A Senate panel met Wednesday morning to discuss how or if Congress should come together in the next couple of weeks to pass a nationalized law governing college athlete name, image and likeness rights, before several different state-based NIL laws are due to commence in less than a month.
“We are going to make sure this issue is addressed,” said Sen. Maria Cantwell (D-Wash.), the Commerce Committee chair who has been leading bipartisan negotiations on a piece of compromise legislation.
That task includes reconciling eight Congressional college athlete rights bills that have been introduced since last year, ranging from Sen. Marco Rubio’s (R-Fla.) proposed legislation that would grant the NCAA the antitrust exemption it has long sought, to the recent bill offered by Sen. Chris Murphy (D-Conn.) and Rep. Lori Trahan (D-Mass.), which would grant college athletes the right to unionize as employees of their universities.
Wednesday’s hearing largely revolved around whether lawmakers should move to preempt the myriad state NIL laws with a “focused” federal statute, as ranking member Sen. Roger Wicker (R-Miss.) advocated, or to use this moment to address other issues involving college athlete welfare that have repeatedly failed to move beyond the Congressional testimony stage.
Witnesses included NCAA President Mark Emmert, Gonzaga men’s basketball head coach Mark Few and Sportico’s Michael McCann, a professor of law at the University of New Hampshire. Emmert sought to convince the committee that a national solution was necessary to prevent chaos that would result if schools faced different rules based on their location. He said that as long as this solution didn’t include revenue sharing with athletes–or pay-to-play, more broadly–NIL would be a positive step for all intercollegiate athletics, including the Olympic sports with fewer resources.
In his opening statement, Wicker argued that while other issues, such as athlete healthcare and educational outcome are important to address, they aren’t subject to a pressing deadline and should therefore be dealt with subsequently.
As of now, 19 state NIL laws have been passed, five of them set to take effect on July 1–with two others just awaiting their governors’ signatures.
Based on their questions and comments, it appeared that the majority of the committee members were inclined to pass a targeted NIL law within the next couple weeks, although there were some notable voices suggesting a different approach.
Testifying as a witness, Sen. Cory Booker (D-N.J.), a former college football player at Stanford who has co-sponsored a broad-based College Athletes Bill of Rights, implored his Senate colleagues to go bigger than NIL.
“Some people want to make this process as simple as possible,” said Booker. “But I am saying, ‘No, we cannot do that.’ I encourage this committee to focus on the broader concerns. Make this not about the profit but the people.”
Cantwell, for one, indicated her strong interest in addressing health standards and out-of-pocket medical expenses for athletes, at one point asking Emmert what the NCAA could do to guarantee that all its member institutions would be able to defray these costs. Emmert said that creating a funding mechanism for Division I was a “doable phenomenon,” but said it would be “very challenging” to accomplish this at college sports’ lower levels.
Emmert’s response to this question seemed to disappoint Cantwell, who said, “To me, there is a lot of money in sports, and there will be a lot more money in sports….This should be an easier ‘yes.’”
Wednesday’s hearing came almost seven years to the date after Emmert testified in the federal class action antitrust lawsuit filed by former UCLA basketball star Ed O’Bannon, during which the NCAA boss contended that allowing athletes to capitalize on their publicity rights would have a deleterious effect on college athletics and lead to a rash of Olympic sports cuts.
Since then, the O’Bannon class prevailed in court, the public opinion has swung dramatically toward athlete economic rights, and the NCAA has recalibrated its stance to support NIL, just so long as the payments made to athletes are not recruiting inducements and that they don’t conflict with schools’ marketing deals.
Sen. Brian Schatz (D-Hawaii), a co-sponsor of the College Athlete Bill of Rights, repeatedly pressed Emmert on whether the NCAA and its member institutions would file injunctions over state NIL laws if Congress did not act before July 1. Emmert said that the NCAA’s Board of Governors had yet to make a decision, but eventually added, “I believe that for universities themselves to file lawsuits against their own states is a very challenging thing to do.”
ESPN college football commentator Rod Gilmore offered the unique view on the witness panel that there was “no compelling need” for a uniform NIL law, and that it only made sense for Congress to act if it were to offer greater rights to athletes than states were already providing through their legislation.
“The NCAA and its members don’t need your protection,” Gilmore said. “The players do.”
To that end, Sen. Richard Blumenthal (D-Ct.), another co-sponsor of the College Athlete Bill of Rights, said that he would either oppose or block any federal NIL bill that is weaker in terms of athlete rights than the strongest of the available state NIL bills. Blumenthal castigated the NCAA for “dithering and delaying too long,” and said college sports’ governing body was only now expressing support for federal NIL legislation because it feared the threats and complications that would arise from the different state bills.
In his remarks, Few echoed Emmert’s plea for Congress to step in. “We need your help,” said the Gonzaga coach, whose team lost in the most recent NCAA national championship. “We have players showing up on campus here this week. Only action here by Congress can maintain some sort of semblance of a level playing field.”
Few’s testimony was not without some irony, given his past comments about politicians’ involvement in this issue.
After California Gov. Gavin Newsom signed the Fair Pay to Play Act, the nation’s first NIL law, in an episode of LeBron James’ HBO series, “The Shop,” Few publicly railed against “grandstanding politicians” while arguing that matters of college sports should be left to “people in this space.”
On Wednesday, Few effectively conceded that the failure of action from those in the college sports space had now left it up to politicians, grandstanding or otherwise, to solve.
“I really wished we would have addressed this a long time ago,” Few said, “but here we are, and we need to make changes.”