensing. Group 
licensing would allow all players to monetize their NIL rights in a 
single product. Senator Chris Murphy (D-Conn) previously introduced a 
bill that would allow group licensing. Group licensing would likely, 
for example, allow the return of a popular college football video game 
that was eliminated because of the anti-trust case between former UCLA 
men's basketball player Ed O'Bannon. O'Bannon vs NCAA (802 F.3rd 1049 
(9th Cir. 2015).
C. Revenue Sharing.
    The Committee should also consider the merits of revenue sharing 
for players. In talking to players over the years, they have made it 
overwhelmingly clear that they want to receive a fair share of the $14 
Billion generated in college sports. Indeed, last summer a group of a 
dozen football players in the Pac12 Conference, representing their 
colleagues, demanded that the Pac12 ``Distribute 50 percent of each 
sport's total conference revenue evenly among athletes in their 
respective sports.''
    Giving players the right to share in revenues generated is not a 
new concept and is a common practice in professional sports. However, 
it is not generally common in the business world. Owners of businesses 
do not normally agree to share a percentage of revenues with its 
workers. It is not a common practice in a free market.
    While I understand the argument for revenue sharing, I do not 
believe that the Committee should mandate revenue sharing in any NIL 
legislation. However, I also do not believe that the Committee should 
prohibit universities and conferences from having the right to adopt 
revenue sharing if they deem that it is in their best interest. This 
approach is consistent with our free market system.
III. If This Committee Addresses NIL Rights, It Should Also Address 
        Additional Important Matters Affecting Players Like Improving 
        Healthcare and Improving their Academic Experience
A. Athletic Health Care.
    First, it seems that each year we have players die because of 
accidents during offseason workouts overseen by training staffs of 
college football teams. The most recent example is the 2018 death of 
Jordan McNair, a football player at Maryland University. Mr. McNair 
collapsed during an offseason workout and died of heatstroke. It is 
shocking that since 2000, approximately 30 college football players 
have died from non-traumatic causes (heatstroke) suffered during 
workouts.\12\ That's almost two deaths a year! Only one NFL player 
(Korey Stringer) has died since 2000 during an offseason workout from 
heatstroke--zero since 2001. How is it that offseason workouts are 
hazardous for college players, but not NFL players?
---------------------------------------------------------------------------
    \12\ www.sportingnews.com/us/ncaa-football/news/ncaa-best-
practices-guidelines-offseason-workout-deaths-jordan-mcnair/
ssmpvzvhm5e318btjw5eoagnf
---------------------------------------------------------------------------
    What is considered safe and appropriate for offseason workouts vary 
from training staff to staff. Now, the NCAA deserves credit for 
addressing this issue and trying to determine ``best practices'' and 
have universities adopt those best practices. However, to my knowledge, 
it is unclear if those ``best practices'' will be universally mandated 
by the NCAA and it is unclear how the NCAA will monitor universities 
and how or if it will penalize those who do not comply.
    Also, medical coverage for players after their careers end are 
woefully inadequate. I am aware of players suffering injuries that 
occurred while playing college football, but not covered by their 
schools after their eligibility ends. Many issues arise after a 
player's career has ended, including chronic injury problems related to 
joints and shoulders. This issue has been documented in the media over 
the last several years. In response to this problem, in 2018 the Power 
5 conferences adopted a measure to provide healthcare and treatment for 
at least two years after the player has left his or her institution. 
The Pac12 Conference went further and extended the period to four 
years.
    This two-to-four-year period seems woefully inadequate in light of 
how long injuries suffered while playing college football may remain 
dormant before becoming active when a player gets older. And, as noted 
above, chronic pain and injuries related to having played football may 
not arise by the time a player is 24 or 25. I have had my own 
experiences. I suffered shoulder and ankle injuries during college 
football games that were treated at that time. However, both injuries 
bothered me a short time after my playing career ended and continue to 
do so. Fortunately, those issues have not been debilitating.
    This Committee should delve into this issue with medical and sports 
performance professionals to determine the reasonable and appropriate 
time frame to extend medical coverage for former players. It should 
certainly be longer than 2 or 4 years.
B. Academic Outcomes.
    As a former player, I certainly struggled balance my academic life 
with my athletic obligations--practices, meetings, workouts, treatment, 
games, recruiting events, community events, etc. It impacted classes I 
chose, the major I chose and experiences I could not have (e.g., a 
semester at my universities' European campus was out of the question 
because it conflicted with baseball, and when I had to end my baseball 
career, it conflicted with Spring football practice). I had teammates 
who also had similar experiences. This was not unique decades ago. 
Michigan Head Football Coach Jim Harbaugh publicly stated in 2007 that, 
as a Quarterback at Michigan in the 1980s, he and teammates were 
steered towards softer majors than the general student population.\13\
---------------------------------------------------------------------------
    \13\ See https://www.espn.com/espn/columns/
story?columnist=forde_pat&sportCat=ncf&id=296
6536 and related articles.
---------------------------------------------------------------------------
    Based on my observations and discussions in the college football 
community, not much has changed in the last few decades. Many players 
have privately told me that football is an 11-month job (e.g., Winter 
Conditioning, Spring Practice, Summer Conditioning, and the fall 
Regular Season) and it limits their choice of major and classes--
particularly those that conflict with their football obligations. The 
dirty little secret is that the focus at most places is to keep players 
eligible rather than provide them with the most robust academic 
experience that they can handle. This concept of ``clustering'' players 
in easier majors became a public topic in hearings with this Senate 
Commerce Committee back in 2014. See https://www.sbnation.com/
college-football/2014/7/9/5885433/ncaa-trial-student-athletes-
education. Northwestern QB Kain Kolter addressed this in 2014 when he 
publicly stated that his football commitment forced him to give up his 
desire to be a pre-med major and forced him to select the easier 
psychology major. https://www.post-gazette.com/sports/college/2014/06/
01/Do-colleges-drop-the-ball-with-student-athletes/stories/
201406010120. Those are not isolated incidents. Several players have 
made similar statements under oath in the O'Bannon anti-trust trial and 
in the pending Alston anti-trust trial. See O'Bannon and Alston v NCAA, 
noted above. This leaves players stuck in majors that have nothing to 
do with their career interests. Id.
    Then NCAA has emphasized a narrative focusing on graduation rates 
rather than the experiences players are having. It cites improved 
graduation rates as proof that its players are having success. Ignoring 
the ``clustering'' issue for the moment, it must be noted that the NCAA 
reports graduation rates by using a more lenient formula for 
calculating graduation rates than the formula used by the Federal 
government. If the NCAA were required to use the Federal formula, the 
public would see the true graduation rates of players. This would 
likely force the NCAA to take action to improve the academic journey of 
players.
    This Committee should not be satisfied with the ``appearance'' of 
academic success when players consistently report that their academic 
experience is subservient to their athletic obligations--and not always 
by their choice. This Committee should do at least two things in this 
area; (1) reduce the allowable hours for practice and team activities 
(including how those hours are calculated (e.g., the time doesn't count 
until the airplane takes off); and (2) require better oversight and 
monitoring of the academic journey of players. It's not hard to 
recognize the problem when the team issued media guide is filled with 
players clustered in similar majors--such as ``general studies'' or 
something similar. This is not to say that players must take the most 
challenging majors available. Rather, more of an effort needs to be 
made to match each player's major with each player's career interest.
IV. Conclusion
    Again, in considering NIL legislation, this Committee should be a 
guardian for the players, their NIL rights and the free market. 
Currently, the recently enacted State NIL laws are serving the 
interests of the players, and this Committee should not enact 
legislation to override those benefits for the convenience of the NCAA 
and compromising the free market. If the Committee decides to enact NIL 
legislation, it should do so to (a) override anti-free market 
protection provisions for the NCAA (.e.g., limits on contracts with 
parties with whom the university has a contract), that treat players 
differently from other students and are overly paternalistic (e.g., 
required financial classes, delayed receipt of money until after they 
graduate, etc.), and (b) include measures that improve health care and 
the academic experience of players.
    Thank you for the opportunity to appear before you.
    Respectfully submitted,
                                               Rod Gilmore.

    The Chair. Thank you, Mr. Gilmore, and thank you for 
joining us remotely and talking about the differences in 
various states. We will now hear from Dr. Emmert from the NCAA. 
Welcome.

           STATEMENT OF DR. MARK EMMERT, PRESIDENT, 
            NATIONAL COLLEGIATE ATHLETIC ASSOCIATION

    Dr. Emmert. Well, thank you, Madam Chair. And before I 
begin my remarks, if I--if I could, I--on a completely 
different subject, I want to congratulate the Committee on the 
passage of the Endless Frontier Act. I spent the majority of my 
life leading research universities around America. What you did 
with that Act, and what the Senate did, is remarkable, 
extraordinarily important effort, and I really, really thank 
you for your leadership. It is going to make a huge difference 
for America.
    Chairman Cantwell, Ranking Member Wicker, and distinguished 
members of the Committee, thank you for the opportunity to 
testify here today. Over the last decade, I have had the 
pleasure and privilege of serving as the President of the NCAA, 
which supports more than half a million student athletes, who 
participate in sports every year, on 19,000 different teams.
    The 1,200 colleges and universities of the NCAA are, right 
now, in the process of passing historic rules to allow new 
opportunities for student athletes to be compensated for the 
use of their name, image, and likeness. These opportunities 
will allow student athletes to take advantage of the evolving 
landscape in multiple ways. And our schools intend to pass 
those rules as quickly as possible, preferably before the end 
of the month.
    Like you, we also seek a level playing field that provides 
NIL opportunities for all college athletes, in all the states, 
and in a fair manner. This task is made virtually impossible by 
the many different name, image, and likeness laws that are 
passed at the State level, along with the ongoing, recurring 
litigation threats. However well intentioned the multiplicity 
of State laws are, they confuse, rather than clarify the NFL 
landscape. This is why we are urging Congress to pass 
legislation creating a single, national NIL standard.
    The schools that make up the NCAA membership have committed 
to allowing NIL opportunities to student athletes. And as you 
well know, our schools develop NCAA rules through a 
representative process, that is not at all unlike the 
legislative processes in every state in the Union. Thousands of 
student athletes, coaches, presidents, administrators, and 
stakeholders have provided extensive input into these rule 
changes.
    As a result, Divisions I, II, and III have developed 
proposed rules to allow students to benefit from the use of 
their NIL. Specifically, these rule changes would allow college 
athletes to be able to be compensated for activities such as 
third-party endorsements, social media opportunities, 
businesses they have started, and personal appearances they may 
make. Importantly, the proposal includes guardrails that would 
ensure that NIL payments are not a proxy for pay-for-play, that 
a national recruiting environment for college sports is 
maintained, and that students are not employees of their 
universities or their colleges. NCAA members are focused on 
enacting these rules well before the beginning of the 2021-22 
academic year.
    Still, there is an urgent need for Federal legislative 
solutions, so that we may provide all student athletes with a 
broad NIL opportunity and a fair system of participation and 
competition. In order to do so, we urge that any Federal NIL 
bill include five key elements.
    First of all, we obviously seek, as we all seem to agree 
to, a uniform national model under which students can benefit 
financially from the use of their NIL. Second, any provisions 
in this bill have to also support Title IX protections across 
all sports and provide for fair opportunities regardless of 
gender. Third, we all recognize the need for preemption of 
State laws to provide the kind of consistency we all want, 
across the country. And fourth, we need to safeguard the non-
employment status of student athletes, to maintain the core 
principles of collegiate athletics. And finally, as we have 
also heard, we seek a limited safe harbor protection, to allow 
NIL opportunities to proceed without schools being under 
constant threat of serial litigation.
    With these provisions, a Federal solution would maintain 
opportunities for college athletes in all sports, uphold Title 
IX protections, ensure that NIL payments are not a proxy for 
pay-for-play, and maintain the fairness in our recruiting 
processes around the country.
    We are proud of the role that college sports have played in 
creating opportunities for our Nation's student athletes, 
especially for those who might otherwise have not had a chance 
to pursue a college degree. We know, from countless stories and 
studies, that NCAA athletes, throughout their lives, are more 
likely to be thriving and successful in all elements of their 
life, and that these patterns of success persist across all 
NCAA divisions, all graduation cohorts, gender, race, and 
ethnicities.
    Many of you have expressed concern about--and we have heard 
from a number of folks already--about the level of support that 
NIL--levels of support students receive beyond NIL, including 
making sure that student athletes have full access to, and 
assistance with, healthcare and healthcare costs, ensuring 
scholarship provisions protect athletic educational 
opportunities, throughout their careers, and the need to 
promote greater ability for transfer between schools. Please 
know that I, and the schools, have been continuously addressing 
these issues. And as Coach Few noted, they have--these student 
welfare issues have changed remarkably within the past 5 years 
alone. And know that I am committed, personally, to continuing 
to work with you in partnership to find solutions to all of 
those issues.
    I think, most importantly, together we have an exceptional 
opportunity--I think, frankly, a historic opportunity to change 
the national landscape for college athletics. While preserving 
all that college sports provides to our students and our 
communities, we can also support and encourage our students' 
NIL activities, by giving them unique opportunities in life and 
preserving all those things that Coach Few talked about.
    Thank you for allowing me to provide input at this critical 
juncture. The schools of the NCAA are committed to working with 
you to find appropriate resolutions to these needs. Thank you.
    [The prepared statement of Dr. Emmert follows:]

           Prepared Statement of Dr. Mark Emmert, President, 
                National Collegiate Athletic Association
    Chairwoman Cantwell, Ranking Member Wicker and distinguished 
members of the Committee, thank you for the opportunity to provide 
testimony in support of the more than half a million student-athletes 
who participate in collegiate sports every year. There is nothing we do 
as an Association that is more important than promoting and ensuring 
the well-being of college athletes. The 1,200 colleges, universities 
and conferences of the NCAA are in the process of passing historic 
legislation that will allow new opportunities for student-athletes to 
be compensated for the use of their name, image and likeness (NIL). 
Despite these modernization efforts, the revered tradition of college 
sports is at a critical moment in its history as a patchwork of 
impending state NIL laws and ongoing, recurring litigation threaten the 
future of college sports and obstruct the ability of the Association 
and its member schools to provide student-athletes with the fair and 
level playing field they expect and deserve. In this unprecedented 
time, we look forward to partnering with Congress to find swift and 
shared solutions that will best support college athletes and protect 
the uniquely American tradition of college sports that is deeply rooted 
in the fabric of our collective communities.
A Historic and Pivotal Moment in College Sports
    The colleges, universities and conferences that make up the NCAA 
membership stand committed to allowing NIL opportunities for student-
athletes consistent with the college athletics model. Our schools 
develop rules through a representative legislative process, not unlike 
most legislatures in the country. Since the development of the NCAA 
Board of Governors Federal and State Legislation Working Group in 2019, 
thousands of student-athletes, administrators, presidents, conference 
commissioners, subject matter experts, researchers and other college 
sports stakeholders have provided extensive input throughout the 
membership's examination of this issue. As a result of these efforts, 
Divisions I, II and III have developed proposals that will allow 
student-athletes to benefit from the use of their NIL, consistent with 
guiding principles. As part of these proposals, college athletes could 
be compensated for activities such as third-party endorsements, social 
media opportunities, businesses they have started and personal 
appearances. Importantly, the proposals include guardrails that would 
ensure that NIL payments are not a proxy for pay-for-play, that a 
national recruiting environment for college sports is maintained and 
that student-athletes are not deemed or perceived to be employees of 
the institution they are attending. Though the legislative efforts of 
the three divisions were paused due to recent judicial, political and 
governmental activities, including communication from the U.S. 
Department of Justice Antitrust Division, the NCAA's 1,100 member 
schools are focused on having rules in place in time for the 2021-22 
academic year.
    At the moment at which NCAA colleges and universities are poised to 
provide historic opportunities for student-athletes to benefit from 
their NIL, a patchwork of state laws threatens the NCAA's ability to 
provide uniform NIL opportunities as well as fair, national competition 
to hundreds of thousands of student-athletes who participate in college 
sports each year. As of today, more than 30 states across the U.S. have 
introduced legislation related to the topic of name, image and 
likeness, and these bills have different effective dates and 
provisions. Some statutes closely reflect the NIL proposals advanced by 
the Division I, II and III memberships, and some are silent on these 
provisions. Other laws allow for nearly unregulated use of NIL by 
student-athletes and contain no safeguards to ensure that NIL payments 
are not a substitute for athletics performance, to maintain a national 
recruiting environment or to protect against impermissible inducements 
for student-athletes to attend or remain at a college or university. 
Even when provisions are similar among states, regulatory 
interpretation and enforcement likely will differ significantly from 
state to state. Moreover, some states have proposed laws that would 
require colleges to pay student-athletes a share of the school's total 
sports revenue or a share of ticket revenue earned from sporting 
events. Not only would laws such as these undermine the NCAA's model of 
amateur athletics, the state laws also would threaten to transform 
students into paid employees of an institution. And perhaps most 
importantly, they would most certainly lead to the end of many 
nonrevenue college sports programs.
A Pressing Opportunity for Federal Partnership
    Because of the engagement of state legislatures and the multiple, 
recurring lawsuits related to NIL and other regulation around 
establishment of national standards, there is an urgent need for a 
Federal solution so that we may continue to provide all student-
athletes with broad-based opportunities and a fair system of 
participation and competition. The NCAA and its member schools look 
forward to working with Congress to help the American tradition of 
college athletics thrive in the 21st century and urge that any Federal 
NIL legislation include the following:

   Ensure Federal Preemption of State Laws. Conducting 
        collegiate athletics among a patchwork of state laws is 
        untenable. To date, 18 states have passed laws that permit 
        student-athletes to be compensated for use of their NIL 
        (Alabama, Arizona, Arkansas, California, Colorado, Florida, 
        Georgia, Maryland, Michigan, Mississippi, Montana, Nebraska, 
        New Jersey, New Mexico, Nevada, Oklahoma, South Carolina and 
        Tennessee). We expect legislative activity to continue in other 
        states across the country throughout this legislative cycle. As 
        many as half of the enacted laws can take effect as early as 
        this July, leaving student-athletes wondering how they will be 
        assured a fair competitive environment if they are forced to 
        compete against other college athletes who are subject to a 
        different set of competitive standards. To ensure student-
        athletes have the uniformity of rules and the fair and level 
        playing field they undoubtedly deserve, it is critical that 
        college sports are regulated at a national level.

   Safeguard the Nonemployment Status of Student-Athletes. 
        College athletes are students and not employees of their 
        institution. Converting student-athletes into employees would 
        directly undercut the purpose of attending college--earning a 
        degree--and it would destroy the opportunities college 
        athletics provides for more than 500,000 student-athletes each 
        year. The NCAA and its member schools support student-athletes 
        through scholarships--many of which cover their full cost of 
        education debt free--and numerous other benefits. Importantly, 
        the safeguards currently in place for student-athlete financial 
        aid and scholarships would not be protected under an employment 
        system. Such a framework would also have debilitating 
        implications for Title IX as the equitable protections for 
        women under Title IX apply to education, rather than labor law. 
        Similarly, as revenues generated for men's teams tend to 
        significantly exceed that of women's teams, an employment model 
        would trigger gender equity concerns as men and women competing 
        in the same sport would likely receive widely different 
        benefits. Further, an employment model could exert financial 
        pressures on schools, forcing institutions to make economic 
        decisions to eliminate opportunities for the vast majority of 
        students competing in sports that do not generate revenue. 
        Finally, treating student-athletes as employees would create 
        burdensome tax implications as their scholarships and other 
        benefits would be open targets for state and Federal revenue 
        officers seeking to tax such passive income.

   Establish Limited Safe Harbor Protections. While individual 
        states are legislating NIL and pressing the Association to 
        provide further opportunities for student-athletes, the NCAA 
        and its member schools are targets by lawyers using the weapon 
        of antitrust laws and serial litigation, which diminish our 
        ability to enact change to modernize rules to enhance 
        opportunities for student-athletes. Federal antitrust law has 
        frequently been used by lawyers as a tool to attempt to change 
        or undermine the Association's rules. Already, some of the same 
        lawyers who have challenged the NCAA's other rules changes have 
        brought suit against the NCAA over NIL, even before the NCAA 
        has had a chance to pass its proposals. This current lawsuit 
        seeks a court to establish broad expansions of NIL uses 
        contrary to legal precedent and Federal copyright law. In 
        addition, constant litigation and the threat of litigation have 
        delayed previous efforts to modernize rules related to name, 
        image and likeness. Without appropriate, narrow protections, 
        these litigation challenges to NIL enactment will continue and 
        will significantly undermine the Association's ability to take 
        meaningful action and adopt common sense and adequate solutions 
        to support the evolving needs of student-athletes.

    In addition to these priorities described above, any NIL 
legislation must also maintain opportunities for sports that do not 
generate revenue, uphold Title IX protections, ensure that NIL payments 
are not a proxy for pay-for-play and maintain a national recruiting 
environment for college sports. We look forward to partnering with 
Congress to enact legislation that will ensure the Association can 
continue to provide student-athletes with fair national competition and 
safeguard the uniquely American model of college sports, which connects 
communities and provides a pathway of opportunity for more than half a 
million student-athletes each year.
The Continued Modernization of College Athletics
    We recognize there are reasonable differences of opinion about how 
to achieve fundamental fairness within our system, and we welcome 
discussions on how to further enhance opportunities for college 
athletes. Moreover, we agree with the direction of Federal legislative 
proposals that support student-athlete protections. It is worth 
highlighting that many of these proposals are consistent with recent 
efforts by our membership to modernize college athletics, such as those 
noted below:

   Fulfilling Scholarship Commitments. In addition to the more 
        than $3.6 billion that schools award in athletics scholarships 
        each year, the NCAA funds more than $10 million in scholarships 
        and grants annually to support the academic success and 
        graduation of student-athletes. We believe it is a school's 
        obligation and responsibility to honor its promise of a 
        scholarship to a student-athlete. Under current bylaws, 
        Division I schools may provide current or former student-
        athletes with a scholarship--up to a student-athlete's five-
        year eligibility period--and may pay for student-athletes to 
        finish their bachelor's or master's degrees after they finish 
        playing sports. No school may reduce or cancel a scholarship 
        during the period of an award for any athletics reason 
        (including illness, injury or athletic performance), and no 
        school may reduce or cancel a scholarship during the period of 
        the award until after the student-athlete has been provided an 
        opportunity for an independent hearing.

   Providing Health Care and Covering Medical Expenses. 
        Promoting the health and well-being of student-athletes is at 
        the foundation of the NCAA's mission. In support of this, 
        schools are required to establish an institutional line of 
        medical authority that is in the sole interest of student-
        athlete health and safety. Schools must develop an 
        administrative structure that provides independent medical care 
        and affirms the unchallengeable autonomous authority of primary 
        athletics health care providers to determine medical management 
        and return-to-play decisions related to student-athletes. NCAA 
        rules also permit member schools to provide insurance coverage, 
        reimburse or pay for medical expenses (including second medical 
        opinions), and provide for out-of-pocket costs for student-
        athletes. Schools within the five conferences with autonomy 
        must provide medical care to a student-athlete for athletically 
        related injuries for at least two years after graduation or 
        separation from the institution. All schools must make mental 
        health services and resources available to student-athletes. 
        The NCAA also funds an insurance policy covering all college 
        athletes who experience catastrophic injuries while playing or 
        practicing their sport or who incur more than $90,000 in 
        medical costs. The policy provides up to $20 million in 
        lifetime insurance benefits.

   Ensuring Health, Wellness and Safety Standards. The 
        colleges, universities and conferences that make up the NCAA 
        membership remain committed to the health, well-being and 
        lifelong success of student-athletes. The NCAA Sport Science 
        Institute aims to provide college athletes with the best 
        environment for safety, excellence and wellness through 
        research, education and best practices. In collaboration with 
        member schools, national governing bodies, key medical and 
        youth sport organizations, and the public and private sectors, 
        the SSI has worked to expand the Association's health and 
        wellness protocols in recent years. Member schools retain the 
        authority and are in the best position to establish the health 
        and safety needs of their own students through local medical 
        experts on the ground and to determine the best appropriate 
        care. Meanwhile, our membership continues to look for ways to 
        strengthen these protections, and we welcome the opportunity to 
        discuss additional health and safety accountability mechanisms.

   Supporting Academic Outcomes. We are incredibly proud of the 
        graduation success of student-athletes in all three divisions. 
        As part of their participation in college sports, college 
        athletes commit to academic achievement and the pursuit of a 
        degree, and they are required to meet yearly academic standards 
        to be able to compete. Because of this, for more than two 
        decades, the Association has devoted attention to researching 
        student-athlete graduation rates. All colleges and universities 
        are required by NCAA legislation and Federal law to report 
        student graduation rates, and those institutions offering 
        athletics aid are required to report rates for their student-
        athletes, as well. NCAA student-athletes consistently graduate 
        at higher rates than their nonathlete peers, and this gap in 
        favor of student-athletes is largest among Black men and women. 
        Since 2019, the amount of NCAA revenue each Division I school 
        receives every year is determined by the academic achievement 
        of its students. The latest Division I Graduation Success Rate 
        data shows that student-athletes are graduating at the highest 
        rate ever as 9 out of 10 student-athletes who started college 
        in 2013 earned degrees. While there is much to be proud of in 
        terms of the academic success of college athletes, we must also 
        continue to support initiatives and grants, such as the NCAA 
        Degree Completion Award Program and NCAA Former Student-Athlete 
        Degree Achievement Program, that help the remaining 10 percent 
        of student-athletes earn their degrees.

   Providing Transfer Flexibility. In May 2021, the NCAA 
        Division I Board of Directors ratified the adoption of 
        legislation so that all student-athletes, regardless of the 
        sport they play, may transfer schools once in their period of 
        eligibility and compete immediately. The rule is now effective 
        and applies to all student-athletes who transfer for the first 
        time for the 2021-22 academic year. The waiver process remains 
        available for those student-athletes who have previously 
        transferred schools.

