Congress Says NCAA Needs Change, but Mark Emmert Doesn’t Have the Answers
WASHINGTON, D.C. — For years, Mark Emmert has been a target for criticism from a wide swath of groups. Fans, media, players and even some school administrators have lambasted the NCAA president for the financial inequality that exists in college sports.
Add to the list of critics United States senators.
During a historic hearing Tuesday on Capitol Hill, nearly a dozen lawmakers from the nation’s most powerful legislative body grilled Emmert on a topic expected to cause seismic shifts in the landscape of college athletics—the debate over player compensation, commonly referred to as name, image and likeness (NIL). Senators scolded Emmert for his organization’s lethargic process in attacking NIL issues, strongly recommended “radical modifications” to a body that has failed and expressed concern with a host of inequalities in college sports that have existed for years.
“The system is deeply unfair … and marred with inconsistencies,” said Sen. Richard Blumenthal, a Democrat from Connecticut. “I think this whole system has to be fundamentally reformed, far-reaching fundamental reform. The NCAA has a role to play but only if it gets into the game, which right now it is failing to.”
On several occasions, senators interrupted Emmert’s answers and delivered biting comments about his job performance. They admonished his lack of transparency, none more than Sen. Marsha Blackburn, a Republican from Tennessee who was so displeased with Emmert’s answer to her question about former Memphis guard James Wiseman that she cut him off and reminded him of his job—“You’re the CEO!”—before gathering her belongings and marching out of the room.
As for Emmert’s purpose here, he and Big 12 commissioner Bob Bowlsby pleaded with lawmakers to create federal NIL legislation to supersede mounting state laws that threaten the organization’s long-standing amateurism model. At the very least, they hope Congress can stall the states to give the NCAA enough time to modify its bylaws as it relates to NIL. “Senators,” Emmert told them, “we may need your help to achieve those goals.”
Tuesday’s event is believed to be the first congressional hearing regarding athlete compensation, the latest and maybe most consequential development in a nationwide fight over player rights that has found its way to Capitol Hill. The NIL issue is no longer something murmured about in the shadows on the Capitol grounds but has been thrust into the light. Backed into a corner and on the clock, Emmert, overseeing a body that has long fought to keep Congress out of its affairs, has turned to one of the slowest-moving and fractured groups in the U.S. for help.
Politicians from both chambers of Congress are jockeying for a piece of the NIL pie, whether it’s newly formed committees, public hearings or press releases. Tuesday brought new lawmakers into the fold. Sen. Jerry Moran, a Republican from Kansas, led the more than two-hour-long hearing that, while not guaranteeing legislative action, marked the most significant event in Congress’s new foray into NIL, all of it unfolding in a spacious room in the Dirksen Senate Office Building, a giant mass of concrete across the street from the U.S. Capitol.
Emmert, Bowlsby and Ramogi Huma, director of the National College Players Association and the NCAA’s most outspoken critic, fielded questions from at least eight different lawmakers, all members of the Senate subcommittee on Manufacturing, Trade, and Consumer Protection. Their digs at Emmert aside, senators used the hearing as an educational experience in preparation for potential action later this spring, Moran said. Lawmakers made clear their reservations in getting too involved in the matter, and they expressed their disappointment in the NCAA presenting no tangible plan Tuesday, five months after California’s passage of a NIL bill triggered much of this. “I wish we would have heard about a process that is more quicker and timely,” Moran said in an interview after the hearing.
The creation of federal legislation may hinge on the NCAA working group’s reform recommendations, expected in April. At that point, they will be presented to lawmakers, Emmert told senators Tuesday, while expressing his openness to accept suggestions on the proposals at that time. At the earliest, the recommendations could become new bylaws in January 2021 during the NCAA convention scheduled to take place in, of all places, Washington, D.C.
“January 2021 is simply too late,” Blumenthal told Emmert. “The NCAA is late to this game.”
NIL is a hot topic in the nation’s capital, with a host of lawmakers maneuvering to get involved.
