Congress, the NCAA and Athlete Compensation Is a Battle Far From Over

This week, the NCAA is expected to pave the way for athletes to earn compensation through their name, image and likeness. But the larger debate may be just getting started.
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WASHINGTON, D.C. — Amid the items on a giant bookshelf in Cory Booker’s high-ceilinged office is an unmistakable brown object absent from many other places on Capitol Hill. The football isn’t from any noteworthy game during Booker’s career as a Stanford tight end. It holds no sentimental value or special worth. Its purpose is quite simple. “I like to throw it around in here sometimes,” smiles the New Jersey Democratic senator.

Sports and politics? These days, the two entities are colliding more than ever, extending well beyond the walls of Booker’s seventh-floor office, seeping into congressional committee rooms and marbled hallways, finding their way even to the elegant rooms of the White House.

For months, the NCAA amateurism model has been in the crosshairs of the country’s most powerful elected body. Motivated by political ambition, athlete injustice or both, U.S. lawmakers have taken the future of the NCAA into their own hands as it relates to athlete compensation. The breadth of the debate over a college athlete’s name, image and likeness (NIL) continues to grow in size and deepen in detail, as lawmakers recruit their fellow members to join the fight and educate them on a foreign subject.

This week marks a sentinel moment in the debate. The NCAA board of governors is expected to adopt recommendations from an NIL working group that pave the way for athletes to earn compensation through their name, image and likeness. The NCAA is facing a deadline as dozens of states are speeding toward passing NIL legislation that most believe will create an imbalance in recruiting that they describe as chaotic. Under immense pressure the last several months, members of the NCAA working group have disagreed with one another, and high-ranking school leaders are “panicked” about the NIL issue, says one lawmaker.

Mark Emmert NCAA name image likeness

Even as the NCAA adjusts its long-standing amateurism policies, members of Congress are aggressively developing their own proposals, partially at the behest of NCAA leadership. President Mark Emmert, a frequent visitor to Capitol Hill before the coronavirus pandemic shutdown, has encouraged lawmakers to create federal legislation to supersede the mounting state laws. “That’s a little troubling if the NCAA is going to go to Congress for help,” says Gabe Feldman, an expert on NCAA matters and the director of sports law at Tulane. “This is one of those issues where many people care passionately and deeply about it but know very, very little about it. That’s a dangerous mix.”

Sports Illustrated met with more than a dozen members of Congress this spring, many of them the primary drivers of this issue on Capitol Hill. While consensus is rare in Congress, legislators agree that sweeping athlete compensation reform is necessary. The debate in D.C. is two-pronged: (1) what a new athlete compensation framework should look like and (2) who should have control in formalizing such a system, the NCAA or Congress? In short, the future of athlete pay is in the controls of two of the most unpopular entities in the nation.

“There’s a clock ticking,” Chris Murphy, a Democratic senator from Connecticut, told SI in a February meeting. “The next couple of states will really dictate what that clock is. We’ve got a year or so to pass some kind of federal legislation that rescues college athletics from 50 different compensation regimes, but there’s no consensus here, there’s no proposal from the NCAA, and there is no ability to move legislation on the floor of the Senate.”

Are they knowledgeable enough?

Anthony Gonzalez is unique to Congress, and it’s not because of his age (he’s 35). The first-term Republican representative from Ohio is a former major college and NFL football player. Those are rare on Capitol Hill. In fact, when Gonzalez approaches other lawmakers to gather ideas about athlete compensation, they often respond in a similar way. Well, what do you think? You know the issue better than I will ever know it.

A former Ohio State receiver, Gonzalez remembers signing autographs after games for young kids only to return home to find them for sale on eBay. The kids were working for memorabilia dealers. “That’s when it gets talked about in the locker room,” he says in a February meeting in his office. “It’s like, ‘This doesn’t make any sense.’”

Gonzalez is one of the few lawmakers on Capitol Hill who can share a real-life story with his colleagues. For many here, this is brand new. A group of lawmakers like Gonzalez find themselves as NCAA experts surrounded by uneducated masses. Rep. Donna Shalala (D., Fla.) might have the most experience with the issue. Shalala was president at two major universities, Wisconsin and Miami. She has received a great deal of questions from Republican lawmakers who are SEC fans. While they want to be helpful, she says, they are both wary and ill-informed on NCAA matters. They agree, however, on one thing. “They have nothing but negative feelings about the NCAA,” she says.