   Promoting Student-Athlete Voice. We strongly support the 
        engagement and participation of student-athletes in all areas 
        of college sports, including in the governance process. 
        Student-athletes are at the core of the membership's existing 
        governance structure and have a voice through campus, 
        conference and national Student-Athlete Advisory Committees, 
        which provide insight and input on the rules, regulations and 
        policies that affect college athletes. Student-athletes are 
        also supported by the NCAA and its membership as they strive 
        for a more inclusive world and identify change opportunities 
        for social injustices. The three divisional Student-Athlete 
        Advisory Committees and the Board of Governors Student-Athlete 
        Engagement Committee recently collaborated to create a national 
        Unity Pledge. The pledge underscores their belief in diversity, 
        inclusion and social justice and how engaging in all three 
        areas can foster unity in athletics, on their campuses and in 
        their communities.

    The 1,200 colleges, universities and conferences that make up the 
NCAA continue to seek opportunities to evolve to meet the needs of 21st 
century athletes. While we unequivocally welcome the opportunity to 
work with Congress to find solutions to meet today's challenges, it 
must be emphasized that some state and Federal proposals being 
considered would fundamentally alter the model of college sports to the 
extent that intercollegiate athletics would be nearly unrecognizable. 
These proposals, such as those that require revenue-sharing, would 
threaten to turn college athletes into paid employees of their 
institutions and jeopardize opportunities for the hundreds of thousands 
of student-athletes who compete in sports that do not generate revenue. 
Further, schools across all three divisions have very different 
financial situations, and the pressures exerted on resources from a 
revenue-sharing model could have a negative impact on sports that do 
not generate revenue. Only a handful of schools and conferences in 
Division I have media contracts that result in a net positive revenue 
source. Many smaller Division I conferences and most Division II and 
Division III schools pay to televise their contests to provide local, 
regional or national platforms for their student-athletes. Regardless 
of division, revenue earned through media contracts, sponsorships, 
tickets sales and/or other sources supports broad-based opportunities 
for student-athletes who compete in nonrevenue sports. Additionally, as 
80 percent of the most recent U.S. Olympic team competed in college, 
this could in turn have a negative impact on the success of the U.S. 
Olympic movement. For these reasons, we cannot support revenue sharing 
as part of any athlete compensation or NIL structure as these common-
sense concerns protect broad-based opportunities for more than half a 
million students every year.
    Other elements of proposed legislation would require all schools, 
regardless of resources, to contribute a percentage of their revenues 
to a medical trust fund to pay for certain student-athlete health care 
costs. These types of financial mandates could place a disproportionate 
and regressive financial burden on schools with fewer resources and 
exert financial pressures on other schools that may not be able to 
absorb these mandates without eliminating opportunities for student-
athletes who compete in sports that do not generate revenue. As 
described early in this testimony, many institutions are already 
supporting the health care, insurance and/or out-of-pocket costs of 
student-athletes many years after they have graduated or completed 
their eligibility. We do, however, recognize and appreciate the 
concerns of many members of Congress related to the issue of health 
care and welcome an open dialogue about how the NCAA and its member 
schools and conferences can further support the health and well-being 
of college athletes.
An Urgent Opportunity To Further Support and Protect College Athletes
    We are proud of the role that college sports have played in 
creating opportunities for our Nation's student-athletes, especially 
those who might not otherwise have had the opportunity to pursue higher 
education. Former NCAA student-athletes are more likely to be thriving 
in purpose, social, community and physical well-being, and these 
patterns persist across NCAA division, graduation cohort, gender, and 
race and ethnicity. Despite these achievements, we recognize that much 
more needs to be done to enhance opportunities for college athletes. We 
recognize that financial resources generated from athletic events must 
be focused first and foremost on providing student-athletes with the 
support needed to promote not just their athletic success, but also 
their long-term health and well-being as well as their academic and 
professional success. At this pivotal moment in college sports, 
congressional partnership is needed more than ever to help accomplish 
this.
    Thank you for the opportunity to provide input on this important 
topic impacting student-athletes. We look forward to partnering with 
members of this committee to enact bipartisan legislation that will 
result in new NIL opportunities for all students and protect 
opportunities for future students, while continuing to facilitate fair 
and uniform competition among the colleges, universities and 
conferences that make up the NCAA. We are committed to working together 
with the committee and members of Congress to find swift and collective 
solutions that will best support current and future college athletes 
and preserve the uniquely American tradition of college sports that our 
country knows and loves.

    The Chair. Thank you. Thank you, Dr. Emmert, for your 
testimony. We will definitely have some questions on some of 
the issues for you and for Dr. Frederick. And so, now, let us 
turn to Mr. McCann.

 STATEMENT OF MICHAEL McCANN, PROFESSOR OF LAW AND SPORTS AND 
   ENTERTAINMENT LAW INSTITUTE DIRECTOR, UNH FRANKLIN PIERCE 
                         SCHOOL OF LAW

    Mr. McCann. Chairwoman Cantwell, Ranking Member Wicker, and 
distinguished committee members, it is an honor to speak with 
you. My name is Michael McCann. I am Director of the Sports and 
Entertainment Law Institute at UNH Franklin Pierce School of 
Law. I also teach a course on name, image, and likeness, and my 
final class is tomorrow, fittingly. I also write for Sportico 
and law reviews. I am also the author of ``Court Justice'', 
with former NBA player and UCLA basketball star Ed O'Bannon.
    I have five points, which are detailed in my written 
testimony. First, NIL rights for college athletes are long 
overdue. These athletes have been denied a right enjoyed by the 
rest of us--the right of publicity. The right to control the 
use of what makes us who we are--our name, our likeness, our 
voice, our signature. Many college athletes are marketable. 
Billions of dollars are spent on their industry. Coaches, 
staff, companies that build arenas, they are all paid to help 
recruit athletes--the same athletes who are denied NIL.
    But money is not what matters most about NIL. It is 
dignity. Ed O'Bannon's case led to thousands of college 
athletes being paid for their likenesses appearing in video 
games without their consent. Most were paid in the ballpark of 
$1,000 to $1,500. None got rich. That was never the point. It 
was, as Ed stresses, about fairness.
    Ed also emphasize the disproportionate impact on students 
of color. The changes we are discussing today, would address 
that impact.
    College athletes are college students, except with a 
different set of rights. A student who is a musician, an actor, 
an artist, an influencer, a cheerleader, an e-sports player, 
can ordinarily earn without endangering a scholarship or 
getting a team in trouble, or getting a coach fired. They can 
juggle their studies, too.
    This is not just about the star quarterback. Per Axios, 
eight of the 10 most-followed Elite 8 basketball players from 
this year were women. They could earn through social media 
influencing. Other athletes could sponsor camps back home. We 
sometimes think of NIL as big endorsement deals, but it does 
not have to be that.
    NIL will not make many athletes rich, but it could make 
college a lot more affordable. And remember, only a tiny 
percentage of athletes ever turn pro. We cannot forget that. 
Their chance to earn is while they are in school.
    Second point, learn from the states. As Senator Wicker 
noted, 18 Governors have signed NIL bills. Several will take 
effect on July 1. These laws are remarkably bipartisan and 
mostly similar. There are differences, sure. But that makes 
sense because states are the laboratories of democracy. We know 
that. They performed different experiments and came to 
different conclusions.
    One option is to let this state market play out. If one 
state finds that top recruits are signing in other states, it 
could adopt an NIL statute, or perhaps, make an existing one 
more athlete friendly. That is the free market, but that is not 
necessarily the best market.
    That leads to my third point. A Federal model, a national 
model would make more sense. Nearly 30 years ago, a Nevada 
statute guaranteeing protections in athletic disciplinary 
hearings was held to violate the U.S. Constitution. It 
interfered with the contractual relationship between the NCAA 
and member schools. It also impacted other states. To treat 
schools equally, the NCAA would have had to apply Nevada's 
statute in other states. And there was a patchwork problem, 
meaning other states could pass their own laws and the NCAA 
could not enforce one rule nationally.
    NIL is different. I get that. It is mainly about the 
relationship between the athlete and a third-party. Still NIL 
impacts membership duties. They prevent schools from following 
NCAA rules, at least NCAA rules that are currently in place. 
They also create a patchwork problem, themselves, as noted by 
other panelists. If every state is doing their own thing, how 
can their be one national rule. A Federal standard would ensure 
that athletes are treated equally, regardless of which State 
they are from.
    My fourth point, NIL reform should focus on NIL. There are 
many issues confronting college athletes--inadequate 
healthcare, inequities, powerlessness. Senator Booker and 
Senator Blumenthal talked about them earlier. They are 
absolutely important, and we need to hear from athletes. Their 
stories should be told. And we need to hear from medical 
doctors, economists, civil rights leaders, and others. Those 
topics, however, intersect with multiple areas of law and 
policy.
    I encourage the Committee, like most states have done, to 
focus NIL legislation on NIL. NIL gravitates toward one area of 
law--the right of publicity and needs immediate attention. That 
does not mean the other topics are not important. They should 
be addressed, and they ought to be addressed soon.
    Fifth, last, do not let perfect be the enemy of the good. 
To that end, I have 10 suggestions for a Federal NIL statute, 
and I will say them quickly. First, it is reasonable for 
schools to deny athletes endorsements when they conflict with 
the school contract.
    Second, each school should be able to craft rules for 
permissible and impermissible endorsements. I teach at a public 
university, but I attended a Catholic college. There are 
differences and schools should have that autonomy.
    Third, fair market review of endorsements is logical, but 
should be conducted independently and cautiously. Remember, 
other students do not have independent or fair market reviews 
of their dealings.
    Fourth, there should be some level of leeway, in terms of 
the law and potential litigation, but I do not support an 
antitrust exemption. I think there are other means. Senator 
Wicker's bill talked about a compliance defense. That is a more 
reasonable approach in a transitionary period.
    Fifth, education on NIL is crucial. College athletes should 
know what signing a contract means, including tax implications. 
They are going to be independent contractors. And for some, let 
us not forget visa consequences. Some are not from the United 
States. Well, what happens if they sign a contract? How does 
that affect their visa?
    Sixth, if a school helps their athletes with NIL 
opportunities, the assistance should be equitable for women and 
men, and in full compliance with Title IX.
    Seventh, a bill should contain enforcement features. 
Athletes, as other speakers have noted, should not be 
forgotten. They should have a private right of action.
    Eighth, a bill should permit adjustments later on. Make 
sure there are benchmarks. Some legislation talks about the 
Federal Trade Commission taking over college sports agents. 
That might be a good idea, but we do not know yet. They have 
never had that duty. Let us make sure there are benchmarks. Let 
us make sure we were able to adjust it later.
    Ninth, to avoid conflicts, the school and athletes should 
share summaries of their contracts and perspective contracts. 
Transparency needs to be a two-way street.
    Tenth, video games and certain other products necessitate 
group licensing. That should be allowed. A trade association or 
a 501c4 non-profit could be a vehicle that provides that.
    Thank you and I stand ready to assist the Committee 
further.
    [The prepared statement of Mr. McCann follows:]

Prepared Statement of Michael McCann, Professor of Law, Director of the 
  Sports and Entertainment Law Institute, University of New Hampshire 
                     Franklin Pierce School of Law
    Chairwoman Cantwell, Ranking Member Wicker and distinguished 
members of this committee, it is an honor to speak with you today.
    My name is Michael McCann. I am a professor of law and Director of 
the Sports and Entertainment Law Institute at the University of New 
Hampshire Franklin Pierce School of Law, where I teach a course titled, 
``Name, Image and Likeness: The Controversy of Identity Licensing in 
Sports.'' I previously served as the law school's Associate Dean for 
Academic Affairs and worked on administrative matters at the university 
level. I also write about NIL and other sports law topics for Sportico, 
a sports business publication, as well as in law review publications. 
In addition, I'm the author of a book, Court Justice: The Inside Story 
of My Battle Against the NCAA, with former NBA player and UCLA 
basketball star Ed O'Bannon, and I'm the editor of the Oxford 
University Press Handbook of American Sports Law.
    There are five themes I'd like to raise.
First, NIL rights for college athletes are long overdue.
    For decades, college athletes have been denied a right enjoyed by 
the rest of us: The right of publicity. This is the right to control 
the use of what makes us who we are.
    Our name. Our appearance. Our voice. Our signature.
    This right is worth more to some than to others. Misappropriation 
of a celebrity's identity--whether it be Johnny Carson or Kareem Abdul-
Jabbar, both of whom brought famous Federal lawsuits over 
misappropriations--can extract considerable value.
    That same principle holds true for college sports. Massive amounts 
of money are spent on this industry. There is no shortage of statistics 
to evidence that point. According to figures provided by the NCAA, 
$18.9 billion in total athletics revenue was reported among all NCAA 
athletics departments in 2019. Athlete performances and school 
allegiances drive that spending.
    Not everyone has shared in the rewards. The wealth has been 
generated around the athletes. Schools compete for coaches, staff, 
trainers, facilities, all with an eye towards recruitment of the best 
athletes, while sneaker companies and other sponsors compete for those 
schools. Many have benefited handsomely. The athletes, especially those 
in revenue-generating sports, have not.
    But money isn't what matters most about NIL.
    It's dignity.
    In Court Justice, Ed O'Bannon and I detail his pathbreaking class 
action against the NCAA and Electronic Arts (EA). He reached a 
settlement with EA where the publisher agreed to pay thousands of 
current and former college players whose likenesses appeared in college 
sports video games. Those players received up to $7,200. Most received 
in the ballpark of $1,000 to $1,500.
    None got rich. That was the never the point. It was, as Ed has 
often said, about fairness and recognition of identity.
    Ed has also stressed that preventing student athletes from 
utilizing NIL has a disproportionate impact on students of color. As a 
result, many of the athletes who stand to gain from the changes we are 
discussing today are people of color.
    While college athletes are college students, their identity rights 
are inferior to those of classmates. A student who is a talented 
musician, actor, artist, influencer, cheerleader or esports player can 
typically earn from their right of publicity without endangering a 
scholarship or jeopardizing a team or coach. They merely exercise a 
long-established right. It's no big deal and, like other college 
students, they can juggle their studies, too.
    So why suppress athletes' right of publicity? Well, purportedly, it 
helps to distinguish college athletes from pro athletes, even though, 
paradoxically, other college students enjoy their right of publicity.
    The consequences are real, too. Break amateurism rules and become 
ineligible to play. Ineligibility can lead to a loss of scholarship, 
which can make college unaffordable and inaccessible.
    The NCAA intends to revise NIL rules. It's a membership 
organization, and the process for changing rules is multifaceted. 
Change can take time. The NCAA also seeks assurances that endorsement 
deals won't disguise pay for play.
    Those aren't unreasonable factors.
    But we're now in 2021, a dozen years after Ed O'Bannon brought his 
case and many months after states have tackled NIL.
    The wait has gone on too long.
    Meanwhile, the consequences of waiting haven't been distributed 
evenly.
    Star football and basketball players are viewed as the most likely 
to benefit from NIL. Some believe other athletes, including women 
athletes, won't do as well.
    I'm not certain about that. According to Axios, eight of the 10 
most-followed NCAA Elite 8 basketball players this year were women. 
With NIL, they would be able to earn money through social media 
influencing opportunities.
    The athletes who lose the most without NIL are more likely those 
who won't go on and play pro sports. Some play sports where major pro 
leagues don't exist. Their most marketable moments are while they're in 
college, a short window of life.
    And while NIL is often discussed in the context of lucrative and 
glamorous endorsements, there are other ways it could benefit college 
athletes. Think of the chance for a field hockey player or a volleyball 
player to sponsor a camp back home. It might only pay a modest amount 
but it could make a significant difference to the athlete in making 
college more affordable. And it would underscore the dignity of their 
identity.
Second, states have figured ways to make NIL work.
    As of this writing, 18 governors have signed NIL bills into law. 
NIL statutes in five states--Alabama, Florida, Georgia, Mississippi and 
New Mexico--take effect on July 1 while statutes in two other states, 
Oklahoma and Nebraska, are worded to take effect immediately.
    These laws are remarkably bipartisan. Lawmakers from across the 
political spectrum firmly agree on NIL.
    These laws are also, to significant degree, similar. They make it 
illegal for colleges to deny athletes opportunities to hire agents or 
gain compensation for NIL. They also forbid colleges from attempting to 
prevent an athlete from using their NIL when the athlete isn't engaged 
in an official team activity.
    At the same time, these laws contain certain restrictions that, 
while debatable, attempt to construct an orderly system. Most notably, 
these laws tend to prohibit athletes from entering into NIL contracts 
if the contract would conflict with a team contract. They also call for 
state licensing of agents, forbid colleges from paying recruits and 
contemplate practical education for college athletes on NIL.
    There are other variations. In Florida, NIL compensation must be 
commensurate with market value. In Alabama, college athletes are barred 
from signing deals for tobacco products, casinos and adult 
entertainment. In Georgia, a school can require their athletes to set 
aside as much as 75 percent of NIL earnings to be shared with other 
athletes at the school. In Texas, if Governor Abbott signs his state's 
NIL bill into law, it would restrict the use of agents.
    It shouldn't be a surprise, or interpreted as a negative, that 
states are landing on different NIL language. The ability of college 
athletes to sign endorsements is a new phenomenon. It's to be expected 
that states, as laboratories of change, have conducted different 
experiments.
    Perhaps, then, it makes sense to let the state market play out.
    If an athlete prefers a state with a less restrictive NIL statute, 
he or she can pick a school in that state. If a state finds that top 
recruits are signing with schools in other states due to its NIL 
statute, it could amend the statute and make it more athlete friendly.
    The market could take hold.
Third, a Federal model would make the most sense.
    I'm not sure continuing with a state-by-state approach would be the 
wisest choice.
    For one, the state-by-state model could wind up in court.
    For example, the NCAA could seek restraining orders that stop or 
delay NIL statutes from going into effect. Nearly 30 years ago the NCAA 
used that approach, successfully, in NCAA v. Miller. In that case, the 
governor of Nevada, Robert Miller, was sued to stop the implementation 
of a state statute that would have guaranteed due process protections 
and neutral disciplinary hearings for players and coaches.
    The NCAA convinced both a Federal district judge and the U.S. Court 
of Appeals for the Ninth Circuit that the statute would violate the 
Contracts and Commerce Clauses of the U.S. Constitution.
    The state statute, the judges reasoned, interfered with the 
contractual relationship between the NCAA and member schools, which 
assent to membership policies. The NCAA would have to treat member 
institutions differently from preexisting contractual arrangements. The 
statute also impacted the economies of other states--it would force the 
NCAA, as a national governing body that tries to treat schools equally, 
to apply Nevada's statute elsewhere. Further, it presented a so-called 
``patchwork problem'' in that other states could promulgate their own 
rules, making it impossible for the NCAA to enforce one rule equally.
    NIL is different in a lot of ways. It's mainly about the 
relationship between the athlete and a third party, i.e., the company 
with which an endorsement or sponsorship is signed. Still, NIL statutes 
clearly impact membership duties--they prevent schools from following 
NCAA rules. They also create a patchwork problem if every state handles 
NIL a little bit differently. And the patchwork problem will be 
apparent whether or not the issue goes to court.
    A Federal standard could resolve state differences and likely ward 
off certain types of litigation. It could also ensure that there is 
equal treatment for athletes regardless of whether he or she lives in a 
state that adopted a statute. Every athlete would potentially have the 
right to gain.
    I also question the merits of a state-by-state approach when many 
of you, and your colleagues, support a Federal NIL approach.
    Several members have proposed NIL bills. There are, as you know, 
differences among them. Some focus on NIL, while others propose more 
transformative changes.
    Rather than accentuating their differences, I'll stress what brings 
them together. They all call for a Federal NIL standard and commonsense 
restrictions.
Fourth, NIL reform should be the focus of NIL reform.
    There's no shortage of issues confronting college athletes and 
their relationship with schools.
    There are legitimate concerns about health care for athletes both 
during and after college. There are also legitimate concerns about the 
ability of athletes, either individually or collectively, to have 
suasion over matters of paramount importance to their lives. We've seen 
on social media glaring disparities, such as separate and not equal 
weight rooms for women and men who play basketball and varying degrees 
of access to health care services.
    Lawmakers should ask themselves, ``Why do so many college athletes 
feel voiceless?''
    Athletes should provide testimony. It is their lives at stake. 
Their stories deserve to be heard. We should also hear from subject 
matter experts, such as medical doctors, labor economists and civil 
rights leaders. These topics are important, complicated and carry 
implications that are both foreseeable and unforeseeable.
    At the same time, I encourage the committee to center NIL 
legislation on NIL. This is the topic that needs immediate attention. 
July 1 is just a few weeks away.
    For what it's worth, most states have crafted NIL statutes that 
center on NIL. Maryland is an exception, as it contains health and 
safety provisions related to return-to-play measures. But most of the 
state NIL statutes are about NIL. It is noteworthy that they enjoyed 
widespread support.
    There are lessons to be learned from that.
Fifth, don't let perfect be the enemy of good.
    There are a number of ways a Federal NIL statute could be crafted. 
No matter the approach, we won't know how it plays out until it plays 
out. This is, after all, a new world that empowers old world rights. 
It's not going to be perfect but that shouldn't be a deterrent from 
acting.
    I have thoughts on ten components of Federal NIL bills. I'd be 
happy to address others as well.
    First, it's reasonable for a school to wish to avoid conflicts 
between its contracts and those of students, including athletes. 
Conflicts could endanger existing contractual obligations. There are a 
variety of conditions and concessions that come with enrollment at a 
school. Language permitting schools to deny conflicting endorsements 
would be appropriate.
    Second, each school should be able to craft rules to govern 
permissible and impermissible types of endorsements and sponsorships. I 
teach at a public university but was a student at a Catholic 
university. I recognize there are different philosophies and mission 
statements. So long as schools refrain from conspiring on what to 
restrict, I think it's reasonable for schools to preserve their 
autonomy. The recruit has the choice to go elsewhere.
    Third, fair market value review of endorsements is a meritorious 
idea in the context of a system where pay-for-play is disallowed. 
However, such review should be conducted by an independent group--one 
that includes former student athletes as well as intellectual property 
and valuation experts--and the review should be relatively permissive. 
Other college students aren't saddled with fair market review of their 
dealings, so that concept should be brought in cautiously.
    Fourth, a Federal bill shouldn't contain an antitrust exemption. 
Antitrust law is intended to promote robust competition. If there's 
ever an industry where lack of robust competition is a worry, it's the 
industry surrounding college athletes. Also, scrutiny under antitrust 
law is hardly equivalent to liability. It's very difficult to win an 
antitrust case. There are other ways to address legal concerns, as 
well. The NIL bill introduced by Senator Wicker last December, for 
example, contained a compliance defense: compliance with the NIL law 
assures no liability. That seems like a more reasonable approach.
    Fifth, education should be part of the bill. College athletes who 
sign endorsements should know what signing a contract entails. They 
should know, for instance, that endorsers are typically independent 
contractors. That usually means taxes aren't taken out of their pay, so 
they'll have to calculate how much they'll owe the Internal Revenue 
Service and state treasuries. It also means they shouldn't spend their 
entire check. Some college athletes are from other countries. The 
impact of signing an endorsement on their visas should be part of 
education.
    Sixth, student-centered resources provided by colleges for NIL 
assistance should be furnished consistent with Title IX--both the 
letter of the law and the spirit of it. If a school helps their 
athletes with NIL opportunities, the assistance should be provided 
equitably to women and men.
    Seventh, the bill should contain enforcement features. One concern 
of state NIL statutes is their lack of clarity on enforcement. The 
College Athletes Bill of Rights and the College Athlete Economic 
Freedom Act wisely contain language including a private right of action 
for athletes and the ability of states' attorneys general to bring 
claims.
    Eighth, the bill should contain mechanisms for adjustment. Some 
bills contemplate the Federal Trade Commission as overseeing college 
sports agents. That's not necessarily a bad idea, though the agency 
hasn't historically been charged with such a responsibility. Sports 
agents in the major pro leagues are licensed and regulated by players' 
associations, as consistent with the National Labor Relations Act. To 
have the FTC or states take on that function should be done carefully 
and with benchmarks to ensure it proves to be sensible.
    Ninth, disclosure and transparency should be part of the NIL 
dynamic. Both the school and the athlete should reveal to each other 
certain types of information about their sponsorships. This sharing 
would help to ensure conflicts do not, or would not, arise and would 
also comply with potential requirements of a Federal NIL statute, such 
as one that requires fair market analysis. Sharing doesn't mean 
divulging full contracts and negotiation details, both of which could 
contain trade secrets. It does mean supplying top level summaries.
    Tenth, the bill should permit college athletes and their 
representatives to engage group licensing with video game companies and 
other market actors. The College Athlete Freedom Act, for example, 
proposed the establishment of a Federal right for individual or group 
negotiation and a prohibition on interference with that right. Group 
licensing comports with consumer demand, particularly for college 
sports video games that, as a practical matter, can't contain ``real 
players'' unless those players negotiate as a group. Group licensing 
activity could be undertaken by a trade association or a 501(c)(4) 
nonprofit that represents NIL interests. This measure wouldn't require 
employee status or collective bargaining, only a group licensing 
entity.
    Thank you for the opportunity to participate in this important 
hearing. I am hopeful that my remarks and expertise are helpful and I 
stand ready to continue to assist the committee as you work on these 
issues.

    The Chair. Thank you, thank you. Mr. Mitten, thank you for 
being here.

