[Senate Hearing 118-577]
[From the U.S. Government Publishing Office]
S. Hrg. 118-577
NAME, IMAGE, AND LIKENESS,
AND THE FUTURE OF COLLEGE SPORTS
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HEARING
BEFORE THE
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED EIGHTEENTH CONGRESS
FIRST SESSION
__________
OCTOBER 17, 2023
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Serial No. J-118-35
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Printed for the use of the Committee on the Judiciary
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
www.judiciary.senate.gov
www.govinfo.gov
__________
U.S. GOVERNMENT PUBLISHING OFFICE
58-971 PDF WASHINGTON : 2025
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COMMITTEE ON THE JUDICIARY
RICHARD J. DURBIN, Illinois, Chair
SHELDON WHITEHOUSE, Rhode Island LINDSEY O. GRAHAM, South Carolina,
AMY KLOBUCHAR, Minnesota Ranking Member
CHRISTOPHER A. COONS, Delaware CHARLES E. GRASSLEY, Iowa
RICHARD BLUMENTHAL, Connecticut JOHN CORNYN, Texas
MAZIE K. HIRONO, Hawaii MICHAEL S. LEE, Utah
CORY A. BOOKER, New Jersey TED CRUZ, Texas
ALEX PADILLA, California JOSH HAWLEY, Missouri
JON OSSOFF, Georgia TOM COTTON, Arkansas
PETER WELCH, Vermont JOHN KENNEDY, Louisiana
LAPHONZA BUTLER, California \1\ THOM TILLIS, North Carolina
MARSHA BLACKBURN, Tennessee
Joseph Zogby, Chief Counsel and Staff Director
Katherine Nikas, Republican Chief Counsel and Staff Director
\1\ At the time of the hearing, Senator Butler was not a Member of the
Committee on the Judiciary. The Senate agreed to S. Res. 411, assigning
Senator Butler to the Committee later that day, October 17, 2023.
C O N T E N T S
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OPENING STATEMENTS
Page
Durbin, Hon. Richard J.
Prepared statement........................................... 54
Blumenthal, Hon. Richard......................................... 1
Graham, Hon. Lindsey O........................................... 3
WITNESSES
Manchin, Hon. Joe, III, a U.S. Senator from the State of West
Virginia....................................................... 46
Baker, Charlie................................................... 4
Prepared statement........................................... 56
Responses to written questions............................... 59
Bodensteiner, Jill............................................... 13
Prepared statement........................................... 85
Responses to written questions............................... 88
Huma, Ramogi..................................................... 10
Prepared statement........................................... 97
Responses to written questions............................... 102
Jones, Walker.................................................... 12
Prepared statement........................................... 116
Responses to written questions............................... 122
Petitti, Tony.................................................... 6
Prepared statement........................................... 134
Responses to written questions............................... 138
Swarbrick, Jack.................................................. 15
Prepared statement........................................... 150
Responses to written questions............................... 154
Thomas, Trinity.................................................. 8
Prepared statement........................................... 161
Responses to written questions............................... 163
APPENDIX
Items submitted for the record................................... 53
NAME, IMAGE, AND LIKENESS, AND
THE FUTURE OF COLLEGE SPORTS
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TUESDAY, OCTOBER 17, 2023
United States Senate,
Committee on the Judiciary,
Washington, DC.
The Committee met, pursuant to notice, at 10:06 a.m., in
Room 216, Hart Senate Office Building, Hon. Richard Blumenthal
presiding.
Present: Senators Blumenthal [presiding], Whitehouse,
Klobu-char, Coons, Booker, Padilla, Ossoff, Graham, Grassley,
Cornyn, Lee, Cruz, Hawley, Cotton, Kennedy, Tillis, and
Blackburn.
Also present: Senator Manchin.
OPENING STATEMENT OF HON. RICHARD BLUMENTHAL,
A U.S. SENATOR FROM THE STATE OF CONNECTICUT
Senator Blumenthal. The hearing of the Judiciary Committee
is called to order. Please take your seats, and welcome to all
of our witnesses.
I am very grateful to my colleague Senator Durbin for
giving me this opportunity to chair the hearing, and we wish
him a very, very speedy recovery. He evidently had knee
surgery. I believe it may have been because of a college sports
injury. And I don't know exactly all the details of his sports
prowess. I've seen him in the Senate gym.
But all of you know our colleague Senator Booker, who is
truly a college athlete star and very knowledgeable on this
topic and a partner with me in long-standing efforts to reform
the system.
I want to thank our Ranking Member, Senator Graham, who's
been very interested and involved in this issue. And I'm going
to put in the record a statement from Chairman Durbin before I
begin my remarks.
[The prepared statement of Chair Durbin appears as a
submission for the record.]
Senator Blumenthal. We all know, today, that this system of
college athletes is in need of reform. That's why you're here.
It's in need of reform now, which is why we're here. The
system, all too long and often, has been exploitive and abusive
financially, emotionally, physically. And we have had a number
of hearings in other Committees--the Commerce Committee, as
well as this one. And I am hopeful that this very impressive
bipartisan group of witnesses can help to guide us toward
specific steps with a sense of urgency that is appropriate for
this kind of problem.
The system, very simply, has been far more focused on
profits than protecting students, and it has failed to
safeguard them against the abusive and often exploitive system
that takes advantage of their blood, sweat, and tears in
creating a $16 billion industry.
Make no mistake, it is a $16 billion or more industry that
is fueled by the blood, sweat, and tears of these athletes, and
all too often, they fail to benefit from it.
Many States have passed NIL legislation. The Supreme Court
has ruled in a 9-to-0 decision that has forced, in a sense, a
day of reckoning. And I believe strongly that we need a
national standard for name, image, and likeness, mainly to
protect the athletes against potential disreputable agents or
unscrupulous deals in a race to the bottom among a patchwork of
States.
That's important not only to protect the schools against
unfair competition but also the athletes, themselves. And the
idea of a national standard is what brings us here today in a
very immediate sense.
Student-athletes are better off now than they were, and
many of your organizations have recognized the need for change.
Charlie Baker, the head of the NCAA, specifically outlined some
of the reforms that they have taken voluntarily.
We've all read and heard alarming examples of these
instances of exploitation and abuse. Every year, at least two
college football players die of heat stroke. Just 3 months ago,
Myzelle Law, from MidAmerica Nazarene, in Kansas, was found in
the locker room after football practice, suffering a seizure
with a body temperature of 108 degrees. Myzelle never
recovered, and he died a week later.
Heat stroke is one of the most gruesome ways to die. Truly
horrible. It's absolutely preventable. These deaths are a
product of bullying, a win-at-all-costs culture that is far too
common in athletic departments.
That culture creates the condition that costs the lives of
talented young men and women like Myzelle, and it fosters the
abusive hazing and sexual assault that we've seen at Baylor,
Northwestern, San Jose State, and elsewhere.
The NCAA, in past years, has failed to address this abuse
as quickly and effectively as it should have. I agree that we
should set a strong national standard and we ought to enshrine
it in Federal law--enforceable, not just put it in the statutes
but make sure that it is enforceable either through the
separate corporation that Senator Booker and I have proposed,
to enforce an Athletes Bill of Rights, or through some other
means.
As importantly as NIL, though, we need to address
enforceable health and safety standards much more broadly and
comprehensively. We need to ensure that college athletes are
able to get an education in return for their blood, sweat, and
tears.
In July, I was proud to announce a draft bipartisan bill
with Senator Booker and Senator Moran, the College Athletes
Protection and Compensation Act. Our draft legislation would
establish a strong national NIL standard, but it would also
protect the well-being and educational success of student-
athletes.
Our student-athletes rights package would set health and
safety standards to protect college athletes from serious
injury, mistreatment, abuse, and even death. It would guarantee
tuition and aid to student-athletes that suffer a career-ending
injury or are cut from a team. It would establish a medical
trust fund to cover health care for long-term injuries
resulting from college athletes' participation in sports. And
it would bring transparency to the NIL market and to college
athletes programs.
We've talked about these kinds of reforms for more than a
decade. The time for action is now. There are lives ongoing,
careers at stake, individuals who really need and deserve this
kind of protection, and I'm very grateful to Senator Durbin and
the Committee for addressing this topic. And I'd like to turn
now to the Ranking Member.
OPENING STATEMENT OF HON. LINDSEY O. GRAHAM,
A U.S. SENATOR FROM THE STATE OF SOUTH CAROLINA
Senator Graham. Thank you, Senator Blumenthal. Yes, we're
hoping that Senator Durbin gets back soon. I don't know what
his 40 time will be after the knee injury, but in my case, I
just want to run 40. I don't care how long it takes. I'm going
to try to get Senator Booker's number and put it online, see if
it'll make a little bit of money. What number were you?
Senator Booker. 81.
Senator Graham. 81. So, we meet today with the world on
fire. To my Democratic colleagues, you have been very good to
work with in trying to find a response to this horrific attack
by Hamas against Israel that will make the world a better and
safer place.
So, as we talk about one of the more fun things in American
life, college sports, I just want to let everyone out there
know that this Committee is working hard to try to find a way
to be helpful.
In terms of being helpful, where I come from, South
Carolina--and many people on this side--college football is not
a sport, it's a religion. And we're very concerned about where
this thing is going.
I think there's a lot of bipartisan support; there needs to
be a national standard. All of your schools need to have some
guidance that applies to everybody, all the time. I think if
you make college athletes employees, you're going to knock out
sports programs for Division II. A lot of non-revenue-
generating sports, particularly women's athletics, will go
away.
As you try to elevate some of the star players to make sure
they get a piece of the pie, we don't want to create an
environment where Division II or smaller Division I schools
will be knocked out of the game because they can't afford it. I
want it still to be an amateur sport, to the best that we can.
So, to me, I want to associate myself with what Senator
Blumenthal said. There needs to be a Federal standard.
Utah is offering everybody on the team a new truck. There's
no end to this. You know, donors are out there competing
ferociously. In pro sports, you sign a contract. That means
nobody's going to take that player away from you for a certain
period of time. You've got a chance to get your money back.
Between the portal and NIL, college football is in
absolutely chaos, and we need to fix it. And so national
legislation is the only way to fix it, and in our desire to
protect the athlete, which is a worthy goal, we can't destroy
by making it so expensive, non-revenue-generating sports. And
we want to make sure that athletes at every level in college--
smaller colleges--can play, too. That's the goal. I look
forward to trying to find a solution. Thank you.
Senator Blumenthal. Thanks, Senator Graham. I'll introduce
the witnesses, and then we'll swear them in and turn to their
statements.
We're pleased to have all of you here today.
Charlie Baker, our first witness, is president of the
National Collegiate Athletic Association, or the NCAA. Mr.
Baker is a former basketball player at Harvard, who also
happened to serve as Governor of Massachusetts from 2015 to
2023.
We're joined by Tony Petitti, Commissioner of the Big Ten
Conference. The Big Ten, one of the so-called Power Five
conferences, is home to several powerhouse college athletic
programs, which I know Chair Durbin would like to note includes
the University of Illinois and Northwestern University.
Our next witness is Trinity Thomas, an All-American gymnast
at the University of Florida. Among her many accomplishments,
Ms. Thomas is a two-time Honda award winner, given to top
female athletes in college gymnastics, and she holds the NCAA
record for perfect 10s, with 28. She is currently pursuing her
second master's degree and has built an impressive NIL
portfolio.
We are also joined by Ramogi Huma, executive director of
the National College Players Association, an organization he
helped to found for college athletes' rights. Mr. Huma earned a
bachelor's degree and a master of public health degree from
UCLA, where he was a member of the football team. And he's been
very helpful in the past, not only in advocacy but also in
helping us shape legislation.
Mr. Walker Jones, executive director of The Grove
Collective, an entity designed to help athletes at the
University of Mississippi monetize their NIL rights. Mr. Jones
graduated with a bachelor's degree from the University of
Mississippi, where he was a member of the college football
team.
Ms. Jill Bodensteiner, vice president and director of
athletics at St. Joseph's University, a member of the board of
directors of Women Leaders in College Sports. She can speak to
the perspective of how smaller universities are dealing with
the advent of NIL.
And, finally, Jack Swarbrick, vice president and director
of athletics at the University of Notre Dame. Mr. Swarbrick has
helped to shape modern college athletics. Earlier this year, he
co-authored an op-ed in The New York Times discussing the state
of college sports.
We welcome all of you, and would you please rise to take
the oath, which is our custom?
[Witnesses are sworn in.]
Senator Blumenthal. Thank you. Mr. Baker, we'll begin with
your testimony, please.
STATEMENT OF CHARLIE BAKER, PRESIDENT, NATIONAL COLLEGIATE
ATHLETIC ASSOCIATION, INDIANAPOLIS, INDIANA
Mr. Baker. [Off microphone.]
Senator Blumenthal. I think your microphone may not be on.
Mr. Baker. Better?
Senator Blumenthal. Yes.
Mr. Baker. Okay. Thank you very much, Senator Blumenthal.
To you and to Ranking Member Graham and the distinguished
Members of the Committee, I want to start by thanking you all
for the opportunity to be here today.
Before I begin, I do want to say that on behalf of college
sports, generally, we condemn the recent violence perpetrated
by Hamas. These acts were horrific, hard to comprehend, and our
thoughts are with the people of Israel and the innocents that
are involved in that conflict.
In advance of my testimony today, we did speak with leaders
from all three divisions, and others, to ensure that I'm
speaking for as broad a collection of NCAA voices as possible.
That this Committee has made time to discuss college sports
speaks to their importance, and we very much appreciate it.
College sports are a ticket to an education for a half a
million young people, generating $4 billion in college aid.
College sports are cornerstones to countless campuses, and in
turn they are cornerstones for thriving communities. College
sports are America's Olympic pipeline, with 75 percent of the
2022 Team USA coming up through NCAA sports.
College sports are also long overdue for a change, but I'm
proud to say we have been doing something about that. Since I
took over as NCAA president 7 months ago, we've created a
student-athlete health insurance fund that will provide all
athletes across all three divisions access to health insurance
for athletically related injuries for up to 2 years post-
eligibility or graduation.
Every DI school is now required to provide health care
benefits, degree completion funds for at least 10 years after
they stop competing, and mental health services to their
student-athletes. Scholarships are protected, and schools must
offer academic counseling, financial literacy, and career
preparation. We've prioritized equitable championship
experiences, and I've directed national office leadership to
put gender equity at the center of everything they do.
The NCAA also continues to advance commonsense changes to
sports betting policies and enforcement policies that penalize
the adults, not the young people.
And the NCAA is moving NIL bylaws forward, to improve
outcomes for student-athletes--we share your concern there--
because they deserve to profit from their NIL, free from
manipulation. These changes are long overdue, and they're
happening now, thanks in part to calls for action from Members
of this Committee and from the student-athletes themselves.
There are some issues college sports face that we, the
NCAA, cannot address on our own. Our new NIL bylaw proposal
requires student-athletes to disclose certain information to
their schools only and offers incentives to use fair contract
terms and reputable agents. We want to partner with Congress to
go further and curtail inducements and prevent collectives and
other third parties from tampering with students, and we would
like to have a national standard where a patchwork of laws, as
you pointed out, Senator Blumenthal, currently exists.
Schools, conferences, and the NCAA are making changes to
the benefits that we provide. And to enable enhanced benefits
while protecting programs from a one-size-fits-all approach, we
support codifying current regulatory guidance into law by
granting student-athletes special status that would affirm that
they are not employees. And on this point, we're not alone.
I visited Augustana College in South Dakota a few months
ago, with Senator John Thune, to hear student-athletes talk
about why they don't want to become employees. The elected
student-athlete representatives from all three divisions are on
record saying the same thing. They fear the current legal
landscape turning them into employees, and they have called for
action.
The athletic conferences representing the vast majority of
Historically Black Colleges and Universities have also
supported this policy. They believe the progress they've made
educating young people of color would be at risk if their
athletic departments had to become employers.
We also think there's opportunity for Congress to ensure,
in this new era of collectives, that there's no discrimination
on the basis of race, gender, or sport in the marketing or
facilitation of NIL agreements.
And, last, we want to partner with Congress to grant
limited liability protection, so we can set reasonable
competition standards and enforce student health and well-being
requirements with direction from Congress.