Others leading the charge include Murphy, who has produced maybe the most extensive athlete compensation reports from any political figure over the last year. There’s Rep. Mark Walker (R., N.C.), too. His House bill last March was one of the first to be introduced on name, image and likeness. The number of lawmakers interested in the issue continues to soar. Walker estimates that more than 100 of the 535-member two-chamber group are now familiar with the fight. That number was in single digits this time last year, he says. Some lawmakers, recently educated on the topic, are stunned that archaic NCAA amateurism practices have endured so long without action. They are downright puzzled that a system exists where coaches and administrators make millions on the performances of unpaid athletes.

The NIL discussion has reached even the highest levels, including U.S. Senate Majority Leader Mitch McConnell, the administrator of legislation in the nation’s most powerful body, and President Donald Trump, whose administration is using Gonzalez as a point of contact on the issue, according to a Congressional source.

A small ripple last spring has turned into a tidal wave. California’s passage of a state NIL law last fall got the attention of not just the NCAA but also lawmakers. A Senate subcommittee hearing last month provided the first big splash as high-ranking lawmakers publicly chastised Emmert during the two-hour meeting. At that hearing, Sen. Marsha Blackburn (R., Tenn.) grilled Emmert on a case involving former Memphis guard and future NBA lottery pick James Wiseman, who was embroiled in an NCAA infractions case, suspended 12 games and made to pay more than $11,000 (Wiseman opted to forgo his college eligibility). “Other members have mentioned that they’ve now found out about NCAA situations in their states,” Blackburn says. “It’s as if this hearing caused people to come forward to say, ‘Let me tell you my story.”

The rancor toward the NCAA here is strong. During an interview with SI, Booker says he was treated well as a tight end at Stanford but that other programs don’t show as much care. Some treat athletes as a “piece of meat,” he says, casting them aside if they are injured by not renewing their scholarship. “There are a lot of things that my experience as a college football player charged me up about,” Booker says. He remembers his first meeting years ago with Emmert. “I realized I had my own anger issues to deal with,” he says. “NCAA leader came in, I remember how emotional I was. I was upset. I guess years and years… and I was finally in a position where I can grill him on this.”

Because of her deep knowledge of NCAA matters, Shalala says she is being cautious in the athlete compensation debate. She introduced legislation in December to create a two-year Congressional commission to examine the NCAA’s structure completely, not just NIL. Still deeply tied into the college athletics administrative scene, she’s spoken to several key players. “I’ve talked to people who are sitting on NCAA panels and they don’t know where they want to go,” she says in a February interview with SI. “I watch state legislators (passing laws). They make it sound easy. Athletic directors across the country are scratching their heads. Presidents, I would describe them as panicked. They want to do the right thing, but it’s not clear what the framework is for this.”

What is the framework?

In the spring of 2019, roughly 13 months ago, Walker, the representative from North Carolina, welcomed into his Capitol Hill office a half-dozen representatives from the NCAA, there to address the NIL bill Walker planned to introduce in Congress. “They sat right in this office, their top four legal people and lobbyists, saying ‘This ain’t happening. The heck with you! This is our position, it always has been, it always will be, and good luck on trying to change it,’” Walker tells SI last month. “What surprises me is the about-face by the NCAA after the California legislation (passed). They are the ones now publicly saying we might need some help from Congress to resolve this.”

However, those members of Congress educated enough on the topic are divided. Some believe the government should stay completely out of the NIL fight all together. Those in favor of getting involved disagree on a framework for federal legislation, the timing of such a law and its ability to pass the slow-moving body. “Welcome to Congress!” Walker bellows from behind his desk. Count him in the group that believes Congressional involvement is not necessarily the answer. His bill, currently on hold, essentially threatens the NCAA’s tax-exempt status to force it to adjust NIL bylaws. It leaves the creation of a framework to the organization itself—not Congress. “No offense to these guys,” he says of his Congressional colleagues, “but historically, there’s not a track record of when the government gets their hands on something that it makes it better.”