STATEMENT OF MATTHEW J. MITTEN, PROFESSOR OF LAW AND EXECUTIVE 
           DIRECTOR, MARQUETTE UNIVERSITY LAW SCHOOL

    Mr. Mitten. Thank you. Good morning, Chairwoman Cantwell, 
Ranking Member Wicker, and members of this committee. It is an 
honor and my pleasure to testify before you today.
    My name is Matt Mitten. I am a Professor of Law and the 
Executive Director of the National Sports Law Institute at 
Marquette University Law School. For more than 30 years, I have 
been studying and writing about various college sports legal 
issues, including NCAA student athlete eligibility rules and 
antitrust issues, which inform my strong agreement with 
Chairwoman Cantwell and Senator Wicker that it is extremely 
important for Congress to enact Federal NIL legislation for 
intercollegiate athletes, that becomes effective on July 1 of 
this year.
    As Senator Booker stated, there is an existential threat to 
college sports, if this does not happen. A nationally uniform 
NIL rights law, which only Congress can establish, is essential 
to provide all intercollegiate athletes with the same rights 
that will both, one, enable them to earn fair market 
compensation from third-parties for their authorized use, and 
two, preserve college sports as a unique and very popular 
brand, distinct from professional sports that currently 
provides very beneficial athletic and educational opportunities 
to hundreds of thousands of student athletes and $3 billion 
annually collective value of the scholarships that NCAA 
athletes receive.
    National uniformity will prevent the continuing development 
of conflicting and differing State laws, as well as avoid the 
dangers and unintended consequences of professionalizing 
college sports and creating competitive balance and equities. 
Especially for a substantial structural change that will, for 
the first time, permit student athletes to receive NIL income 
above the full cost of their university education. And that, 
historically, courts including the O'Bannon Federal District 
Court, have upheld NCAA eligibility rules prohibiting student 
athletes from receiving NIL income as a valid means of 
maintaining its amateur education model of intercollegiate 
sports.
    A Federal NIL rights law requires the following three 
provisions to achieve these objectives. One, preemption of the 
proliferation of State intercollegiate athletes NIL laws, which 
are establishing a patchwork of differing and conflicting 
rules. Neither the NCAA, nor its Divisions I, II, or III, can 
establish nationally uniform NIL rights laws for 
intercollegiate athletics that are certain to comply with all 
existing and future State NIL laws.
    Two, a very narrow safe harbor protecting national 
intercollegiate sports governing bodies and their member 
athletic conferences and educational institutions from 
prospective and retroactive Federal or State antitrust immunity 
for adopting and enforcing rules consistent with the provisions 
of a Federal NIL law, as well as their current rules 
prohibiting college athletes from receiving any NIL income. 
Without it, the NCAA will be forced to defend continuing 
antitrust litigation.
    For example, the pending House and Oliver cases were filed 
almost immediately after the NCAA Board of Governors directed 
Divisions I, II, and III to develop rules permitting student 
athletes to receive NIL compensation. These cases effectively 
assert that providing intercollegiate athletes with NIL rights 
precludes the NCAA's defense of antitrust litigation, based on 
preservation of its traditional, amateur education model of 
intercollegiate athletics.
    And three, explicit clarification that, consistent with the 
clear weight of judicial precedent, best explained by the 
Marshall case, this Federal legislation does not create or 
define college athlete NIL rights to encompass or include the 
use of their names or athletic performances, in any media 
broadcast of games or sports events in which they participate. 
Otherwise, the unintended consequences of permitting 
intercollegiate athletes to receive pay-for-play and a 
professionalization of colleges sports may result, as 
plaintiffs continue to relitigate this issue.
    Collectively, these three requirements will ensure that the 
only uncertain outcomes will be during on-court college sports 
competition, not in-court litigation.
    Finally, as a faculty member at a Division I, AAA 
university, like Gonzaga, the vast majority of which provide 
athletic department subsidies to fund their intercollegiate 
sports programs, I am very concerned that including student 
athlete health and safety requirements, in a Federal NIL bill, 
will substantially increase their costs and have the 
unintended, adverse consequence of eliminating non-revenue 
sports and significantly reducing athletic participation 
opportunities at NCAA, Nationally Association of 
Intercollegiate Athletics, and National Junior College Athletic 
Association schools.
    Voluntary participation in intercollegiate sports 
necessarily involves assumption of the inherent risks of 
injury. As a former chair and member of the NCAA's Competitive 
Safeguards and Medical Aspects of Sports Committee, I know that 
schools can facilitate the effective treatment of these 
injuries, as well as significantly reduce the risk of 
aggravated injury and future adverse health effects, by 
following the Committee's recommended best practices.
    Thank you for considering my testimony and I welcome your 
questions.
    [The prepared statement of Mr. Mitten follows:]

Prepared Statement of Matthew J. Mitten, Professor of Law and Executive 
                Director, National Sports Law Institute
Introduction
    I am a Professor of Law and the Executive Director of the National 
Sports Law Institute and the LL.M. in Sports Law program for foreign 
lawyers at Marquette University Law School in Milwaukee, Wisconsin. I 
served as the Law School's Associate Dean for Academic Affairs from 
July 2002 to June 2004. I currently teach Amateur Sports Law, 
Professional Sports Law, Sports Sponsorship Legal and Business Issues 
Workshop, Antitrust Law, and Torts. I am the author of Sports Law in 
the United States (Wolters Kluwer 2011, 2d. ed. 2014, 3d. ed. 2017) and 
co-author a law school textbook, Sports Law and Regulation: Cases, 
Materials, and Problems (Aspen/Wolters Kluwer 2005, 2d. ed. 2009, 3d. 
ed. 2013, 4th ed. 2017, 5th ed. 2020), and Sports Law: Governance and 
Regulation (Wolters Kluwer 2013, 2d. ed. 2016, 3d. ed. 2020), an 
undergraduate and graduate text.
    I formerly served on the NCAA Scholarly Colloquium on College 
Sports' Advisory Board (October 2006-January 2011) and the Journal of 
Intercollegiate Sport's editorial board (January 2007-January 2011). I 
was a member of the NCAA's Committee on Competitive Safeguards and 
Medical Aspects of Sports (CSMAS) from August 1999-July 2005 and 
chaired this committee from September 2002-July 2005.
    I served as the president of the Sports Lawyers Association from 
May 2015-May 2017 and am a member of its Board of Directors who co-
presents the Year in Review summary of current legal developments at 
its annual conference. My bio and CV, which have been submitted to the 
Committee, include additional information about my general sports law 
background and experience as an antitrust and intellectual property law 
attorney before my academic career.
    As a sports law professor, I have been studying and writing about 
various college sports issues for over 30 years, including several 
articles focusing on NCAA internal governance and external legal 
regulation, particularly antitrust issues. My individual and co-
authored scholarship has implications and provides guidance for 
Congressional determination of the appropriate permissible scope of and 
limitations on intercollegiate student-athletes' licensing of their 
names, images, and likenesses (NIL) and important related matters. See, 
e.g., Why and How the Supreme Court Should Have Decided O'Bannon v. 
NCAA, 62 Antitrust Bulletin 62 (2017); A Regulatory Solution to Better 
Promote the Educational Values and Economic Sustainability of 
Intercollegiate Athletics, 92 Ore. L. Rev. 837 (2014) (with Stephen F. 
Ross); Targeted Reform of Commercialized Intercollegiate Athletics, 47 
San Diego L. Rev. 779 (2010) (with James L. Musselman & Bruce W. 
Burton); Regulate, Don't Litigate, Change in College Sports, Inside 
Higher Ed, June 10, 2014 (with Stephen F. Ross).
    Based on my prior conversations with both Democratic and Republican 
Senate staff members, I understand that both parties have been working 
diligently to draft bipartisan Federal NIL rights legislation for the 
benefit of students who participate in intercollegiate athletics for 
colleges and universities that are members of the NCAA, National 
Association of Intercollegiate Athletics (NAIA), and National Junior 
College Athletic Association (NJCAA), among others. I applaud your 
efforts and strongly support the enactment of a Federal NIL rights law 
because uniform rules applicable to all athletes and teams that compete 
against each other are an essential characteristic of fair sports 
competition, which requires all participants to play by the same rules. 
In my opinion, Congressional enactment of a Federal NIL rights law 
would be as important to American intercollegiate athletics 
stakeholders, particularly intercollegiate athletes, as the 
promulgation of the World Anti-doping Code (WADC) has been to the 
Olympic Movement and its athletes. Prior to the 2003 adoption of the 
WADC, which provides the basis of the International Convention Against 
Doping in Sport that was ratified by the Senate in 2008, international 
antidoping efforts were seriously balkanized because of differences in 
approach among the various Olympic sports and across national legal 
systems resulting in unfair and unjustified ``hometown'' favoritism.
    As I explained in my testimony during a July 22, 2020 U.S. Senate 
Judiciary Committee hearing regarding ``Protecting the Integrity of 
Intercollegiate Athletics,'' ``a nationally uniform law regulating 
intercollegiate student-athletes' licensing of their NIL rights is 
required to provide consistency; to prevent the development of 
conflicting state laws; and to avoid the dangers of professionalizing 
college sports and creating competitive balance inequities if different 
states enact different NIL laws for their respective colleges and 
universities.''
    I strongly support a Federal NIL rights law with the following 
three provisions that are necessary to achieve those objectives: (1) 
preemption of state intercollegiate athletes NIL laws, which are 
establishing different and conflicting rules, to create one nationally 
uniform that benefits all U.S. intercollegiate athletes equally; (2) a 
very narrow antitrust exemption or safe harbor protecting national 
intercollegiate sports governing bodies and their member athletic 
conferences and educational institutions from prospective and 
retroactive Federal or state antitrust liability for adopting and 
enforcing rules consistent with the provisions of a Federal NIL law as 
well as their prior rules prohibiting college athletes from exercising 
any NIL rights to maintain eligibility to participate in 
intercollegiate sports; and (3) explicit clarification that, consistent 
with the clear weight of judicial precedent, this Federal legislation 
does not create or define college athletes' NIL rights to encompass or 
include the use of their names or any other aspects of their individual 
persona in media broadcasts of games or athletic events in which they 
participate.
(1) Uniform Federal NIL Law and Preemption of State Intercollegiate 
        Athlete NIL Laws
    The U.S. college sports system, which is the product of a unique 
cooperative endeavor among hundreds of institutions of higher education 
that does not exist anywhere else in the world, provides access to 
college education opportunities for athletically-gifted persons of all 
socioeconomic backgrounds, offers a very popular distinctive brand of 
sports entertainment, and cross-subsidizes athletic participation 
opportunities for women. This amateur/educational model of 
intercollegiate sports competition originated from and is justified by 
the common educational mission of American universities and creates 
important co-curricular activities that provide opportunities for 
development of leadership, teamwork, and other interpersonal skills 
outside the classroom. See generally Timothy Davis, Intercollegiate 
Athletics: Competing Models and Conflicting Realities, 25 Rutgers L. J. 
269 (1994).
    At most universities, the only sports that produce net revenues are 
football and men's basketball, which typically are used to subsidize 
other intercollegiate sports and, in some instances, academic programs. 
The cross-subsidization of sports within the athletic department is 
similar to, and consistent with, the historical cross-subsidization of 
academic programs within a university; for example, net revenues 
generated by law and business schools may subsidize the humanities and 
other academic programs. Regardless of whether each individually 
generates net revenues, all university academic programs and 
intercollegiate sports are an important part of its overall educational 
mission.
    In April 2020, to provide intercollegiate athletes with the same 
rights as other college students, the NCAA Board of Governors directed 
Divisions I, II, and III to modify their respective eligibility rules 
``to allow student-athletes to receive compensation for third-party 
endorsements both related to and separate from athletics'' with 
appropriate ``guardrails'' to ensure it does not become ``pay for 
play'' and professionalize college sports. Board of Governors moves 
toward allowing student-athlete compensation for endorsements and 
promotions, available at http://www.ncaa.org/about/resources/media-
center/news/board-governors-moves-toward-allowing-student-athlete-
compensation-endorsements-and-promotions.
    This is a significant departure from the current NCAA rules 
prohibiting student-athletes, as a condition of being eligible to 
participate in intercollegiate sports, from earning any money from 
third parties authorized to use their individual NIL rights. It is 
important to recognize that courts previously ruled that these rules 
are a valid means of maintaining the NCAA's unique, non-professional 
brand of intercollegiate athletics (Bloom v. NCAA, 93 P.3d 621 (Colo. 
App. 2004)), which does not violate Federal antitrust law. O'Bannon v. 
NCAA, 7 F.Supp.3d 955, 1008 (N.D. Cal. 2014) (``Nothing in the 
injunction will preclude the NCAA from continuing to enforce . . . its 
rules prohibiting student-athletes from endorsing commercial 
products'').
    General NIL rights (also known as the ``right of publicity'') for 
all individual persons historically have been established and defined 
by individual state laws, either by common law or statute. See 
generally 1 J. Thomas McCarthy, Rights of Publicity and Privacy (2d 
ed.) Sec. Sec. 6:2-6:6 (Westlaw 2019). As of May 28, 2021, 17 states 
have enacted specific legislation providing intercollegiate athletes 
with NIL rights, and NIL legislation has been introduced in 16 other 
states in 2021. Intercollegiate athlete NIL laws will become effective 
on July 1, 2021 in at least five states (Alabama, Florida, Georgia, 
Mississippi, and New Mexico). ``The trend among the states reveals that 
not only are many more states introducing bills that are swiftly moving 
through committee, but also indicate a willingness among states to 
enact earlier effective dates.'' The Drake Group, Inc., State-by-State 
NILS Executive Summary (May 28, 2021) available at May-28-Update-Exec-
Summary-and-DB.pdf (thedrake
group.org).
    The Drake Group summary shows that the numerous and various state 
intercollegiate athlete NIL laws and bills are different and, in many 
instances, conflicting. ``Many of the bills' provisions indicate a 
willingness to provide additional benefits and funds seemingly to 
achieve a competitive recruiting advantage whereby states are saying to 
athletes: `come here and you can have NIL rights now.' '' ``More 
`outlier' bills have included more aggressive provisions in terms of 
the nature of compensation provided for college athletes and how 
athlete compensation is treated. Prior bills such as South Carolina's 
previous 2020 HB 4031 created a pay-for-play scenario in the form of 
trust funds and stipends payable to athletes only for revenue sports 
under which most women athletes wouldn't qualify. Other bills have 
provided for annuity funds for college athletes.'' This summary notes 
the ``looming conflict of state and uniform law efforts with existing 
NCAA policy regarding amateurism and athlete benefits'' and ``the 
urgent need for a national solution to a national issue.''
    Like national professional sports leagues, a national 
intercollegiate sports association needs uniform legal regulation to 
produce its unique brand of athletic competition. There are, however, 
important differences between intercollegiate sports and professional 
sports that should not be blurred or eliminated by student-athletes' 
exercise of NIL rights. The U.S. Supreme Court's majority opinion in 
NCAA v. Board of Regents, 468 U.S. 85 (1984), recognized that an 
``academic tradition differentiates college [sports] from and makes it 
more popular than professional sports to which it might otherwise be 
comparable, such as for example, minor league baseball'' as well as the 
importance of the ``preservation of the student-athlete in higher 
education.'' It also recognizes the NCAA's ``critical role in the 
maintenance of a revered tradition of amateurism in college sports;'' 
its need for ``ample latitude to play that role;'' and that ``the 
preservation of the student-athlete in higher education adds richness 
and diversity to intercollegiate athletics and is entirely consistent 
with the goals of the Sherman Act.'' The dissenting opinion written by 
Justice Byron White, who played college football at the University of 
Colorado and finished second in the 1937 Heisman Trophy balloting, 
strongly cautioned against ``treating intercollegiate athletics. . .as 
a purely commercial venture in which colleges and universities 
participate solely, or even primarily, in the pursuit of profits.''
    Only Congress has the authority and ability to enact a nationally 
uniform college athletes NIL rights law that achieves these objectives. 
Only the Congressional legislative process enables a broad national 
public policy consideration of multiple societal goals in connection 
with intercollegiate athletics (e.g., maximizing college sports 
participation opportunities and scholarships, advancing Title IX gender 
equity) as well as the interests of all affected constituencies (e.g., 
student-athletes who play other intercollegiate sports, college sports 
fans, etc.).
    The NCAA v. Alston case, which is pending before the U.S. Supreme 
Court, will resolve only the issue of whether NCAA rules limiting the 
education-related benefits that its member educational institutions may 
provide to their student-athletes to their respective costs of 
attendance and other reasonably necessary support for their 
participation in the school's academic and athletic programs comply 
with Federal antitrust law. The Supreme Court's Alston ruling will not 
address whether the NCAA's current student-athlete eligibility rules 
prohibiting NIL compensation are consistent with antitrust law. Nor 
will the Court establish reasonable NIL rights for intercollegiate 
athletes, which pertain only to compensation they could receive from 
third parties other than their respective colleges or universities, 
that will achieve the foregoing objectives.
    Neither the NCAA nor its Divisions I, II, or III, whose respective 
member educational institutions (collectively numbering approximately 
1,200 colleges and universities) are located throughout the country in 
all 50 states, can establish nationally uniform NIL rights rules for 
intercollegiate athletes that are certain to comply with all existing 
and future state NIL laws. If all NCAA divisional NIL rules are 
required to comply with different and multiple state NIL laws (some of 
which may conflict and/or require or permit in-state student-athletes 
to receive ``pay for play''), Divisions I, II, and III are effectively 
precluded from establishing nationally uniform divisional NIL rules for 
all intercollegiate athletes who participate in sports for their 
respective member schools.
    The current and developing patchwork of varying individual state 
NIL rights law for intercollegiate athletes invites Dormant Commerce 
Clause litigation. In NCAA v. Miller, 10 F.3d 633 (9th Cir. 1993), the 
Ninth Circuit held that a Nevada statute requiring the NCAA to provide 
certain procedural due process protections to Nevada universities in 
its rules enforcement proceedings violates the Dormant Commerce Clause 
because of its effective extraterritorial reach. The court determined 
that this state statute ``would force the NCAA to regulate the 
integrity of its product in every state according to Nevada's 
procedural rules,'' thereby resulting in impermissible state control of 
``interstate commerce that occurs wholly outside of Nevada's borders.'' 
It also ruled that the Nevada statute's ``extraterritorial reach also 
violates the [Dormant] Commerce Clause because of its potential 
interaction or conflict with similar statutes in other jurisdictions.'' 
Id. at 639-40. It is therefore essential that Congress preempt (i.e., 
prohibit) any state from enacting or continuing in effect any law 
governing or regulating the rights of intercollegiate athletes to 
receive compensation for the use of their names, images, or likenesses.
    Federal preemption of state intercollegiate athlete NIL laws also 
would foreclose any current or future state legislation that would 
subvert current law generally holding that participating athletes do 
not have NIL or publicity rights in the broadcasts of games or sports 
events. For example, in Marshall v. ESPN, 111 F. Supp.3d 815 (M.D. 
Tenn. 2015), aff'd, 668 Fed. Appx. 155 (6th Cir. 2016), the district 
court found ``no Tennessee authority for the proposition that 
participants in sporting events have a right to publicity under the 
common law, which ``is unsurprising since it appears virtually all 
courts in jurisdictions that have decided the matter under their 
respective laws have held to the contrary for a variety of reasons.'' 
It also ruled that the Tennessee Personal Rights Protection Act (TPRPA) 
``clearly confers no right of publicity in [a] sports broadcast.'' The 
TPRPA expressly states: ``[i]t is deemed a fair use and no violation of 
an individual's rights shall be found . . . if the use of a name, 
photograph, or likeness is in connection with any news, public affairs, 
or sports broadcast or account.''
    On appeal, the Sixth Circuit affirmed in its opinion that reads in 
full as follows:

        ``To state the plaintiffs' theory in this case is nearly to 
        refute it. The theory begins with the assertion that college 
        football and basketball players have a property interest in 
        their names and images as they appear in television broadcasts 
        of games in which the players are participants. Thus, the 
        plaintiffs conclude, those broadcasts are illegal unless 
        licensed by every player on each team. Whether referees, 
        assistant coaches, and perhaps even spectators have the same 
        rights as putative licensors is unclear from the plaintiffs' 
        briefs (and, by all appearances, to the plaintiffs themselves). 
        In any event, the plaintiffs seek to assert claims under 
        Tennessee law, the Sherman Act, and the Lanham Act on behalf of 
        a putative class of collegiate players nationwide. The 
        defendants--various college athletic conferences and television 
        networks, among others--responded in the district court with a 
        motion to dismiss, which the court granted in a notably sound 
        and thorough opinion.

        To that opinion we have little to add. The plaintiffs claim 
        that, under Tennessee statutory and common law, college players 
        have a `right of publicity' in their names and images as they 
        might appear in television broadcasts of football or basketball 
        games in which the plaintiffs participate. But that argument is 
        a legal fantasy. Specifically, the plaintiffs' statutory claim 
        under the Tennessee Personal Rights Protection Act is meritless 
        because that Act expressly permits the use of any player's name 
        or likeness in connection with any `sports broadcast.' Tenn. 
        Code Ann. Sec. 47-25-1107(a). And the plaintiffs' common-law 
        claim is meritless, as the district court rather patiently 
        explained, because the Tennessee courts have never recognized 
        any such right and because, in the meantime, the Tennessee 
        legislature has spoken to the issue directly.

        The plaintiffs' case goes downhill from there. Their claim 
        under the Sherman Act is that the various defendants have 
        engaged in a horizontal scheme to fix at zero the price of the 
        plaintiffs' putative rights to license broadcasts of sporting 
        events in which the plaintiffs participate. That claim is 
        meritless because, as shown above, those putative rights do not 
        exist. That leaves the plaintiffs' claim under the Lanham Act, 
        whose relevant provision bars the unauthorized use of a 
        person's name or likeness in commerce when doing so `is likely 
        to cause confusion' as to whether the person endorses a 
        product. 15 U.S.C. Sec. 1125(a)(1)(A). The theory here is that 
        if, say, ESPN shows a banner for ``Tostitos'' at the bottom of 
        the screen during a football game, then consumers might become 
        confused as to whether all the players on the screen endorse 
        Tostitos. Suffice it to say that ordinary consumers have more 
        sense than the theory itself does.

        The district court's judgment is affirmed.''