There are Sens. Chris Murphy, D-Connecticut, and Mitt Romney, R-Utah, who formed a bipartisan working group to examine college sports issues and who met with Emmert in December. There is Mark Walker, the Republican representative from North Carolina who authored a NIL bill last year and who Emmert has declined to meet with. Then there’s Rep. Donna Shalala, the former president at Miami who introduced legislation in December to create a two-year congressional commission to examine the NCAA, specifically the inflation of coaching salaries.
There is more to come too. Sports Illustrated has learned that Walker and several other legislators have formed a caucus to push for more action on this subject. The bipartisan group, which also includes Rodney Davis (R-Ill.), Steve Cohen (D-Tenn.) and Al Lawson (D-Fla.), is expected to have its first substantive meeting later this month.
Two other noteworthy events were announced Tuesday. Murphy released the first of what is expected to be a series of reports calling for change in college athletics and stumping for federal legislation as the solution. Rep. Anthony Gonzalez, a former Ohio State football player, revealed that he plans to begin drafting federal legislation in the House regarding the issue.
Tuesday marked Emmert’s second appearance at an NIL event on Capitol Hill in the last two months. His top lieutenant has spent time here too. Donald Remy, the NCAA’s chief operating officer, joined a panel recently at Georgetown Law School to discuss the topic. NCAA leaders are hoping to educate the masses while defending their organization’s position on the future of NIL: to develop an idea that keeps college athletics’ core principles intact and avoids turning players into employees, they say.
Along the way, they’ve had plenty of opposition from a longtime adversary and even a sitting representative. Huma describes Emmert’s visits to D.C. as attempts to undermine the nationwide effort of states to overhaul NCAA amateurism rules. At an event in December, Walker expressed doubt in Emmert’s attempts to resolve the issue at the federal level. These detractors fear that the NCAA president is using his organization’s power to influence lawmakers into drafting an NCAA-friendly bill, one that strips much of the freedoms available in state-proposed legislation.
Like Emmert, Huma is lobbying on Capitol Hill, too. While in D.C. this week, he met with Murphy and others he declined to reveal. Meanwhile, Walker stands ready. While the bill he authored is currently on hold, he’s prepared to advance it this spring if the NCAA’s proposed recommended rule changes in April don’t meet certain benchmarks.
The time crunch is real. At least 20 states are pursuing similar legislation to California’s bill, and some are well ahead of others. Florida’s bill, for instance, could go to its House floor as early as later this week with an effective date of July 1. Huma is actively assisting states in drafting NIL bills with universal language to avoid potential NCAA lawsuits. After the hearing, Huma questioned the all-powerful NCAA Board of Governors, accusing Emmert of wanting to keep “secret” from lawmakers that the board could immediately make NIL changes if it wanted. "Why doesn’t the Board of Governors tomorrow ban name, image and likeness opportunities from being used as inducement to recruits and transfers? That’s something that can be done tomorrow. Instead, they’re asking Congress."
Emmert did not make himself available to reporters afterward. During the hearing, he was taken to task by some senators, namely Blumenthal and Blackburn.
“Would you agree the present system is unfair and outdated?” Blumenthal asked.
“I certainly think it needs to be modified,” Emmert said.
“Radically modified?” the senator shot back.
Said Emmert: “Correct.”
Blackburn touched on Emmert’s accountability, condemning events that have transpired in his 10 years atop the governing body of college athletics. “We’re looking at a time when the NCAA has failed when it comes to women in sports—sexual harassment, sexual abuse. … How are [parents/players] going to be able to trust you to get this right?”
The NIL issue is a complicated one. Many state law proposals are broad in nature and lack a structure or a suggested model. That goes too for Walker’s bill, which essentially threatens the NCAA’s tax-exempt status to force it to adjust NIL bylaws, leaving the creation of a framework to the organization itself. “With NIL, the cows are out of the barn, and we’re trying to figure out a way to get them back in. It’s very difficult,” said Tom McMillen, the president of Lead1, which represents the athletic directors and programs of the Football Bowl Subdivision.
McMillen is a former three-term representative from Maryland who played in the NBA. In a panel discussion at Georgetown Law in January, he suggested that Congress, so splintered and overloaded, might not have a solution for such a tricky issue as NIL. In fact, he estimates that only about “20 to 25” of more than 500 members of Congress understand the situation. Moran admitted Tuesday that his impression is that he and his colleagues “certainly don’t know enough to reach conclusions on what should be done.”