Let me just close with this. We're grateful for the time
you're giving us today and appreciate the chance to exchange
ideas with you. And I learned, serving as Governor, that the
legislation branch has immense power and rightfully yields it
sparingly. But I believe we can find common ground on this, and
I look forward to helping student-athletes succeed in this new
era. Thank you.
The prepared statement of Mr. Baker appears as a submission
for the record.]
Senator Blumenthal. Thanks, Governor Baker. Mr. Petitti?
STATEMENT OF TONY PETITTI, COMMISSIONER,
BIG TEN CONFERENCE, ROSEMONT, ILLINOIS
Mr. Petitti. Thank you. Senator Blumenthal, Ranking Member
Graham, and distinguished Members of the Committee, thank you
for the opportunity to discuss the pertinent issues impacting
collegiate athletics, including name, image, and likeness,
commonly known as NIL. And thank you for your strong commitment
to finding legislative solutions.
We have been working closely with Senators Cruz,
Blumenthal, and Booker on their legislative proposals, and I am
encouraged to see there is strong interest in addressing the
issues facing college sports.
My name is Tony Petitti, and since May I've been proud to
serve as the seventh commissioner of the Big Ten Conference,
the country's oldest Division I collegiate conference. Although
I've only been the Big Ten commissioner for 6 months, I have a
long history of working in professional and college sports,
particularly in Major League Baseball.
I'm also a former student-athlete--was the first in my
family to attend college. Like millions of Americans, being a
college athlete helped me pursue a higher education while
continuing to follow my passion for sports, which for me was
baseball.
The Big Ten Conference is deeply committed to academics,
research, and broad-based sports opportunities for all
students. We take great pride in the success of our student-
athletes, both inside and outside the classroom during their
time at Big Ten institutions, as well as afterwards. Student-
athlete health and welfare is a top priority for us at the Big
Ten. We provide both on-campus and post-separation health care,
which guarantees that our student-athletes have access to
medical care and mental health services both during and after
their time on campus.
While the Big Ten and other Autonomy Five conferences
currently provide these important benefits, the Big Ten is open
to and supports efforts to discuss additional health and
wellness benefits for our student-athletes.
As we've all discussed in recent years, the long-standing
``rat'' student-athlete model has undergone an incredible and
rapid transformation. We see this confluence of events as an
opportunity to fundamentally modify the dynamics that exist for
student-athletes.
We are prepared to modernize our guidelines to create a new
framework for collegiate athletics, one that more fairly
provides benefits to student-athletes directly from member
institutions, maintains broad-based sports opportunities for
men and women, and upholds Title IX.
We see four main challenges that must be addressed by
proper regulation to better protect and serve our student-
athletes and to support a new governing structure.
First, there are now more than 30 different State laws
related to name, image, and likeness. Many States are passing
NIL and associated laws designed specifically to provide their
in-State universities with a competitive advantage in
recruiting through the promise of NIL. To provide certainty,
equity, and competitive balance, a uniform Federal statute is
needed to preempt this network of State laws.
Second, because of a combination of court decisions,
current litigation, and State actions, the NCAA is unable to
make or enforce commonsense regulations governing athletics.
Through legislation, Congress should grant limited and
conditional liability protections so that we can set and
enforce reasonable competitive standards and promote student-
athlete welfare.
Third is the ability to effectively identify true NIL deals
from pay-for-play or inducement schemes, particularly with the
precipitous rise of collectives. Student-athletes are
frequently being induced by collectives to attend specific
institutions and transfer from one school to another without a
true NIL deal. This has resulted in a pay-for-play system
primarily controlled by boosters and executed under the guise
of NIL.
We are concerned that management of college athletics is
shifting away from the universities to collectives. The Big Ten
will continue to support students making true business deals
off of their name, image, and likeness and provide student-
athletes the freedom to choose the institutions from which they
will obtain an education.
We do not, however, support such activity when it is tied
to a pay-for-play scheme disguised as NIL. Simply put, as the
collegiate sports environment has evolved, so too have the
motivations and goals of many collectives, which are now trying
to create competitive advantages and are not subject to Title
IX.
We are already seeing that payments from collectives will
not be easy to sustain. Without action from Congress, we will
continue to lack the ability to manage collegiate athletics.
Finally, I want to touch on the question of whether
student-athletes should be classified as employees. Not only is
employment status complex, but it is contrary to the
educational model that has long flourished in American
collegiate athletics.
The Big Ten strongly supports congressional proposals that
would codify benefits for student-athletes, that guarantee
consistency across States and sports, without the need to
classify student-athletes as employees.
With many new challenges on the horizon, we look to
Congress for your partnership in helping us embrace change and
ensure that we tackle these new challenges effectively, while
celebrating and promoting college athletics. Thank you, again,
for the opportunity to appear before you today, and I look
forward to answering any questions you may have.
[The prepared statement of Mr. Petitti appears as a
submission for the record.]
Senator Blumenthal. Thank you, Mr. Petitti. Ms. Thomas?
STATEMENT OF TRINITY THOMAS, GYMNAST,
UNIVERSITY OF FLORIDA, GAINESVILLE, FLORIDA
Ms. Thomas. Thank you for giving me the opportunity to
speak here today.
I've spent the last 5 years competing on the University of
Florida's gymnastics team. Over the course of my time at UF,
I've completed my bachelor's degree in applied physiology and
kinesiology and my master's degree in health education and
behavior. I've had the privilege of competing before and after
name, image, and likeness opportunities became available for
student-athletes.
The experiences that I've had along the way have helped me
develop into the young woman that I am today. I'm currently
serving as student assistant coach for the gymnastics team at
the University of Florida, while pursuing a second master's
degree in entrepreneurship and training for a chance to compete
at the U.S. Olympic trials in 2024.
As a student-athlete at the University of Florida, I've had
the opportunity to receive an education from a top five
university while also competing against some of the best
gymnasts in the Nation. Competing against the best athletes on
the biggest stages has provided me with more opportunities than
I ever imagined possible when I started gymnastics as a little
girl in Pennsylvania.
One of the biggest opportunities that college gymnastics
has given me is the ability to benefit from the changes in NIL
policies that have recently come to college athletics. While
student-athletes weren't yet able to benefit from NIL when I
first arrived at the University of Florida, I was immediately
intrigued once the rules were changed.
It took many of my--me and my fellow athletes time to learn
to navigate the waters of NIL, and everyone is still learning
as we go, given it is a new and uncharted territory. It's been
interesting to navigate, but I was able to interview and sign
with agencies, partner with various companies, learn to become
an entrepreneur, focus on building my brand, and work on so
many cool personal projects that mean a lot to me.
The first year that student-athletes had the ability to
take advantage of NIL, I was able to get iPads for my younger
siblings as Christmas gifts. Kids' gymnastics camps had the
ability to promote the fact that I would be coming to work with
them. I worked with companies to support women's sports and
more.
Unfortunately, one of the parts of NIL that makes it
difficult for student-athletes is the varying laws and
regulations that are in place from State to State. There
currently is no single standard that applies to all student-
athletes in all sports, which oftentimes leaves us confused. In
some cases, the different laws also place certain student-
athletes at a disadvantage, depending on where they go to
school.
Recently, I was invited to attend SEC Day on the Hill in
Washington, DC, to speak with Representatives from Congress.
Most of my discussions centered around the issue of NIL and
allowed me to share some of my personal experiences as a
student-athlete, including how NIL policies have impacted me
personally, both the positives and the areas where there could
still be improvements.
While discussions were positive, it seems clear that the
best path forward for everyone would be if we had a Federal NIL
policy that applied to all athletes from every sport at every
school and at every level.
This will create equal opportunity for all student-athletes
to benefit from NIL and will create a uniform standard to
ensure we're all playing by the same rules and eliminate
confusion and unfair advantages. A Federal law will also have
the benefit of ensuring the future of sports, like gymnastics,
are protected.
The SEC is one of the Nation's hotbeds for showcasing and
developing Olympic talent, and it would be a huge loss that
would be felt well beyond just college athletics if these
sports were put at risk due to any future legislation that
might come from one State or another.
Protecting the future of my sport and the dozens of other
sports that have developed future Olympians should be a top
priority. Not only do women's and Olympics sports at the
collegiate level help young women like me receive a college
education, but they also help athletes benefit from the very
same NIL opportunities that I have experienced during my time
as a student-athlete at the University of Florida.
While college sports took a step forward with NIL during my
time as a student-athlete, more can still be done to better the
lives of all student-athletes. I'm hopeful we will soon have a
national standard and the future of college athletics will be
improved for the next generation of great student-athletes.
Thank you for taking the time to focus on a topic that is
important to me and hundreds of thousands of student-athletes
all over the Nation.
[The prepared statement of Ms. Thomas appears as a
submission for the record.]
Senator Blumenthal. Thank you so much, Ms. Thomas. Mr.
Huma?
STATEMENT OF RAMOGI HUMA, EXECUTIVE DIRECTOR, NATIONAL COLLEGE
PLAYERS ASSOCIATION, NORCO, CALIFORNIA
Mr. Huma. Good morning. First, I would like to thank
Chairman Durbin and Ranking Member Graham, Senator Blumenthal
for allowing me to testify today.
The National College Players Association, the NCPA, served
as a sponsor of the first State NIL law in the Nation and
successfully fought for the passage of NIL laws in a dozen
other States. College athletes now have the ability to earn NIL
compensation, just like other college students and American
citizens.
As hard as the NCPA has fought for college athletes' NIL
freedoms, NIL should not be a priority for Congress, because
athletes already have these freedoms. While there are some NIL-
related areas that should be fine-tuned, such as athlete agent
certification, there are more important issues that athletes
desperately need Congress to prioritize.
Instead of adopting an NIL-only bill, Congress should
include broad-based reform that is critical in protecting
college athletes.
Many are shocked to learn that the NCAA refuses to enforce
safety standards. It's not against NCAA rules for college
athletics personnel to force an athlete back into the same game
with a concussion, sexually abuse an athlete, or kill an
athlete in a hazardous workout.
Instead of helping these athlete victims, the NCAA coldly
responds that it has no duty to protect college athletes. Then
whose duty is it? These colleges receive Federal funds while
creating hazardous conditions for their athletes. The NCPA's
stance is that Congress has a responsibility to protect college
athletes.
The NCPA asks this Committee and Congress not to follow the
NCAA's lead by skirting this important duty. The NCPA is
grateful for so many of the Members of this Committee taking an
active role in trying to address problems in NCAA sports
through legislation.
We believe there can be a bipartisan solution that can iron
out some of the NIL issues as well as bringing forth critical
broad-based reform, including the enforcement of safety
standards, coverage for athletes of sports-related medical
expenses, and prohibiting the NCAA from discriminating against
female college athletes, like we saw during its March Madness
tournament.
The NCPA has been working closely with Senators Booker,
Blumenthal, and Moran on a bipartisan draft that not only
addresses NIL issues, it includes important broad-based
reforms. And this draft continues to head in a promising
direction.
As a practical matter, any bipartisan legislation that can
actually move through the Senate cannot have poison pills that
would kill it. Such a bill shouldn't attempt to require or
prohibit athlete revenue-sharing, require or prohibit athlete
employment status, or attempt to give NCAA sports an antitrust
exemption. There are strong beliefs about these areas among
stakeholders, but these issues should be set aside so that
bipartisan progress can be made in other important areas.
Both before and after State NIL laws became effective, the
NCAA and its conferences lobbied Congress for an antitrust
exemption, which the NCPA strongly opposes. Antitrust lawsuits,
U.S. DOJ antitrust investigations, and State legislation
targeting NCAA antitrust violations have brought forth
important economic freedoms and protections for college
athletes.
Because of antitrust laws, the NCAA can no longer price-fix
an athletic scholarship below the cost of attendance, limit
scholarships to only 1 year, prohibit colleges from providing
medical coverage to athletes, or ban athletes from earning NIL
compensation. The NCAA is a chronic antitrust violator and a
glaring example of why antitrust laws are needed in this
country.
Another important issue, and one that is worthy of its own
separate bill, is the harmful conference realignment that will
require college athletes to spend many additional hours
traveling at the expense of their academics and their health.
These developments are nothing but a greedy TV money grab that
treats athletes like commodities and their education like a
punch line.
Using athletes in predominantly Black sports to generate
more TV dollars at the expense of their education, while Black
football and basketball athletes suffer the lowest graduation
rates, is unjustifiable.
Another problem is that, as megaconferences emerge, each
team and fan base will have less of a chance to win their
conference. Colleges in megaconferences are literally selling
out their athletic future for TV dollars, just to give a pay
bump to coaches, athletic administrators, and spend on more
shiny facilities.
This is short-sighted, this harms college athletes, and the
NCPA is encouraging Congress to pass legislation that would
base conference realignment on reasonable regional proximity
and limit the number of colleges in a conference.
It's no secret that there are partisan divisions in many
areas in American life, but sports is a special area. The NCPA
has worked with lawmakers on both sides of the aisle to pass
NIL laws in red States, blue States, and purple States, because
when it comes to the well-being of college athletes, lawmakers
who care about athletes find themselves on the same team,
regardless of political party.
Every future, current, and former college athlete in each
of your States needs you to join this team and pass meaningful
broad-based legislation. Thank you.
[The prepared statement of Mr. Huma appears as a submission
for the record.]
Senator Blumenthal. Thanks very much, Mr. Huma. Mr. Jones?
STATEMENT OF WALKER JONES, EXECUTIVE DIRECTOR,
THE GROVE COLLECTIVE, COLLIERVILLE, TENNESSEE
Mr. Jones. Senator Blumenthal, Ranking Member Graham, and
Members of the Committee, thank you so much for inviting me to
be here today.
My name is Walker Jones, and I'm the executive director of
The Grove Collective, representing student-athletes at the
University of Mississippi, and I'm also a founding member of
the TCA, or The Collective Association, which is comprised of
25 collegiate collectives from across the Power Five landscape,
serving as advocates for over 50,000 student-athletes in 25
sports.
Our goal is to serve as a unified voice to shape the
development of NIL, of the NIL market in college sport, by
creating a sustainable model that gives student-athletes the
ability to maximize their NIL platforms.
Current data shows that collectives are responsible for
approximately 80 percent of the money being paid to NCAA
athletes through their NIL activities. Given this figure, the
TCA is unique in that our members possess and are willing to
share our firsthand knowledge of how NIL is working in your
local communities, and we seek to partner with anyone who wants
to produce well-informed and effective legislation benefiting
collegiate student-athletes first.
Unlike all our stakeholders in college sports, we work with
everyone in the ecosystem by sitting at the point of
intersection within NIL commerce.
Before we delve into the substance, let me be very clear
about one thing. Our organization and I are extremely bullish
on college athletics. Are there aspects of the current model
that need addressing and evolving? Of course. But the
overwhelming majority of commerce with name, image, and
likeness is positive.
As a student-athlete in the late 90s, I can tell you that
today's student-athletes have the resources and ability to deal
with the realities that inevitably come to them in life.
Whether they play professional sports or not, athletes now have
the ability to solve for socio-economic issues, stay in school
longer to further their academic careers, locate the best
possible competitive situations athletically, and be a more
functional contributor to society when they leave their
respective campuses.
Finally, as TV viewership continues to break records each
weekend in the college football season this year and this past
spring with March Madness in basketball, the marketplace for
athletes to maximize their value has never been stronger.
The NIL landscape continues to experience the inevitable
growing pains of any free-market model, but the overall health
of college athletics is strong. The TCA members feel those in
this panel today and other important stakeholders share the
expertise and passion, along with Congress, to work together
for long-term sustainability and growth of college athletics.
If need is the mother of all innovation, collectives were
born from the need for student-athletes to have a stable,
secure, and trusted entity representing their interests.
Student-athletes trust our collectives, and this has caused
some tension at times between our affiliate institutions,
collegiate conferences, and the NCAA.
But we are comfortable in the discomfort, because at the
end of the day, our singular focus is on the student-athletes
who would otherwise be forced to navigate this new and
constantly evolving environment on their own.