668 Fed. Appx. 155 (6th Cir. 2016).
    As a sports law professor and former intellectual property 
attorney, I strongly believe the Marshall case was decided correctly by 
both the Tennessee Federal district court and Sixth Circuit. If state 
laws were to extend intercollegiate athletes' NIL rights to a broadcast 
sports event in which he or she participates, numerous practical 
problems recognized by the Sixth Circuit as well as a host of legal 
issues would arise under First Amendment and Federal copyright law. For 
many years, most courts have ruled that the Copyright Act preempts 
professional athletes' claims that broadcasts of games or athletic 
competitions in which they participated violates their NIL or publicity 
rights. See, e.g., Dryer v. NFL, 814 F.3d 938 (8th Cir. 2016); Ray v. 
ESPN, 783 F.3d 1140 (8th Cir. 2015); Baltimore Orioles, Inc. v. Major 
League Baseball Players Ass'n, 805 F.2d 663 (7th Cir. 1986); Somerson 
v. McMahon, 956 F. Supp.2d 1345 (N.D. Ga. 2012).
(2) Very Narrow Antitrust Immunity/Safe Harbor
    In my Senate Judiciary Committee testimony, I also suggested that 
``very narrow antitrust immunity'' (i.e., a safe harbor) is necessary 
to protect the NCAA and its member athletic conferences and educational 
institutions from liability ``for adopting and enforcing rules 
consistent with the provisions of a Federal NIL law.'' As I said then 
and reiterate now: ``To be absolutely clear, I am not advocating or 
suggesting a broad antitrust exemption from the Sherman Act similar to 
Major League Baseball's common law antitrust immunity (see Flood v. 
Kuhn, 407 U.S. 258 (1972)) that would immunize the NCAA, athletic 
conferences, and universities from antitrust liability for any and all 
anticompetitive conduct in connection with their governance of 
intercollegiate athletics.'' Without this very limited prospective 
immunity from Federal and state antitrust law liability, Congressional 
determinations regarding the appropriate scope of and limits on 
student-athletes' NIL rights could be subject to antitrust challenges 
and judicial resolution on a case-by-case determination with 
unpredictable results and potential treble damages liability (if 
successful).
    Congress should establish fair and uniform rules that the college 
sports governing bodies and their member conferences and educational 
institutions must follow--and then ensure that those rules are not 
undermined by antitrust litigation. Otherwise, Congressional policy 
decisions reflected in Federal legislation, which by necessity will 
include rules that define (and therefore necessarily limit) the scope 
of NIL rights and compensation opportunities for student-athletes, 
could be challenged as anticompetitive restraints of trade under the 
Sherman Act. In this regard, it is important to note that courts 
applying antitrust law consider only procompetitive economic 
justifications for alleged anticompetitive conduct and have routinely 
rejected evidence concerning the impact of their decisions on Title IX 
goals, non-revenue sports, and the number of scholarships available for 
student-athletes.
    A narrow express antitrust exemption as part of a Federal NIL law 
benefitting intercollegiate athletes is both appropriate and necessary 
to preclude future antitrust challenges to Congressionally permissible 
regulation by college sports governing bodies such as the NCAA, inter 
alia, ``to prevent NIL opportunities from infecting recruiting, 
distracting [student-athletes] from their educational obligations, 
providing external economic pressure for playing time, press 
availability.'' Separate Statement of Commissioner Harvey Perlman at 
pages 1-2 in connection with June 15, 2020 Final Report and 
Recommendation for a Uniform State Law Drafting Committee by the Study 
Committee on College Athlete Name, Image, and Likeness Issues. It would 
provide the substantial benefit of legal certainty that a Federal NIL 
rights law cannot be used as a sword by plaintiffs against the NCAA or 
its member athletic conferences and educational institutions in 
antitrust litigation.
    Even though the weight of judicial precedent is consistent with 
Marshall in its rejection of athletes' claimed NIL rights in sports 
broadcasts and the O'Bannon district court permitted the NCAA to 
continue enforcing its rules prohibiting student-athletes from 
endorsing commercial products, plaintiffs continue to advocate for 
contrary results in pending antitrust litigation. House v. NCAA and 
Oliver v. NCAA, two cases filed in 2020 that are pending in California 
Federal district court, assert antitrust claims based on college 
athletes' alleged NIL rights in broadcast sports competitions between 
NCAA member universities in which they participated. The complaints 
filed in these cases allege that the mere consideration of internal NIL 
legislation by NCAA Divisions I, II, and III, which was directed by the 
NCAA Board of Governors and precipitated by the enactment of various 
state intercollegiate athlete NIL laws, is evidence that the NCAA and 
its member educational institutions have abandoned their historical 
commitment to the amateur/educational model of intercollegiate sports.
    This antitrust litigation creates the risk of potentially hundreds 
of millions of dollars in damages awards against the NCAA and its 
member conferences based on the current NCAA rules prohibiting student-
athletes from receiving any NIL compensation, even though O'Bannon 
validated these rules. To date, rather than following the foregoing 
well-reasoned legal precedents and granting defendants' motions to 
dismiss plaintiffs' claims, the California Federal district court has 
ordered costly and time-consuming discovery to go forward in those 
cases.
    The on-going defense of antitrust litigation against the NCAA and 
its athletic conferences based on the House and Oliver plaintiffs' 
continuing unfounded allegations that intercollegiate athletes have 
such broad NIL rights is time-consuming and economically wasteful, 
thereby diverting resources that would be better devoted to their 
member schools' intercollegiate athletic programs and other socially 
beneficial components of the broad educational missions of American 
universities. Therefore, my suggested limited immunity or safe harbor 
from Federal and state antitrust law liability also should be 
retroactive.
    To prevent the achievement of socially legitimate objectives from 
being thwarted by private antitrust litigation, Congress previously 
granted limited immunity from Federal antitrust law to professional 
sports leagues (e.g., Sports Broadcasting Act of 1961, 15 U.S.C. 
Sec. 1291 et seq.), educational institutions (e.g., Improving America's 
Schools Act of 1994), and other unique industries (e.g., 2004 Medical 
Resident Matching Program Exemption, 15 U.S.C. Sec. 37b). The most 
similar Congressional express antitrust exemption is the ``Need Based 
Aid Act of 1992,'' which permitted higher education institutions to 
agree to award financial aid to students based only on demonstrated 
financial need. It was enacted in response to a 1991 United States 
government antitrust suit alleging that a group of 23 elite and mid-
level colleges and universities agreed to provide only need-based 
financial aid to undergraduate students and to jointly determine a 
single amount that all of the institutions would offer commonly 
admitted students. Although the original Act expired on September 30, 
1994, the limited express antitrust immunity that it provided to 
colleges and universities remains in effect pursuant to the ``Improving 
America's Schools Act or 1994'' and ``Need Based Educational Aid Act of 
2015,'' respectively. S. 1482--Need-Based Educational Aid Act of 2015 
available at https://www.congress.gov/bill/114th-congress/senate-bill/
1482.
    Without an express antitrust exemption, it is possible that courts 
might judicially create some form of implied antitrust immunity that 
would prevent a Federal NIL rights law from being used as the basis of 
alleged Federal or state antitrust law claims against the NCAA and/or 
its member athletic conferences and educational institutions. But this 
is clearly a second-best option that is fraught with uncertainty and 
unpredictability, which would require litigation to answer this 
question. Because the Amateur Sports Act (ASA) provides the United 
States Olympic and Paralympic Committee (USOPC) with ``exclusive 
jurisdiction . . . over all matters pertaining to United States 
participation in the Olympic Games, the Paralympic Games, and the Pan-
American Games,'' the Tenth Circuit held that the USOPC and its 
National Governing Body (NGB) members for the various Olympic and 
Paralympic sports have implied immunity from antitrust claims arising 
out of an athlete's ineligibility to participate in an Olympic sport. 
Behagen v. Amateur Basketball Ass'n, 884 F.2d 524 (10th Cir. 1989). The 
Ninth Circuit held that USOPC and NGB rules restricting commercial 
advertising on athlete apparel during Olympic trials are immune from 
antitrust challenge because the rules facilitate the generation of 
sponsorship revenues to support U.S. teams' participation in the 
foregoing and other international sports competitions. Gold Medal LLC 
v. USA Track & Field, 899 F.3d 712 (9th Cir. 2018).
    It is very difficult to predict whether courts would find that a 
Federal NIL and publicity rights law provides the basis for any implied 
immunity from antitrust law claims against the NCAA and its member 
athletic conferences and educational institutions, and even if so, the 
likely judicial scope of any implied immunity. Judicially created 
implied antitrust law immunity generally is disfavored, and a Federal 
NIL rights law probably would not provide the NCAA and its athletic 
conferences with the same broad and plenary authority to govern 
intercollegiate athletics that the ASA conferred on the USOPC and its 
NGBs regarding Olympic sports. Therefore, the specific language and 
provisions of the enacted Federal NIL rights law would be critically 
important and probably dispositive factors in a court's consideration 
of whether or not to create any implied antitrust immunity. Its 
legislative history also would be given significant weight by courts. 
By choosing to provide an express very narrow scope of antitrust 
immunity or a safe harbor as suggested above, Congress would provide 
legal certainty and predictability, thereby avoiding the need for 
courts to resolve these issues in future litigation.
(3) College Athletes' NIL Rights Do Not Encompass Use of Their Names or 
        Persona in Media Broadcasts of Games or Athletic Events
    As illustrated by the House and Oliver cases, the issue of whether 
college athletes should have NIL rights in sports broadcasts continues 
to be re-litigated in antitrust cases against the NCAA and Division I 
athletic conferences that are seeking millions of dollars in treble 
damages and attorneys' fees for plaintiffs' lawyers. If successful, 
these cases as well as others with similar allegations that may be 
filed in the future, would deprive NCAA member educational institutions 
of much needed revenues to support athletic programs in which 
approximately 460,000 female and male student-athletes participate in 
23 sports (or at least did so prior to the Covid-19 pandemic). 
Therefore, it would be prudent for Congress to definitively determine 
that college athletes' NIL rights do not encompass the use of their 
names or any other aspects of their individual persona in media 
broadcasts of games or athletic events in which they participate. 
Federal legislative codification of the clear majority judicial view 
regarding this issue would create the necessary legal certainty and 
national uniformity, while also effectively precluding future 
litigation of this issue on a case-by-case basis in various courts 
throughout the country.
    Clear Congressional language providing this clarification also 
would prevent Federal NIL legislation benefitting intercollegiate 
athletes from being used to professionalize college sports by 
effectively prohibiting their receipt of ``pay for play,'' which would 
be consistent with existing Federal antitrust, employment, and labor 
laws and their respective underlying policies. See, e.g., NCAA v. Bd. 
of Regents, 468 U.S. 85, 102 (1984) (``athletes must not be paid'' to 
differentiate college sports from comparable professional sports such 
as minor league baseball); Dawson v. NCAA, 932 F.3d 905 (9th Cir. 2019) 
(dismissing Fair Labor Standards Act and California Labor Code claims 
asserting college football players should be paid minimum wages and 
overtime because they are not employees); Northwestern University and 
College Athletes Players Ass'n, Case 13-RC-121359 (2015) (because it 
will not effectuate Federal labor law policies, NLRB refuses to assert 
jurisdiction over attempted unionization of Northwestern University 
football players).
Concluding Summary
    Only Congress has the authority and ability to enact a nationally 
uniform law establishing the appropriate parameters of NIL rights for 
college athletes, which is necessary to prevent the continuing 
development of a conflicting and differing patchwork of state NIL laws 
resulting in at least two significant adverse effects: (1) competitive 
balance inequities if different states enact different NIL laws; and 
(2) the professionalism of college sports if some states permit or 
require college athletes to receive game and sports event media rights 
income by defining their NIL rights too broadly.
    To protect the national intercollegiate sports governing bodies and 
their member athletic conferences and educational institutions from 
prospective and retroactive Federal or state antitrust liability for 
adopting and enforcing rules consistent with the provisions of a 
Federal NIL law, it is necessary for this landmark legislation to 
provide them with a ``very narrow'' scope of antitrust immunity.
    To establish national uniformity consistent with the well-reasoned 
majority judicial view; to prevent future litigation that could result 
in court rulings that conflict with this judicial precedent; and to 
preserve college sports as a unique brand distinguishable from 
professional sports by prohibiting ``pay for play''; Federal NIL 
legislation should clearly clarify that college athletes' NIL rights 
are not violated by their use in media broadcasts of intercollegiate 
games or athletic events.

    The Chair. Thank you very much. So, obviously, a lot of 
material put on the table here, and I think it is our task now 
to take you all up on the notion that everybody wants to see 
NIL rights and see legislation. Question is, how are we going 
to get that done. And obviously, our colleagues have some very 
important viewpoints that need to be listened to.
    One area that I want to probe on--Dr. Frederick, you 
specifically mentioned the MEAC institutions and the notion 
that you only have limited ability to address some of these 
issues. Obviously, Coach Few, and I would say, probably the Pac 
12, have been doing some of these things already and have 
created a standard. So, we have been doing our own analysis and 
to me, requiring Division I and Division II schools to help 
cover these healthcare costs would be an important goal for us 
to achieve.
    Dr. Emmert, what can the NCAA do now? Obviously, we heard 
Mr. Gilmore and others talk about the incredible amount of 
money that is in college sports today. What can you do to 
guarantee us that we could help with these institutions, like 
Howard University or others, who cannot afford to have the out-
of-pocket expenses that other institutions are currently 
handling?
    Dr. Emmert. Yes, well, thank you, Senator, for the 
question. I think it is--it is probably at the crux of much of 
this is, there is general agreement, I suspect, among the 
panelists and other that, student athletes ought not to be, as 
Coach Few articulated very nicely, not reaching into their 
pocket for covering independent expenses that are above and 
beyond there--or up to their deductibles, for example, in their 
insurance. And many of the Division I schools in the--in the 
Power Five conferences, and others as well, are doing so today.
    The question is, first of all, how would that language be 
crafted and what would be the size of the--of their cost of all 
of this for our schools? But having said that, if it--if the 
focus was on, what in Division I are often labelled by the NCAA 
member, the low resource institutions and those costs were 
simply out of pocket costs, doubtlessly there is a way to 
determine, within Division I resources, how to cover some of 
those costs. There is a variety of different vehicles for doing 
that. The challenge that everyone has to recognize is that, you 
know, there is no NCAA money. It is all the school's money. And 
so, the NCAA serves as a pass through.
    But if the member schools wanted, and I were willing to--
and I would be willing to put this question to them--to say, 
OK, can we find a mechanism for funding out of pocket expenses 
in low resource schools, it is certainly a doable phenomenon. 
The amounts of money, at least based on the modeling we have 
done, are not unreasonable.
    Where it becomes very challenging is across Divisions II 
and III. There are probably ways to ascertain how that might be 
done. But the devil will be in the detail. What is it precisely 
that they would need to be paying for? Is it just out of--if it 
is out of pocket expenses, meaning those costs for the 
deductibles of a student athlete for sports related injuries 
only, for some fixed period of time, that might be--might be a 
manageable amount of money with the dollars that flow through 
the NCAA distribution system.
    The Chair. I think--I think, to me, there is a lot of money 
in sports and there is going to be a lot more money in sports. 
I am a big believer that, as we move toward Internet models, 
there will be lots of ways to monetize activities. So, I would 
hope that we could make a commitment to help Dr. Frederick's 
institution, and other MEAC schools, meet those obligations so 
that we could move forward. I get that not all the panelists 
are on the same point with this, but to me, this should be an 
easier, yes, we can get this done.
    I want to ask Dr. Frederick, because this issue of heat 
impacts and horrific news of actual deaths from this. Why can 
we not just get better health standards to cover the NCAA 
institutions to set a standard for what health could be, even 
if it is done here at a Federal level, the guidance that must 
be followed by institutions?
    Dr. Frederick. Yes, you know, I think this is an important 
point, and especially when you look around heat-related issues 
and concussions, in particular. The NFL, for example, I think, 
has been a model in terms of embracing this issue, finally. And 
we have to have standards around where the athletes compete, 
etc.
    Once again, I think some of the issues here are around 
education and resources. We must insist that the number of 
trainers that are out there with the athletes and someone 
monitoring the conditions for the individual athletes are part 
of what is taking place.
    And this is not just only about heat and those things, but 
athletes get other issues. While I was at University of 
Connecticut, there was a soccer player who I befriended, who 
developed testicular cancer that was metastatic. He had issues 
during practice that led to this discovery of this major mass 
in his abdomen. And as we talk about health-related expenses, 
his care, to UConn's credit, was taken care of fully and he was 
allowed to graduate. So, the other thing that I do not think we 
count as well as, while it does not happen often, there are 
issues that do impact athletes while they are in college, that 
may not be related to their athletic endeavors, that schools 
and colleges try to cover.
    And the last point I will make is that Howard for instance, 
like many schools, has a self-insured trust. And so, the issue 
with how we cover health insurance is very different among all 
the institutions. And the problem with NCAA even stepping in is 
that, for a self-insured trust, you just need one of those 
horrific incidents that costs you over $250,000 and triggers 
your excess layer, and right there, your budget, especially if 
it is a marginal budget--so, if two of those incidents, that 
costs $500,000, for the $14 million that we may expend, is a 
huge deal at Howard University. So, putting into a fund is, as 
Dr. Emmert has suggested, is potentially one way to do that.
    And then, the last thing is, somebody has to be the arbiter 
of what constitutes an injury. During the time that you were 
playing versus we sometimes recruit athletes who come to us 
with injuries. And then, subsequent to that, who is going to be 
arbiter if somebody shows up two or three years later, with a 
chronic issue that actually occurred before they started 
playing for us. We are going to need some type of arbitration 
around that issue, as well.
    The Chair. Thank you. Senator Wicker.
    Senator Wicker. Well, thank you very much. And it is 
obvious that all six of these witnesses have put a great deal 
of thought into very excellent testimony. I really appreciate 
the efforts there.
    Let me start with you, Dr. Frederick. You have come down on 
the side of a uniform national standard on paying--on allowing 
name, image, and likeness compensation. How would a patchwork 
of 51 different laws impact recruiting and fair competition 
among universities within your conference?
    Dr. Frederick. Yes, I will give you two examples. One is a 
personal example. I will take my son to Philadelphia this 
weekend to play in a soccer game. Several coaches are going to 
look at him there. The coaches that are looking at him from 
North Carolina and New Jersey have two very different 
approaches. I got on Zoom calls with both sets of coaches. One 
set is talking about NIL rights. My son and I have no clue 
about what--about his image he is going to market. And the 
other coaches are talking strictly about academics and his 
competition in school. So, already, just as a parent, it is 
extremely confusing. If you have 51 states with different laws 
as you are looking at schools, trying to decide what type of 
experience your student would have.
    And then, on the recruiting side, as a college 
administrator, I can tell you we just started a Division I golf 
team. We have a young lady who has committed to us and I know 
more about her clothing brand--her clothing company than I do 
about her golf game or her academics, because the recruiting 
atmosphere around that is very, very different. So, our ability 
to compete in DC, where there is no such law and no such 
guidance, is going to be impossible, as we try to recruit 
someone like that to us.
    And I mentioned Makur Maker, who is the only five-star 
basketball player that has gone--come to a NCAA school. One of 
the challenges we--to an HBCU. One of the challenges we had in 
recruiting him was exactly that. The fact that, soon enough, 
laws were going to come to pass that would have left us unable 
to compete with other states, where schools would have been 
able to offer him the opportunity for NILs or----
    Senator Wicker. Let me turn to Coach Few on the same thing. 
Now, Coach Few, the State of Washington does not have a State 
statute. Can you take a minute and tell us how that is going to 
affect your recruiting, or how that is affecting your 
recruiting?
    Mr. Few. I mean, it is--in some ways, it is impossible to 
project. But I mean, it--in many ways it is and it--it will 
never be the same. I mean, we recruit nationally, even 
internationally. And you know, to not have the ability to 
compete on some sort of level playing field, with people that 
can provide, you know, monetary gifts or endorsements or things 
like that, would put us at a disadvantage that we could not 
make up. And I do not think the story of Gonzaga playing in two 
national championship games would ever happen if, you know, if 
this was around prior.
    Senator Wicker. Well, Mr. Gilmore, you seem to be 
outnumbered on this panel, five to one, and I am sure you are 
equal to that task. But your response to Coach Few, I guess, 
would be that is a decision the dually elected leadership of 
the State of Washington made, and we ought to see how this 
plays out. I want to give you an opportunity, since it seems 
that five members of the panel have another view. Would you 
like to weigh in and respond to their--their testimony, in that 
regard--with regard to the patchwork?
    Mr. Gilmore. A laws issue. I think we lose sight of the 
fact that the NCAA is operating a national business and that is 
not unique in the United States. We have businesses everyday 
that are forced to comply with laws in various states and they 
do it quite well. And it has not created crazy, crazy chaos.
    There is some uniformity that is nice that would typically 
work for the NCAA, we understand that. But what seems to be 
coming across is a reluctance to participate fully in a free 
market and to have protections from a free market. And as you 
mentioned, with the State of Washington, the State of 
Washington is free to decide that they do not want to have laws 
that relate to name, image, and likeness. While Oregon, next 
door, may decide that they do. And that will have an impact on 
recruiting.
    We have seen, in the last few months, that what has 
happened in this era where states are making decisions about 
NIL, we have seen coaches and athletic directors and presidents 
go to State legislatures and say to them, ``Hey, look, I want 
to be able to recruit effectively against my neighboring 
states, so we need legislation''. And the market has been 
responding and providing that.
    So, there is no doubt in my mind and, I think historically, 
when we look at how markets have operated, that there will 
become some sort of equilibrium, without the need for uniform 
law. I am not against a uniform law, it is just that if we are 
going to have a uniform law, it needs to be very thoughtfully 
done about how we are helping players. For example, we talk a 
lot about guardrails and the guardrails seem to be there to 
protect the NCAA and the institutions. We want to protect them 
from the marketplace. For example, you heard testimony earlier 
about, well, athletic departments should be protected against 
the contracts that may conflict, where a player might--cannot 
have a contract that the athletic department has with a similar 
entity. Well, that is a market protection and private parties 
normally can handle that with exclusivity.
    If the athletic department has the ability, let us say with 
an apparel company, to say, you will not make a deal with any 
players, they can negotiate that. But to protect the revenue 
stream for the athletic department and, for example, say that a 
player cannot have, just to use an example, an agreement with 
Nike or Under Armour because the athletic department has one, 
is really prohibitive and is not--is not fair. It is a market 
protection for the university. And it very well may be that 
those contracts could co-exist with players having the right to 
that kind of a sponsorship but wearing the required university 
attire during university events. So, the protections are a 
concern for me.
    And I also want to go back and address the cost issue for 
protecting players with health insurance. We seem to keep 
talking about this on an individual level for schools. And I 
was pleased to hear Dr. Emmert talk about some possibility of 
some funding and revenue sharing. I think we need to remember 
that this is an overall enterprise, which the NCAA and its 
member institutions have engaged in in sports--and sometimes, 
very dangerous sports. And they have this responsibility, one, 
to protect their players and, two, to comply with Title IX. And 
they ought to be charged, collectively, with making sure that 
that is done and not simply whether you have got one rich 
school that can afford it and then, another school that cannot 
afford it.
    The NCAA and the member institutions have collectively 
decided that they want to be engaged in this, and at the very 
least, players should have the healthcare, the protection to 
know that they are safe in practice, and that, when they are 
done playing, if they have chronic injuries or they have 
injuries that resulted from their playing, that they are 
protected. And it should not be simply said that, well, your 
university cannot afford it.
    The Chair. Thank you. Thank you, Mr. Gilmore. And for 
colleagues, I have been pretty liberal today for various 
reasons of allowing people to go beyond their 5 minutes. But if 
members could help us out, because we have a number of members 
and I want them to get their questions in, and if peoples 
answering questions could also help us out there, that would be 
great.
    My colleague, Senator Blumenthal.

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

    Senator Blumenthal. Thanks, Chair Cantwell, and I am really 
grateful for your leadership, as well as your having this 
hearing today. You have been really extraordinary in pushing 
forward toward a bipartisan consensus that I think is within 
reach. I want to thank the Ranking Member, as well, for his 
leadership.
    Today is a banner day for Connecticut. We have become the 
19th state to pass an NIL law, which we expect the Governor to 
sign shortly. What we are seeing is a chain reaction of states 
filling a gap in protecting people. It is classically what 
happens in our Federal system. I have been at Consumer 
Protection for three decades now, and this historical pattern 
is repeated every time, where states fill a gap and then, a 
national standard is sought by a group that fears a patchwork. 
And I will tell you, that I will oppose and help to block any 
NIL standard that is weaker than Connecticut's. I expect this 
Congress should block any NIL standard that is weaker than the 
strongest state standard.
    And we need to listen to the athletes. They are the ones 
that are, all too frequently, outnumbered in this conversation. 
And if you listen to the athletes, what they will tell you is, 
they want more than just to be shown the money. They want more 
than just NIL. They want a strong, enforceable standard for 
health and safety and educational opportunity. Because the 
overwhelming number of athletes in this country will never make 
a lot of money off NIL. But all too many of them will suffer 
life-changing injuries, or deprivation of educational 
opportunity, and other kinds of harm that we are seeking to 
protect against.
    Let us be very real here. The NCAA is at the table only 
because it has been hauled, kicking and screaming, here after 
dithering and delaying too long. And they are here only because 
they fear that patchwork. The states are, in effect, running to 
the top. The NCAA, in its rules--nothing personal, Dr. Emmert--
is racing to the bottom common denominator and we have to avoid 
that happening.
    So, I want to ask you, Dr. Emmert, taking your testimony 
here--and you have heard the statistic about 30 college 
football players dying from non-traumatic causes during 
workouts in 20 years, compared to only one in the NFL. Would 
you agree with me, on behalf of the NCAA, that schools that 
violate safety standards, especially intended to prevent 
concussions and heat stroke, should face enforcement actions 
with financial and operational consequences? That is part of 
what we believe is necessary in a college athletes bill of 
rights.
    Dr. Emmert. Well, first of all, thank you, Senator. I think 
the questions that you and others have been raising about 
healthcare are, obviously, central to what the NCAA is about 
and what it was created for, more than a century ago. If I 
might just make sure everyone understands, there are, indeed, 
science-based standards around many of the issues that were 
being talked about, including how to treat heat-related 
disorders, how to deal with concussions----
    Senator Blumenthal. You know, I--I apologize for 
interrupting but----
    Dr. Emmert. It is quite all right.
    Senator Blumenthal.--you know, my time is limited. I think 
it is a yes or no answer. I hope the answer is yes, you do 
believe in such standards.
    Dr. Emmert. I believe there needs to be some--some system 
by which schools are well educated, well aware of, and are 
expected to behave in a manner consistent with all the best 
medical practices out there.
    Senator Blumenthal. Let me ask you, the Drake Group has 
called the NCAA's rules on sexual assault, ``toothless'' and 
``woefully inadequate''. There is a crisis of sexual assault in 
college sports. What is at stake here is more than just money, 
it is fairness and dignity--racial justice and gender equity. 
My hope is that the NCAA will commit to those principles, as 
well.
    Dr. Emmert. Absolutely.
    Senator Blumenthal. And Dr. Frederick, because my time is 
limited, I am going to be real quick in this question. You have 
expressed very understandable concerns about the cost impacts 
of these standards. The answer is very simply cost sharing. 
Some schools are rolling in money, as a result of this, almost, 
$20 billion industry. If they share some of the cost of schools 
like Howard or others, that are not profiting in the same way, 
off the blood, sweat, and tears of athletes, would that not 
allay some of your concerns?
    Dr. Frederick. Yes, Senator.
    Senator Blumenthal. Madam Chair, I am going to observe your 
admonition.
    The Chair. Thank you.
    Senator Blumenthal. And end my question there, but I will 
pose some additional questions in writing.
    The Chair. Thank you. Thank you for that. I appreciate 
that. Senator Moran.

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

    Senator Moran. Chairman, thank you. Thank you to Senator 
Thune and Senator Fischer for yielding to me to go next. And 
thank you, Chairman and Ranking Member for this panel. This is 
one of the better panels--one of the best panels we had on--
certainly on this topic, but just generally, in front of the 
Commerce Committee, for a long time. Everyone has added to the 
debate and to my knowledge, and I think, to my colleagues 
knowledge. And while Senator Blumenthal sounded very vociferous 
there, he still remains my partner and colleague in trying to 
find a bipartisan compromise, so that we can get something 
done.
    My view is that, over the years, college athletics has 
grown into an increasingly profitable, billion-dollar industry. 
But the rules surrounding athletic compensation have not kept 
pace and I am of the view that it absolutely needs to change. I 
believe it is important that we empower amateur athletes to 
capitalize on their name, image, and likeness.
    However, at the same time, I want to ensure the integrity 
of what I guess is called the collegiate model. But what it 
means to me is that we afford the opportunity for many 
students--student athletes, to receive an education. And, if we 
do not do this right, those who receive the compensation from 
NIL, may benefit at the demise of those who are playing in 
sports that are not ``profitable'' and those who have no 
capability, therefore, of capitalizing on name, image, and 
likeness. And it seems to me that we know that college 
basketball and college football generally subsidize other 
sports and the athletes who get to participate in those 
programs.
    I have introduced a bill that is not necessarily the ideal 
bill, even for me, the Athletes Protection and Compensation 
Act. But it is designed to find something that is the sweet 
spot that brings sides together and try to meet a July 1 
deadline.
    Let me ask, first of all, on this July 1 deadline--Mr. 
Mitten, I want to visit with you, Professor. You started down a 
sentence--I thought you were going to end your sentence 
differently than you did. So, I am going to ask my question as 
the way I thought something you were going to say. As State 
laws go into effect, and student athletes begin to hire agents, 
sign endorsement deals, and monetize their NIL, these--these 
athletes then--what happens on the occurrence, if we are not--
have a law in effect by July 1? Student athletes and student--
college athletic programs progress under their State laws. They 
begin to adapt and comply with those laws. And if we fail to 
act by July 1, what confusion or challenges do we face, or do 
the athletes face, or the program? So, my question is designed 
to illicit an answer about the importance of the July 1 
deadline for Congress to act.
    Mr. Mitten. Thank you for that question, Senator. The 
essence of sports is that everyone plays by the same rules. It 
is not only rules of the game, eligibility, but in this 
context, all student athletes, nationwide, regardless of sport, 
should have exactly the same NIL rights. Not every state has--
recognizes name, image, and likeness rights, that are often 
known as the right of publicity. There are only roughly 30 or 
so. There are going to be, as, you know, others on this panel 
including, you know, Coach Few mentioned, there is going to be 
a competitive advantage provided to certain schools. You know, 
that is one thing that is very problematic.
    That is one of the other hallmarks of sports, is the 
uncertain outcome. It distinguishes sports from other forms of 
entertainment. So, we certainly need to have that. so, that is 
what I would say, is that it is just--you know, the cat is 
going to be out of the bag, so to speak.
    Senator Moran. How do you put the cat back in the bag, 
after July 1?
    Mr. Mitten. I do not think you can. I think that is exactly 
the problem. And, you know, Congress has to come up with, you 
know, what is going to be the rule that everyone plays by the 
same rules across the board. That is what I think is the most 
critically important thing.
    Senator Moran. Let me turn to one other topic in this--in 
this venue of topics related to NIL. Commissioner Gloria 
Nevarez of the West Coast Conference, recently wrote that 
revenue sharing in college sports would be, ``disastrous for 
women's sports''. She went on to note that even though the WCC 
had won nine national championships in soccer and six in 
tennis, men's basketball programs, like that of Mr. Few's at 
Gonzaga--these are my words, not hers--``pays the lion's share 
of the cost of every other opportunity we provide in every 
other sport''.
    The simple reality is that the only sports that generate 
necessary revenues to be self-sustaining are football and men's 
basketball. And all other sports rely upon those two sports to 
fund their operations.
    Dr. Frederick, or others, how do you think that the 
distribution of athletic revenue, directly to student athletes, 
would affect collegiate athletics, in general?
    Dr. Frederick. It will impact it very negatively. Like I 
said, Howard has the only swim team at a historically black 
college and university. We have other minor sports that we will 
not be able to maintain if it becomes unequal and especially in 
terms of recruiting. Because, as we talk about revenue, the 
television revenue that we generate is miniscule compared to 
these other----
    Senator Moran. Which will diminish the opportunities for 
all athletes--black, white, women, male, female. It--there is a 
consequence here more than how we effectuate taking care of 
those athletes that can earn revenue, based on their name, 
image, and likeness, correct?
    Dr. Frederick. That is exactly right, because those 
athletes, if they would--you know, that NIL, they will 
gravitate to certain areas. I know there is a discussion about 
other talents outside of athletics, but the reality is, the 
bulk of where they will gravitate will be to the Power Five and 
the bigger schools where there is a media market.
    Senator Moran. Thank you. Thank you, Chair.
    The Chair. Thank you. Senator Schatz.