McMillen describes Congress as a “mishmash” of coalitions with drastically different outlooks: from those focused on this as a state’s rights issue to others that believe it is a civil rights or a Title IX matter; Walker represents a coalition with more libertarian ideals, McMillen says.
“These things don’t get done overnight,” McMillen said. “Members of Congress have lots of things on their plate.”
According to a poll conducted by Lead1, FBS athletic directors believe the NCAA’s NIL bylaws need changing. McMillen says they strongly feel that athletes need more, believe the university needs to be involved and are highly concerned about recruiting, the latter a central topic in Tuesday’s hearing. Bowlsby told lawmakers that an unregulated NIL will make recruiting “infinitely more contentious.”
Many believe the NCAA can draw from the Olympic model, which opened up revenue streams in the late 20th century for amateur athletes. However, even the Olympic model is heavily regulated with the goal of protecting the Games. Even pro athletes in sports such as the NFL and NBA have to follow a regulatory endorsement model to protect the salary cap. “In college sports, we’re trying to protect recruiting and the competitive landscape to make sure it doesn’t become part of the recruiting packages for schools,” said Amy Perko, executive director of the Knight Commission, a longstanding independent group that promotes reforms that support the educational mission of college sports. “More importantly, there needs to be a regulatory process to protect the athletes and make sure the athletes are not exploited in a new system that will come into play.”
As the debate rages on Capitol Hill, millions of college football fans are craving the return of the NCAA Football video game, defunct since 2014 after ongoing legal disputes regarding the use of player likenesses. In fact, the latest graduating class of athletes never got the chance to play NCAA Football while in college. “A little bit before I got to college, they took out NCAA the game,” says Collin Johnson, a former receiver at Texas. “I was like, ‘Dang.’ Obviously I wanted to play myself in the game. Now shortly after I leave, they’re now thinking about getting athletes paid!”
While at Senior Bowl events last month, some of the best players in the 2019 senior class spoke to Sports Illustrated about the NIL debate, all of them advocating for athlete compensation but many of them confounded on an exact model. Some shrug, presenting no real plan. Others suggest extreme methods that will likely never happen, like Texas Tech offensive lineman Terence Steele, who believes the schools should directly pay players in addition to outside endorsement deals.
They all can agree on one thing: Change should be made. “Not all college players are going to make it to the NFL,” Colorado linebacker Davion Taylor says. Less than 2% of college players make it to pro ball, according to the NCAA, l. “This would give them a chance to make a little money on the side just in case they don’t make it.”
In 2015, the NCAA approved for schools to begin doling out extra cash to their athletes for the full cost of attendance. Schools determine monthly stipends through cost of living, producing a range at the Power 5 level that usually is between $1,200 and $2,000 a month. Sometimes it’s not enough.
While a defensive lineman at Oklahoma State, Darrion Daniels received a monthly $500 cost-of-attendance stipend, a smaller amount than normal since his on-campus housing was deducted already. “After my phone bill and subscriptions to Netflix and stuff, it put me back to $300,” he says. “I’m going to take $200 out for food. I like to stock my fridge. I’m left with $100 to play with a month.” At UCLA, Bruins running back Josh Kelly got $1,400 a month from his stipend. His rent? About $1,300. “You have to save it,” Kelly says. “You don’t get it for another month. Got to be wise.”
Meanwhile, those operating the sport—from conference administrators to head coaches—are making millions of dollars in an industry that last year produced $14 billion in revenue. That figure was bandied about by senators during Tuesday’s hearing.
So what’s being done to correct this inequality? John Tester, a Democrat from Montana, asked that question to Emmert during an exchange midway through the proceedings.
“I’m going to be honest with you,” Tester told Emmert, “you don’t want us to solve this. You want us to help you solve this. So the question is, where are we at as far as putting stuff on paper, because a time is a clickin’ and we can't stop states from what they're doing. We’ve got to figure it out.”
“There is a timeline in place for having this resolved for January 2021,” Emmert responded.
Asked the senator, “Do you have anything on paper right now?”
Said Emmert: “We don’t.”