We root for and work with every student-athlete that
chooses to work with us, not just the superstar athletes. While
no one would be surprised that the majority of the student-
athletes and work originate around football and men's
basketball, our efforts have particularly benefited women and
non-revenue sports. In fact, there was a 20 percent increase in
women's NIL deals from 2021 to 2022, and we expect an even
larger increase at the end of 2023.
All this leads me to talk about what we, as collectives,
stand for. We stand for creating opportunities for athletes to
match with national and local sponsors, nonprofits, and
charities, while creating avenues to interact with their fan
bases. We are independent businesses, separate from
universities and the athletic departments, and feel our
student-athletes are served best by that independence.
We provide resources and tools to help our student-athletes
not only monetize their value but prepare for their future
professions and careers. We provide best practices and
standards to keep the bad actors out of the marketplace and
create sustainability in the model. We provide transparency and
disclosure to our university partners to remain compliant with
State and NCAA rules and regulations.
And, finally and most importantly, we are committed to
diversity and inclusion in sourcing NIL opportunities for all
athletes, regardless of the sport they play.
Additionally, I thought it'd be helpful to elaborate on
what we as collectives are not. We are not owned, nor are we
agents. We are not financial advisors to the athletes we serve.
That being said, most of our collectives provide financial
literacy and tax planning and assistance with any financial
questions that come their way.
We do not participate in the recruiting process and desire
to not--to only work with athletes once they have decided to
attend our school. That is best left to coaches and athletic
departments, under the strict watch of the NCAA.
We are not rogue organizations run by out-of-control
boosters and donors. Most collectives operate as full-time
businesses with infrastructures, staff, transparency with our
universities and our constituents. I thank you for your time
and look forward to answering any and all your questions.
[The prepared statement of Mr. Jones appears as a
submission for the record.]
Senator Blumenthal. Thanks, Mr. Jones. Ms. Bodensteiner?
STATEMENT OF JILL BODENSTEINER, VICE PRESIDENT AND DIRECTOR OF
ATHLETICS, SAINT JOSEPH'S UNIVERSITY, PHILADELPHIA,
PENNSYLVANIA
Ms. Bodensteiner. Senator Blumenthal, Ranking Member
Graham, and distinguished Members of the Committee, thank you
for the opportunity to testify here today.
I am especially appreciative of the invitation because I
fear that the voice of institutions like St. Joe's has been
lost in the public narrative. As you know, college athletics is
extraordinarily diverse. The reality is, at a Division I school
like St. Joe's, college athletics is actually working quite
well.
Before we consider starting over and transitioning all
student-athletes across the country to employee status based
largely on the issues facing one sport, I'd like to tell you a
little bit more about life at St. Joe's.
We have 478 student-athletes, which equates to 10 percent
of our student body. We offer 20 sports. Football is not one of
them. We have an incredible departmental culture that is
consistent with our Jesuit mission: holistic development of our
student-athletes. Our student-athletes go to class, and they
select majors which they're passionate about.
More than half of our student-athletes participate in
sports that aren't bound to a regular season conference
schedule, meaning that they rarely travel overnight and miss
class.
Our student-athletes outperform our non-student-athletes in
GPA, retention rates, and graduation rates. We have many
student-athletes who are former Olympians, professional
athletes, Hall of Fame coaches, but most of our athletes go on
to very successful careers outside of sport.
Last year, just 3.9 percent of our undergraduate student-
athletes transferred. Our annual expense budget is just over
$20 million, which includes almost half of that which goes
toward student financial aid. As you know, many Power Five
institutions have budgets 10 times as large as ours.
Our revenue, while growing, does not equal our expenses. In
fact, the university subsidizes our athletic department to the
tune of 80 percent per year. So, why does the university make
this investment? Primarily because athletes benefit and are
enriched from the experiences they gain from being a student-
athlete, and it prepares them to be the leaders of tomorrow.
Division I athletics also benefits the entire university by
creating a more vibrant campus experience and providing
national exposure.
At St. Joe's, we're not waiting for an NCAA rule to tell us
to protect the health and safety of our student-athletes. We do
so because it's the right thing to do and it's fundamental to
who we are.
We employ dozens of individuals whose sole job is to
support the physical and mental well-being of our student-
athletes and their academic success. Finally, outside of team
travel, our number one operating expense is student-athlete
insurance premiums and medical expenses.
I hope that you'll agree that athletics is working quite
well for student-athletes in institutions like St. Joe's. In my
opinion, the primary crisis facing college athletics is the
threat of our student-athletes becoming employees.
I practiced labor and employment law for 15 years before
getting into this line of work. I do not believe employment
status is the answer, and nor do our student-athletes. They
don't want to have to apply for posted positions, when what
they're really going for is an education. They don't want to go
through the State work comp system for their injuries. They
don't want to punch a time clock, worried about what might be
compensable time under the FLSA.
If our student-athletes are deemed employees, we will
transition their financial aid to wages in order to stay
competitive. The taxation differences between wages and tuition
are extreme and not in the favor of our student-athletes. Our
51 international student-athletes want to compete, and they
would not be able to do so as employees, due to their F-1
student status.
For these reasons and many more, I am passionate about the
granting of special status to student-athletes that would
confirm that they are not employees of their respective
institutions.
On the other hand, we desperately need reform when it comes
to NIL. Like most athletic directors, I've always been
supportive of student-athlete NIL. The legitimate endorsement
deals like those obtained by Ms. Thomas are awesome, especially
for women, who have limited opportunities in professional
sports and whose value peaks during their college years.
Unfortunately, the current NIL situation is untenable for
three reasons.
Number one, NIL collectives are engaged in bidding wars for
the attendance and retention of student-athletes.
Number two, under current rules, Title IX does not apply to
collectives, resulting in a disproportionate percentage of
collective dollars going to male athletes.
And, number three, the patchwork of conflicting State laws
governing NIL are confusing to everyone, especially the
student-athletes, and create a profoundly unequal playing
field.
In sum, thank you for your attention today, and thank you
especially for hearing the voice of the non-Power Five schools
like St. Joe's and beyond.
[The prepared statement of Ms. Bodensteiner appears as a
submission for the record.]
Senator Blumenthal. Thank you very, very much, Ms.
Bodensteiner. And we'll now turn to Mr. Swarbrick, of your alma
mater, Notre Dame.
STATEMENT OF JACK SWARBRICK, VICE PRESIDENT AND JAMES E. ROHR
DIRECTOR OF ATHLETICS, UNIVERSITY OF NOTRE DAME, SOUTH BEND,
INDIANA
Mr. Swarbrick. Thank you very much, Chairman Blumenthal,
Ranking Member Graham, and Members of the Committee, both for
the invitation to be with you today but also for your interest
in this important topic. Chairman Blumenthal, the University of
Notre Dame shares both your sense of urgency and your belief in
need for reform.
I'm on the final leg of a 40-year journey to support youth
Olympic and collegiate athletes. It's been the privilege of a
lifetime because it's allowed me to assist, on a firsthand
basis, remarkable young people like Ms. Thomas, for whom sport
is a root to education, to leadership development, and to
brighter futures.
College athletics represents the most compelling example of
that for me. It's a uniquely American asset that has enabled
education for first-generation Americans, made our colleges and
universities more diverse places, contributed to the very
fabric of the university community, and sustained and supported
our Olympic movement in this country.
But that unique asset must evolve if it is going to
continue to deliver those sorts of benefits. That we at Notre
Dame understood that was evident in 2015 when President Jenkins
became the first university president in the country, in an op-
ed piece, to call on the granting of rights for name, image,
and likeness for all student-athletes.
More recently, in an op-ed piece, Father Jenkins also
demonstrated our support for a medical trust fund and for
graduation guarantees to student-athletes.
The common thread in that view at the University of Notre
Dame is normalizing the experience of student-athletes against
that of students who are not athletes. That was the basis of
our opinion on name, image, likeness, and ideas. If every other
student at our campus had that right, why shouldn't student-
athletes?
Similarly, where there is a difference based on athletic
participation, in this case the risk of injury in contact
sports or the potential to leave early to pursue a professional
opportunity, then a distinction's appropriate, and that's why
we supported both the medical trust fund and the graduation
guarantee. We recognize that that reform must continue, and
there's a necessary role for Congress to play in it, but it can
be limited in scope.
We, the members of the NCAA, must accept the responsibility
to do more. We support fully President Baker's efforts to
reform name, image, likeness, and ideas to provide the medical
and graduation protections he articulated, and we must do more
to help ensure that the opportunity to transfer does not
undermine the opportunity to gain an education in our colleges
and universities.
But there are three areas in which we do need your help.
The first has been referred to by several people here, and
that is to make sure to retain the student-athlete status as
students. That status is being attacked administratively, in
litigation that's ongoing, and in State legislation. It is
central to our model that our student-athletes be students and
not employees, for many of the reasons Ms. Bodensteiner
articulated.
But most importantly, our student-athletes don't want a
change in status. They come to Notre Dame to be students, to
have the experience of students: living in dorms, going to the
same classes, and pursuing the same majors. The risk of
changing that model has many faces, but the one that concerns
me the most is the risk to our Olympic sports and our female
sports in colleges and universities. It will create a pressure
to separate the sports, and with that separation comes a
challenge to the funding of our Olympic sports.
We also need help in preempting the myriad of State laws
which set different standards for college athletics. College
athletics is the quintessential example of interstate commerce.
We have more of our contests outside the State of Indiana than
in it.
And, finally, we need a way to satisfy the student-
athletes' interest in competitive equity. They want the
opportunity to participate and win. They want to know there's
an even playing field.
We have to find a way to deliver that to them. That can
come either by empowering the NCAA in limited areas to enable
competitive equity or to develop a process by which we can
agree with our student-athletes on what those rules and
regulations should be. Our student-athletes deserve the
competitive equity that we need to deliver to them. Thank you
very much.
[The prepared statement of Mr. Swarbrick appears as a
submission for the record.]
Senator Blumenthal. Thank you very, very much, Mr.
Swarbrick. I thank you, all, for this really excellent
testimony.
We're going to have questions now from Committee Members.
We'll have 5-minute rounds. I'll begin and then turn to the
Ranking Member, and then we'll go in the order of appearance.
What I hear here is a really strong endorsement of college
athletics as a unifying force for our communities, and Senator
Graham mentioned that college athletics is a religion in South
Carolina.
I don't know whether it is in Connecticut, but we celebrate
victory in Connecticut. As you know, UConn Huskies men's team
won their fifth championship.
[Laughter.]
Senator Blumenthal. Our Quinnipiac hockey team was
victorious, as well, and we had parades, literally, through the
streets of Hartford when it happened.
So, I think you've all highlighted the unique unifying
force that college athletics plays and the opportunities it
affords to students and the unique opportunity that we have--
and the need to do it now--for reform.
I hear also strong reservations, indeed opposition to
classifying athletes as employees. I hear a general feeling
that the reform very likely should go beyond just strictly NIL.
And what I hear, very encouragingly, is that some of your
colleges--St. Joseph's and Notre Dame--most impressively are
already embarking on many of the reforms that Senators Booker
and Moran and I have proposed.
But we need to avoid a race to the bottom in name, image,
and likeness, a bidding war among colleges that often tempt
college athletes with unscrupulous deals or agents and put
colleges at the mercy of an unequal playing field.
What I'd like to do is now focus on the reforms that may
avoid the need for even that employee status that seems so
alluring to many who proposed reforms. I'd like to ask all of
you, and in the interest of time, I'm going to put it to you
collectively. Would any of you oppose the creation of a medical
trust fund to cover health care for student-athletes' long-term
injuries? If you would oppose it, raise your hand, and I'll
call on you.
Nobody opposes it, the record should show.
Would you oppose guaranteeing the scholarships of student-
athletes that suffer career-ending injury or who are cut from a
team? If you oppose it, please raise your hand.
Again, the record should show no one here opposes it.
Would you oppose setting enforceable health, safety
standards to protect college athletes from serious injury,
mistreatment, abuse, and death?
Again, no one opposes it.
And, finally, would you oppose a requirement for at least
high-revenue schools to support the insurance costs and out-of-
pocket medical expenses of student-athletes?
No opposition. I think your views on this issue are
profoundly important and show that we need to think beyond just
NIL standards.
I am struck, and this issue has been raised, by the
difference, often, in treatment of women athletes. Female
athletes, under the present system, apparently earn
approximately $900 per NIL deal, as compared to the $3,000,
which is the average for male athletes, as reported by the NIL
platform, Opendorse. It seems to me that this area is one where
reform is necessary, and I'd like to ask Ms. Thomas and Ms.
Bodensteiner for your views on this topic.
Ms. Thomas. Can you first repeat the question for me,
please?
Senator Blumenthal. The disparate treatment of men and
women in college sports. Do you see it as an issue, and how
pressing?
Ms. Thomas. Yes, I do see it as an issue. Me, as a female
athlete, I feel like I personally have to do a lot more,
especially in the NIL space, to receive what I feel like I
deserve.
Senator Blumenthal. Ms. Bodensteiner?
Ms. Bodensteiner. Thank you for the question, Senator. And
just to bring a little life to that, right now at St. Joe's,
you know, male basketball student-athletes are, I wouldn't say
demanding, but asking what the collective will do for them.
That is not happening in any of our women's sports, and I
think it's absolutely essential that we find a way to ensure
that male and female athletes have equal opportunity to earn
NIL money.
Senator Blumenthal. Thank you. My time has expired, so I'm
going to turn to Senator Graham. I have a lot more questions,
but we'll have a second round, I hope.
Senator Graham. Thanks, Senator Blumenthal. So, if Congress
does nothing, where does this thing go, Mr. Swarbrick?
Mr. Swarbrick. Well, I think we'll wind up with a series of
rulings that declare students as employees subject to the FLSA
rules, or other rules and regulations, but it won't happen
uniformly. It'll happen serially and create an unsustainable
difference from State to State.
We'll have a patchwork of State legislation that will also
create differences which are unsustainable. That, for me, is--
are the things that are most important to avoid at the moment,
while we continue the reforms that Senator Blumenthal
articulated.
Senator Graham. Governor Baker, do you agree with that?
Where do you see this thing going if we do nothing?
Mr. Baker. I would say, first of all, that I think the--
while I appreciate Walker Jones' optimism about men and women
when it comes to NIL participation, the numbers are so--well,
first of all, there are no publicly available numbers. Okay?
So, the first thing we really need there, more than
anything, is some form of transparency around what people are
actually getting. There are reporters who cover college sports
who won't write about NIL, because they don't believe anything
anybody tells them. That's one of the----
Senator Graham. Well, just hold on a second. Mr. Jones,
who's the highest paid NIL person in college football?
Mr. Jones. Well, again, a lot of that is some urban legend.
Senator Graham. I'm not asking about urban legend.
Mr. Jones. Well----
Senator Graham. You're in this business. You should know.
Tell me.
Mr. Jones. Well, again, probably the highest grossing is a
gymnast, actually, Olivia Dunne from LSU.
Senator Graham. Okay. How much does she make?
Mr. Jones. Again, she's making into the seven figures. I
don't know the exact figure, but she's well into the seven
figures in her endorsements.
Senator Graham. Mr. Petitti, is that--Tony? Can I just call
you Tony?
Mr. Petitti. That's fine, Senator. Thank you.
Senator Graham. Okay. Where does this thing go if we just
sit on the sidelines?
Mr. Petitti. I agree, what's been said. I think where we're
going to end up is we're going to be having a system that's
been dictated by a myriad of State laws, by the results of
litigation, and by the results of employment action. It's
completely unmanaged change. I think the results are
unpredictable, and I think the----
Senator Graham. Let me give you my concern.
Mr. Petitti. Yes, Senator.
Senator Graham. Between the portal and the poaching of
players, I think you'll have chaos. I mean, you've got the
University of Utah offering everybody who'll play, a truck. So,
we're headed down the road, here, of a bidding war. Do you
agree with that, Tony?
Mr. Petitti. I do. I think our coaches would echo the same
sentiment across multiple sports, in terms of just the money
entering the system. It's called NIL, but it's not really NIL.
So, we say that collectives are responsible for the
overwhelming amount of money in the system. That money is not
really true NIL deals right now. So, I feel you are correct,
Senator.
Senator Graham. So, here's my concern to the Committee--is
that, you know, college athletics needs to be available to men
and women at every level. Non-generating--Ms. Thomas, does the
gymnastics team make money for the University of Florida, or do
you know?