                STATEMENT OF HON. BRIAN SCHATZ, 
                    U.S. SENATOR FROM HAWAII

    Senator Schatz. Thank you, Chair Cantwell and Ranking 
Member Wicker. I want to thank all of the testifiers. This 
has--this is a new issue for me so please bear with me. I have 
a--just a tactical question for us in the next three weeks. If 
we are trying to enact a national NIL standard, Dr. Emmert, I 
am trying to figure out why we would also try to complicate 
this matter by providing immunity against claims from former 
students. Like, what has that got to do with the subject at 
hand?
    Dr. Emmert. Well, thank you, Senator. It is a critical 
issue, as you have heard from a number of us. The reality is 
that there has been, in the past and there already is in place, 
a series of legal challenges that have, in my terms, fallen 
under the no good deed goes unpunished clause. And that means 
that as soon as, indeed, the Board of Governors told all of the 
divisions to begin to think through passing NIL law--NIL rules 
changes at the NCAA, we immediately had lawsuits filed for our 
failure to have done so in the past. And those are two suits 
that are already pending, as we speak.
    We want to do the right thing here. You have heard from 
everybody in this panel that passing an NIL bill at the 
Congressional level is critical to moving forward, in part 
because we want to get this done. And we want to do it and not 
be then, immediately sued for having done the right thing, in 
this case.
    Senator Moran. Professor McCann, you want to weigh in here?
    Mr. McCann. Yes, thank you, Senator. There are certain 
legal issues that would arise if Congress does not take action 
and one would be the relationship between the NCAA and its 
member schools would vary by state. And in the past--and I am 
not going to speak for President Emmert, but in the past, the 
NCAA has brought litigation over that issue. About 30 years ago 
there was a case in Nevada, that I mentioned earlier, that if 
one state has one set of rules and another state has another, 
it interferes with the relationship between the national 
organization and its members. So, I think that some type of 
national rule that is clearly the rule, would mitigate that 
risk.
    Now, what has that got to do with indemnifying the NCAA for 
past----
    Senator Moran. Yes.
    Mr. McCann. Violations? I do not get it. Sure, and I would 
separate those two things.
    Senator Moran. OK, that is all--that is all----
    Mr. McCann. Yep, I would separate those two things.
    Senator Moran. I wanted. Now, Dr. Emmert, are you--is the 
NCAA planning, if Congress does not act soon, to file 
injunctions against states with NIL laws?
    Dr. Emmert. We have not taken that position yet. The 
Board--that decision would be up to the Board of Governors, a 
representative body of university presidents. But so far, that 
decision has not been made.
    Senator Moran. Could you give me a sense of your 
decisionmaking process? Do you have a lean? Have you considered 
it? Is this under discussion?
    Dr. Emmert. It has been widely discussed, as you can 
imagine. But again, there has not been any decision made.
    Senator Schatz. I get that there is not decision made, but 
you are here, and I am asking you what are you going to do. And 
I would like you to give me a little clarity on where you are. 
It is absolutely true that, procedurally, you have not decided. 
I am asking you whether it is likely or not--what your thoughts 
are on this.
    Dr. Emmert. Again, it will not be my decision. It will be 
the Board of Governors decision. But I believe that, for 
universities themselves to file lawsuits against their own 
states is a very challenging thing to do.
    Senator Schatz. OK. Final question for Professor McCann. As 
we consider this legislation, the NCAA is asking to, in their 
words, clarify that athletes are not employees. The 
implications here--I mean, it sort of sounds benign, and it 
even sounds logical, to a certain extent.
    But the implications here are pretty significant. OSHA 
would not have jurisdiction. EEOC would not have jurisdiction--
NLRB, the Department of Labor's Wage an Hour division. That 
seems to me to be a massively consequential choice here, and 
again, separate from the question of NIL. And I guess what I am 
observing here--not an expert in this space but an expert in 
legislative politics, if you will, is that Dr. Emmert is asking 
for a really big trade in exchange for a national NIL standard. 
And I do not think we are prepared to do that, in terms of 
executing on it. And I am not sure that these things are on 
point with the narrower question of NIL, and I am wondering if 
you can comment there.
    Mr. McCann. Yes, I do not view that as a clarification. I 
view that as a massive change. I do not see their need to 
declare that college athletes are not employees. I think that 
is a separate issue from NIL. Moreover, that is an issue that 
has been addressed by the National Labor Relation Agency--NLRB, 
excuse me, and also the National Labor Relations Act.
    This is also an issue that varies by state, where some 
public universities and private universities are governed 
differently under that question. I do not see the need to 
address that in an NIL bill, just like I would say other things 
that we have talked about are separate from an NIL bill. Yes, I 
do not view that--with respect, Dr. Emmert, I do not view that 
as a clarification. I view that as a massive change.
    Senator Schatz. Thank you very much.
    The Chair. Thank you. Senator Thune.

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

    Senator Thune. Thank you, Madam Chair, and welcome, thank 
you to the panel. This is a complicated subject and one that I 
really wish the NCAA would have been able to figure out. 
Because, you know, there are certain things the Federal 
Government does well, and certain things the Federal Government 
does not do well. This strikes me as something that we may not 
do well. And so, I am interested in hearing from you about what 
you think a proposal, that should become law--if that is what 
we have to do, given the fact that states are now acting in the 
absence of NCAA action. And obviously, conferences do not 
follow State lines. We have got lots of multi-state conferences 
that could have different laws in place. So, I seems to me 
that, you know, now we are in a position where we have to do 
something.
    But what we do is still a point of discussion. There are a 
couple of proposals, I think you may be aware of, that have 
been introduced by members of the Senate. I am interested in 
your thoughts about either or both of those, and there may be, 
perhaps, others. But more than anything else, I just think that 
we are--you are in a much better position to guide this 
process, in terms of what a potential set of rules should look 
like, than maybe, we are.
    And--but I have been very interested in this discussion we 
were just having about employer/employee. And I think, Dr. 
Emmert, you mentioned that--in your written statement, at 
least, that you did not think--that you could not support 
anything that would essentially create an employer/employee 
relationship. And I would just ask you to, sort of, just 
reiterate your view on why that is a--that is a--something that 
you prerequisite for legislation?
    Dr. Emmert. Yes, thank you, Senator Thune. The issue of 
employment status versus being a student--traditional student 
athlete as it has been defined, historically, is really at the 
core of what college sports is all about. If student athletes 
are classified as employees of their university--their college 
or university--it does--it is--as Senator Schatz pointed out, 
it does change, very fundamentally, the nature of that 
relationship. It moves student athletes out from underneath the 
guise of educational law, for example, to employment law. I 
believe that is what the good senator was eluding to.
    And for one, that means Title IX is no longer relevant to 
college athletics because that is education law, not employment 
law. It changes the relationship between Coach Few and his 
student athletes, as coach-student to employer-employee. It 
changes everything about what college sports really is and why 
we have created college sports 120-some years ago. So, 
everybody in higher education sees that question as one of the 
core issues to defining college sports versus professional 
athletics.
    Senator Thune. So--and just, again, by way of--I come from 
a state. We do not have--we have two mid-major universities and 
a number of Division II schools in South Dakota. And you have 
touched on this a little bit--I think some of you have in 
responses to questions already. But how do you see this playing 
for, you know, a University of South Dakota or a South Dakota 
State University, where you have got a mid-major program? The 
transfer portal already, which I think is very much a benefit 
to athletes, makes it harder, I think, for a lot of those types 
of schools to keep athletes, retain athletes, once they get 
them there. But how will this affect recruiting athletes? And 
does it put those types of universities at a competitive 
disadvantage, relative to a Power Five conference?
    Dr. Emmert. Well, I think, first of all, Coach Few could 
answer part of that question very, very well. I think the--
especially with the patchwork that we are going to see starting 
July 1, those schools that are in states that allow name, 
image, and likeness opportunities are going to have an enormous 
advantage in the transfer portal, as well, because student 
athletes will, indeed, be looking for opportunities to transfer 
to schools where they can monetize their name, image, and 
likeness. It is one of the reasons we need, of course, the 
nationalized rule.
    The second component is, we need those set of guardrails 
that we have been describing, so that students can monetize 
their name, image, and likeness. But it is not being used as a 
recruiting inducement. Absent some guardrails, coaches and 
others will, in the recruitment process, be including in their 
recruitment pitch, an opportunity--a specific opportunity for a 
specific contract or a specific endorsement deal at a specific 
place. That is precisely what we want to avoid. And the 
legislation that has been discussed here in this chamber, has 
always included those kind of guardrails.
    Senator Thune. Coach, any comments on how it will impact?
    Mr. Few. Thanks, Senator, absolutely. I mean, the impact 
would be enormous. And if you are from a state like South 
Dakota or Washington, you would be put at a huge competitive 
disadvantage and one that would be very difficult to make up, 
both when the student athletes are coming out of high school, 
but also, you know, as they have the opportunity to transfer.
    And, you know, speaking to Dr. Emmert's point, you know, 
having some sort of parameters in line so we can keep some sort 
of semblance of competitive equity in recruiting, you know, 
where we are talking about, you know, each of us being able to 
give a similar experience to these--to these players and it not 
turning into, basically, a bidding war, where it is just 
monetarily based.
    Senator Thune. And that is what I am afraid--what could 
happen and what we obviously have to avoid. And Madam Chair, 
again, I would say to--you know, I think it would be a benefit 
to all of us to hear, specifically, from people who I consider 
to be experts, who deal with this every day, what they--how 
they--what they think this might look like, if we are--if we 
are to legislate on this. And it sounds like, from a time 
standpoint, we do not have a lot of time. We need to come up 
with something in fairly short order. So, I hope we can--we can 
get working on that right away.
    The Chair. Thank you. Thank you, Senator Thune. Senator 
Tester.

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

    Senator Tester. Thank you, Senator Cantwell, and I want to 
thank the panel for being here today. I appreciate your--your 
commitment to making sure that not only do we have good 
opportunity for student athletes, but we have good universities 
behind them.
    Dr. Emmert, thank you for being here. Thank you for the 
conversations we have had before. I am sure that the NCAA has 
monitored probably all 19 of the NILs that are coming out of 
the recent states. Can you--and I do not want to spend all day 
on this, but can you tell me one that is particularly 
unworkable?
    Dr. Emmert. There are various--first of all, good 
afternoon, Senator. Good to be with you again. But the corpus 
of the State laws, around what can be included in NIL is 
largely similar. There are other elements around them that are 
highly disparate. And one--some of them, for example, allow 
third parties--independent third parties to provide cash 
benefits to student athletes for a variety of their personal 
needs. That would be extremely disruptive to the recruitment 
system that the Coach was referring to.
    Senator Tester. OK, so I think it is a little different 
than most laws, when done by a state, and I will tell you why, 
because I think there are some opportunities here. Sports is 
important. Probably more important than it should be, OK? But 
you have a state--I do not want to pick any schools but, you 
know, one of the big boys, and the State legislature can make 
this law, so it gives them an incredible recruiting advantage 
in the overall mix of things. Would you agree with that?
    Dr. Emmert. Absolutely and we are seeing that play out in 
reality.
    Senator Tester. And so, would also agree then, that if we 
were to do a national bill that would apply evenly across the 
board, so it would not be a patchwork, that that would be 
something that could help our student athletes, and help the 
universities behind them?
    Dr. Emmert. I think it is the only sensible approach to 
this. So, yes, indeed, I do.
    Senator Tester. So, I want to go back to another thing 
that--and that deals with health and safety measures. I am told 
that they are voluntary, currently. Is that true?
    Dr. Emmert. There is not an enforcement system in place at 
the national level. Every university is expected to follow all 
of the health and welfare protocol that are in place. And when 
they fail to do so, it is usually dealt with at the 
institutional level and at the State level.
    Senator Tester. And I would just say that, hopefully, the 
NCAA is monitoring that and giving some advice. Because, quite 
frankly, you have got an 18, 19-year-old kid that does not know 
fully how his body works anyway, or her body works anyway. And 
to be put in positions they might know now when their body is 
truly in distress, OK?
    Dr. Emmert. Yes, we do very much that we--I can talk with 
you offline about all the ways in which that occurs, Senator, 
but yes, that is a very important aspect of what we do out of 
the National office.
    Senator Tester. OK. I want to talk about--would you be 
opposed, for instance, for universities across the board, if it 
was in there that they could do things like give them tools, 
like iPads and things like that, as far as helping move the 
ball along?
    Dr. Emmert. Yes, not only would I not be opposed, that in 
fact, happens now and is consistent with the rules that exist.
    Senator Tester. OK, good, good. I--I am the same with 
Senator Thune, as you well know, being an MSU person yourself 
at one point in time, am very concerned that, if we set up a 
patchwork--and I want--I mean, there is a thought we could 
actually benefit in Montana from it. We have got no pro 
football team. They would be the big dogs.
    But the truth is, is I want it to be even. I want it to be 
equitable. I want it to have a fair shot at stuff. And look, 
Coach Few has done a great job taking Gonzaga to a whole 
different level that they were not at 30 years ago. They can 
live off that for a while and maybe forever. But the truth is, 
things ebb and flow. And if the NIL--and we need to keep the 
student athlete in mind, here. If the NIL is not done right, is 
it not a fact that it would impact all the other sports that 
are out there, that gives opportunity for a lot of folks that 
we never see on TV, that ESPN never reports on, and would 
actually take away opportunity from them?
    Dr. Emmert. I think the failure to pass a national standard 
would, indeed, deny them that opportunity you are talking 
about. I believe that, in fact, there is plenty of data to 
support it, that student athletes from less visible sports, 
from less visible institutions, can have remarkable impacts, 
especially in the social media world. And at a place like 
Montana State--by the way, Senator, once a Bobcat, kind of, 
always a Bobcat--hope that does not offend you.
    Senator Tester. Amen, brother, yes.
    Dr. Emmert. So--so, I hope that it would actually provide 
opportunities that do not exist today for student athletes in a 
place like Havre, Montana.
    Senator Tester. Amen. Look, this--this is a solvable deal. 
It is going to take folks communicating. It is going to take 
everybody at the table, as you well know, and it is going to 
take the leadership of the Chairman of this committee. So, 
thank you, Madam Chair.
    The Chair. Thank you, Senator Tester. Appreciate you being 
here. We are going to Senator Fischer, remotely.

                STATEMENT OF HON. DEB FISCHER, 
                   U.S. SENATOR FROM NEBRASKA

    Senator Fischer. Thank you, Chair Cantwell. I appreciate 
all the witnesses that we have here today to discuss NIL policy 
considerations for out student athletes.
    As [inaudible], 21 states legislation to date, and several 
more states are in the process of passing their own NIL bills. 
With so many state activities that are happening on this issue, 
there are a lot of questions about how we maintain that level 
playing field. And this concerns not only equity amongst 
states, but also, equity among institutions of the same 
conference, sports at the same institution, and student 
athletes in the same sport.
    Professor McCann, you mentioned that student centered 
resources provided by colleges for NIL should be furnished 
consistent with Title IX. How do you envision maintaining the 
spirit and the legal requirements of Title IX, as the 
implementation of NIL legislation moves forward?
    Mr. McCann. Well, thank you, Senator for the question. I 
think, as a starting point, there need to be procedures in 
place for compliance officers at schools to ensure that, when 
student athletes are presented with potential opportunities, 
including social media opportunities, that they are not advised 
in a way that is geared to help mainly the men's players--
specifically, the players on the football team and the 
basketball team. So, as a starting point, there need to be some 
sort of procedures in place.
    And then, second, what we have seen is that a lot of 
schools are turning to companies to represent them, in terms of 
NIL opportunities for their athletes. That process has to be 
monitored to make sure--I think, to make sure that Title IX is 
not being shielded or veiled by using a third party. That if a 
private company is involved with providing advice, I think it 
needs to be done in a way that ensures that the advice is 
equitable for the women and men on the teams. Because I worry a 
bit that, if there are other companies involved, that we will 
not have the transparency to know what is going on, in terms of 
the advice that are being provided to the student athletes.
    And I also think, just as an educational point, a lot of 
them are not going to have agents. A lot of them are going to 
have a chance to sponsor a camp back home, things like that--
more modest, incremental steps in their lives. And for them, 
they are going to need help. They are not going to go hire a 
lawyer. They are not going to hire an agent. What happens if 
they are a YouTube influencer? Who is going to review that 
contract? We--there need to be educational opportunities to 
make sure that they are not taken advantage of.
    Senator Fischer. Right. You know, we have heard quite a bit 
today about the State-by-State approach. What would you say are 
the biggest potential risks with that approach and whether it 
is for Title IX or other key considerations that you have 
outlined?
    Mr. McCann. Well, Senator, I think as a starting point, I 
know Dr. Emmert did not talk about the legal implications, and 
I understand why, but I do think it is--if it goes to state by 
state, we could see litigation. So, as a--that is not the end 
of the world. You know, I am a lawyer. So, we go to court. It 
is not always a bad thing. But I do not know if that would be 
in the best interest of the athletes----
    Senator Fischer. Right.
    Mr. McCann.--or the schools. So, there is that.
    Senator Fisher. OK.
    Mr. McCann. And then, second, the recruiting aspect that 
was talked about. Now, we could do the State-by-State free 
market approach and states could jockey with each other to make 
the most athlete-friendly laws. And hey, look, with sports 
betting that is what has happened. With other industries that 
has happened. But I do think, once we go the state-by-state 
approach, the door is shut. It is going to be very hard to get 
back in, once states adapt their own rules and become 
accustomed to them.
    Senator Fischer. Among the states that have enacted the NIL 
legislation, Nebraska included a provision that is giving 
flexibility for colleges and universities to adopt the NIL 
rules early, if need be.
    President Frederick and President Emmert, I would like to 
focus on universities' roles in the NIL conversation. Would you 
both please comment on how universities can ensure compliance 
and help our student athletes navigate this really complicated 
landscape of State NIL laws, NCAA rules, and institutional 
policies, please.
    Dr. Frederick. Yes, we will certainly have to do so with 
great difficulty, because every time we recruit a student, 
depending on what the setup is, we would have to look at that. 
And I think it is akin to having a seatbelt law that is 
different in 51 states. Somebody driving from New Jersey to 
North Carolina can take their seatbelt off on the way and have 
different laws, and I do not thing we want that. So, doing it 
with different State laws is going to be difficult. And then, 
if you are in a state, or the District of Columbia, as Howard 
is, trying to assist with recruiting compliance around these 
issues, while recruiting athletes, is also going to be very 
difficult.
    The other concern that--the last concern that I have is, 
like pro sports, when athletes do compete in different states, 
they are subject to tax laws, as an example. Would there be 
loopholes in the law that allow NIL, even if you are in a state 
that does not have it, for the athletes that are competing in 
conferences that may be going to multiple states? And I think 
that, when we talk about lawsuits that could be filed, we are 
risking an opportunity there for having loopholes where people 
may begin to file lawsuits because they are being denied an 
opportunity for NIL because a state does not have a law that 
has passed.
    Dr. Emmert. Senator Fischer, I think you--you put your 
finger on one of the most important reasons for having a 
national standard, and that is the difficulty that individual 
athletes, individual recruits, individual schools and coaches, 
compliance officers on the campuses will have in trying to 
navigate all this catch work of--of policies and rules.
    Imagine the--an athlete that Coach Few might be recruiting. 
That athlete is looking at multiple schools in multiple states, 
maybe an international student. They would have to pause and 
think about, as Dr. Frederick said, the tax implications in one 
state versus another state. What does this all look like and 
mean?
    And then, schools themselves would have to figure out, how 
do I advise our student athletes and provide them with the kind 
of support that Professor McCann was talking about, based upon 
their states. And then, even, what rules apply to a student 
athlete? Is it the rules at the state where they are playing or 
the rules in the state that they come from? The rules in the 
state that they are going to go conduct a camp in? All of that 
becomes highly variable and it is one of the primary reasons we 
need to respond with an effective approach to all of this.
    Thank you for your question.
    Senator Fischer. Thank you. Thank you, Madam Chairman.
    The Chair. Yes, thank you. Senator Rosen.

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

    Senator Rosen. Thank you, Chair Cantwell, and I want to 
thank you and Ranking Member Wicker for holding this really 
important hearing today, and to all the witnesses for being 
here.
    You know, the Nevada State legislature recently passed, and 
the Governor signed into law, a bill that, beginning in 2022, 
will allow Nevada student athletes to sign endorsement deals, 
to be compensated for the use of their name or likeness, and 
contract with an agent. Additionally, this new law includes a 
provision allowing universities to require student athletes to 
take courses or receive training that is going to require them, 
in contracts and financial literacy.
    So, I know we are building upon a lot of my former 
colleagues--a lot of the former questions they have just had--
Senators Tester and Thune, and of course, Senator Fischer. And 
so, Professor McCann, could this training safeguard student 
athletes from potential predatory contracts and help them learn 
and maintain money management skills that they can even use 
after school? And are there other ways that we can equip our 
student athletes with these kind of tools that they are going 
to need to advocate for themselves?
    Mr. McCann. Well, thank you for the question, Senator. Yes, 
I agree. I think training the athletes and educating them on 
the implications of signing a contract--in law school, 
contracts is a whole semester course, right? It is complicated. 
There are many issues presented with it. To ensure that an 
athlete who might be 18, 19 years old, knows what he or she is 
doing, I absolutely think advice should be provided.
    The tax implications that we have talked about--the fact 
that they may be an independent contractor to the company that 
they are signing with. Do they know that they have to pay their 
taxes later? That they get paid all up front? That is not 
necessarily common knowledge. A lot of them may not have 
checking accounts, and things like that. So, to ensure that 
they are up to speed on that.
    Similarly, the issues of immigration law, which I--which I 
think needed to be noted that, if an athlete is from another 
country, what are the implications of signing a contract on his 
or her visa?
    So, some--so, I would hope that the Federal bill, if there 
is one, contains some type of resources in place to ensuring 
that the athletes are educated on those issues. And I--and it 
cannot just be take a couple courses and go on. It has to be 
continuous.
    And maybe schools should have in place a person designated 
with that role, to ensure that the athletes are being educated 
properly, to ensure that they are not taken advantage of. 
Because, again, I know we think of agents and all of that. A 
lot of them are not going to have agents and they are not going 
to go to a lawyer. They are going to ask a friend. They are 
going to ask a teammate. They are going to ask a coach, things 
like that. We need to be prepared to ensure that they are not 
taken advantage of and having checks in place.
    Mr. Gilmore. Senator Rosen, may I weigh in on this 
question, please?
    Senator Rosen. Yes, sure, of course.
    Mr. Gilmore. I think it is a laudable goal to want to 
provide support for athletes. But what I continue to hear is 
that we talk about players like they are second-class citizens 
again.
    [Inaudible] and requirements on them that we do not put on 
ordinary students, or ordinary citizens. If we want to 
encourage and provide support for players to be financially 
literate, and the like, that is a laudable goal and that is 
great. But to make it a requirement, at that point, we are 
saying, you are different from your classmates. You are 
different from every other citizen in this country. You do not 
have the right and the capacity to freedomly contract. We have 
to treat you differently than your classmates. And that is--
that is a consistent theme that comes up, that is an issue.
    We have to be really careful about being overly 
paternalistic about players. We can certainly provide resources 
and opportunities and support but to have requirements that 
make them different from their student--their fellow students, 
is what has been going on for years and is an issue. We talk 
about this and talk about guardrails, for example, to protect 
the players. But what I am hearing today are that the burden is 
being put on the players when it comes to guardrails.
    We have, for example, when we talk about recruiting issues 
and possible pay-for-play, we have existing recruiting rules. 
It is up to the NCAA to enforce those rules, to enforce them 
against the coaches and against the institutions that violate 
those rules. We have seen a number of cases where that has not 
happened. Instead, we are way more comfortable putting the 
burden on players and cutting back their rights and saying, 
recruiting is going to be a problem, so we have to punish the 
players and we have to limit their rights. That is not a fair 
and appropriate way.
    And we keep talking about having a level playing field and 
a level recruiting field. That does not exist currently. We 
know that. If you have any experience in athletics right now, 
we know that the richest conferences pay the most to their 
coaches, they have the best TV deals, and they, year in and 
year out, attract the most elite players. It is not a level 
playing field. NIL will have very little, if anything, to do 
with that. Those major conferences with the most money, will 
continue to do the best.
    It might provide--NIL might provide an outsider to break 
through because they are in a state and they have an 
institution where, someone--a player who decides, you know 
what? I am a quarterback in Arizona, and I have got my name 
brand going here. There is no need for me to go to Alabama and 
start fresh. I will stay here and maybe that program starts to 
rise. But this notion that we have a level playing field, and 
we need to protect that, is an incorrect notion.
    And again, I just want to reiterate, we need to be careful 
about being overly paternalistic in treating players like 
second-class citizens and that, somehow, they are not capable 
of having the rights of their fellow students, or their fellow 
Americans.
    Senator Rosen. Thank you. I appreciate your comments. 
Perhaps we set up career counseling centers that people can 
take advantage of that, if they so choose, just like we do for 
all kinds of other--other majors at universities and colleges 
around this country. So, thank you for your time. Thank you, 
Chair Cantwell.
    The Chair. Thank you, Senator Rosen. Senator Cruz.

