[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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available online: http://www.govinfo.gov
_________
U.S. GOVERNMENT PUBLISHING OFFICE
54-371 PDF WASHINGTON : 2023
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
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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.
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\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.''
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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.
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\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).
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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.
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\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.
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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.
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\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.
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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.
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\7\ Sources: ncaa.org and vox.com.
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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.
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\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.
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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.
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\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?
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\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\
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\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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