Ms. Thomas. I'm not sure.
Senator Graham. Okay. Well, you have done--you've got a lot
to be proud of. But there are a lot of programs out there that
don't make money. Is that true, Ms. Bodensteiner?
Ms. Bodensteiner. That is correct.
Senator Graham. If it's all about money, they're going to
be left behind.
Division II schools. If you made Division II--if you made
people employees, Governor Baker, what would happen to Division
II schools?
Mr. Baker. I think it's pretty clear that Division II and
Division III schools would get out of the interscholastic
collegiate sports business and probably----
Senator Graham. And, now, just----
Mr. Baker [continuing]. Turn most of their stuff into----
Senator Graham [continuing]. Listen to what he said.
Mr. Baker [continuing]. Club sports. I mean, the typical--
--
Senator Graham. It's going to happen. Right? If you make
these people employees, they can't afford it.
Mr. Baker. You tax everything, and you completely change
the model. And it's sort of a 4x increase in what the costs
would be, if--I mean, the typical DII school has an athletic
budget of 5 or $6 million. I mean, that's the way you should
start--and DIII is more or less the same.
It's 95 percent of the schools lose money on sports.
Ninety-five. Right? Five percent of them have serious budgets
with serious revenue and a concern about employment but a
willingness to do a lot more around what they believe they
should be doing for student-athletes.
But you're right, Senator. The impact on DII and DIII--and,
by the way, a lot of DI schools would be--and their athletes,
student-athletes, would be profound.
Senator Graham. Seems to me we want to avoid that. To make,
you know, college sports available to a lot of people at
different levels--that should be one of our goals. Do you all
agree with that?
Everybody nods.
So, Mr. Chairman, let's try to find a way, Senator
Blumenthal, to deal with the money problem, NIL, make sure that
people are taken care of as athletes and it's not just the
Wild, Wild West out there.
But, final comment, if this Committee and the Commerce
Committee doesn't act in about a year, this thing is going to
be an absolute mess, and you're going to destroy college
athletics as we know it. Thanks.
Senator Blumenthal. Thanks, Senator Graham. I think Wild
West is exactly the right term to characterize where we're
going. Senator Whitehouse.
Senator Whitehouse. Thanks. Thank you, Chairman, for
holding this. We've got so many witnesses here that it's going
to be hard to ask a question and get through all seven, let
alone ask a bunch of questions and get through all seven. So,
what I think I'll do is mention three concerns that I have that
you all are welcome to respond to in writing. We take questions
for the record, here, and your answers become a part of the
record of the proceedings.
So, the first concern is helping student-athletes avoid
unfair contracts where they get, like, locked in for too long
or get locked into contracts that have huge, you know,
management and other fees, so forth. Who's in charge of
protecting student-athletes when there's so much pressure and
money involved, and they're not exactly experts in the art of
contract negotiations? So, that's one.
Two is, the NIL will naturally take pretty good care of the
star, high-value student-athletes. And the question is, when
this flood of money opens up, how much should we be looking at
the non-star teammates of the star student-athletes? How much
should we be looking at the non-remunerative teams, in addition
to the teams that make enormous amounts of money? And what do
we do about schools that don't field either remunerative teams
or star athletes? Do they just get left behind, or should there
be a fund that tries to reach into all of those areas? So,
that's two.
And the third is a pretty obvious piece, which is that
there are lots of injuries that take place during student
athletics, and how we manage those injuries out into the
future--it would seem to me that if loads of money is flooding
in, one good way to--one good thing to have it flood into would
be a fund that can make sure that athletes get their health
care covered for injuries that are traced back to their
collegiate sports careers, even if the manifestation comes
later.
We do this with veterans all the time. You have an exposure
during your service in a foreign country, 20 years later,
something manifests, you look back, and the VA provides the
coverage. Something along those lines.
Those are the thoughts that come to mind for me. And if you
have any helpful advice on that, I'd be grateful to have each
of you take a moment to share your thoughts in writing on those
three. And with that, Chairman, thank you very much.
Senator Blumenthal. Thanks, Senator Whitehouse. Senator
Grassley.
Senator Grassley. Yes. Well, thank you, all, for coming.
You're right in the middle of a lot of things that go on in the
fall of the year with this university sports and everything.
Anybody that wants to respond to this--because it's a
concern of mine--if there is no Federal preemption of State NIL
laws, do you believe that there will be any Title IX concerns?
And, if there is a Federal NIL proposal, what do you
propose Congress do to mitigate Title IX concerns, if you think
that there should be concerns raised? I don't expect all of you
to answer that, but if any of you want to dig into that, I'd
appreciate hearing your opinion.
Mr. Huma. I'd like to give a little perspective here, I
think, on--you know, Title IX is Federal law, and it's
enforceable. You know, there are some--you know, the
collective, it's kind of difficult to see the degree to which
they are collaborating with the schools or separate from
schools or anywhere in between.
And, you know, collectives acting as an arm of the school,
sharing essential services--I think this was addressed in the
draft Senators Booker, Blumenthal, and Moran--you know, there
has to be kind of a clear line. Is this an extension of the
school? And if it is, Title IX should apply. If not, then it's
just like Nike or some other third party out there.
And as much as we all--you know, the beginning of NIL, it
was all about free-market opportunities for college athletes,
the same ones that the coaches get, the pros get, every
American citizen gets. With the free market, sometimes the free
market isn't very equitable in all walks of life.
If you look at advertisers, you know, there's been
complaints from different groups that advertisers aren't
including diversity in various areas, but you don't have
Congress trying to come in and define things. You know, the
free market's one thing. We advocate on our organization, when
it comes to direct pay, you know, Title IX is applicable. Free
market's free market.
I think there was--there's issues being raised about
whether or not male athletes get more than female athletes, and
that is a reflection, in part, again--aside from the idea that
some of these collectives are actually acting as an extension
of the school, which should apply--Title IX would apply. You
know, really, it's a reflection of society. There's inequitable
treatment amongst various subsets of groups in the free market.
I think that's what we're seeing here.
The other is to point out that this industry, no secret,
$17 billion primarily generated football and basketball
players, sports that are predominantly Black. The one area
where they might have freedom, equal freedoms, is in NIL. The
degree to which any of this money is flowing more toward
football and basketball players because of market interests--
that's our economic system, free market, capitalism.
When it comes to third parties, that's the whole vein.
That's what--when we advocated from California, the very first
NIL State, and every State in between, that's clearly
understood. I think there's a bit of a blur here when we're
talking about third-party NIL versus things that the school
gives directly.
Again, if a collective is an extension of the school, then
it absolutely should be--Title IX should apply. But Title IX's
the law. It's enforceable now. And complaints should go to the
Department of Education Office for Civil Rights in the
appropriate areas, lawsuits.
But I don't know that it's even appropriate for Congress to
start dictating what the free market should look like, only for
college athletes, which may so happen to take money out of
Black athletes' pockets in the first--after the first couple
years of them finally getting equal treatment. I think that
would be inappropriate and misguided.
Senator Grassley. I've still got a minute left. Anybody
else want----
Mr. Jones. Yes, sir. Senator Grassley, I'd like to respond
to that, as well. And just speaking to Title IX from a
collective standpoint, you know, what we're seeing--remember,
we're just now into year three of this marketplace, so it's
still evolving. We're still adjusting.
But I can tell you, on the ground level, from a trend
standpoint, we are seeing a correction on those revenue sports,
your football, men's basketball, and some self-governance
that's taking place with the way we're contracting with the
student-athletes.
But the inverse is happening for our non-revenue and
women's sports. We are seeing more and more deals that are
asking for female involvement. I know, speaking from the
University of Mississippi's standpoint, we've tripled our
female roster of NIL from last year to this year. Our first
team-wide deal at Ole Miss was our women's basketball team.
Some of the highest earners in NIL, as I told Senator Graham,
are female athletes.
Now, there's not as many of them, but what I would just
encourage everybody, that whether Title IX applies to us from a
collective standpoint or not, it would not change how we
operate. We are operating to have a very diverse and inclusive
athlete roster because at the end of the day, that's what
brands want. And that creates more value, when we have brand
campaigns. And we are getting requests from outside brands more
for female student-athletes.
So, that trend is developing. Is it acceptable, to this
point? Not acceptable, but it is moving in the right direction.
So, while your high-revenue sports are kind of self-governing
and correcting themselves, your non-revenue and female sports
are seeing a boost, as the figures are showing us and what
we're seeing at the ground level.
Senator Grassley. Mr. Chairman, I'll put the rest of my
questions for answer in writing.
Senator Blumenthal. Thank you, Senator Grassley. You're
welcome to do so. Thank you. Senator Coons.
Senator Coons. Thank you, Mr. Chairman. Mr. Swarbrick, I
read with great interest your editorial, along with Father
Jenkins', and just wanted to lift up your focus on college
athletics as part of a route to education, to leadership, and
to opportunity. Your focus on and your support for a medical
trust fund and graduation guarantees, I thought, was admirable.
I want to focus in on one area, which is whether or not
student-athletes should be considered employees. This is
currently being examined in the Third Circuit and the NLRB, and
that sparked fierce opposition from your institution, as well
as Ms. Bodenstei-ner's institution, as well as the University
of Delaware, in my home State.
Why does Notre Dame oppose classifying student-athletes as
employees, and what do you think the harmful impact would be on
athletics across the University of Notre Dame and then across,
more broadly, institutions of all sizes, if that were to
happen?
Mr. Swarbrick. What defines the unique American model of
intercollegiate athletics--and, to be clear, it doesn't exist
anywhere else--it's a club system everywhere else in the
world--is the integration into the educational institution. It
is the opportunity to have all of the same rights and
privileges as any other student.
And if you put them in a separate category, with all the
consequences that have been articulated here, that goes away
immediately, and we no longer have the model that we understand
as intercollegiate athletics today and fundamentally separates
it from the educational value.
As President Baker's association points out regularly, the
vast, vast majority of student-athletes are not going on to
continue their sport after they leave college. It is the
education which is the primary value of their experience. We
have to protect that. We have to protect their ability to be
admitted under the same standards, to be educated under the
same standards, and to learn under the same standards. If you
take that away, you do enormous damage to those--to those
current students.
Senator Coons. I know this is a period of huge change in
college athletics, and as the Chair and Ranking Member have
said, we need to act. And, Mr. Swarbrick, thank you for your
testimony, and Go Irish.
Ms. Bodensteiner, if I might, are there some factors that
are applicable across institutions of all sizes? You are
athletic director at a school with a different profile than
maybe a Big Ten university or even the University of Notre
Dame. Are there some specific factors that are key to your
institution and others like it in the greater Philadelphia
area, and across our country, that Congress should keep in mind
as we attempt to draft NIL legislation that would preempt State
legislation and apply to all the universities in America?
Ms. Bodensteiner. I appreciate your question very much,
Senator. Thank you. I tend to agree with colleagues at Power
Five and other institutions when it comes to NIL. I think our
basketball coaches are as disappointed in what has happened in
the market than anybody in the country.
And so, you know, on the employment front I do think we
have some unique challenges if student-athletes were to be
deemed employees, and really it's the expense, whether through
taxation--I mean, our, you know, human resources department is
overwhelmed, as we are, with two mergers happening, and to give
them 487 additional employees to process, many of whom are, you
know, leaving on an annual basis--again, the taxation issues.
I mean, for an institution like us--and, again, I can't
stress enough that we are spending $20 million and bringing in
$4 million in revenue for athletics--that this would just be an
untenable situation, which, again, I worry about the ability
for us to continue fielding all 20 of our sports.
Senator Coons. Understood. Mr. Baker, if I might, just a
closing question. Across the different legislative proposals
that are in front of us, and across the wide array of State
laws, what do you think are the most critical provisions for us
to include in legislation, moving forward?
Mr. Baker. Well, I would certainly support the State
preemption issue, because there--I mean, if you think about
this just at a conference level, most conferences have multiple
States.
And if you're trying to create anything that looks like a
level playing field, and to get back to Trinity Thomas' comment
about the fact that--I thought she said it well. There should
be one set of rules for all athletes across all sports at all
schools. I think that's exactly right.
I think the employment question is obviously on everybody's
mind, and I'm sure there are things schools--especially those
that can do it, which would be the 5 percent I talked about
before--who would do far more, if they felt like they could do
it in an environment where their student-athletes were still
students.
I think the issue around safe harbor, limited liability,
whatever it is you want to call it, I get the fact that's a
really big issue, and what I would say to Congress is, if you
want--if you want to create some sort of framework around that,
and guardrails, that's fine.
But I do worry that we're going to head down a road where
people are going to start challenging whether or not we should
have, you know, minimum academic standards for people to be
eligible to play. Are people going to change the rules around?
Let's suppose we pursue the rule that I was talking about
earlier, where we want to create some transparency around NIL,
because, you know, with all due respect to you, Walker, nobody
knows what's going on, and everything is sort of a guess and a
rumor.
So, when people say we're doing much better when it comes
to women student-athletes and NIL, I don't know if that's true
or not, and neither does anybody else.
And I think we need to give the student-athletes, frankly,
a lot more visibility into what the price signals are, so that
they can make the best decision for them and their families.
Under the current system, they're in a ``Trust us'' game with
practically everybody.
And Trinity, I give you enormous credit for what you've
managed to do in that kind of an environment, but there are a
lot of student-athletes for whom that's going to be very
challenging.
And I think the final one would be the whole conversation
that we've already had about trying to figure out sort of the
best way to deal with some of the issues around health and
safety, because national standards on that I think we can all
support.
Senator Coons. Thank you for that input. I do think
transparency, fairness, and preserving the educational mission
that is at the core of higher education are key parts, as we
work together to move forward. Thank you, to all the witnesses.
Thank you, Mr. Chair.
Senator Blumenthal. Thanks, Senator Coons. Senator Kennedy.
Senator Kennedy. Thank you, Mr. Chairman. It's clear to me,
from listening today, that we still have a lot of work left to
do.
I want to start with trying to look at this issue from
30,000 feet. For many years now, college athletics has
generated enormous revenues. I'm not saying that's a bad thing.
That's a good thing.
The Supreme Court comes along in, what, the Alston case--is
that right--in 2021 and changes where that money's going.
Before, that money was going to TV stations and
universities and coaches and others--I guess construction
companies, if we're building them new stadiums.
And then, after the Supreme Court decides the Alston case
in 2021, the kids start getting paid, and all hell breaks
loose.
I mean, is that what is going on here? The fact that the
money is being redistributed, and that's going to cause the
world to spin off its axis? Because the kids are getting a
share of the dough? Governor?
Mr. Baker. What I would say, Senator, in response to the
Alston decision is, there is flexibility for schools that can
afford to make Alston payments to do so, and they can make
Alston payments in particular sports, as long as they manage to
satisfy the Title IX requirements. And they can choose what
level they want to support, and they----
Senator Kennedy. Well, I understand that, Governor----
Mr. Baker [continuing]. Can also choose to play or not.
Senator Kennedy [continuing]. But you're getting down into
the weeds. And I'm not saying that's a bad thing. We're----
Mr. Baker. Okay.
Senator Kennedy [continuing]. Going to have to get in the
weeds. But that's what this--before the Alston case, everything
was just fine. And then the Alston case is handed down, and the
kids start getting some of the money, not the adults. The
adults have got to share. And all of a sudden, the world's on
fire. What am I missing here?
Mr. Baker. For the record, I support the Alston stuff. I
also support NIL. I just would like to see a little more
transparency and support for information to make it easier for
student-athletes to succeed in this space.
Senator Kennedy. Well, let me make this suggestion to you,
and I want to hear from the rest of the panel. I would strongly
encourage you and your colleagues to try to get together and
come up with a new system for us to consider that looks like
somebody designed it on purpose.
You may regret asking Congress to intervene here. All of a
sudden, you're going to be micromanaged. Now, I'm not saying we
shouldn't, and my colleagues have raised excellent points, and
it sounds to me like we do have a bit of a--I don't know, a
Wild, Wild West, as Chairman Blumenthal described it. But I'd
be real careful before you invite Congress in to start
micromanaging your business.
Let me go back to the original question. Any of you, what
am I missing about this? Isn't this fight over the fact that
the kids are now getting some of the money that the adults were
getting before? Yes, sir?