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

    Senator Cruz. Thank you, Madam Chair. Dr. Emmert, as this 
hearing has discussed at considerable length, the states are 
moving very quickly to establish their own frameworks for name, 
image, and likeness. You state, in your written testimony, that 
``conducting collegiate athletics, among a patchwork of State 
laws is untenable''. Why do you believe that we need a Federal 
law to address this issue?
    Dr. Emmert. Well, thank you for the question, Senator. I 
think, again, this is one of the cruxes of the--of the debate 
in front of us right now, obviously. The--there seems to be, at 
least among the members who have spoken, general agreement that 
a--a singular--having a singular policy at the Federal level, 
will allow all students across the country, whether they have a 
State law or do not have a State law, to be able to take 
advantage of these opportunities.
    Starting July 1, there will be a dozen or so, depending on 
what happens in the next couple of weeks, states where student 
athletes will be able to go out and monetize their name, image, 
and likeness. And there will be 30 or so--35 or so, that will 
not be able to do that. We will have a situation where schools 
in those other states will not be in a position to be able to 
recruit as effectively. The student athletes in many of these 
states will have very different standards that they will have 
to be operating under. And the only way that we can get a 
reconciliation of all of that is by having a single, national 
model.
    Senator Cruz. What do you consider to be the impact on 
other sports? Presumably, the lion's share of the revenue is 
going to come from the more high-profile sports--from football 
and basketball and sports that dominate TV coverage. What do 
you see as the impact of monetizing name, image, and likeness 
on lower profile sports, whether sports that are not covered as 
often on TV or women's programs at various schools?
    Dr. Emmert. If, Senator, the--the policy only deals with 
direct name, image, and likeness, and does not include a 
revenue sharing model then, I think it can have a very positive 
impact on women and Olympic sports, because it could provide 
them with greater opportunities to gain access to media 
markets, to be involved in any of a variety of NIL activities. 
Indeed, this current year we have softball going on right now. 
There have been some extraordinary performances that young 
women would be able to build upon in their social media 
profiles and, potentially, monetize.
    So, if crafted properly, I think it could be very, very 
promising and very supportive of those sports. If, conversely, 
it required a revenue sharing model that took resources away 
from--from the dominant sports that produce revenue, it could 
have, as a number of have said earlier, could have a very--a 
negative, even cataclysmic, impact on Olympic sports.
    Senator Cruz. So, I agree with you on the importance of 
women's sports and girls' sports. I have got two daughters, 
ages 10 and 13, and my youngest daughter is an avid softball 
player. And I think it is wonderful the discipline and teamwork 
and all of the skills that are developed through participating 
in athletics.
    I will say, Dr. Emmert, I am concerned about just how 
political the NCAA has gotten on the question of transgender 
athletes and, in particular, on April 12 of this year, the NCAA 
stated, ``The NCAA Board of Governors firmly and unequivocally 
supports the opportunity for transgender student athletes to 
compete in college sports''. And the NCAA further said, ``When 
determining where championships are held, NCAA policy directs 
that only locations where host can commit to providing an 
environment that is safe, healthy, and free of discrimination 
should be selected''. That was a not remotely, subtle threat 
for the NCAA to target and boycott any states where 
legislatures are acting to protect girls' sports and women's 
sports.
    Now, it used to not be controversial to observe that there 
are biological differences between boys and girls. And when it 
comes to athletics, there are--can be significant physical 
advantages for those that are born biologically male, in terms 
of strength and size. And that is why we have girls' sports and 
boys' sports and men's sports and women's sports, in organized 
athletics. And the science continues to demonstrate that.
    Indeed, University of Manchester study indicated that male 
puberty provides a 10 to 50 percent physical advantage, 
dependent on the sport, with the gap widest in activities that 
use muscle mass and explosive strength. Why does the NCAA think 
it is fair to girls or to women competing in sports to expect 
them to compete against individuals who were born biologically 
male? And is the NCAA concerned about some of the results we 
are seeing? For example, Connecticut high school track, where 
biological males are setting record after record after record 
in girls' track and winning the championships. Is that fair to 
the girls and to the women who had been competing in the 
sports?
    Dr. Emmert. Senator, first of all, as you point out, this 
is a very challenging issue and the member schools of the 
Association have worked very hard to try and not make it a 
political issue and, rather, to be aligned as closely as 
possible with the Olympic movement--with what goes on in the 
both USA Olympics and the international Olympics.
    So, roughly about 10 years ago, maybe a little longer, the 
Association adopted a policy that both--tries to strike the 
balance between both an inclusive position, allowing student 
athletes to have an opportunity to participate, but also, 
strikes the balance with fairness, much in agreement with what 
you were just saying--trying to find the fairest playing field 
for competition. The conclusion was that student athletes, in 
NCAA competition, who are transgendered women, for example, are 
allowed to compete but only after they have been under a 
doctor's care for no less than a year and have had testosterone 
suppression treatments that have lowered their--pardon me--
testosterone levels to be functionally equivalent of a woman. 
The case, as you cite, in Connecticut, while I do not know the 
medical circumstances of those athletes, but based on what I 
have read, they would not have been allowed to compete in NCAA 
championships.
    Our policies align with those of the Olympic Committee. We 
are also monitoring, very closely, and indeed working with the 
IOC, around some of the research you cited, so that we can 
modify, as need be, our policies, recognizing differences on a 
sport-by-sport basis. The IOC right now, has instructed all the 
sports federations to look at extant research and other 
research that made need to be done to find out whether or not 
there can be fair competitions in individual sports, because 
they utilize different muscle mass and--excuse me--and strength 
skills.
    So, we have been constantly trying to stay abreast of the 
science and make sure that we are striking a balance where we 
do not put women athletes at a disadvantage, while still trying 
to provide an inclusive environment.
    Senator Cruz. Thank you.
    The Chair. Thank you. Senator Blackburn.

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

    Senator Blackburn. Thank you, Madam Chairman, and thank you 
for the attention to this issue and for this hearing. I 
certainly appreciate it and appreciate that each of you are 
here with us today.
    As you heard from Senator Blumenthal a little bit earlier, 
this is something that we are focused on and we are determined 
to find a resolution to this. Dr. Emmert, to you first. I think 
that it is disappointing that your Board of Governors chose not 
to vote on the NIL rules. And under your leadership, student 
athletes have been really sidelined when it comes to these 
issues because of an NCAA that cannot seem to make up its mind.
    So, my question to you is simply this. Do you think it is 
time to call your leadership of the organization into question? 
Do you think you are still capable and fit to lead this 
organization to make a decision that is going to be fair to the 
student athletes and their parents?
    Dr. Emmert. Senator Blackburn, with all due respect, that 
is not a question that I need to answer. That is a question 
that those for whom I work need to answer.
    In terms of the ability of the Association to make 
decisions, as the conversations here and in the past have 
demonstrated, this is a very complicated issue. And the 
universities have been working for, now, nearly 24 months 
trying to find an appropriate solution to come up with rules 
and policies that meet all of the questions that have been 
discussed here, and all of the matters that are under 
consideration here. They are scheduled to vote on that before 
this month is over.
    Senator Blackburn. OK. Well, you know, the University of 
Tennessee has managed to figure some of this out, and the State 
of Tennessee has. And it is unfortunate that you are going to 
have--and we have had a couple of witnesses talk about the 
unfairness of states that have one set of rules and then 
another, on an issue of this magnitude.
    But UT is deploying comprehensive NIL resources for student 
athletes, specifically designed NIL courses, co-taught by the 
Haslam College of Business faculty, UT Athletics, and the 
College of Communication and Information. They are all working 
with students on NIL concepts. For the record, I would like to 
get your take on this. Have you reviewed their program? And 
what do you think?
    Dr. Emmert. I am familiar with what University of Tennessee 
is doing, and a wide number of other schools that are preparing 
for the advent of supporting student athletes in many of the 
ways that Professor McCann was talking on. I am very 
enthusiastically supportive of it.
    Senator Blackburn. OK. Well, Professor McCann and Professor 
Mitten, who are--what entity do you think should be there to 
oversee implementation of NIL? The NCAA has proven that they 
are incapable of taking up this task. So, we will start with 
you, Professor McCann, and then, to Professor Mitten.
    Mr. McCann. Sure, thank you, Senator, for the question. I 
think that the organization that should oversee it--the NCAA 
should be a part of that. It oversees colleges. It already has 
systems in place. There are member institutions. I think it 
would be disruptive to exclude the NCAA----
    Senator Blackburn. OK.
    Mr. McCann.--from any role. I do think that athletes need 
to be part of the conversation. I think they need to be 
directly involved with this issue. And no matter what the 
entity is, whether it is a joint entity between the NCAA and 
something that legislation suggests, I do think athletes and 
former athletes need to have a direct voice.
    Senator Blackburn. Athletes and their parents.
    Mr. McCann. Yes, and their--I mean, they are--they are 
adults, right? I mean, they are adults. And I think Rod 
commented earlier about, we want to make sure that we are 
treating----
    Senator Blackburn. That is right.
    Mr. McCann. Athletes the same as the--as classmates. If you 
are a musician at college, you can sign a recording contract. 
So, I think there is something to be said for that. But I do 
think the NCAA needs to be a part of it. But I would say 
athletes do, as well. That is my view.
    Senator Blackburn. OK. Professor Mitten?
    Mr. Mitten. Yes, I think--well, certainly the--well, let us 
start with Congress. Congress--you know, the uniformity, I 
think that is a significant part of it. and providing--
requiring education, as you mentioned. You know, I applaud what 
has happened in your state, because that is critical.
    And with all due respect, I do disagree with, you know, Mr. 
Gilmore on this point. The education and then, the regulation 
of agents, that is empowering student athletes. There is a long 
history of agents taking, you know, disadvantaging professional 
athletes. So, that needs to be a component of it. That--you 
know, the certification of agents and how they are going to be 
regulated, that is something best done outside, by an entity 
other than the NCAA. But the NCAA does--should have some 
authority to sanction its member institutions that are 
violating the rules that, hopefully, Congress will establish.
    Senator Blackburn. Well, we--we agree with you and we 
thought the NCAA was going to be able to step forward and set 
the rules. And had said to the NCAA, if you cannot do this, we 
will do it for you. That is the posture in which we find 
ourselves right now, is the inability of an organization, that 
makes a tremendous amount of money, whose leadership is paid a 
tremendous amount of money, and it is all coming from these 
student athlete events. But yet, the inability to move to a 
point of decision has just been an insufferable, insufferable 
event for so many of these student athletes and their parents. 
This is why the states have taken it upon themselves to do what 
the NCAA has proven incapable of doing.
    So, you know, we have legislation before us, taking an 
action--us taking an action may be a requirement. We certainly 
do think the NCAA has a role, as an organization, to play. But 
it is imperative that the leadership of this organization get 
the job done and not leave students in the balance. Whether it 
is education or healthcare or NIL or any other of the various 
issues that you are tasked with overseeing, for the health and 
well-being of these student athletes.
    Thank you, Madam Chairman.
    The Chair. Thank you. Senator Lee.

                  STATEMENT OF HON. MIKE LEE, 
                     U.S. SENATOR FROM UTAH

    Senator Lee. Thank you, Madam Chair. Dr. Emmert, I would 
like to start with you. Seems from your testimony, as well as 
previous reports that the NCAA has an inclination to consider, 
and perhaps advocate for either a partial or a complete 
exemption from antitrust laws. In your view, is the product 
that you offer, that is under the category of amateur 
collegiate athletics, is it so unique that it warrants the 
extraordinary step of either less accountability or no 
accountability under the antitrust laws?
    Dr. Emmert. Senator Lee, thank you for the question. I 
think, first and foremost, it needs to be clarified that I have 
not heard anyone at--I certainly have not and I do not know who 
has advocated on behalf of a total antitrust exemption. Quite 
the contrary, I think that the issue at hand is simply around 
the application of this particular NIL rule. And that the need 
is for the avoidance of serial litigation, either for previous 
actions or future actions in the application of the NIL law.
    Immediately upon the announcement of the--my Board of 
Governors, group of 24 university presidents, calling for the 
membership to pass an NIL law, there were immediately two 
lawsuits filed for having not done so sooner. We are trying to 
avoid moving toward a place where no good deed goes unpunished 
here. That is the only thing that is really under 
consideration.
    Senator Lee. OK. All right, let us talk about compensation 
for a minute. I think there are some legitimate concerns out 
there over what might happen if you allowed for name, image, 
likeness compensation. For example, to whom would it go? And 
what questions does this raise for your member schools? For 
example, my alma mater, Brigham Young University, I would 
imagine, would have some opinions about which products its 
athletes might endorse, and from what source they would be 
coming. And whether they might be endorsing products that are 
inconsistent with the university's religious mission.
    This would not be limited to religious schools, though. I 
can imagine a lot of other schools that have--that are not 
necessarily religious in nature, that might want to express 
concerns or limit the ability of its student athletes to 
endorse certain products.
    So, what can you tell me about this, as we approach this 
issue? As we have this discussion about name, image, and 
likeness compensation, how do we balance that ability of the 
institutional interest, on the one hand, against any individual 
interests on the other?
    Dr. Emmert. Senator, the policies that are being reviewed 
right now by the NCAA, and have been included in many of the 
legislative proposals that have moved forward, have tried to 
identify some, for want of a better term, product categories 
that either the law itself or institutions could indicate they 
do not want student athletes endorsements in. Typically, it is 
about alcohol, tobacco, any substances that are considered 
illegal substances for athletes to consume. Sometimes, it is 
around gambling and other participations.
    So, there is, I would hope, an opportunity, at the national 
level but also at the institutional level, to make those 
determinations and student athletes could then consider that in 
making their decisions about which institutions to attend.
    Senator Lee. How would treating an athlete as an employee 
of the university itself affect the university's structure? And 
do you think, could that also have an impact on the 
universities' tax-exempt status?
    Dr. Emmert. I am certainly not a tax lawyer. I may defer to 
some of my lawyer friends, here, to answer some of that. But I 
think, most fundamentally, Senator, converting student 
athletes, or having them change into an employee/employer 
relationship, fundamentally blows up college sports. The notion 
of collegiate athletics is that these are not employees. They 
are not hired professionals. They are, in fact, students who 
are participating in sports voluntarily. The----
    Senator Lee. So, in the case of name, image, likeness 
compensation, would that--would that be paid to the student 
athlete individually? Or would it be paid to the university and 
held in trust? How would that work?
    Dr. Emmert. Yes, it is intended to all be handled directly 
between a third party--a sponsor or a third-party entity, who 
has no relationship with the university--expressly no 
relationship--and the individual athlete. The university would 
not be a party to that--to that negotiation, in any fashion. We 
also have sought to have clarity about what you are asking 
directly in legislation itself, that clarifies that no 
provision in this statute would, indeed, convert a student 
athlete into an employee of the university.
    Senator Lee. OK. Can I ask one brief follow-up question? I 
want to make sure I understand your answer to my first 
question. So, you are seeking at least an antitrust exemption, 
in part. I understand you are not seeking it in full. Can you 
help me understand the uniqueness of your product and your 
market, such that you believe you need protection from it?
    Dr. Emmert. Well, Senator, first of all, I do not remember 
which step in the three-part antitrust process that falls 
under, but I think the first. But--and again, I am not--I am 
not a lawyer and others could probably answer with more 
specificity. But the concern of the schools is that they would 
be--may be subject to serial litigation around the 
implementation of an NIL--the NIL rules. Indeed, we have seen 
already, two suits filed against them, on this issue exactly.
    So, their concerns are not just punitive. They are real. 
And they want to make sure that they are not subject to that 
kind of litigation. Again, narrowly around just the NIL rule, 
itself.
    Senator Lee. I understand. My time has expired. Thanks for 
the additional time, Madam Chair. I will note that we will need 
to address that issue.
    Dr. Emmert. Yes, sir.
    Senator Lee. Because that is not--that does not 
differentiate you from anyone else seeking an antitrust 
exemption. The possibility of litigation is something faced by 
everyone in the marketplace. Thank you.
    Dr. Emmert. As I understand, sir.
    The Chair. Thank you. It is my intention--we have one more 
member who is on their way here to ask a question, which I am 
going to let Senator Blumenthal go ahead and ask a second-round 
question until they arrive. But it is my hope that once Senator 
Scott is here, that will be the end of our members who are 
willing and interested in participating in today's hearing. So, 
just to give you a little feel here for how much longer we are 
going to be. But I will turn to my colleague for a second round 
of questions.
    Senator Blumenthal. Thank you so much, Madam Chair. And I 
will yield to our Republican colleague when he arrives.
    You know, we have touched on this, kind of, elephant in the 
room. Nearly $20 million--$20 billion in revenue that is made 
and generated by the blood, sweat, and tears of college 
athletes and yet, there are the haves and have nots in college 
athletics. And I believe in sharing health costs. I think it is 
a path forward. Senator Booker and I have proposed a medical 
trust fund as a health safeguard for all student athletes, with 
the most profitable schools pitching in more than the less 
profitable ones, so that there is a use of a pool of funding to 
cover out-of-pocket medical expenses.
    And the cost of long-term injuries--Dr. Frederick knows, 
more than anybody in this room, that brain trauma, concussions 
may have effects well after the time that athletes are injured. 
And Coach Few knows, better than anyone in this room, about 
knee injuries and spinal injuries. In fact, there are about 
4,000 knee injuries and 1,000 spinal injuries every year in 
college football alone.
    So, we have a challenge here that we do have the money to 
meet. And my best information is that the media rights for 
March Madness alone bring in $800 million to the NCAA. So, let 
me ask you, Coach Few, because I really appreciated the remark 
in your testimony that I am quoting, ``Schools that cannot 
afford to provide this care to their student athletes should be 
able to get assistance from the NCAA because it is the right 
thing to do''. Would you agree that that kind of assistance 
ought to include helping with the long-term cost of injuries, a 
medical trust fund, or some way of guaranteeing fairness to 
student athletes in that way?
    Mr. Few. I do. I definitely believe in that. How that comes 
about and is set up is probably over a simple basketball 
coach's mind. But it is certainly something that I would 
champion and agree to and--but I would add, you know, as, I 
think, somebody referenced, our Commissioner Gloria Nevarez's 
article, I mean, we do pull in a lot of money and do a lot of 
things, but we share most of that money within the conference 
and try to spread it out to all our programs that are not, you 
know, as revenue producing like ours is.
    Senator Blumenthal. And, Dr. Frederick, would you agree 
with Coach Few?
    Dr. Frederick. Yes, I do agree with Coach Few that revenue 
sharing is an opportunity to do that. But I think, if we are 
going to look at that, as well, I think--and we obviously do 
not have time by July 1st, but I think we need to look at 
things like annuities, etc., for college athletes as well, so 
that the amateur nature of what they do while they are with 
us--that we do not create two differential statuses.
    And I think the earlier comment by Mr. Gilmore, we also 
want to be careful about not creating a whole infrastructure 
around just managing this issue for athletes, that then takes 
away from the services that we are trying to supply for the 
vast majority of our campuses who do not play athletics. And I 
think that is the other concern that I have about these 
compliance officers and all these other things that we may have 
to build in to manage come of these things.
    Senator Blumenthal. Well, thank you--thank you all for your 
testimony. I see that Senator Scott has arrived and I will 
yield to him.
    The Chair. Thank you. Senator Scott.

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

    Senator Scott. Thank you, Chair Cantwell. I want to thank 
each of you for being here. I finished----
    The Chair. Senator Scott, just--is your microphone on? Yes.
    Senator Scott. Is it working now?
    The Chair. Yes, yes, thank you.
    Senator Scott. Thanks, everybody, for being here. And 
thanks for caring about our student athletes.
    You know, I finished two years ago as Governor of Florida 
and I was focused on making sure that all our kids could get a 
good education--they could afford it. We ended up with the 
second lowest tuition in the country. And according to ``U.S. 
News and World Report'', we ended up number one in higher 
education because we were very focused on our student--all of 
our students getting jobs and getting good paying jobs. And we 
actually had a system. We paid our universities that way. They 
shared, on top of the other resources, $580 million a year and 
they competed on who did the best. And that is how we--they got 
the money.
    So, I think it is really important that our students have 
the opportunity to make sure they get a great degree, and we 
all love college sports. But I want to make sure, when these 
students finish, not all of them are going to get to play 
professional sports, that they have the opportunity to get a 
good degree.
    So, as you all know, Florida passed a law that is going to 
take effect, I think it is next month, that is going to allow 
our athletes to start earning compensation. It is going to 
ensure transparency for these agreements. It is going to guard 
against conflicts of interest and, you know, it hopefully 
protects athletes' scholarships. Those of you that are familiar 
with it and are comfortable commenting on it, I would love to 
get your thoughts on what they have done in Florida.
    Dr. Emmert. Well, Senator, perhaps I could start. I am 
familiar with the law. We have, of course, like I think all of 
the panelists here, have been tracking on all these various 
laws for the past year or two. I think the Florida law includes 
all of the core, what I will just call loosely, the core NIL 
components around the ability of the student athlete to 
monetize his or her name, image, and likeness. It is not, in 
that sense, dramatically inconsistent with where the NCAA rules 
are, in many other states.
    I think, in the Florida law, the challenge that is really 
quite different than other laws, as I remember it in my head, 
is the way it gets administered and the way it would be 
handled. One of the concerns about the application of the rule 
around fairness, is to try and have an independent third 
entity. Not the NCAA, we should not have anything to do with 
this. And the laws that have been--the bills that have been 
proposed, here in this committee and elsewhere, include the 
creation of a third-party entity to manage those relationships.
    It also deals with a question Senator Lee was asking. As I 
recall, the Florida bill has all of that transaction being 
conducted out of the athletic department. I think that is a 
challenge. It is certainly very different from the way other 
states envision it. Many other states do not even speak to it. 
It is one of the reasons we need a national standard.
    But the goals that I perceive of as inherent in what the 
Florida legislature was trying to do, I think, are perfectly 
consistent with what we have been discussing here today, and 
what we advocate.
    Senator Scott. Anybody else? OK.
    Mr. Gilmore. Yes, Senator Scott, I will weigh in on that. 
One of the beautiful things about the Florida law is that it 
triggered the competition in nearby states to come up with 
their own laws, so that they would not be at a recruiting 
disadvantage. And that triggered and spurred a lot of activity 
in the states surrounding Florida, particularly, you know, your 
Southeastern Conference programs.
    And I would also like to just address the revenue sharing 
issue that has come up a couple times. And while I know from 
talking to players that revenue sharing is something that they 
are strongly interested in, and that last summer, the Pac-12 
players--a representative group pursued revenue sharing from 
the conference, the Committee probably would be well-advised 
not to mandate revenue sharing. While it is something that 
occurs at the professional level--professional athletics--
those--that involves unions and the like. I think you do not 
find the revenue sharing model in the business world, generally 
speaking. So, it is difficult to push that and accept that.
    However, what should be allowed is the right of any 
conference, or any school within a conference, that believes 
that it is in its own best interest to have some form of 
revenue sharing, whether that is in a particular sport or all 
sports, that that should be made at the conference level or the 
school level. There is no need to have a mandate in the 
national bill saying that there will not be revenue sharing 
allowed. I do not think it is appropriate to have the revenue 
sharing, at a national level, to be mandated or prohibited. But 
at the conference level or the school level, it should be left 
to them to determine that. If that is what they need to be 
competitive in a marketplace, then that should be their choice.
    Senator Scott. How do you all think that the revenue 
sharing will impact our--you know, we have got Bethune-Cookman, 
and Florida A&M have sports teams. These HBCUs, how is it going 
to impact their ability to compete with the Florida 
legislation, or other legislation? I guess, Dr. Frederick?
    Dr. Frederick. Yes, I think it will be--there will be a 
negative impact. The ability to recruit will challenge--and the 
smaller sports--again, I think a lot of this conversation is 
about football and basketball and we appreciate that. But for 
instance, Florida A&M, to my knowledge, sponsors probably some 
19 to 20-something sports. I do not see them being able to 
continue to maintain those sports. Without it, they actually 
are leaving the MEAC and joining another conference, primarily 
because of travel cost to some of the Northeastern schools. It 
is as detrimental as that. And I think this will double down 
and add disadvantage by not having that opportunity for them to 
have those opportunities.
    Senator Scott. Do you have a--I am sorry. Do you have a 
proposal how you would do it differently?
    Dr. Frederick. I think there are a couple of things that I 
am concerned about when we talk about revenue sharing. One is, 
for some of the health costs. Again, I want to make sure the 
athlete is at the center of this conversation. And I think the 
first thing about revenue sharing we should think about is what 
benefits the athlete. And so, having revenue sharing around 
healthcare costs, I think, is important so that we can maintain 
that. And then, I think the secondary issues, such as, 
maintaining the other sports, etc., we should look at.
    The other thing that we have not discussed yet today is 
that these are student athletes, and we must have a look at 
graduation rates. It is interesting that, for all the 
conversation that we talk about, our colleges and universities 
are vehicles for these young men and women to get an education. 
And there is very little discussion about the graduation rate 
that should be looked at. And some of the disadvantages that 
have occurred have been long-standing.
    There is a reason why Howard is the only HBCU who has ever 
won a national championship. Being able to recruit athletes to 
win a national championship, to increase your brand, to get 
more resources for the bigger good of the rest of the student 
population just has not been there. And I just want to make 
sure that some of these laws, as we look at them and as we look 
at the national law, we do not double down on that disadvantage 
and really ensure that an HBCU never again wins a national 
championship, because that is where we are headed.
    Senator Scott. Thank you. Chair Cantwell, this is a great 
committee. I mean, this is a great issue----
    The Chair. Thank you.
    Senator Scott. That we have to deal with. Thanks for doing 
this.
    The Chair. I appreciate your bipartisanship on it. We do 
have one more member who joined us, I think, Senator Lujan who, 
I think, will be our last questioner, if you are with us, 
Senator.

