As the NCAA asks Congress for help on NIL legislation, lawmakers want more rights for college athletes
NCAA President Mark Emmert appeared at a Senate Judiciary Committee hearing on Wednesday, and he urged lawmakers to consider those requests. In return, U.S. senators, particularly Cory Booker (D-N.J.) and Richard Blumenthal (D-Conn.), criticized the NCAA for its disregard for athlete welfare and lack of progress on certain issues. In crafting legislation that relates to endorsement deals for college athletes, Blumenthal asked Emmert to “broaden the lens and include these basic rights.”
“We want reforms with real teeth and real protection for the athletes,” Blumenthal said. “Put the athletes first. Colleges ought to hear that message loud and clear. College athletes must receive fair compensation for their work.”
Sen. Mike Lee (R-Utah) called the NCAA “the de facto collegiate athletics cartel.” Lawmakers questioned the NCAA’s health and safety standards and enforcement, with Booker citing a former NCAA investigator who said he was never asked to probe a program for not following concussion protocols. During a time of racial reckoning in the United States, the senators condemned what they described as the exploitation of black athletes.
“The NCAA has failed generations of young men and women even when it comes to the most basic responsibility — keeping the athletes under their charge safe and healthy,” said Booker, a former tight end at Stanford. “ … The NCAA continues to fight tooth and nail, excuse after excuse, to ensure that college athletes, specifically black athletes, who generate an outsized amount of college sport revenue and aren’t able to share in the $15 billion industry that college sports has become.”
Much of the two-hour hearing focused on the rights and well-being of college athletes. The novel coronavirus pandemic, Blumenthal said, “has highlighted the need to enact strong health and safety protections across the country.”
“Schools are now rushing to bring students back on campus,” Blumenthal said. “We are watching a slow-motion potential catastrophe. We all want college sports. We all want colleges to reopen. It has to be done safety, putting athletes first.”
When asked about return-to-campus policies in the wake of the pandemic, Emmert said he opposes schools requiring athletes sign liability waivers, calling them “inappropriate.”
Sen. Lindsey O. Graham (R-S.C.), the chairman of the Senate Judiciary Committee, said that by Sept. 15, a working group would outline a package that incorporates basic rights and how to manage some of the questions about endorsement deals for college athletes. Graham repeatedly referenced his fear of “bidding wars” for top recruits with money flowing to them through avenues allowed by new name, image and likeness rules.
“I just see the destruction of college athletics as we know it unless we get a rein on it,” Graham said. He later added, “You’ve got to make sure the crazy football alumni that exist out there don’t ruin the sport.”
The NCAA’s amateurism rules currently prohibit college athletes from receiving endorsement money, but under pressure from lawmakers, the association has taken steps toward reversing that policy. The NCAA announced in April that its Board of Governors supported rule changes that allow athletes to be paid for endorsements. The board also endorsed the previously announced guiding principals and restrictions described as “guardrails.”
California, Colorado and Florida have passed legislation that will allow college athletes to profit off their names, images and likenesses, which prompted the NCAA to move toward revising its policies. Other states are pursuing similar legislation.
The commissioners of the Power Five conferences sent a letter to Congress in May that said they supported “legislation providing a single, national standard” for college athletes’ ability to make money, which would preempt state legislation related to these payments.
“To preserve the integrity of competition in college athletics, we need one universal and fair national standard on NIL,” said Clemson Athletic Director Dan Radakovich, who joined Emmert on the panel of witnesses.
The Power Five conferences’ proposal of NIL guidelines, a summary of which was obtained by Sports Illustrated, included restrictions, such as prohibiting athletes to sign endorsement deals during their first semester on campus. Booker called the proposal “too restrictive to actually benefit college athletes.”
In the letter to Congress, commissioners supported standards that would allow universities to prohibit agreements that are “inconsistent with higher education.” Athletes, under those guidelines, would also be barred from deals with institutional sponsors.
“You’re actually causing economic injury because all of us have a finite time in life that we are going to have our highest earning potential,” said George Wrighster, a former member of the NFL Players Association’s Board of Representatives and a member of the panel. “ … It’s completely un-American to cut off the free market system. The NCAA, at this point in time, wants to put undue restrictions on student-athletes.”
The NCAA wants to be protected from antitrust liability as it regulates athletes’ ability to earn money from endorsements. Antitrust laws, which apply to nearly every industry in the United States, protect competition to ensure a fair open market.
“College athletics needs a safe harbor in which NIL opportunities can be administered,” Emmert said. “But it’s very important to note that the NCAA is not seeking a broad-based antitrust exemption as some people have suggested.”
Emmert said he believes an independent entity should be tasked with monitoring these agreements. Whoever is responsible for that oversight needs “to be provided with sufficient protection that they can take sufficient action without constant threat of litigation,” Emmert said.
Some of the NCAA’s proposed guidelines, and its expressed need for regulation, center on ensuring that athletes are only earning the fair market value of their names, images and likenesses. Otherwise, major programs with wealthy boosters could funnel money to players, creating a competitive advantage. But Booker called that line of thinking “plainly hypocritical.”
“This argument that is applied to students, it’s often a double-standard because it’s not applied to the millions of dollars spent on everything from coaching staffs to facilities and more,” Booker said. “And again, that students are always getting the raw end of a deal.”
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