Mr. Huma. Absolutely. Absolutely. The injustice that has
been inflicted on college athletes seemed to be fine for the
industry until we won some court rulings and State legislatures
started passing laws. Essentially, the industry [microphone
feedback] had a monopoly on college athletes' NIL value. They
owned every penny. Nike wants to slap a logo on a kid, got to
pay the school. The kid can't get a penny. That's what this is
about.
They even--many of the schools even said, hey, if that
happens, we're going to lose money. Well, that means you've
been stealing money from these kids, if it's against, like, the
Supreme Court--if it violates antitrust law. That's the
problem.
You know, the opposition--even employment status. All this
is about, we don't want to pay them fairly. You know, NIL--just
so you know, this is not equitable economic situation here.
That's like saying, go get another job because we're not going
to pay you for what you do here. You know, we're in a cap--you
have a national price fix for a scholarship, no matter--and a
lot of these schools [microphone feedback]--I don't know if
that's me or not.
Senator Kennedy. That's the NFL, man.
Mr. Huma. Is it? So, and we can't treat every division as
if it's the same. FBS schools masquerading as DIII schools,
saying, there are no employees here. You know, at Notre Dame, I
know they--I would imagine they have students in the bookstore
as employees. It doesn't seem to harm their educational
opportunity. There's no congressional hearings about that.
We're talking about equal rights. And this industry is
operating in an illegal fashion. It's breaking antitrust law,
breaking labor laws, and now it's coming home, and players are
getting, you know, avenues [microphone feedback] and leverage
and pulling kind of pulling leverage, and here we are, saying
the sky's going to fall, but----
Senator Kennedy. I--I----
Mr. Huma [continuing]. It's not the truth.
Senator Kennedy. I agree with you. I don't mean to go over
so much, Mr. Chairman. We are talking about rights here, but
we're also talking about money. And it just seems to me that
this controversy, in part, has been caused by a model of
redistribution for that money.
And I've got a lot of sympathy for kids, I have to tell
you. The adults seem to be able to take care of themselves, but
it's the kids that make all of this possible. Thank you, Mr.
Chairman.
Senator Blumenthal. Thanks, Senator Kennedy. I just want to
make clear before I introduce the next Senator, who happens to
be the co-author with me of the College Athletes Protection and
Compensation Act, there's no effort here to micromanage
anything.
And I think that Mr. Huma makes an excellent point that
even the limited benefits, so far, to college athletes that
we've seen have come because of a fight, because of an effort
on the part of advocates like Mr. Huma and others who are here,
to treat athletes more fairly.
And nobody's been a stronger advocate than Senator Booker.
I'm pleased to call on him. He genuinely would've benefited
from NIL, had it existed when he was playing football at
Stanford.
We often joke, I was a college swimmer, and there's no
one--no way anybody would've offered me a contract to do
anything in NIL, but he was a genuine star, and he's been a
star----
Senator Kennedy [continuing]. Well, Mr. Chairman----
Senator Blumenthal [continuing]. On this issue.
Senator Kennedy. Can I respond? And look, Richard, you make
a very valid point, and I'm not denigrating anybody's efforts
here. I'm just suggesting that we do need to be careful.
Once Congress decides to get involved, it really gets
involved. I don't want to have Congress in the business of
trying to establish concussion protocols for each school,
because that's where it can lead to. That's all I'm saying.
Senator Blumenthal. Thanks for that point. Senator Booker.
Senator Booker. Chairman, thank you very much. You've been
an extraordinary partner and leader in this area, and I'm just
grateful to have you involved.
Senator Moran has been extraordinary, as has been a number
of other Republican colleagues who I've worked with over the
last, God, decade.
I want to thank Maria Cantwell, as well, who's the
Chairwoman of the Commerce Committee, who's just done an
extraordinary job on these issues, as well.
This is about, to the day, the 10-year anniversary of when
I was elected to the United States Senate. And I came here to
work on a lot of issues, but this was definitely one of them. I
have these strange two thoughts about college sports.
One is, it's one of the best parts of American culture. I
literally would not be sitting here today if it wasn't for the
opportunities that were afforded me as a football player in
high school and college. It is one of the bright lights--at a
time when America has so many forces dividing us--that unifies
us in a way that I think is very special.
The challenge I found 10 years ago is I--and the first
Commerce Committee hearing on this, I was very angry, because I
also knew the dark side of college sports and knew too many of
my friends whose bodies were beaten and battered who were going
in, in their own pocket, years later, to try to pay for spinal
cord injuries or shoulders, knees.
And, God forbid, I saw the challenges with CTE, guys who
were coming out of ball who had head injuries, depression, and
so many other symptoms that we now know are symptoms of CTE,
but nobody there to help them or support them.
More than this, I just couldn't understand how we could
have a system that guys who spent over 80 hours, 70 hours, 60
hours playing this sport, who didn't graduate on time, were
going in their own pocket after their football career was over,
just to pay for the last few credits that they had. I couldn't
understand how low-income kids who got a chance to play ball
didn't have the money to even, you know, get their parents to
come see them play, while the jersey with their names on it
were being sold in student bookstores for more money than one
of their parents made in a full day's labor.
And what frustrated me was, at that time, the NCAA was
giving lip service to a lot of the changes but seemed to only
move when they got embarrassed, whether it was being
embarrassed like Shabazz Napier saying, ``I couldn't afford to
eat,'' when he won the NCAA championship, or the embarrassment
of showing the differential treatment of women versus men in
NCAA tournaments.
I am so glad that this group is here now, because the folks
here before us have been extraordinary in their leadership.
I cannot thank President Baker enough for being willing to
work with me and my team, for his, what I think has been, very
progressive leadership in bringing about change.
Commissioner Petitti, you have been a great partner in
trying to develop something that could be bipartisan and
actually can work to put some common-sense guardrails.
And Brother Huma, we've been working on this since you and
I both had hair, and it is--I cannot tell you how grateful I am
for your leadership and advocacy in fighting for what most
people who watch sports think should be the norm, that the men
and women who are contributing most of this $15 billion
industry should, at the very least, have some basic standards
for health, safety, and justice, when it comes to these issues.
And so I'm grateful to be here with folks who are really
constructive in trying to find a way, number one, to preserve
college sports, which is now being threatened, in my opinion,
by a lot of the Wild, Wild West which has been mentioned. And I
think, Mr. Huma, you're correct. There is so much bipartisan
place to land on this, while the controversial stuff we could
leave aside, if we could just find a pathway forward in keeping
athletes centered and first.
So, I'm extraordinarily encouraged by the work of Senator
Blumenthal, Senator Moran. The discussion document that we put
out--the feedback has been so great. There is so much accord.
We've got to move forward and, to Senator Kennedy's point, not
to have any unintended consequences, to do it with a light
touch but, again, protect college athletes.
Just very quickly, I'd really like to turn to the one
college athlete that's actually here. Ms. Thomas, it's
extraordinary that you are here, and I can't thank you enough
for being here. You are playing and have played at a level
that's just great.
I don't think folks understand the physical demands and the
mental demands. You've seen very personally the challenges
that--a lot of folks don't understand what athletes go through
while trying to balance difficult academic schedules.
And I guess I just would love, in the last seconds I have--
why do you think it's so important that, whatever we do, we
prioritize the health, safety, mental health, well-being of
college athletes, teammates, and others? Can you just express
the urgency of the moment?
Ms. Thomas. Yes. Being a student-athlete is super
difficult. Hours upon hours. Obviously, you're a student, too,
and that's a lot already, and then you're putting on that--I
mean, we practice. Every single day we're doing something,
whether it's conditioning or practice or training or letting
our trainers work on our bodies for us. It's a lot. And the
traveling, on top of that, is a lot, and competing in our
sport.
So, everything outside of that, that's extra, needs to be
so that it's taking care of us. I'm obviously not a student-
athlete anymore, technically, but for all of my former
teammates and all of the student-athletes that are going to
come after me, I want the very best for them. I know how hard
it is to be successful as a student-athlete, and we just need
to make sure that we're doing the best for them.
Senator Booker. Thank you. And again, Tony, Ramogi,
Governor, I'm so grateful for the work we're doing. I really
think we can get someplace for this.
I just want to say, for the record, Notre Dame has been one
of the best partners that we've had, extraordinary and
honorable in the way you're doing it, and that's the only
reason why, in this hearing, I am restraining from talking
about my best career football game, when Notre Dame was ranked
number one, and we went into South Bend, Indiana, and upset----
[Laughter.]
Senator Booker [continuing]. I think Sports Illustrated
called it the greatest upset in all of college sports, that
year----
[Laughter.]
Senator Booker [continuing]. All sports except for when
Buster Douglas beat Mike Tyson. But I'm not going to talk about
that at all, out of respect for your institution and gratitude
for your partnership.
Mr. Swarbrick. Thank you for your restraint.
Senator Booker. Thank you very much.
[Laughter.]
Senator Blumenthal. You should listen to Senator Booker
when he's unrestrained.
[Laughter.]
Senator Blumenthal. Thanks, Senator Booker, and thanks for
all your work on this measure. And I second your thanks to
Senator Moran as well as to Senator Cantwell and others on the
Committee who have been very thoughtful on this issue. Senator
Tillis.
Senator Tillis. Thank you, Mr. Chairman. Thank you, all,
for being here.
Governor Baker, I think probably a year or two from now,
you're going to consider being a Republican Governor in a
Democrat State one of the simpler jobs you've had. You've got a
lot of work to get done.
Mr. Baker. I already do, Senator.
Senator Tillis. I had a question, and Mr. Huma, I want to
make sure I heard this right. I think in your opening statement
you said that the NCAA has no duty to protect college athletes.
Could you, in about 30 seconds, explain to me why----
Mr. Huma. Sure.
Senator Tillis [continuing]. The basis for that?
Mr. Huma. In the Derek Sheely v. NCAA lawsuit, where Derek
Sheely was--he died during a football practice, and the family
sued. The NCAA's legal defense and public defense is that the
NCAA has no legal duty to protect college athletes, and it has
kept that stance in every lawsuit in its defense.
Senator Tillis. That said--I guess, Governor Baker, I'm
going to ask you about that, but, I mean, a part of what we're
talking about is that the universities themselves have the
primary responsibility for the health and safety of the
student. And it would seem to me that even if you want to set
aside the humanitarian factors, that you want every athlete to
be healthy, every day of the week, doing the best that they can
do, to get the most people to watch that sport.
It seems like there's an inherent obli--or, not an
obligation--there's an economic driver behind trying to protect
these people. So it's very difficult for me to have anybody,
you know, viewed as you're running through a mill. It just
doesn't make sense to me. You want the best athletes on the
field every Saturday--and I'm a football fan, and basketball, I
guess, every day of the week. It's harder to follow, for me.
Too many of them.
But, I mean, I just want to dispense with the notion that
you would actually have somebody recruit a kid to St. Joseph's
and not care about their health and well-being. It would seem
like it'd be in the forefront. Am I correct, Ms. Bodensteiner?
Ms. Bodensteiner. Yes, that was the comment--intent of my
opening statement, to say we're not waiting around for an NCAA
rule, nor do we feel like it's lacking. We do it for several
reasons, already, proactively. And if something does happen,
our insurance and coverage----
Senator Tillis. I just don't get it.
Ms. Bodensteiner [continuing]. Is rich.
Senator Tillis. You want the stars on the field, because
it's the stars that attract people to the games, and it's that
attraction that generates revenue and creates the economic
cycle.
Ms. Thomas, first off, congratulations on your academic and
athletic prowess. How many 10s did you say that you've--did, I
think, the Chairman said you got over your career, athletic----
Ms. Thomas. Twenty-eight.
Senator Tillis. Twenty-eight. And I don't know if you're--
if you're not comfortable, just say you're not comfortable with
this. Can you tell me a little bit about the income that you're
receiving from your NIL contracts right now?
Ms. Thomas. I'm not comfortable answering that.
Senator Tillis. Okay. Well, I think it's interesting. I'd
like to learn more, and maybe you know. I've read reports
about--when we're thinking about NIL, we're thinking about
Olivia Dunne--Dunne, I'm sorry--a gymnast who I think her
career high in the uneven bars was a 9.925. So, she's never
gotten a 10, and she's one of the most highly compensated
people in NIL right now.
But I've also heard reports of people that are just making
enough to where they can pay their college tuition, that
they're finding ways, through NIL. They're athletes, they're
student-athletes, but they're not the big names that are
actually making revenue.
Is that--did I--is that just anecdotal, or are we seeing
some sense, Mr. Jones, that other people are finding this as a
way to pay for their education, then move on to something other
than the collegiate sport that attracted them?
Mr. Jones. Yes, sir, Senator. I would tell you that, you
know, one of the things that we're seeing at the ground level
is athletes solving for socio-economic issues that are
inevitable in their life: family-related issues, like it said,
paying off a sibling's student debt----
Senator Tillis. Yes.
Mr. Jones [continuing]. Flying their parents to come watch
them play. So, the athletes--which then also gives them the
ability to stay in school longer and pursue their academic
career.
Senator Tillis. Well, I think--I--I think everybody here
has stipulated that they support NIL. I mean, that, to me--
anybody leaving this meeting thinking anybody's detracting from
that I don't think's been paying attention.
I do disagree with some of my colleagues who don't think--
and I think I disagree with you, too, Mr. Jones, that we don't
need rules of the road. I think it was Mr. Swarbrick that said
this is the essence of interstate commerce. It was one of you,
in your testimony. I thought it was you.
But I guess in my remaining time, several States--we've
implemented a patchwork. I think that we have to eliminate
that. I think that we do have to create rules of the road.
This is where it gets dangerous, because it means Congress
has to get involved, to get it right. So, I guess the question
I have, are there--is there a national model that we should be
instructed by, or is there a given State or jurisdiction--and,
Mr. Swarbrick, I'll let you answer this, if you have the
information--that's done it particularly well or that we should
be instructed by as we proceed down that path?
Mr. Swarbrick. Unfortunately, Senator, I don't think there
is an example to look to right now.
Senator Tillis. So, they're all just bad examples?
Mr. Swarbrick. Well, they're--it's been motivated by a bit
of a race to the bottom for recruiting purposes. Right? And----
Senator Tillis. Okay.
Mr. Swarbrick [continuing]. So that's been the challenge.
If there's one thing we could do that would address the Title
IX issues and otherwise, would be try to get it where name,
image, likeness, and ideas has to relate to name, image,
likeness, and ideas.
Senator Tillis. Mm-hmm.
Mr. Swarbrick. If we could do that--the most well-known
basketball player in the country right now is from Iowa, and
she's a woman.
When it's really about name, image, and likeness, you have
an equity that's achieved, and it relates to the level of
accomplishment and fame. In most pro teams, there's a handful
of men or women that have marketing deals.
But yet in college, everybody on the team has one. It's not
a marketing deal. We need to get back to where they relate to
name, image, likeness, and ideas.
Mr. Jones. And, Senator, just to respond to that, we are
for regulation. We're not asking that there not be
transparency. We are already very transparent.
Senator Tillis. But a national NIL?
Mr. Jones. We're fine. If there's a national preemption on
State statutes, we--we support that, as well.
Senator Tillis. All right, I missed--I'm glad----
Mr. Jones. We are----
Senator Tillis. I'm glad you----
Mr. Jones. We are for----
Senator Tillis [continuing]. Clarified that.
Mr. Jones [continuing]. That, and we are ready to work with
any body that wants to regulate. The problem is, nobody is, and
we're having to navigate it ourselves. But we support
regulation and oversight.
Senator Tillis. Well, thanks for clarifying. I think we
have to do it. And, folks, there are a lot of things, the
employment status--Ms. Bodensteiner, I wasn't going to put you
in that position.
If they become employment status, you're going to have a
skeleton of an athletic program that you have today, because
the numbers don't work. They already don't work for you. You
just reach a point to where there'll be certain sports that'll
be forgotten in collegiate athletics, which really begins the
beginning of the end of their sports being relevant in any
level, at the pro or semi-pro level.
So, thank you, all, for being here. We've got work to do,
and I, for one, think that we should. Thank you, Mr. Chair.
Senator Booker [presiding]. Senator Klobuchar.