               STATEMENT OF HON. BEN RAY LUJAN, 
                  U.S. SENATOR FROM NEW MEXICO

    Senator Lujan. Thank you, Chair Cantwell. I very much 
appreciate your time today and your leadership, as well as 
Ranking Member Wicker.
    Now look, playing college sports is a dream for so many 
young people and they work hard, and they sacrifice year after 
year. They earn their position at these schools. And they are 
the backbone of these programs. So, fair recognition for their 
work is long overdue and I am grateful that New Mexico has 
recognized this. On July 1, my home state will be among the 
first to allow student athletes to be compensated for their 
name, image, and likeness.
    Student athletes are the driving force behind a $19 billion 
industry, yet 86 percent of them live under the poverty line. 
These numbers are shocking and unacceptable.
    Mr. McCann, yes or no, will protecting students' rights to 
the use of their name increase the health and well-being of our 
student athletes?
    Mr. McCann. Yes, it will help them because some will be 
able to generate income that they would not otherwise get, and 
that will help their experience and make college more 
affordable.
    Senator Lujan. The upcoming legislation puts New Mexico at 
the forefront on this national issue. Not only will New Mexico 
be among the first states to allow greater student control over 
their names, images, and likeness, a number of universities in 
New Mexico will be the first in their conference to recognize 
these rights.
    Mr. Gilmore, what impact do you expect on institutions that 
are the first that allow students' rights over their name, 
image, and likeness?
    Mr. Gilmore. I think the impact will be very positive for 
those students and for the institution. I think anyone who has 
been involved with athletics will tell you the stories that we 
hear from year to year, players who are, as you mentioned, 
struggling financially, who have families that struggle 
financially, players who send part of their scholarship money 
back home to support their families. But these are real 
problems. And that, for players, women included, in various 
sports, who will have an opportunity to have additional income, 
to support themselves in college, or to help their families, is 
going to be a huge boom for them and will be a very, very 
favorable thing for those universities that take that step.
    Senator Lujan. Appreciate that. Now, I have a simple yes or 
no for the panel, and I will start with you, Coach Few. Thanks 
for being with us today. Yes or no, should every student 
athlete have a right to earn money from their name, image, and 
likeness?
    Mr. Few. Yes. Yes.
    Senator Lujan. Dr. Emmert?
    Dr. Emmert. Yes.
    Senator Lujan. Mr. Gilmore?
    Mr. Gilmore. Yes.
    Senator Lujan. Dr. Frederick?
    Dr. Frederick. Yes.
    Senator Lujan. Mr. McCann?
    Mr. McCann. Yes.
    Senator Lujan. And, Mr. Mitten?
    Mr. Mitten. Yes.
    Senator Lujan. Now, given that, I have one question to ask. 
Why did it take so long? We have been having this argument for 
over a decade. It is common sense. Coaches have been making 
millions of dollars while students are making nothing. Dr. 
Emmert, can you answer that?
    Dr. Emmert. Yes, I have addressed that a couple of times 
already, Senator. It is a very challenging topic, obviously. 
The NCAA rules are all made by the schools themselves, through 
a representative body that functions very much like Congress 
does. They have been debating, discussing this, and working 
toward this moment for, at least, 3 years now. And it is a very 
complicated subject. Coming up with the general consensus about 
what the outcome should be has been relatively easy. Getting 
people to agree on the details of it has been extraordinarily 
complex.
    But I am very hopefully that we finally have the schools at 
a place, right now, where they are ready to pass a national--a 
national standard. That, however, will not alleviate the need 
for Federal legislation because New Mexico and others have 
moved forward and passed laws that, I think you and I would 
agree, are very positive. They also are very different in the 
way this is being described around the country. And most 
everyone agrees that we need a single, national standard, 
rather than 50 different rules and that is why we are here 
today, I hope.
    Senator Lujan. And one last question to Mr. Gilmore. 
Athletes from New Mexico are competing at the highest level 
across a variety of sports. In fact, the NCAA Division I Track 
and Field Championships are starting today, with a number of 
New Mexico's athletes competing there in the high jump, 5,000 
meters, and the steeple chase. And they have worked hard to the 
get there and I wish them all luck and hope that they bring 
back the gold from all these events.
    Now, Mr. Gilmore, how do we ensure that new legislation 
addresses the needs of all student athletes across all sports?
    Mr. Gilmore. Well, I think part of the immediate response 
to that is, just making sure that we are not putting 
restrictions on athletes--that a free market works best for 
them. The reason this legislation has taken so long, and that 
the NCAA has moved slowly, is that it has been focused on 
protecting its revenue stream for itself and for its athletic 
departments. That has really driven this--brought this to a 
standstill because that is the focus. How do they protect what 
they have?
    It is very easy for the NCAA to simply have removed its 
restrictions, opened it up, and allowed players to, 
immediately, start receiving those benefits. Whether it is as a 
player who has his own camp, or is a social influencer, or 
whatever, they could have really taken steps forward. But it is 
the protectionism that has been an issue and the paternalistic 
nature of it.
    So, once you remove those things, we are talking about 
athletes in all sports. In fact, there are studies already that 
have shown some of the most likely beneficiaries of NIL will be 
women athletes in other sports. They may be some of the most 
popular on campus, and through social media. So, this is going 
to benefit athletes across sports, not just football and 
basketball players. And that is one of the real reasons why it 
is really important to have it and New Mexico has taken that 
step already.
    Senator Lujan. Appreciate that, as well, and I yield back, 
Chair Cantwell. Thank you again for the time.
    The Chair. Yes, thank you. Well, I do want to thank 
everybody for participating. And to that point--Mr. Gilmore's 
point, we are going to have a panel, in the future, that will 
include a panel of athletes, so that we can hear their 
illumination of the healthcare scholarship standards and 
education issues.
    So, that concludes our hearing for today. Again, thank all 
the witnesses, both in person and virtually, for this. I want 
to thank my colleagues. I think, as you can see, my colleagues 
are ready to dig in. They gave this hearing. More than half of 
them participated in this and that is a lot for the U.S. Senate 
to be as active on this policy. So, you can see the 
determination. We are determined to get this done. So, your 
testimony today helped move this ball down the road for us to 
do that.
    I probably agree with many of the things that Coach Few and 
Senator Blackburn said. I wish we were not here. Wish we were 
not having to deal with this. But we are going to make sure 
that this issue is addressed.
    So, again, thank you again for all the illumination today. 
There is--any Senators who would like to submit questions for 
the record, if they can do so within two weeks, by June 23, 
2021.
    So, with that, the hearing is adjourned.
    [Whereupon, at 12:58 p.m., the Committee was adjourned.]

                            A P P E N D I X

   Response to Written Question Submitted by Hon. Raphael Warnock to 
                                Mark Few
    Athlete Support. I am proud that we are elevating the health, 
professional, and academic needs of America's college athletes in the 
discussion regarding Name, Image, and Likeness (NIL) legislation. I 
believe that by working together with athletes, coaches, athletic 
directors, and other involved parties, we can develop NIL legislation 
that benefits athletes and universities.

    Question. What steps can Congress take to ensure that any NIL 
legislation protects athletes' access to quality education and physical 
and mental health resources?
    Answer. It is important to recognize the situation is complex. 
Protecting athletes' access to education and health resources is 
absolutely necessary. At the same time, it is really expensive. There 
is a standard of care (physical and mental health resources) that all 
student-athletes should receive as part of their participation in 
college athletics. We need to make sure that any Congressional action 
provides safeguards for athletes without imposing a financial burden 
that most institutions cannot bear, which will in turn reduce 
opportunities to participate in collegiate athletics for future 
students.
                                 ______
                                 
   Response to Written Question Submitted by Hon. Raphael Warnock to 
                              Rod Gilmore
    Athlete Support. I am proud that we are elevating the health, 
professional, and academic needs of America's college athletes in the 
discussion regarding Name, Image, and Likeness (NIL) legislation. I 
believe that by working together with athletes, coaches, athletic 
directors, and other involved parties, we can develop NIL legislation 
that benefits athletes and universities.

    Question. What steps can Congress take to ensure that any NIL 
legislation protects athletes' access to quality education and physical 
and mental health resources?
    Answer. It is important that Congress address more than just NIL in 
any potential legislation. It is important to remember that athletes 
are powerless when it comes to rules and regulations affecting their 
sport, health and academic life in college. They are not represented by 
a union and many, particularly athletes of color, come from 
disadvantaged backgrounds and may be unsophisticated in discussing 
matters with the NCAA and university coaches and administrators. 
Clearly, the NCAA and universities are sophisticated and well 
represented by professionals. Generally, athletes have no power to 
change or create rules that would improve their athletic and academic 
careers. This is why Congress should step in and assist college 
athletes.
    In adopting any NIL legislations, Congress should consider several 
steps to improve educational outcomes for athletes and to improve their 
physical and mental well-being. Those steps should include the 
following:

  1.  Improve Academic Outcomes--the extraordinary time commitment must 
        be reduced.

      (a)  The 20 hour per week rule. According to college athletes, 
            most sports have now become a full-time job for 11 months 
            of the year. This time commitment limits the academic focus 
            of athletes and denies them of the benefit of the bargain 
            universities claim to offer when providing an athletic 
            scholarship. Currently, NCAA rules limit athletic 
            participation to 20 hours per week. However, athletes have 
            testified in court and before Congress that they are 
            routinely required to spend 40-50 hours per week on their 
            sport during the season. Part of this is due to the demands 
            of coaches, but part is also simply due to the manner in 
            which the 20 hour Rule is calculated. Generally, only 
            meetings, weightlifting, practice and conditioning are 
            included in the 20 hour calculation. It does not include 
            practice preparation time, treatment, transit time, film 
            study, etc. Thus, an athlete might participate in 12 hours 
            of activity in his/her sport but only 4 of those hours 
            would count towards the 20 hour limit. By the time the 20 
            hour Rule has been met, the athlete has expended 40-50 
            hours to the sport for that week. This results in athletes 
            having less time to devote to academics or other activities 
            with classmates. The 20 hour per week rule should be 
            revised to include additional activities to more accurately 
            reflect the time demand placed on athletes.

      (b)  Clustering and Other Obstacles. Unfortunately, the focus of 
            many athletic departments is to keep athletes eligible. As 
            many players have testified under oath, this has resulted 
            in coaches steering them away from classes or majors that 
            might interfere with the time commitment for their sport. 
            Many players have testified that they were steered to 
            easier majors or ``clustering'' in certain majors. This 
            practice must be discouraged. Requiring athletic 
            departments to use Federal graduation rates as their 
            guidelines instead of the distorted graduation rates 
            permitted by the NCAA would be a step in the right 
            direction.

  2.  Mental Health. It is well documented that there is a mental 
        health crisis on college campuses. This includes athletes. 
        There are plenty obstacles and stigmas regarding mental 
        healthcare that must be overcome. Students who seek help often 
        find it difficult to do so because of being ridiculed (and for 
        athletes not being ``tough'') or finding a limited number of 
        counselors or lack of support. Congress should consider 
        providing additional funds and/or require universities to 
        devote more funds to mental healthcare. Perhaps, universities 
        should be required to provide mental health counseling to all 
        freshman students (including athletes) and make it otherwise 
        available for all students after their freshman year.

  3.  Offseason Conditioning. In the last 20 years, 30 college football 
        players have died during offseason conditioning--in practices 
        organized and supervised by staff strength and conditioning 
        coaches. Almost two deaths each year! The deaths have been due 
        to heatstroke, which is abundantly preventable. By comparison, 
        the NFL had one death in 2001 and not a single offseason 
        practice death since then. Clearly, colleges are not following 
        the ``best practices'' or the number of college deaths would be 
        much lower. There is no national standard or required best 
        practices that strength and conditioning coaches must follow 
        for the protection of athletes on college campuses. Congress 
        should require a best practices standard.

  4.  Denial of Health Insurance For ``Pre-existing Condition.''. There 
        are two situations involving health insurance that should be 
        addressed. The first situation is the all too often denial of 
        coverage by the university for a player injured while competing 
        in his/her sport. Universities often deny coverage over a 
        claimed ``pre-existing condition.'' This pushes the burden of 
        healthcare coverage onto the athletes and their families. The 
        athlete is essentially powerless to fight back when the 
        university denies coverage. Upon entering a university, 
        athletes are required to sign a disclosure form before 
        participating in any sport and required to list any injury, 
        even minor, that occurred in high school. Athletes are not 
        adequately advised as to how the disclosure form will be used 
        against them later. When an injury occurs in college, the 
        disclosure is used to deny coverage even when the high school 
        injury is minor or appears unrelated to the current injury. For 
        example, what high school basketball player has never sprained 
        an ankle? Several athletes complained to me about this denial 
        of coverage. There is no practical way for the athlete or his/
        her family to fight the university's decision. Congress should 
        eliminate the ``pre-existing condition'' that universities use 
        to deny coverage. Once an athlete is on campus and has an 
        injury, it should be the university's responsibility to care 
        for that athlete--regardless of whether that athlete had a 
        similar injury in high school or not.

  5.  Denial of Health Insurance Post-Eligibility. The second 
        healthcare situation to address is the limited coverage 
        provided after an athlete's eligibility ends but still needs 
        care for an injury that occurred while in college. Most 
        universities only provide healthcare coverage for two years 
        after an athlete's eligibility expires. (The Pacific 12 
        Conference provides coverage for 4 years.). This is certainly 
        an issue regarding concussions, but also knee, shoulder and 
        foot injuries. Congress should require longer coverage 
        (lifetime, 10+ years, etc.). Certainly, cost is an issue. 
        However, the President of the NCAA indicated to this Committee 
        his support for ``revenue sharing'' among universities to 
        ensure that each university can meet its obligation to provide 
        healthcare coverage for its athletes after their eligibility 
        has expired.

  6.  Scholarship Protection. Scholarships should be fully guaranteed 
        lifetime and athletes should be allowed to complete their 
        degree at any time after their eligibility expires. The 
        scholarship should remain available regardless of whether the 
        athlete's eligibility lapses or the athlete leaves early for 
        professional sports and returns later to complete his/her 
        degree.
                                 ______
                                 
    Response to Written Question Submitted by Hon. Amy Klobuchar to 
                            Dr. Mark Emmert
    Need for NIL Laws. To date, 18 states including California, 
Colorado, and Florida have passed laws allowing college athletes to 
profit from their Name, Image, and Likeness (NIL), and a number of 
other states are considering similar legislation. As Congress considers 
Federal legislation, there are many factors to consider in developing a 
solution to support student athletes.

    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. To best support student-athletes, it is critical that 
college sports are regulated at a national level and we believe that 
any Federal legislation should include three important elements. First, 
Federal law should preempt state NIL laws to ensure student-athletes 
have the uniformity of rules and the fair and level playing field they 
deserve. Second, NIL benefits should safeguard the non-employment 
status of student-athletes. College athletes are students first and 
converting them into employees of an institution would directly 
undercut the academic mission of attending college and threaten the 
opportunities college athletics provides for more than 500,000 student-
athletes each year. Third, limited safe harbor protections should be 
established to protect against ongoing and recurring litigation. 
Already, some of the same lawyers who have challenged the NCAA's other 
rules changes have brought suit against the NCAA over NIL, even before 
the NCAA has had a chance to pass its interim policy. Without 
appropriate, narrow protections, these litigation challenges to NIL 
enactment will continue and will significantly undermine the 
Association's ability to take meaningful action and adopt common sense 
and adequate solutions to support the evolving needs of student-
athletes. In addition to these elements, any NIL legislation must also 
protect the recruiting environment of college sports, ensure that NIL 
payments are not a proxy for pay-for-play, maintain opportunities for 
non-revenue generating sports and uphold Title IX protections.
                                 ______
                                 
    Response to Written Questions Submitted by Hon. Jacky Rosen to 
                            Dr. Mark Emmert
    Potential for Industry Restrictions. It is critical that any 
Federal and state NIL laws include robust protections for student 
athletes against predatory endorsement and contract practices, and that 
endorsement, contract, and promotional deals meet reasonable integrity 
standards. However, I am concerned that these integrity standards could 
potentially restrict critical industries--such as those in the tourism, 
hospitality, and gaming sectors--from participation in NIL 
opportunities. These industries fuel Nevada's economy and are the 
drivers of economic growth and job creation in my state.

    Question. Will you commit to work with me and relevant Nevada 
stakeholders to ensure there are reasonable NIL safety and integrity 
standards, while also ensuring that relevant Nevada industry partners 
are not excluded from the NIL marketplace?
    Answer. We would welcome the opportunity to work with you on a 
Federal standard for NIL that provides broad opportunities for all 
student-athletes. It is critical that any national framework for NIL 
provides reasonable and appropriate guardrails that will also best 
support student-athletes.
                                 ______
                                 
   Response to Written Question Submitted by Hon. Raphael Warnock to 
                            Dr. Mark Emmert
    Athlete Support. I am proud that we are elevating the health, 
professional, and academic needs of America's college athletes in the 
discussion regarding Name, Image, and Likeness (NIL) legislation. I 
believe that by working together with athletes, coaches, athletic 
directors, and other involved parties, we can develop NIL legislation 
that benefits athletes and universities.

    Question. What steps can Congress take to ensure that any NIL 
legislation protects athletes' access to quality education and physical 
and mental health resources?
    Answer. Promoting the academic success, as well as the health and 
well-being of student-athletes is at the foundation of the NCAA's 
mission. In support of this, any Federal policy on NIL should protect 
the recruiting environment and the ability of student-athletes to 
select an institution based on the best fit for them personally and the 
best fit for their academics goals. Additionally, an important and 
necessary part of supporting new opportunities for student-athletes to 
benefit from their NIL will be to ensure they have access to 
educational materials and resources, including mental health resources. 
Current NCAA bylaws require all schools to make mental health services 
and resources available to student-athletes. We also encourage and 
applaud the initiatives already undertaken by many schools to educate 
college athletes on other related concepts. The NCAA has also taken 
steps to develop educational resources on this topic and these will 
continue to be posted as they become available here.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Marsha Blackburn to 
                            Dr. Mark Emmert
    Question 1. The University of Tennessee is deploying comprehensive 
NIL resources for student-athletes. Specifically, designed NIL courses, 
co-taught by Haslam College of Business faculty, UT Athletics, and the 
College of Communication and Information, will educate interested 
students on core NIL concepts. What are your thoughts on UT's 
initiative, and what the NCAA is doing for interested student-athletes 
in this realm?
    Answer. An important and necessary part of supporting this new 
opportunity for student-athletes to benefit from their NIL is to ensure 
they have access to educational materials and resources. We encourage 
and applaud initiatives such as those undertaken by UT, and many other 
schools, to educate college athletes on core NIL concepts. The NCAA has 
already taken steps to develop educational resources on this topic and 
these will continue to be posted as they become available here.

    Question 2. The NCAA says universities are not allowed to be 
involved in an athlete's NIL activities, which seems at odds with 
reality. One state has a law that explicitly allows the university to 
act as the agent for the student-athlete. Even in other states, 
student-athletes will look to their universities and athletics 
departments to help them.
    If a student-athlete finds himself in trouble for a particular NIL 
deal, and the university is implicated, how is the university supposed 
to defend itself if it didn't know about the certain NIL activities the 
student-athlete was originally involved in?
    Answer. The governance bodies from all three NCAA divisions 
recently adopted an interim policy which allows student-athletes to be 
compensated for the use of their name, image and likeness. This policy 
does not permit schools to pay student-athletes directly for the use of 
their NIL, however it does allow institutions to be involved in 
supporting student-athletes in their NIL activities. This support could 
include providing educational programming, interpreting state laws, 
understanding disclosure expectations or assisting in the evaluation of 
NIL opportunities or professional service providers.
    As part of their membership, NCAA colleges and universities are 
obligated to apply and report potential violations of NCAA legislation. 
Similarly, a school's assertion that it may not have had prior 
knowledge of a violation is not unique to the issue of NIL. While all 
schools are required to have institutional controls in place to ensure 
compliance with NCAA bylaws, the legislative and regulatory process 
developed and adjudicated by the membership would consider a violation 
of its interim NIL policy--as it would for any other violation--on a 
case-by-case basis.

    Question 3. In March, Senator Blumenthal and I sent a letter to the 
NCAA regarding the serious gender inequities that were apparent during 
the NCAA College Basketball Tournaments. It is our understanding that 
these issues were not isolated to this past tournament or to basketball 
alone. How does the inequitable treatment of female student-athletes in 
NCAA post-season tournaments impact their opportunities to benefit off 
their NIL?
    Answer. We take the issue of gender equity very seriously. In 
addition to immediately addressing the concerns raised during the NCAA 
Division I Women's Basketball Tournament, we proactively retained the 
law firm of Kaplan Hecker & Fink LLP to conduct a comprehensive, 
thorough and external review of gender equity issues in connection with 
the NCAA and its championships. While the immediate attention of the 
review is on women's and men's basketball, the full review will include 
an examination across other sports and championships more broadly, 
examining challenges that may be unique to those programs. We 
anticipate the initial report and its recommendations will be available 
later this summer and look forward to working with you and your staff 
to further address this important issue.

    Question 4. It seems that everyone on this committee agrees that 
student-athletes should have the ability to benefit from their NIL. 
There are some members on this committee who believe this legislation 
should consider more than just NIL rights. With state legislation 
taking effect July 1st, do you believe it is important that Congress 
urgently pass legislation that strictly deals with NIL rights?
    Answer. A uniform, national standard for NIL is critical so that 
student-athletes can participate in national competition on a fair and 
level-playing field. Today, it is as important as ever to achieve this 
as student-athlete in as many as 15 states are subject to disparate NIL 
laws. We are committed to working together with Congress in a 
bipartisan manner to find swift and collective solutions that will best 
support current and future college athletes.
                                 ______
                                 
      Response to Written Questions Submitted by Hon. Mike Lee to 
                            Dr. Mark Emmert
    Question 1. Dr. Emmert, during the hearing we had a discussion 
about the NCAA's seeking of a safe harbor to prevent litigation 
surrounding NIL rules. Could you outline details of the ``safe harbor'' 
you are seeking and whether (and to what extent) such a ``safe harbor'' 
would need changes to antitrust laws?
    Answer. The NCAA is requesting limited, narrowly tailored liability 
protections against future and retroactive NIL litigation. While 
individual states are legislating NIL and pressing the Association to 
provide further opportunities for student-athletes, the NCAA and its 
member schools are targets by lawyers using the weapon of antitrust 
laws and serial litigation, which diminish our ability to enact such 
change and modernize rules to enhance opportunities for student-
athletes.
    College sports is unique in its higher education mission and the 
recent Supreme Court decision applying Federal antitrust law to NCAA 
rules underscores the need for Congressional assistance so that this 
mission may continue to thrive. Already, some of the same lawyers who 
have challenged other NCAA rule changes have brought suit against the 
NCAA over NIL, even before the NCAA had a chance to pass NIL proposals. 
This current lawsuit seeks a court to establish broad expansions of NIL 
uses contrary to legal precedent and Federal copyright law. The 
combination of state law passage and the Supreme Court decision led to 
the NCAA passing an interim NIL policy so that student-athletes could 
engage in NIL activities. However, the NCAA membership believe that 
more regulation of NIL is essential, and only Congress can provide that 
regulation or the validation for the NCAA to do so. Without 
appropriate, narrow protections, these litigation challenges to NIL 
enactment will continue and will significantly undermine the 
Association's ability to take meaningful action and adopt common sense 
and adequate solutions to support the evolving needs of student-
athletes.

    Question 2. Dr. Emmert, the NCAA has long stated that any changes 
adopted by the divisions must be in concert with a set of guiding 
principles and guidelines. One of those principles is ``enhancing 
principles of diversity, inclusion, and gender equity.'' What does 
``enhancing diversity, inclusion, and gender equity'' mean? And how 
does the NCAA apply this in their rules and enforcement of such rules?
    The NCAA has had a track record of undermining Title IX by pushing 
schools to allow biological males to compete in women's sports. Is 
allowing biological males to compete with women fair for the protection 
of women's rights?
    Answer. As a core value, the NCAA believes in and is committed to 
diversity, inclusion and gender equity among its student-athletes, 
coaches and administrators. We seek to establish and maintain an 
inclusive culture that fosters equitable participation for student-
athletes and career opportunities for coaches and administrators from 
diverse backgrounds. As part of these efforts, the NCAA has a long-
standing policy that provides a more inclusive path for transgender 
participation in college sports. Our approach--which requires 
testosterone suppression treatment for transgender women to compete in 
women's sports--embraces the evolving science on this issue and is 
anchored in participation policies of both the International Olympic 
Committee and the U.S. Olympic and Paralympic Committee. Inclusion and 
fairness can coexist for all student-athletes, including transgender 
athletes, at all levels of sport. Our expectation as the Association's 
top governing body is that all student-athletes are treated with 
dignity and respect.

