Congress loves deadlines, and on Wednesday senators on the Commerce Committee were told they effectively have three weeks to figure out what to do about setting rules for how college athletes may be compensated for use of their name, image and likeness.
That’s because a Florida state law takes effect July 1, the first of a cascade of policies in at least 19 states that sets the stage for a potentially problematic patchwork system for how participants in intercollegiate athletics may be compensated for endorsement deals, social media and use of their images in video games, referred to as NIL (for name, image and likeness).
“We thought the NCAA was going to be able to step forward and set the rules,” Tennessee GOP Sen. Marsha Blackburn said. “And had said to the NCAA, if you cannot do this we will do for you. That is the posture in which we find ourselves right now.”
Blackburn, who hails from a state that has crafted its own framework, asked whether NCAA President Mark Emmert was fit to continue leading the organization.
“The inability to move to a point of decision has just been an insufferable ... event for so many of the student-athletes and their parents. This is why the states have taken it upon themselves to do what the NCAA has proven incapable of doing,” Blackburn said.
Closing the hearing, Commerce Chair Maria Cantwell, D-Wash., associated herself with the sentiment expressed by Blackburn, as well as Gonzaga University men’s basketball coach Mark Few.
“I think, as you can see, my colleagues are ready to dig in. They gave this hearing — more than half of them participated in this,” Cantwell said. “I wish we weren’t here; I wish we weren’t having to deal with this, but we are going to make sure that this issue is addressed.”
The hearing lacked testimony from any current or recent NCAA student-athletes, though one witness, Wayne A. I. Frederick, spoke not only as the president of Howard University, a historically Black institution in Washington, D.C., but also as the father of a soccer player who is currently in the midst of the recruiting process.
“The coaches that are looking at him from North Carolina and New Jersey have two very different approaches. I’ve been on Zoom calls with both sets of coaches,” Frederick said. “One set is talking about NIL rights; my son and I have no clue about what about his image he’s going to market.”
“Just as a parent, it is extremely confusing if you have 51 states with different laws, as you’re looking at schools,” he said. New Jersey has enacted an NIL law, while North Carolina has not.
Frederick also said Howard faces an “impossible” recruiting challenge since D.C. has no law.
Senate Minority Whip John Thune of South Dakota, a former chairman of the Commerce panel, asked Emmert about the effect of the new state laws on the ability of colleges and universities to retain student-athletes who may leave through what’s known as the NCAA’s transfer portal.
“I think especially with the patchwork that we’re going to see starting July 1, those schools that are in states that allow name, image and likeness opportunities are going to have enormous advantage in the transfer portal as well,” Emmert said. “Student-athletes will indeed be looking for opportunities to transfer to schools where they can monetize their name, image and likeness.”
Sen. Jon Tester, D-Mont., pointed to the possibility of “the big boys” in college athletics getting favorable laws.
“The state legislature can make this law so it gives them an incredible recruiting advantage in the overall mix of things,” Tester said, a point on which Emmert concurred.
Rod Gilmore was a bit of an exception among the witnesses. A college football analyst for ESPN and ABC who played both football and baseball at Stanford (and has been a practicing lawyer away from his television role), Gilmore praised the “free market.”
“One of the beautiful things about the Florida law is that it triggered the competition in nearby states to come up with their own laws so that they would not be at a recruiting disadvantage,” Gilmore said in response to a question from Florida GOP Sen. Rick Scott. “Particularly, you know, your Southeastern Conference programs,” a reference to one of college football’s dominant leagues.
There are plenty of issues that have stood in the way of the NCAA and its member institutions finding an agreement on their own since the Florida law was enacted last year. And as is often the case, there is a significant role for Congress to play in the world of sports, given antitrust and labor considerations. One such issue: The NCAA has proposed to codify that student-athletes are not university employees.
While the time frame for legislative action before the Florida law goes into effect on July 1 is extraordinarily short, Congress can be motivated by deadlines, and several pieces of legislation have already been introduced, with lawmakers including panel members Sens. Jerry Moran, R-Kan., and Richard Blumenthal, D-Conn., taking leading roles, along with New Jersey Democratic Sen. Cory Booker.