Senator Klobuchar. Thank you very much. I want to thank
you, Senator Blumenthal, and you, Senator Booker, for your
work. And I'm looking forward to working with you on both my
positions on Judiciary and Commerce to get this done.
I will try to show the same restraint as you did, Senator
Booker--it's not as good, but it's pretty good--in asking my
first question to Governor Baker and noting that, given that
he's from Massachusetts, where they play a lot of hockey, that
the University of Minnesota Duluth and U of M women's hockey
teams have collectively won 11 NCAA championships since 2001.
I'm not sure you can have that record in Massachusetts. Is that
correct?
Mr. Baker. I got nothing there. I got nothing. No.
Senator Klobuchar. Okay. All right.
Mr. Baker. Harvard has won several women's NCAA
championships, but those numbers in Minnesota are very special.
Senator Klobuchar. Excellent. Excellent answer. Okay. Next,
can you elaborate on how the NCAA's new policies will help
student-athletes, the ones that you note in your written
testimony about improving financial outcomes, including in
areas of financial literacy, standard contract terms, agent
registration?
Mr. Baker. Sure. The policies that the DI Council is
working their way through should be voted on before the end of
the year, but they're basically designed to create what I would
describe as some transparency and accountability.
The financial literacy piece is something some schools
already do. We would like to see everybody required to do that.
The uniform standard contract is basically about doing
exactly the same thing we do in almost every financial
transaction industry in America, which is to have a contract
that represents basic terms, and if an agent wants to move off
of that, they need to explain to the student-athlete and the
family why they want to move off it.
The third part is to create what I would describe as a
system where student-athletes would make available to their
schools what their deal looks like, and then all that data
would get deidentified and incorporated into kind of a public
distribution.
So that, if you were a gymnast, if you were a football
player, if you were a basketball player, you would have some
idea of what, traditionally, NIL looks like for you or for
somebody like you, so that you have some idea about what it is
you should get.
And then the final piece is to make sure that we have an
agents registry where agents have to, among other things, say
they work for their customer, their client----
Senator Klobuchar. Mm-hmm.
Mr. Baker [continuing]. Because there's way too many
examples, at this point, of agents taking advantage of student-
athletes.
Senator Klobuchar. I remember we talked about that when we
met. Thank you.
Mr. Baker. Yes.
Senator Klobuchar. Mr. Petitti, how do the lack of uniform
rules--I think, what, we have 31 State laws now that have
emerged. How do the lack of rules put schools in States without
NIL laws, like Minnesota, at a disadvantage because they cannot
take advantage of State laws that preempt NCAA rules and are
more permissive?
Mr. Petitti. It's creating a recruiting and a transfer
advantage in those States where money can flow to student-
athletes that is encouraging attendance. It's encouraging
transfer.
States that have not enacted, so far, are in different
positions. What we have, it's been mentioned earlier, is a
situation where we compete in one conference across many
States. We want that to be somewhat balanced. There's already
enough--we have different size stadiums.
There's a lot of things that impact competitiveness, but in
this case we're seeing States increasingly keep ratcheting up
what they're doing, to try to improve competitively. So, it
starts at one place, and the next State, the next State keeps
going----
Senator Klobuchar. Right.
Mr. Petitti [continuing]. In one direction.
Senator Klobuchar. And, Ms. Thomas, does that lack of a
single nationwide standard make things more difficult for
student-athletes?
Ms. Thomas. Yes. It makes things much more difficult and
very confusing, a lot of times.
Senator Klobuchar. Okay. Another issue that's related. Ms.
Bodensteiner, after 50 years of Title IX, our athletes
shouldn't have to fight to get adequate pay.
As you know, Senator Cantwell and the Commerce Committee,
we've worked to pass legislation, the Equal Pay for Team USA
Act, which now requires equal pay and resources. How can we
ensure that gender pay disparities don't persist under an NIL
system?
Ms. Bodensteiner. I think it's a combination of what
Governor Baker and Mr. Swarbrick have already mentioned. One is
transparency, and two is getting back to legitimate NIL deals,
where the actual capitalist market is paying, in which case
women will succeed at a greater level, I believe, than male
athletes.
But I think it all comes down to getting rid of this, you
know, imper--should be impermissible market of paying athletes
to attend institutions.
Senator Klobuchar. Okay. Mr. Petitti, back to you. When we
had a hearing, we all saw firsthand Simone Biles, Aly Raisman,
McKayla Maroney, and Minnesotan Maggie Nichols testify before
the Senate Judiciary Committee in 2021. By coming forward, we
know they made a difference.
What measures are the Big Ten and its member institutions
implementing to ensure these types of abuse don't occur? We're
very proud to have the final Olympic gymnastics trials destined
for Minnesota in June of 2024 and think there'll be a lot of
discussion about that. So, if you could just answer it from the
Big Ten's perspective.
Mr. Petitti. Yes. Thank you, Senator. First, we obviously--
we want to make sure we ensure the safest environment for
student-athletes, for coaches, and for the students that work
in athletic departments. That's number one.
Since then, we were the first to install a chief medical
officer. The amount of attention and resources from the
conference office--what we're trying to do is make sure that
our members have, you know, the best resources to make sure
that we're guaranteeing a safe environment for everybody
involved.
Senator Klobuchar. Thank you. And I'll ask on the record,
Mr. Huma, questions I had about the announcement on the long-
term health and disability benefits which I'd like to--I'll do
it later and defer to my colleagues. Thank you.
Senator Booker. I think next is my fellow Stanford man. I
played tight end. I think he played far right wing on the
soccer team--Josh Hawley.
[Laughter.]
Senator Hawley. Thank you, Mr. Chairman. And thanks to all
of the witnesses for being here.
Mr. Baker--Governor Baker, if I could just start with you,
I appreciated your comments in your opening statement about the
attacks, the terrorist attacks on the state of Israel and the
need to condemn those for what they are.
Let me ask you about some of the statements that student
groups on the campuses of your member schools have said
recently.
Students at Harvard wrote they, quote, ``hold the Israeli
regime entirely responsible for all unfolding violence.''
Students at Ohio State University praised, quote, ``the
heroic''--heroic--``resistance in Gaza.''
Students at the University of North Carolina claimed,
quote, ``It is our moral obligation to be in solidarity with
the dispossessed. This includes violence.''
Students at New York University wrote, ``Peaceful discourse
must be rejected'' and instead said, ``There is no peace in a
colonized people living under occupation, subjugation, and
apartheid,'' referring to Israel.
And, finally, I'm sure you know Columbia University--
Columbia was actually forced to close its campus when an
Israeli student was assaulted and numerous Jewish-American
students were threatened. Would you condemn this rhetoric of
violence and antisemitism at these campuses?
Mr. Baker. I think it's important--and I say this as much
as a former Governor as I say it as the current head of the
NCAA--for all of us, whether we agree with someone's general
political philosophy or not, to condemn any support for
violence. There is never an excuse for unprovoked attacks on
innocent people.
And I, you know, I've said many times, and I said it a lot
when I was Governor, that we have gotten really casual about
the way we think about violence in this country. And I said it
all the way through the summer of 2020, when we had some really
horrible things that happened to members of our Black
community.
And I think the--I think we have a cultural problem there
as much as anything else, Senator. And I think it's important
for everybody on all sides of the political spectrum to call
that stuff out.
Senator Hawley. Good. I agree with you. I'm glad you're
willing to say it. I think it's important that the NCAA be
willing to say it. You've got many Jewish-American athletes,
I'm sure.
Mr. Baker. And Jewish-American students.
Senator Hawley. Indeed. And while--and I think you were
gesturing to this. While the First Amendment certainly protects
the right of anybody on our campuses and across the country to
say what they want, peacefully--peacefully--that doesn't mean
that we have to condone it and act as if it's morally
acceptable.
And I think it's vital that we take a stand. I'm going to
ask the Senate to take a stand on the same rhetoric and condemn
it as the violent antisemitic rhetoric that it is.
Let me ask you about a student safety issue of a different
kind. Earlier this year, this Committee heard testimony from a
12-time All-American swimmer, Riley Gaines. She testified that
in March of 2022, at the national championships where she was
swimming, she was forced to share a locker room with a
biological male, Lia Thomas.
Let me just read from her testimony. ``In addition to being
forced to give up our awards, our titles, and our
opportunities, the NCAA forced me and my fellow swimmers to
share a locker room with Thomas. Let me be clear. We were not
forewarned, we were not asked for our consent, and we, the
women, did not give our consent.'' Is that still NCAA policy?
Mr. Baker. First of all, I'm not going to defend what
happened in 2022. I wasn't there. I was still Governor of the
Commonwealth. What I will say is, we have very specific rules
and standards around the safety and security of all our
student-athletes, and anyone who hosts one of our national
championships has to know--has to accept that they know what
they are and then abide by them accordingly.
Senator Hawley. But--and does that include female athletes
having to share locker rooms with biological males not being
warned or consent? Do they--are they asked for their consent?
Mr. Baker. I don't believe that--I don't believe that
policy would be the policy we would use today.
Senator Hawley. Currently not in----
Mr. Baker. Correct.
Senator Hawley. In--yes.
Mr. Baker. Yes.
Senator Hawley. Well, let me just ask you this. Would you
support the right of student-athletes to unionize--athletes
like Ms. Gaines, Ms. Thomas here today--to unionize, to have
some bargaining power on some kind of an equal footing to deal
with the NCAA, whether it's over safety issues like this one,
whether it's over name, image, and likeness, whether it's over
compensation?
It seems like these institutions have all of the power. The
NCAA has a lot of power, as we heard from Ms. Gaines. Should
student-athletes have the right to unionize, to be able to
speak with a little bit of an equal voice?
Mr. Baker. I think the most important thing for us to
remember here is to unionize--if student-athletes were to
unionize--and we're going to have court cases on that, which is
why--there's currently two NLRB cases that involve this issue.
I'm more likely than not to not want to speak specifically to
those.
I do have concerns, and I've raised these before, about
creating a system where you put one brush across all 19,000
teams, all 1,100 schools, all 500,000 athletes, and say they
should all be employees, because I do believe in your State and
in the State of every single person on this Committee,
literally thousands of your interscholastic athletic programs
will go away. Because it completely changes everything about
what it means to be a student-athlete and what it means to be a
college that supports student athletics. And I think that's a
problem.
Senator Hawley. Well, I appreciate your responses and your
candor. I will just say, in conclusion, that I think we've got
to find some way to give these student-athletes a voice, and
whether it's the issues like the ones Ms. Gaines raised or NIL
issues or others, currently I think there's a huge power
disparity. Thank you, Mr. Chairman.
Mr. Baker. Can I just make one final point, Senator, which
is all three of our student-athlete advisory councils, which
are elected by their peers, have expressed deep concerns about
being considered to be employees. And I've talked to probably
1,000 student-athletes since I got this job, and I haven't
talked to one yet who wants to be an employee. I think that's
important.
Senator Booker. Senator Blackburn.
Senator Blackburn. Thank you, Mr. Chairman. Thank you to
each of you for being here. As most of you know, whether it's
the Commerce Committee or here at Judiciary Committee, we have
been focused on what we're going to do with the NIL issue and
how it's going to affect student-athletes.
Likewise, we have been very concerned about men in women's
sports and what that does to the student experience.
And Trinity, congratulations to you on your outstanding
record. I am absolutely delighted that we have the opportunity
to hear your perspective today.
Governor Baker, it's no surprise to you I want to come to
you first. And one of the things--pardon me--that we are
looking at is the patchwork of State laws and how that affects
so many different processes with the recruiting process,
dealing with NIL, different approaches, different types of
collectives.
So, as you look at this patchwork, knowing that it's going
to impact schools differently, whether it is Ole Miss or St.
Joe or whomever, talk for a moment about how you're going to
clean this up, and what is your timeline for delivering it?
Your predecessor never could give us a date, time, and
place that something was going to happen. So, give me a
timeline. Give me a way forward. I think every university--
there's 1,000 schools in this country that you all cover, and
they all want to know, what is that process?
Mr. Baker. So, thank you very much for that question,
Senator, and I do appreciate the time you've given me on these
issues. With respect to student-athlete transparency and access
to information and consumer protections, which is sort of how I
think about it, those are in the process of being written up,
and I expect they'll be ratified before the end of the calendar
year. Okay?
And those are going to----
Senator Blackburn. And the implementation would be at what
point?
Mr. Baker. It would be effective the beginning of the next
scholastic year, so let's call it August of 2024.
Senator Blackburn. Okay.
Mr. Baker. With respect to institutional involvement, which
is another issue we've talked about quite a bit here, I would
expect those to be done by March, and I would expect that right
around March we'd also be dealing with the issues around
recruitment, also effective August of 2024.
Senator Blackburn. Okay. So, there would be----
Mr. Baker. Now, the question then becomes, Senator, those
will be the ratified and voted-on bylaws by the organization,
by the NCAA and its membership. But that doesn't necessarily
mean that, in the current legal and regulatory environment,
everybody will comply with them. And I fully expect at some
point we'll have----
Senator Blackburn. And then with women--with men in women's
sports, when do you expect some specific guidance? Because you
just responded to Senator Hawley that you didn't think the
situation with Lia Thomas and Riley----
Mr. Baker. Yes.
Senator Blackburn [continuing]. Gaines, who, by the way, is
a Tennessean--that the position would be the same. So, when
will there be specificity on that?
Mr. Baker. Well, first of all, the rules around--as I said
before, the rules around transgender athletes generally are
more restrictive today than they were in 2022. And I can state
pretty clearly that no one's going to get forced into any sort
of situation that's going to make them uncomfortable. We make
that very clear in the guidance that we give to anybody who
hosts one of our championships, period.
Senator Blackburn. Okay. Thank you. Mr. Jones, if I could
come to you, please. The collectives are something that we have
looked at, and, of course, as we know and has been discussed
today, 98 percent of your college athletes do not play pro
sports.
And then looking at the NIL issue, the financial benefit to
the student, the need for financial literacy in this, the need
to prepare that 2 percent that do go on to the pros, because we
hear 78 percent of those athletes end up in bankruptcy--talk a
little bit about what the collective is doing.
You said in your testimony that you all don't help with
recruitment. You jump in after the students are there. So, how
do you help prepare them for this?
Mr. Jones. Well, I think a lot of what we've heard today
about collectives are outdated perceptions that probably were
formed over 12 months ago when collectives were first being
formed. They weren't as well staffed, they didn't have as much
guidance, and they were just trying to figure things out.
I think collectives, like everything, has evolved over the
last 12 months, Senator, to a much more functional, well-
staffed organization run by business professionals that provide
resources and tools, because at the end of the day--I think
originally collectives were about just writing a check to the
athlete. There's no doubt about that.
But I think what's happened now, collectives, and at least
for mine, specifically, at the University of Mississippi, it's
as much about developmental as it is compensation. And I
believe that's philosophically the way we should be going, to
protect the well-being of our student-athletes, to make them
better prepared and more functional members of society when
they leave their campus.
So, most collectives in the 25, in the TCA, we stand united
for--we already are very transparent. We have our contracts on
file with universities. We are all about getting the bad actors
out, with an agent registry. And a standardized contract? We
have no problem with those things. So, we support a lot of what
we've heard today. I just think the perception of collectives
is outdated.
We have evolved, just like the market has evolved, and we
are giving our athletes resources and tools so they're better
prepared in financial literacy, being a taxpaying citizen,
networking in business, protecting the value of their name on
social media, and all those tools, and how to deliver an
obligation where you're compensated, which is the tools they're
going to need, Senator, whether they play, to your point,
professional sports or not. And the majority will not. And the
tools that we are providing on the collectives of today are
helping them prepare for that.
Senator Blackburn. Mr. Chairman, my time has expired. I
think it might be helpful to us, knowing there are other
collectives in the room, if we could get a written statement
from them of what their process of participation is, with their
students, as we look at having some certainty and consistency
in this process across the country.
Senator Booker. Thank you. I'm turning it back over to the
real Chairman, but I just want to say, next up is the Deion
Sanders of the Republican caucus, Ted Cruz.
[Laughter.]
Senator Cruz. That may be the kindest introduction I have
ever gotten in my life.
[Laughter.]