    Question 3. Dr. Emmert, the NCAA has long prided itself on having 
its own ``legislative bodies'' that are made up of volunteers from all 
member schools, who debate, resolve, and set rules and standards to 
address its own emerging issues. What is the status of the NCAA's 
internal approval of Name, Image, and Likeness rules?
    Why, while you are seeking to pass your own NIL rules, are you now 
coming to Congress asking the Federal government to solve your internal 
issues?
    When Congress passes ``one-size-fits-all'' legislation it can have 
positive effects, but also negative consequences. Some of the bills 
being considered in Congress would dramatically federalize college 
athletics with new institutions and licensing boards. Would this 
federalization of college athletics increase burdensome compliance 
costs and harm consumers and athletes?
    Answer. The NCAA's three divisions adopted an interim policy on 
June 30, 2021 that allows all student-athletes to be compensated for 
their name, image and likeness effective July 1, 2021. While there was 
unequivocal membership support for allowing all college athletes to 
benefit from name, image and likeness opportunities, no matter where 
their school is located, the current legal and legislative environment 
prevented us from providing a more permanent solution and the level of 
detail student-athletes deserve. This interim policy was an important 
step to help mitigate confusion, inequities and legal risks for student 
athletes trying to navigate a patchwork of state laws, however a 
Federal standard that allows student athletes to benefit from their NIL 
is necessary in order to preserve a legal, equitable and consistent 
national framework around amateur athletics. We believe a pathway for 
practical and effective Federal legislation exists and we look forward 
to working with Congress to develop a solution that will best support 
student-athletes and provide clarity on a national level.

    Question 4. Dr. Emmert, just a few months ago, the NCAA was poised 
to proactively adopt NIL rules, but my understanding is that you asked 
to delay voting on these measures due to communications from the DOJ 
Antitrust Division, which offered to work out its concerns with you. 
What is the status of your conversations with the Antitrust Division? 
Have you been discussing your NIL rules with them?
    Answer. The national office has kept Department of Justice career 
staff informed of NCAA efforts to allow all student-athletes to 
participate in NIL activities since receiving correspondence from the 
antitrust division last winter. We believe our interim policy comports 
with the law and that it best supports and allows the most flexibility 
for student-athletes to take advantage of NIL opportunities while 
reducing confusion and uncertainty produced by a patchwork of state NIL 
laws.

    Question 5. Dr. Emmert, after the hearing, the Supreme Court 
decided against the NCAA in the case, National Collegiate Athletic 
Association v. Alston. While the Court was not considering questions in 
the NIL context, how does the court's decision affect the NCAA's 
consideration of NIL rules?
    Will the Court's decision delay any timeline set forth by the NCAA 
to adopt NIL rules?
    Answer. As referenced above, all three NCAA divisions adopted an 
interim policy which allows college athletes to be compensated for the 
use their NIL starting July 1, 2021. While the Association felt it was 
paramount to provide clarity, allay confusion and adopt policies that 
would provide all student-athletes the ability to benefit from their 
NIL, these policies do not provide a permanent solution. Student-
athletes are still required to adhere to disparate state NIL laws and 
the recent Supreme Court ruling only reinforces the need for 
Congressional assistance that will establish a uniform, Federal 
approach and preserve a consistent national framework for college 
sports.
                                 ______
                                 
   Response to Written Questions Submitted by Hon. Cynthia Lummis to 
                            Dr. Mark Emmert
    Question 1. What concerns have you heard from your member 
institutions regarding congressional proposals related to healthcare 
requirements for student athletes?
    Have schools expressed a hesitancy to offer collegiate sports 
should they be required to offer healthcare coverage to a student 
athlete beyond the timeline that the student athlete is enrolled at the 
college or university?
    Have schools indicated that other programs or services would be 
discontinued in order to finance the healthcare costs of student 
athletes beyond the timeline that a given student athlete is enrolled 
at the college or university?
    Answer. The health and safety of college athletes is of utmost 
importance for NCAA colleges and universities. Schools within the five 
conferences with autonomy, as well as many other institutions, 
currently provide medical care to student-athletes for athletically 
related injuries for at least two years after graduation. Because the 
NCAA membership includes schools with diverse resources and 
capacities--less than 30 of the NCAA's 1,100 athletic programs generate 
a net-positive revenue--schools across our membership have expressed 
concerns about any financial mandates which would dip into budgets that 
are already stretched thin. Many institutions have pointed to the 
hundreds of athletics programs that schools have already been forced to 
cut due to the financial pressures triggered by the pandemic. Even 
without these most recent financial pressures, the resources many 
schools pull from are finite and zero-sum, so any dollars being used to 
finance additional services beyond what they are already providing for 
student-athletes will either come out of existing programs and services 
or require the discontinuation of other sports, particularly those 
opportunities for the vast majority of student-athletes competing in 
non-revenue generating sports.

    Question 2. As Congress considers a national framework for NIL 
rights for student athletes, what safeguards should be put in place to 
protect student athletes from those that may wish to take advantage of 
their new NIL rights?
    Answer. We strongly support the ability of student-athletes to 
benefit from their name, image and likeness and we support safeguards 
to empower and protect these opportunities. The interim policy adopted 
by the membership expressly preserves the ability of a student-athlete 
to freely select, remain at, or transfer to a specific institution by 
prohibiting improper recruiting inducements. The policy also allows 
student-athletes to use a professional service provider, such as an 
agent, tax advisor, marketing consultant, attorney or brand management 
company to support their NIL activities. In addition to these policy 
safeguards, we look forward to working with member schools to develop 
and provide materials and resources to meet the evolving educational 
needs of student-athletes.

    Question 3. Do you believe that colleges and universities should 
have the right of approval for any partnership that a student athlete 
at their institution wishes to enter into?
    Answer. The NCAA's interim policy doesn't prohibit schools from 
restricting the type of NIL partnership into which a student-athletes 
may enter. Many of our member schools have voiced concerns about 
student-athletes entering into contracts which conflict with the values 
of their institution or in which the activity or product may be 
illegal. These concerns are reflected in many of the existing state 
laws and some Federal proposals and we would encourage consideration of 
these concerns in the development of any Federal framework.

    Question 4. Should student athletes be allowed to utilize images, 
logos, and other relevant items from their college or university in 
connection with potential paid sponsorships?
    Answer. The NCAA's interim policy doesn't prohibit schools from 
restricting the use of their images and logos, however most 
institutions have strict policies and procedures in place to regulate 
the use of their institutional marks.

    Question 5. A national NIL framework could lead to potential 
conflicts of interest between a college or university and student 
athletes when a student athlete plans to enter into a sponsorship with 
a competitor of an existing corporate sponsor of the college or 
university. How should Congress approach this specific issue?
    Answer. The NCAA's interim policy doesn't prohibit schools from 
restricting a student-athlete from entering into a contract which 
conflicts with a university contract. Many colleges and universities 
have expressed significant concerns about the inherent logistic and 
long-term challenges in allowing for conflicting contracts and wonder 
how they will be able to fulfill contractual obligations for which 
there is a concomitant student-athlete contract with competing or 
disparate clauses. We encourage Members of Congress to consider these 
concerns as they develop a national solution for NIL.

    Question 6. What is your level of concern that the NCAA's rules 
regarding the transfer of a student athlete from one institution to 
another combined with a new national framework for NIL could lead to 
``player shopping'' or bribing players to move from one school to 
another via the promise of additional sponsorships?
    Answer. It is critical that any national framework for NIL 
reinforces the NCAA's key principles of fairness and integrity. By 
maintaining the Association's prohibition on improper recruiting 
inducements in its interim NIL policy, the membership has provided new 
opportunities for student-athletes to benefit from their NIL while 
preserving the opportunity for student-athletes to transfer 
institutions and compete immediately.

    Question 7. What is your level of concern that without a cap on the 
amount of benefits a student athlete can receive or another appropriate 
mechanism, larger institutions with a wealthier donor base will be able 
to sway recruits to their schools?
    Answer. In adopting the interim NIL policy, the Association's rules 
prohibiting pay-for-play and improper recruiting inducements remain in 
effect. We encourage Members of Congress to consider these concerns as 
they develop a national solution for NIL.
                                 ______
                                 
     Response to Written Question Submitted by Hon. Jacky Rosen to 
                             Michael McCann
    Potential for Industry Restrictions. It is critical that any 
Federal and state NIL laws include robust protections for student 
athletes against predatory endorsement and contract practices, and that 
endorsement, contract, and promotional deals meet reasonable integrity 
standards. However, I am concerned that these integrity standards could 
potentially restrict critical industries--such as those in the tourism, 
hospitality, and gaming sectors--from participation in NIL 
opportunities. These industries fuel Nevada's economy and are the 
drivers of economic growth and job creation in my state.

    Question. Acknowledging that student athletes must be protected 
from association with illicit industries, might a prohibition on legal 
industry partners--such as those hotels and resorts offering gaming 
services in Nevada--potentially limit the scope of NIL endorsement and 
contract opportunities for Nevada student athletes?
    Answer.
    Dear Senator Rosen: Thank you for this question. I'm grateful for 
your interest in my perspective. I would be happy to elaborate on any 
of the points raised below.
    A prohibition on legal industry partners would limit the scope of 
NIL endorsement and contract opportunities for Nevada student-athletes. 
As you note, Nevada's critical industries include tourism, hospitality, 
and gaming sectors. Some businesses within those sectors likely wish to 
negotiate endorsement and influencing deals with Nevada student-
athletes and student-athletes in other states, particularly if they 
have cultivated national profiles.
    There are logical reasons for colleges to be concerned about 
associations between student-athletes and gambling. Over the years, 
several high-profile controversies involved student-athletes and 
gambling that raised both legal and fair play issues. NCAA rules also 
prohibit participation in sports wagering activities. In addition, age 
restrictions prevent many college students from partaking in legal 
gambling activities.
    At the same time, schools haven't refrained from signing 
sponsorship deals with companies in the gaming sector. Last year, for 
example, the University of Colorado signed a sponsorship contract with 
PointsBet. The company became the university's official sports betting 
partner.
    As I advocated during my testimony, individual schools should enjoy 
discretion in determining allowable--and prohibited--NIL opportunities 
for their student-athletes. Some schools might object to their student-
athletes signing contracts with companies in legal industries. A 
Federal NIL bill should ensure schools possess such discretion.
    However, I caution against drafting a Federal NIL bill that 
contains blanket prohibitions on legal industries. Other college 
students with marketable profiles aren't subject to such prohibitions. 
Further, industry labels can be difficult to define and can change as 
markets evolve and companies transform. To that end, as your question 
alludes, there are tourism and hospitality companies that operate in 
different industries, including gaming and non-gaming fields. It would 
also seem philosophically counterintuitive for schools to be able to 
sign sponsorships with gaming companies but for their student-athletes 
to be categorically barred from NIL opportunities with those same 
companies.
    Thank you for considering my response. I stand ready to continue to 
assist you and your colleagues.
                                 ______
                                 
   Response to Written Question Submitted by Hon. Raphael Warnock to 
                             Michael McCann
    Athlete Support. I am proud that we are elevating the health, 
professional, and academic needs of America's college athletes in the 
discussion regarding Name, Image, and Likeness (NIL) legislation. I 
believe that by working together with athletes, coaches, athletic 
directors, and other involved parties, we can develop NIL legislation 
that benefits athletes and universities.

    Question. What steps can Congress take to ensure that any NIL 
legislation protects athletes' access to quality education and physical 
and mental health resources?
    Answer.
    Dear Senator Warnock: Thank you for this question. I'm grateful for 
your interest in my perspective. I would be happy to elaborate on any 
of the points raised below.
    Congress could design NIL legislation that would require colleges 
to offer student-athletes training and other valuable resources that 
advance their education and health. Schools could furnish instruction 
on financial literacy, budgeting, taxes, contracts, life skills, time 
management, immigration (if a student-athlete is in the U.S. on a visa) 
and other topics related to NIL opportunities. Such training could help 
student-athletes best handle challenges that intersect with academic 
studies and health.
    Texas's NIL statute, which was passed with broad bipartisan 
support, contains a requirement that student-athletes must complete a 
workshop before pursuing NIL opportunities. While I would prefer such 
training be optional to student-athletes, schools being required to 
offer this form of training is sensible.
    There are other potential reforms that, while probably separate 
from NIL, would be important for Congress to consider. Ensuring that 
colleges guarantee physical and mental health care to student-athletes 
after they complete their athletic participation would benefit many 
student-athletes.
    Thank you for considering my response. I stand ready to continue to 
assist you and your colleagues.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Marsha Blackburn to 
                             Michael McCann
    Question 1. Who or what would you recommend overseeing 
implementation of NIL?
    Answer. Dear Senator Blackburn: Thank you for these questions. I'm 
grateful for your interest in my perspective. I would be happy to 
elaborate on any of the points raised below.
    I recommend that Congress pass a bill focused on NIL and that it 
contains the features I outlined in my written testimony. For example, 
I advise that schools maintain autonomy when deciding permissible NIL 
deals, so that a private school can set parameters reflecting its 
values. I also urge that both student-athletes and schools have 
disclosure requirements whereby they must reveal information about 
their sponsorships.
    Consistent with my recommendation, I see an opportunity for a 
national entity, separate from the NCAA, to oversee implementation of 
NIL.
    Several of the bills introduced in Congress envision such an 
entity. For example, Senator Moran's bill, the Amateur Athletes 
Protection and Compensation Act of 2021, proposes the creation of the 
Amateur Intercollegiate Athletics Corporation (AIAC). The AIAC would, 
among other functions, determine the eligibility of an individual to 
serve as an agent to a student-athlete and offer arbitration services 
to resolve conflicts. Meanwhile, Ranking Member Wicker's bill, the 
Collegiate Athlete Compensation Rights Act, puts forward the 
Independent Entity for Intercollegiate Athletics. This independent, 
self-regulatory, nonprofit corporation would be led by a combination of 
student-athletes and members of schools and conferences and focus on 
NIL activities.
    A national NIL entity should include as its leaders conference 
executives, athletic directors, current and former student-athletes and 
other stakeholders and experts. It could oversee the licensing of 
agents to student-athletes, furnish dispute resolution services and 
provide market value reviews of proposed endorsement deals when there 
are concerns that those deals might conceal pay-for-play arrangements.
    While I recognize a national entity might initially seem 
duplicative or redundant to the NCAA, I don't see it as such. It would 
have specific, carefully defined duties that currently fall outside the 
NCAA's reach.
    The NCAA is not in the business of student-athlete NIL, as we know 
from its longstanding refusal to allow student-athletes the same 
identity rights as other college students and, more generally, other 
Americans. The NCAA's allowance of student-athlete NIL on July 1, 2021, 
only came as it faced the choice of (1) seeking restraining orders in 
more than a dozen states where NIL statutes or governors' NIL executive 
orders were set to take effect, (2) allowing student-athletes in some 
states to exercise different intellectual property rights than those in 
other states or--as the NCAA ultimately chose--(3) hastily adopting 
interim NIL rules. A national NIL entity would operate in a space in 
which the NCAA does not seem to claim ownership or possess the 
requisite expertise.
    Along those lines, I would keep this national entity's mission 
narrowly-tailored to NIL. This would ensure it not duplicate or 
conflict with NCAA functions. It would also help the entity avoid 
``mission creep'' and related concerns where an entity becomes more 
powerful than originally intended.

    Question 2. In the NBA, a player is allowed to wear whatever shoes 
they want during a basketball game. I understand that some universities 
are concerned there could be a potential negative impact on their 
athletic programs if manufacturers can go directly to student-athletes 
for individual footwear agreements.
    Do you believe that institutions should have the ability to require 
certain footwear during mandatory team activities?
    Answer. Yes, I believe that institutions should have the ability to 
require certain footwear during mandatory team activities. I hold this 
view for three reasons.
    First, many institutions are parties to multi-year sponsorship 
agreements with footwear and apparel companies. Those agreements are 
predicated in part on student-athletes wearing apparel and footwear 
that bear the sponsor's logo. A law or rule that prevents an 
institution from meeting its contractual duties could spark breach of 
contract litigation.
    Second, institutions having this ability would not automatically 
mean that every institution invokes it. Basic market incentives could 
play an important role. Some institutions might decide they could 
enhance their recruiting efforts if they allowed student-athletes to 
sign their own footwear agreements for games. Those institutions could 
seek sponsorship agreements that permit such usage or, if none are 
available, decline to pursue sponsorships altogether. I suspect the 
market would adjust to maximize the interests of all involved.
    Third, even if an institution requires certain footwear during 
mandatory team activities, the student-athlete could still enter into 
deals to market other footwear on social media platforms and on 
commercials.
    While I believe that schools should have the individual ability to 
decide to require certain footwear, they should not conspire in their 
decision-making on whether to impose such a requirement. Such collusive 
activity would raise antitrust concerns.

    Question 3. It seems that everyone on this committee agrees that 
student-athletes should have the ability to benefit from their NIL. 
There are some members on this committee who believe this legislation 
should consider more than just NIL rights.
    With state legislation taking effect July 1st, do you believe it is 
important that Congress urgently pass legislation that strictly deals 
with NIL rights?
    Answer. Yes, I believe it is important that Congress urgently pass 
legislation that strictly deals with NIL rights. I recognize there are 
other areas of potential reform that are likewise important. They too 
should be explored. However, those topics involve different areas of 
law and policy and could be addressed in separate legislation.
    NIL is fundamentally about intellectual property law, specifically 
the right of publicity and longstanding NCAA rules that suppress 
student-athletes from using this right--a right they already have and 
that their classmates and other Americans freely enjoy. I urge Congress 
to address that specific issue.
    Also, consider what has transpired since July 1. Literally within 
seconds of endorsement deals becoming possible, student-athletes 
announced on social media and through traditional media they had signed 
contracts. This was, one hand, a celebratory moment. For those of us 
who have long advocated for student-athletes to enjoy the same rights 
as their classmates, including professional actors and musicians, 
justice had arrived. Yet on the other hand, the change happened 
abruptly, with many institutions left unsure and confused about how to 
proceed. There is also legitimate trepidation about how well informed 
the student-athletes are in their negotiations and in understanding 
contracts they sign.
    On July 6, I spoke with the compliance director of a state 
university with a prominent athletics program. The director told me 
student-athletes had signed deals without consulting the program to see 
if there were any conflicts. The program is also unsure about which 
student-athletes have signed deals--the program is monitoring social 
media, hoping to gleam information about their student-athletes' 
dealings while conceding that approach is obviously flawed. There is 
also uncertainty about from whom student-athletes are receiving advice 
for negotiations and worries that student-athletes might not fully 
understand contract terms that an attorney would interpret and explain. 
Likewise, there is nervousness about whether the student-athletes are 
misusing school logos and other intellectual property as part of their 
arrangements.
    While I generally support states' autonomy in handling their 
economies and while I applaud student-athletes finally being able to 
enjoy the free market that has long been denied them, the argument for 
a Federal NIL statute is even stronger now than it was before July 1.
    Thank you for considering my responses. I stand ready to continue 
to assist you and your colleagues.
                                 ______
                                 
   Response to Written Question Submitted by Hon. Raphael Warnock to 
                           Matthew J. Mitten
    Athlete Support. I am proud that we are elevating the health, 
professional, and academic needs of America's college athletes in the 
discussion regarding Name, Image, and Likeness (NIL) legislation. I 
believe that by working together with athletes, coaches, athletic 
directors, and other involved parties, we can develop NIL legislation 
that benefits athletes and universities.

    Question. What steps can Congress take to ensure that any NIL 
legislation protects athletes' access to quality education and physical 
and mental health resources?
    Answer. Intercollegiate athletes' access to quality education and 
physical and mental health resources are important issues. However, I 
do not believe these issues should be inextricably tied to the more 
time sensitive need for a Federal law providing all intercollegiate 
athletes with uniform NIL rights, which is necessary to provide equity 
and fairness nationwide. Nor should the lack of bipartisan consensus 
regarding the need for Federal legislation to address intercollegiate 
athlete education and health resource issues preclude Congressional 
enactment of a Federal NIL rights law, which has bipartisan support and 
would provide much needed national uniformity and legal certainty. Any 
Federal mandates regarding intercollegiate athlete education and health 
issues (particularly if unfunded) should have a strong justification 
supported by sound public policy objectives. Therefore, Congress should 
first identify whether, how, and why college athletes do not have 
access to quality higher education or needed physical and mental health 
resources; determine their respective specific causes and reasons; 
consider any viable non-legislative solutions; and evaluate whether 
Federal legislation would provide a better, cost-effective alternative 
solution than any voluntary internal reforms by a national 
intercollegiate sports governing body and its member athletic 
conferences and educational institutions.
                                 ______
                                 
  Response to Written Questions Submitted by Hon. Marsha Blackburn to 
                           Matthew J. Mitten
    Question 1. Who or what would you recommend overseeing 
implementation of NIL?
    Answer. Congress should establish an independent Federal 
administrative agency with rule-making and enforcement authority to 
require compliance with Federal name, image, and likeness (NIL) rights 
legislation, including, but not limited to, achieving the following 
objectives: 1) ensuring that a student-athlete's individual or pro rata 
compensation for NIL rights does not exceed the fair market value of 
the licensing of these rights or constitute compensation for individual 
or team athletic performance in the particular sport (``pay for 
play''); and 2) registering NIL agents and regulating their recruiting, 
solicitation, and representation of student-athletes in connection with 
NIL rights agreements. In exercising its rule-making and enforcement 
authority, this agency should comply with the Administrative Procedure 
Act (APA), 5 U.S.C. Sec. 551 et seq., and any legal challenges to the 
exercise of its authority should be resolved by arbitration pursuant to 
the process established by the Amateur Sports Act, 36 U.S.C. Sec. 22051 
et seq., using arbitral review standards that are the same as those 
applicable to judicial review of a Federal administrative agency's 
decision under the APA.

    Question 2. I understand that NIL rights are now a matter of state 
law, and that the state laws uniformly provide that there are no NIL 
rights in the broadcast of a sports event or game. When Congress passes 
a Federal law with a preemptive effect, do you believe we need to make 
it absolutely clear that we aren't creating a new NIL right in 
broadcasts?
    Answer. Yes, consistent with state laws and their general judicial 
interpretation by Federal courts, it is extremely important for 
Congress to clearly define the scope of intercollegiate athletes' NIL 
rights and to expressly state that their NIL rights do not encompass 
the use of their names or any other aspects of their individual persona 
in any media broadcasts (e.g., Internet, radio, television) of games or 
athletic events in which they participate. Doing so is necessary to 
provide legal certainty and national uniformity; to preclude current 
and future re-litigation of this issue; and to prevent a lacuna (i.e., 
gap) in Federal NIL legislation from potentially being used as the 
basis of future efforts to professionalize college sports by asserting 
that student-athletes have an NIL right to media broadcast revenues 
generated by intercollegiate sports produced by college sports 
governing bodies and/or their respective athletic conferences and 
member educational institutions (i.e., a form of ``pay for play'').

    Question 2a. Would NIL rights in broadcasts be impractical, as any 
single participant could hold out and block the broadcast?
    Answer. Yes, because each student-athlete owns her or his 
individual NIL rights (and can hire an NIL agent), it is possible that 
a participating individual or group of student-athletes could refuse to 
license their respective rights in connection with the broadcast of one 
or more intercollegiate games or athletic events. Unless it is clear 
that an intercollegiate athlete's NIL rights do not include usage of 
one's name and other individual persona in media broadcasts of games 
and sports events, broadcasters as well as college sports governing 
bodies, athletic conferences, and their member educational institutions 
would be liable for infringement (and likely substantial damages) 
unless all participating student-athletes authorize the broadcasts.

    Question 3. In the NBA, a player is allowed to wear whatever shoes 
they want during a basketball game. I understand that some universities 
are concerned there could be a potential negative impact on their 
athletic programs if manufacturers can go directly to student-athletes 
for individual footwear agreements. Do you believe that institutions 
should have the ability to require certain footwear during mandatory 
team activities?
    Answer. Yes, if a sports footwear company provides shoes to 
student-athletes as part of its sponsorship of a college or 
university's intercollegiate athletics program and its footwear is a 
legitimate component part of the team's uniform, the school should have 
this authority to prevent harm to or interference with this sponsorship 
contract, which benefits all of its intercollegiate athletes. A 
school's decision to require its intercollegiate athletes to wear its 
sponsor's footwear during mandatory team activities such as games, 
athletic events, and public appearances would not preclude individual 
student-athletes from entering into potentially very lucrative NIL 
agreements with competitors of its footwear sponsor providing rights 
that do not conflict with this reasonable requirement.

    Question 4. It seems that everyone on this committee agrees that 
student-athletes should have the ability to benefit from their NIL. 
There are some members on this committee who believe this legislation 
should consider more than just NIL rights. With state legislation 
taking effect July 1st, do you believe it is important that Congress 
urgently pass legislation that strictly deals with NIL rights?
    Answer. Yes, equity and fairness require that all intercollegiate 
athletes have uniform NIL rights regardless of their respective state 
of residence or educational institution's location. Currently, there 
are no nationally uniform NIL rights laws or rules for all student-
athletes who participate in intercollegiate athletics, so there is a 
prevailing ``wild west'' environment. As of July 1, 2021, eight 
different (and, in some instances, conflicting) state intercollegiate 
athlete NIL rights laws became effective. Effective the same date, to 
enable all incoming and current student-athletes in all sports to have 
the ability to earn NIL rights income, the NCAA Divisions I, II, and 
III governing bodies approved a uniform interim policy suspending 
existing NCAA rules prohibiting their receipt of such income as a 
condition of maintaining their intercollegiate athletics eligibility. 
This policy requires student-athletes to comply with the NIL law of the 
state in which their school is located or the specific rules of their 
individual schools if there is no applicable state law, while 
prohibiting ``pay for play'' and improper recruiting inducements by 
NCAA member schools. According to NCAA president Mark Emmert, ``With 
the variety of state laws adopted across the country, we will continue 
to work with Congress to develop a solution that will provide clarity 
on a national level. The current environment--both legal and 
legislative--prevents us from providing a more permanent solution and 
the level of detail student-athletes deserve.'' Michelle Brutlag 
Hosick, NCAA adopts interim name, image and likeness policy (June 30, 
2021) available at https://www.ncaa.org/about/resources/media-center/
news/ncaa-adopts-interim-name-image-and-likeness-policy.

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