Senator Cruz. And I will say to the Senator from New
Jersey, he may find that introduction played in attack ads
against him in his home State, so I apologize for that ahead of
time.
[Laughter.]
Senator Cruz. Welcome, to all the members of this panel.
Thank you for being here. Thank you for your testimony on this
topic, which I think is an exceptionally important topic.
College sports are amazing. They are something that pulls
us together. We're in a time where it seems we can't agree on
what time of day it is. We're yelling and fighting over
everything, and yet every week, millions of Americans come
together and they cheer for their schools and they stand
unified, and no one cares what race, what ethnicity, no one
cares what political party they are, no one cares what religion
they are. They stand together, and they cheer, and that's--
that's important. I get enormous joy cheering for Texas schools
every week. We--and that's true all across--all across the
country.
College athletics has also been an incredible avenue for
millions of young men and millions of young women to get a
great education--young men and women who might not otherwise
have an opportunity to go to college, to have their college
paid for and to get all of the benefits of participating in
organized sports.
Most college athletes will never play pro ball. They're not
going to be on the cover of a Wheaties box. They're not going
to get a Nike contract. But they are learning discipline and
teamwork and sportsmanship, and they're learning to be gracious
winners, and they're learning to be gracious losers, and
they're learning all sorts of skills that will help them every
day of their life.
And I'm very worried about the state of college athletics
right now. In addition to serving on the Judiciary Committee,
I'm also the Ranking Member of the Senate Commerce Committee,
which has jurisdiction over athletics.
And as each of the witnesses know, I've spent much of the
past year visiting and listening to stakeholders, listening to
the NCAA, listening to conferences, listening to universities
and institutions, listening to athletes.
And across the board, I'm hearing real concern about the
state of college athletics right now, that it is a Wild West,
and that there is a real risk that if Congress doesn't act and
act quickly, that we risk doing enormous damage to a system
that is providing enormous benefits to millions of Americans.
I've introduced draft legislation to address this issue,
and the legislation I've introduced takes a different approach
than some of the other pieces of legislation that have been
introduced. And lots of Members of this body have introduced
legislation. There's a lot of interest in it.
My legislation protects NIL rights, front and center. I
think it's important. I think it's right that athletes deserve
to enjoy the fruit of their hard labors. And if their skills
are generating millions of dollars and are a massive economic
powerhouse, it's only right that these young men and young
women should enjoy significant fruits from their hard work and
their performance.
But at the same time, I don't think anyone wants to see a
world where you have a few giant schools with all the money,
that buy all the top athletes, and we destroy competitiveness
across college athletics.
One of the great things about March Madness is 64 teams,
and any one of them can win, in any given year. That makes it
incredible fun to watch.
I think it is also important that we protect college
athletes across the board, so it's not just, you know, football
and basketball at big marquees programs. But it's Division II,
Division III schools--it's all sorts of non-revenue sports that
are really important but are not going to produce millions of
dollars and, you know, be on TV nationally.
So, I'd like to ask a couple of questions to each of the
witnesses, quickly. Number one, do each of you believe it is
important that Congress act and provide a uniform national
standard rather than 50 States having 50 different standards?
Do you think it's important that Congress act? And I'm just
going to ask for a yes or no.
Mr. Baker. Yes.
Mr. Petitti. Yes.
Ms. Thomas. Yes.
Mr. Huma. No.
Mr. Jones. Yes.
Ms. Bodensteiner. Yes.
Mr. Swarbrick. Yes.
Senator Cruz. Okay. A second question, and a difference
between the way my bill approaches it and other bills, is that
my bill empowers the NCAA to work with conferences, to work
with universities to set the rules of the road.
I think that's a better solution than the Federal
Government stepping in, either an existing Government agency or
a brand new Government agency. I think nobody wants to see
Congress and politicians deciding what roughing the passer is.
And bad things will happen, I believe, if Government takes over
college sports.
So, I'd like to ask everyone on the panel again to answer
yes or no, or actually not yes or no, but do you believe the
NCAA should be setting the rules, or do you believe the Federal
Government should be setting the rules? Governor?
Mr. Baker. Well, that's kind of an easy one for me,
Senator. I'll go with the NCAA on that one.
Senator Cruz. I figured that.
Mr. Petitti. NCAA.
Ms. Thomas. I don't have an opinion on that.
Senator Cruz. Okay.
Mr. Huma. The Federal Government, by extension of
establishing a third party.
Senator Cruz. Okay.
Mr. Jones. The devil's in the details, but we would be open
to the NCAA.
Ms. Bodensteiner. The NCAA, in compliance with existing
Federal laws.
Senator Cruz. Okay.
Mr. Swarbrick. The NCAA, especially if they can figure out
targeting.
Senator Cruz. Okay. I'm confident Congress cannot. I don't
understand who gets called for targeting, but I know it pisses
me off when it's against my schools.
All right. Last question. There's a big debate over whether
student-athletes should be classified as employees or not. I
believe that would be a very serious mistake. It would subject
scholarships to taxation. It would subject student-athletes to
all sorts of wage and hour regulations. It would mean, if
suddenly you have a receiver who drops a bunch of passes, you
can be fired and lose your scholarship.
All of that seems really bad for college athletics, not to
mention the cost that it would impose on smaller programs that
I think would lead to eliminating smaller programs. Going down
the panel, do you believe student-athletes should be treated as
employees, yes or no?
Mr. Baker. No.
Mr. Petitti. No.
Ms. Thomas. No.
Mr. Huma. Yes, for FBS football, Division I men and women's
basketball.
Mr. Jones. No.
Ms. Bodensteiner. No.
Mr. Swarbrick. No.
Senator Cruz. Mr. Chairman, I would ask unanimous consent
to enter into the record two different letters that I have
here.
One is a letter dated October 13, 2023, from four
Historically Black Athletic Conferences, saying any legislative
framework classifying student-athletes as employees would have
a staggering impact on our athletic program and schools--an
employment model for college sports is simply not the answer.
And then second is a letter from the chair of the Division
I Student-Athlete Advisory Committee, which represents nearly
190,000 student-athletes, noting that student-athletes should
not be employees of their institutions.
Senator Blumenthal [presiding]. Without objection, so
ordered.
[The information appears as submissions for the record.]
Senator Cruz. Thank you.
Senator Blumenthal. Senator Padilla.
Senator Padilla. Thank you, Mr. Chair. I had to step out
for a presiding officer shift but have been tracking this
important conversation, which I'm not unfamiliar with. Right,
Mr. Huma?
Appreciate you all participating here today. And I have
heard that this question of whether there should be a national
standard versus State-by-State standard keeps getting
revisited, and I just want to register my position on that.
I agree that, ideally, there would be a national standard,
but only if it's done right and not if it undermines or
compromises any of the protections or gains that have been made
in different States. And I speak from experience.
You know, when I served in the California State
legislature, we worked hard to pass the Nation's first-ever
student-athlete bill of rights.
We even got through all the debates about student-athletes
versus athlete-students--but that, maybe, is a discussion for
another day--a student-athletes bill of rights to require
universities to increase protections, health care, and
resources to support student-athletes, not just their health,
but with a specific eye toward academic support and graduation
rates.
And so I want to make a point here, for the record. While
the NCAA has reported that 90 percent of Division I athletes
have graduated within 6 years in 2022, this statistic fails to
include athlete transfers who do not re-enroll.
There's other concerns about the methodology. Bottom line
here is statistics from NCAA are inaccurate and misleading.
Using the standard Federal graduation rate, just 69 percent of
Division I athletes graduated within 6 years.
So, as we have this important conversation today, I want to
make sure that the billions of dollars in profit that is made
off of the performance, the work, and the sacrifice of student-
athletes in collegiate sports is also used to support their
pursuit of a college degree. Again, we intentionally call them
student-athletes, not athlete-students. The student part comes
first, not just in name. It also needs to come first in
practice.
Question for Mr. Huma. What protections exist today, and
what protections are still needed to further support student-
athlete graduation rates?
Mr. Huma. Thank you. And thank you for all the work you've
done in the past on college athletes' rights in California,
setting a great example of what States can do.
But, you know, first and foremost, if you look at the Pac-
12 surveys, they did a survey a few years ago, and across all
sports, athletes reported spending 50 hours a week in their
sport alone. Fifty hours, on top of full-time school. So, you
know, that survey's not going to change the TV schedules and
the game schedules, but it's important that athletes on the
back end have enough time to graduate.
So, one important issue is to make sure athletes have
enough time to graduate. I know the NCAA is saying that it's
going to pass legislation for years and years afterwards, but
the thing is, without enforcement, any rules that the NCAA
adopts, if there's no enforcement, it's not going to happen,
you know, so they don't have to abide by that.
Senator Padilla. And so I'd offer to my colleagues, for
consideration, a threshold, as we did at the State level.
Certain programs, certain schools whose graduation rates, by
program, fall below a certain threshold would then trigger
requirements for additional investment, additional support,
whether it's tutoring or anything else--if we're genuine and
sincere when we call them student-athletes, right, not just
athletes or athlete-students.
I know my time is brief, but I also want to just ask a
follow-up question to you on, in addition to academic support,
I mean, the mental health needs--stress is real, and that's
been under, you know, programs to date, conference structures
to date.
I can imagine--only imagine, under new conference
structures, more travel time, more money at stake, time away
from home and family, et cetera. What recommendations would you
have for better supporting the students in that capacity?
Mr. Huma. Well, I think first, if you address some of the
root problems, you know, it's making sure injuries are taken
care of, coaches can't push players back with injuries. There's
a lot of athletes who are broken because they've been betrayed
by the universities. And there has to be a third party. You
know, it's not the honor system. Many schools do it right, many
don't.
The surveys show it. The trainers are saying that coaches
are forcing players back in competition before they're ready.
Fifty-nine percent of trainers say that. Twenty percent report
returning players to play without even medical clearance.
That's what's happening, really, at the schools. They're
breaking kids.
And now you realign conferences on opposite coasts? That's
more pressures on academics, travel, their health, their rest.
So, some of the structural issues need to be addressed. That
will go a long way. And for the schools, many schools should be
prioritizing having proper mental health services on campus.
Senator Padilla. Yes. And there's no such thing as a full
4-year ride. And I know my time is up, but I do want to ask
just one more question, because I think it's timely,
particularly for the State of California.
And it's going to be for Governor Baker: It's my
understanding that, following the 2021 Supreme Court decision,
student-athletes are no longer forced to choose between their
collegiate eligibility and NIL contracts.
As all of you know, Los Angeles will be hosting the 2028
Olympic and Paralympic Games, and preparations are well
underway. To ensure the success of Team USA in these Games, we
must address any remaining barriers to participation by our
student-athletes.
Governor Baker, you mentioned in your testimony that
collegiate sports programs have been a significant pipeline for
Team USA. Are there any remaining barriers for student-athletes
who are also Olympic athletes? And whether it's accessing
stipends from Olympic training programs or endorsing products
during the Games, how would some of the rules that are
entertained at State by State or here, federally, going to
impact that conversation?
Mr. Baker. What I think I would like to do, Senator, is get
back to you in writing on that, because that's a really
important question with a lot of detail in it, and I don't want
to get it wrong. Okay? So, I will get you an answer in writing.
Senator Padilla. I look forward to that.
Mr. Baker. Okay.
Senator Padilla. Thank you very much. Thank you, Mr. Chair.
Senator Blumenthal. Thanks, Senator Padilla. Senator Lee.
Senator Lee. Thank you, Mr. Chairman. President Baker, I'd
like to turn to you first. A few minutes ago, my colleague
Senator Hawley asked you a couple of questions related to Riley
Gaines.
Now, Riley Gaines was here just a few months ago. She
testified in front of this Committee, at another hearing, about
how the NCAA discriminated against her when she was required to
compete against a biologically male athlete, Lia Thomas, and
also required to share changing facilities with that same
biologically male athlete.
Another female swimmer, Kylee Alons, was so uncomfortable
being required, without advance notice, to share changing
facilities with a biologically male competitor that she went
and found a supply closet, instead.
Now, when Senator Hawley asked you those questions, you
demurred, noting that those occurred before you came on as
president. I understand that, and I look forward to those sorts
of things not happening.
But I think it's still relevant for us to ask what's been
done about those. So, I'd like to know, first, have you
apologized to those female athletes and any others similarly
situated, for the trauma that was inflicted on them as a result
of those decisions by NCAA?
Mr. Baker. Again, Senator, I'm not going to speak to or
defend what happened in 2022.
Senator Lee. That's not my question. I'm asking whether
you've apologized.
Mr. Baker. I understand that. I don't know. I'm assuming
you're asking--when you say you, you mean the----
Senator Lee. Yes.
Mr. Baker [continuing]. NCAA?
Senator Lee. Yes.
Mr. Baker. I don't know the answer to that question. I'll
have to get back to you.
Senator Lee. Okay. Thank you. Tell me what rules,
regulations, restrictions, policies you may have put in place
to allow these sorts of things from--to prevent these sorts of
things from happening in the future.
Mr. Baker. Well, I can tell you that the standards with
respect to participation for trans athletes in women's sports
have been adjusted since then and continue to be adjusted based
on conversations with other governing bodies. And, again, I'm
happy to put that to you in writing, which I think would be
helpful.
Senator Lee. Yes, that'd be great. Separate from the issue
of competing, what about the question of sharing changing
facilities? Do you have policies that you've adopted since then
that address that particular issue?
Is there a means by which female student-athletes are
allowed, number one, to know in advance of when they might be
required to share changing facilities with a biologically male
student-athlete?
And, number two, after notifying them, do you have policies
and procedures in place to allow them to make alternative
arrangements for changing facilities?
Mr. Baker. Our policies with respect to the safety and
security of student-athletes participating in our championships
is pretty explicit about making clear that student-athletes
should not be forced into uncomfortable situations. I will
confirm that that would involve situations such as the one that
you're raising here, and again, I'll get that to you in
writing.
Senator Lee. Thank you very much.
Mr. Jones, I'd like to turn to you next. As a former
student-athlete at Ole Miss, when you played for my colleague,
Coach Tuberville, you weren't allowed to receive any
compensation.
Players now are allowed to profit based on their name,
image, and likeness, which can lead to great benefits for the
student-athlete and for collegiate athletics more broadly.
For example, because of NIL, some players may choose to
stay in college longer, allowing them to showcase their talents
and, at the same time, pursue degrees instead of leaving early
to go play in the pros.
The University of Utah football team has recently arranged
for their players to get leases on trucks, all of them driving
the same truck, which I know a lot of them enjoy. Can you speak
to the role that collectives play in NIL and their role going
forward?
Mr. Jones. Yes. And thank you, Senator, for your question.
As I explained to Senator Blackburn, I think the role of
collectives has evolved the last 12 years, and thankfully so,
for the student-athletes. Again, what may have been started
just as a organization to write a check or to compensate an
athlete has now turned into a resource that provides tools,
transparency in an area that didn't have any.
And so, you know, but we've got to remember, too, that the
student-athletes, this is a new environment for them. This is
something that they've never experienced--18-, 19-, 20-year-old
kids and their parents, and they're trying to navigate.
They're--sometimes it's overwhelming to make sure that they
don't do anything that would proclude their eligibility--would
inhibit their eligibility.
And we have taken the approach, at our collective at Ole
Miss--but the other collectives in our association--about
trying to make this just as much about development of the
student-athlete. Financial literacy is really important, being
a taxpaying citizen, understanding that when somebody pays you,
the service that you need to provide and the obligation that
you are owed. And all those things speak to making them more
functional members of society when they leave our campus.
So, again, I think collectives have evolved to create a
structure where we can provide guidance, we can provide
resources, we can provide knowledge.
And we stand ready, as I've said in my written testimony
and today, to have governance, to have oversight, to have a
Federal standard. We share--ready to work with all our
colleagues up here on this panel and with the Government, where
necessary, because, Senator, we're lucky enough that we deal
with the athletes every day. We're in the trenches with them.
We're in the realities. And we just don't buy into all the
negativity that you hear.
Are there some things that need addressing? Absolutely. But
overall, the impact that NIL has had in the health and well-
being of our student-athletes has been overwhelmingly positive.
We see that with our student-athletes. We see them to develop
their maturity level.
And again, I think if we're doing our part, we can provide
really transparent and tangible detail to all the stakeholders,
so we can provide the necessary guidance and be able to make
the most informed decisions going forward. But I do think we
have--we are much more about development than we are just
compensation, for the last 12 months.
Senator Lee. Thank you. I appreciate all that you and folks
like my friend, Russ Skousen, do for student-athletes. Thank
you.
Mr. Jones. Thank you, Senator.
Senator Blumenthal. Thanks, Senator Lee.
We've been joined by Senator Manchin, who's done a lot of
work in this area. I'm going to give him the opportunity to
make a statement, and then I'll have a few closing questions.
Senator Manchin.
STATEMENT OF HON. JOE MANCHIN, III,
A U.S. SENATOR FROM THE STATE OF WEST VIRGINIA
Senator Manchin. Well, first of all, thank you, Senator
Blumenthal, for being so kind to allow me in. And this is
something very near and dear to my heart.
It's good to see my friend, Governor--Governor--
Commissioner Baker, I think, would be the appropriate term, and
to all of you.
I know you're all here because you care as much as we all
do about the student-athlete. But, you know, we--I think we're
losing sight of the word student, because basically, allowing
them to switch around as they can right now with portals and
everything else, there's--their chances of graduating are slim
to none. And something has to be done.
So, here's what we've done. We have a piece of legislation,
Senator Blumenthal--and I've shared it with him and all that--
myself and Tommy Tuberville, who was a coach at Auburn.
We put a bill together which is called the PASS Act. And
what we're trying to do is kind of put some guardrails, if you
will, for boosters and collectives, to make sure they're
associated with the schools and they're in sync with the
schools, for the purpose of making coordination there. We're
not trying to harm any student from able to sell their value.
We just don't believe it should be auctioned off, school
against school. Pretty simple.
If you've got that value and that talent, you're on TikTok,
whatever you are, get yourself a lawyer, get yourself an agent,
and go to it. Just don't come to West Virginia University and
then basically say, they'll give me this much, and now
Maryland's going to give me this much, or so and so. So, we're
trying to take that out of it.
The other thing is moderating the transfer portal. I was
fortunate enough to get a scholarship at WVU, and got hurt very
early. Back then, in the 60s, they still kept me. They didn't
have to.
But right now, if I got a Division I scholarship, a
Division I school scholarship, full scholarship, in one of the
major sports, they're committed to keeping me for 4 years and
giving me an education. They're that committed to education.
The bottom line is, I'm not committed to stay. I can leave
the first month, if I'm unhappy. They told me I'm going to play
quarterback, and I go in, and now all of a sudden you're going
to put me defensive back? Oh, no, I'm sorry--I'm going
somewhere else.
That is not what developing young athletes is about.
They're going to have to be structured and coached somewhere.
So, we're putting guardrails on that. Three years: freshman,
sophomore, junior. Junior year--after that, go anywhere you
want to. That coach has had a chance.
Now, there's still going to be a waiver provision. I've
spoken to Commissioner Baker about all these things, and if
you've seen our bill--if not, we'll make sure you receive it,
providing transparency of how these are operating, clarifying
the NIL activities, which I just talked about, providing
additional protection for student-athletes.
The bottom line is, they should--our main goal is to get
them an education, get them a skill set. There's less than 2
percent that go into NL--NFL, or NBA, or whatever they may
think they would love to do. We all have those grandeur dreams.
Doesn't work out always. So, that's the most important thing.
The other thing--I don't know if you all have considered
that most of these student-athletes are receiving Pell grants.
So, that means that the Federal Government is paying through
Pell grants for the most highest valued part of the
scholastic--it's basically the money that comes in through the
large sports programs.
And that doesn't seem fair to me. All these schools have
other students that really need the Pell grants very badly, but
there's enough value within the system that would pay for those
students. I don't think anyone intended that to happen that
way. It just has evolved. I don't know if you all were aware of
that or not. It's been brought to my attention. I think that's
something that has to be corrected, too.
Enforcing oversight, also health and safety, and our bill
basically says you will take care of a student-athlete 8 years
after they finish their playing days or curriculum or graduate.
And that means it has to be a sport-related injury to the sport
they played. So, it'll probably be in orthopedics, things of
that sort.
We're trying to make sure they have the full value of
having a quality of a healthy education and have a healthy life
to provide for themselves and their family, but also the
experience of being a student-athlete.
They're coming in as professionals now. The NIL has
basically just about destroyed what I know the system was and
how it was supposed to be. Heck, I would've paid WVU to let me
go play. And I'm to tell you the love of the sport, it still
has to be there.
If it's all about chasing the dollar, from when you're on
Pop Warner teams and your parents are pushing you and all
these--that's not what it was designed to be. So, if they're
that good, go right in from high school to the pros. Don't come
through the college system and basically have an auction bid.
It doesn't--that's not what it was intended to be.
So, I know everyone has different opinions about this. I've
heard everything from a player's union--you want to really
screw a school and screw Title IX and everything else, try that
one on. And Title IX's going to get hurt the worst, and no
one's even looking at that, to the point to where we're just
worried about the two major sports that have all the money.
So, I, you know, I've got a lot of problems, I really do,
with this, seeing it up close and personal, seeing a lot of
young men and women who've really made tremendous contributions
to society, not through athletics, after they finished the
athletic scholarship they had. They did it because they were
developed young people who were matured enough to go out and
share their value. And that's been tremendous.
I think--I've always said this. I never could figure out,
when we were in school, we used to get tickets, and we would
sell the tickets, and that'd give us a little bit of spending
money. We got $30 a month for laundry. That was it. I said,
that's pretty good. We could almost live on $30 a month, back
in the 60s. So, we felt good about all these things, but then
we thought, man that's a bonus. I didn't expect that.
And then, I says, so and so--some of my classmates and my
ball players--their own parents couldn't afford to come watch
them play. And if an alumni tried to pay to get the parent
there, it was a violation. Crazy. I said, how come your mom's
not here? Oh, my grandma wrote. She can't afford it. I just
said, we've got to fix that.
So, I know you all have good intentions. Guys, you've got
to help us. If not, we're going to lose something that I see as
one of the greatest pastimes we've ever had.
And no matter where you went to school, no matter if you
played or not, you're still there. It's still part of you. And
you're rooting for the system, but you're rooting for the kids.
And anymore, it's kind of hard to root for the kids when
they're starting multimillionaires at freshman, sophomore.
So, that's my two cents, Mr. Senator President--Mr.
President Senate--no, Senator Blumenthal's been so kind.
We have a lot of the same concerns, and we have a little
different opinion of how it should be done, but if you help us,
we can make changes, I think we really can, that's going to be
constructive. And Mr. Baker, Charlie Baker, my friend, so glad
you are where you are. I think you can put basically some
common sense to this thing. I don't think we'd have never been
there if we had the strength of leadership back when this thing
evolved to where it got to today.
So, I'm hoping all of us can work together and take the
politics out of it. And I know it's hard to do that anywhere.
But if you can take the politics out and be able to look at
really what's our purpose, that student-athlete should have the
best experience in their life--to be a basically contributing,
quality adult, to give something back. Ninety-eight percent of
them could do that. About 2 percent will stay and make their
fortune in the arena. So, thank you.
Senator Blumenthal. Thanks, Senator Manchin. I have a few
closing questions which I'd like to pose to the panel as a
whole. Some of you may be aware that international students are
treated differently than American citizens who are college
athletes.
I've raised this issue of foreign student-athletes being
able to benefit from their NIL with Secretary Mayorkas,
actually in this room, before the Judiciary Committee.
The current visa system puts those athletes at risk of
losing their legal status here if they earn any NIL money. In
my view, this kind of discrimination is deeply unfair to them
and demonstrably outdated.
For example, international students like Adama Sanogo, a
star on the UConn Huskies basketball team and a significant
part of our victory last year, is totally unable to earn any
NIL benefits despite his prowess on the court.
These student-athletes' diligence, discipline, and
determination are equally deserving of monetary reward, in my
opinion.
Let me ask the panel as a whole, maybe beginning with
Governor Baker, would you support changes in our laws and
regulation to permit those international students who may not
be citizens to benefit from their NIL status without fear of
losing their visas or other legal status?
Mr. Baker. Absolutely.
Mr. Petitti. Absolutely yes.
Ms. Thomas. Yes.
Mr. Huma. Yes.
Mr. Jones. Yes, and we actually do contract with
international student-athletes.
Ms. Bodensteiner. Yes.
Mr. Swarbrick. Yes.
Senator Blumenthal. And just to be clear, Mr. Jones, it's
not a question of whether schools would be willing to let them
or sponsors would be willing to pay them. It's their status, if
they accept such payment under our current visa laws. That's
what we need to change. So, thank you for helping them, but
they are still at risk of losing their legal status.
Mr. Jones. Yes. I agree.
Senator Blumenthal. We haven't talked much about
enforcement. I'm a former prosecutor. Most of my career has
been spent in law enforcement. And whatever standards are
adopted, whatever reforms are enacted, they will be meaningless
unless they are enforced.
The bill--draft bill that Senator Booker and I and Senator
Moran have written would establish a federally chartered
College Athletics Corporation. It would also give power to the
State attorneys general. I happen to be a former State attorney
general.
I'd like to ask all of you, again, whether you think that
kind of independent enforcer is important and whether you have
any specific views on who should be doing it. Governor Baker?
Mr. Baker. So, I guess I'd say a couple things. One is, I
think that's a conversation we have had and I'm happy to
continue to have. I do have some concerns about some of the
details. And the AGs, we should talk about that a little. I've
had some interesting experiences with AGs since I got this job.
Senator Blumenthal. And before, probably, too.
Mr. Baker. Yes, before, too. Yes.
Senator Blumenthal. Well, I would welcome continuing our
conversation about it. Mr. Petitti?
Mr. Petitti. Yes, I would just need to know more about the
structure and how it'd be set up to really have a strong
opinion, I think. But initially, I'm more inclined to try to
see if we can figure out a way for the NCAA to do this. But
we're open to having those discussions with you.
Ms. Thomas. I would also need more information to have an
opinion.
Senator Blumenthal. Mr. Huma?
Mr. Huma. It's important that enforcement be conducted by
an entity that's independent of the colleges, conferences, and
the NCAA. I believe the industry wants enforcement when it
comes to policing inducements to be the same entity that
enforces health and safety and other aspects that protect
college athletes.
Mr. Jones. I would generally agree with Commissioner
Petitti. Need more detail and more substance and context, but
we're certainly open to oversight and governance, for sure.
Ms. Bodensteiner. I agree more discussion is warranted. I'm
a little bit worried about the lack of enforcement on current
State laws such as NIL laws and agent laws that exist right
now. I'm not sure the States have been very active in enforcing
those.
Mr. Swarbrick. I think increasing the effectiveness of
enforcement is a critical area that has to be addressed. I'm
not sure. I don't have enough detail to respond to that
proposal.
Senator Blumenthal. Well, I thank you, all, for your
willingness to talk, but let me just emphasize the real test
here is going to be whether the rules are enforced.
I mean, the best rules in the world are dead letter unless
they're enforced. And I'm certainly more than happy to hear
from you about how the enforcement should be done, but in my
view: independent, effective, well resourced, and intentional
enforcement, with an emphasis on independent, is key to making
this whole system work--not just on NIL but on health and
safety, on scholarships, on medical trust fund, on all of the
good things that we've agreed are important.
And if we are heading now toward the Wild, Wild West and
dangerous chaos with a patchwork of different measures, a
national standard on any of these issues will depend on
enforceability and, in fact, someone willing to take the reins
and make sure that those athletes are really protected.
Because we all know that the athletes themselves don't have
the resources to go to court, and often, there's a lot of
psychological pressure for them to just take it, suck it up, go
with the program. And I think Ms. Bodensteiner is absolutely
right that State enforcement, so far, has been lacking. So, I
would not rely exclusively on State enforcement, whether it's
by attorneys general or anyone else.
And I would not rely exclusively on a Federal agency. I
would allow the athletes themselves to go to court, but I think
there has to be some enforcing agency here or entity.
Obviously, we're talking about a college athletes corporation,
which is not the FTC or an existing Government agency. But I'm
open to considering one of those enforcement mechanisms, as
well.
I think the other area that Governor Baker has very rightly
emphasized, it is transparency. We need prompt, full, accurate
disclosure here, and I think that message has come across from
this panel very compellingly and forcibly, and I think it is a
fact of life that a lot of these very relevant issues need more
sunlight, more disclosure and transparency. And I thank you for
your willingness to work on that with us.
Mr. Swarbrick, you commented very eloquently on the
employee classification issue. The panel has seemingly with
unanimity said no to employee classification, except for Mr.
Huma. And I'd like to just ask you to maybe elaborate on the
exception that you would make to barring employee status.
Mr. Huma. Sure. And that would be to, you know, really look
at equal rights under the law. But we know we're not talking
about high school athletes, Division II, Division III. We're
talking about top football and basketball. That's why the
discussion's happening, and it's a realization that those
athletes are generating much more revenue that they're
receiving in terms of fair pay.
There's a lack of protections, workplace protections that
are involved, as well, and also, to Senator Hawley's point, the
ability to eventually have some real say and collectively
bargain with an industry that is hostile.
We're talking about, you know, people are discussing
closing the door on employee status without paying the athletes
fairly. That hasn't come up in this hearing, and that's at
really one of the pivotal points. It's also an issue that I
encouraged to put to the side because I don't think Congress is
going to actually proactively pay college athletes fairly.
I don't think that legislation that would ban college
athlete pay would get through, either, so there's a lot of
issues that we can, I think, come to agreement on, but I think
that issue is not one of them.
Senator Blumenthal. So, you're talking about it only for
some sports and some schools?
Mr. Huma. Correct. Correct.
Senator Blumenthal. And what if the athlete didn't want to
be an employee?
Mr. Huma. So there's, throughout our conversations in all
the different States, there was athletes from, you know, the
NCAA's committees or the colleges' committees that would say,
``Hey, look, I'd rather not have NIL, because a school told me
that would divert money from our school and force us to cut my
sport, and I'm afraid of that.''
So, you've got to take it--you have to understand that the
athletes that--they may truly have a difference of opinion, but
it shouldn't negate the entire Nation, you know, of, you know,
rights and progress for all athletes, you know, whether it be a
handful of athletes or groups.
What is equal rights under the law? Do athletes have labor
rights or not? And I don't think that Congress should be
creating--special status is what I heard, but it's a second-
class citizenship. When you carve out players from rights,
that's a big issue in this country, and we oppose that.
Senator Blumenthal. I think we'll continue to talk about
this issue, and I'm certainly sympathetic to the idea of
collective bargaining. I've been a long-standing champion of
unions and the vital role they play in employment settings, and
I'd like to continue this conversation with you.
I think one of the objectives here is to guarantee fairness
and protection to athletes in all schools and all sports, and
perhaps that kind of exception makes sense for some colleges
and some sports, but I think the line drawing may be difficult
to do. But we can continue this conversation.
I am grateful to all of you for being here today. It's been
a remarkably productive and informative hearing. Each of you
has brought a perspective that is singular and extraordinarily
significant, and I want to thank all of you.
I think that one point that comes across loud and clear is
that the present system isn't working. It is broken. And the
corrective action taken so far is commendable but, so far,
inadequate, and that Congress has to do its job to protect
student-athletes.
Thank you, all, for being here today. The record will
remain open for 1 week for questions that may be submitted or
any additional comments, and we welcome them, that you want to
add, in writing. And with that, the hearing is closed.
[Whereupon, at 12:47 p.m., the hearing was adjourned.]
[Additional material submitted for the record follows.]
A P P E N D I X
Submitted by Chair Durbin:
Berlo, Josh, letter............................................. 170
Braun, Amanda, letter........................................... 172
Byun, Elise, letter............................................. 175
Chapman, Brent, letter.......................................... 178
Cheeks, Davaris, letter......................................... 180
Choate, Bryce, letter........................................... 183
Hellmuth, Avery, letter......................................... 186
Jackson, Simone, letter......................................... 188
Walkowiak, Betsey, letter....................................... 189
Submitted by Ranking Member Graham:
United States Olympic & Paralympic Committee (USOPC) and Team
USA athletes, letter.......................................... 191
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