Like so many others, he’s been waiting months for this week, when NCAA leaders unveil their NIL plan. According to a story from the Associated Press published last week, the NCAA working group will recommend rules changes to allow Division I athletes to earn money from endorsements and sponsorship deals, autograph signings, memorabilia sales and personal appearances. Athletes would be required to disclose financial terms of contracts to their athletic departments, and the NCAA would create a mechanism to evaluate potential deals for fair market value and spot possible corruption, the AP reported. The recommendations, if adopted, would be voted on in January at the NCAA convention, scheduled to take place in, of all places, Washington, D.C., and they would then likely go into effect for the 2021 academic year.

If the NCAA’s proposal this week is strong enough, legislators like Walker plan to stand down. Meanwhile, those like Murphy believe Congress must be involved either way. Murphy is one of the most outspoken proponents of athlete compensation on Capitol Hill, often firing off tweets and in-depth reports on the matter. He’s a co-founder of a bi-partisian working group to examine college sports issues, and he met with Emmert in December. In a conversation from his office on March 2, Murphy detailed the two conversations unfolding among lawmakers on the Hill: the first specifically regarding NIL and who, the NCAA or Congress, should create the framework; the second focusing on athlete compensation beyond NIL.

“My belief is NIL is totally insufficient,” says Murphy, a noted avid UConn Huskies fan. “Giving students access to make money off their NIL is totally insufficient to solve this problem. I’m of the mind that we should be looking at a broader set of legal protections to allow schools to compensate athletes.” Either way, Murphy is hesitant to allow the NCAA full authority to write nationwide NIL rules. “I think the states or federal government should most likely write the rules,” he says.

While federal legislation will not be easy, the simplest route might be to model such a law after the NIL proposal released this week by the NCAA. Several lawmakers told SI that the NCAA proposal could at least serve as a road map for a potential federal NIL law. In fact, one lawmaker, speaking on condition of anonymity, believes the NCAA is “hopeful that what they present is thoughtful enough that a federal law will codify that.”

Shalala, the former Wisconsin and Miami school president who is now in the House, believes a federal law built around the NCAA’s proposal this week could work. But she feels the NCAA should provide Congress with at least two or three different NIL models. “I’ve talked to people on the panels to try to understand their thinking and they seem confused and conflicted to me,” Shalala says. “They’re trying to protect the (amateurism) model.”

If the NCAA’s proposal this week isn’t athlete-friendly enough, prepare for a public backlash from Congress. The NIL discussion could get a kick start on Capitol Hill, at least when the coronavirus pandemic subsides. Before the pandemic put much on hold, at least two separate Senate bills on NIL were circulating from those in Murphy’s working group, a legislative source told SI. Meanwhile, Gonzalez, the 35-year-old Ohio Congressman, is hustling to draft a House bill of his own. “You’re not going to get a bill that everybody loves,” Gonzalez says. “That’s unrealistic.”

An NIL bill is especially difficult to write, says Murphy, in part because it would preempt state laws that govern state universities. “The deeper that I get into the policy weeds, the harder it gets to write the code bill. Sometimes the deeper you get into the weeds, the more you see the way out,” Murphy says. “On this one, all I see is more weeds, because my interest here is in protecting the athletes. I don’t want to blow up college athletics. I like college sports. I like the (NCAA) tournament. But my interests first and foremost is about addressing what I believe to be a fundamental Civil Rights issue.

“When I say you get down into the weeds … what the NCAA absolutely wants is preemption. They are only coming to Congress because they want us to pass a law that cancels out the state laws. That’s almost impossible.”

ncaa-transfer-rule-name-image-likeness

What is the timeline?

At least 28 states were pursuing some type of NIL legislation before the coronavirus pandemic froze the country and moved the issue to the backburner. The state of Florida, however, barely beat the clock. On March 13, the Florida House of Representatives gave final legislative approval to its NIL bill, sending it on to Gov. Ron DeSantis (R., Fla.), who has voiced support for signing it. “We consider that a done deal,” says Ramogi Huma, the president of the National College Players Association and one of the most outspoken critics of the NCAA who has helped a dozen states craft universal NIL legislation.

With DeSantis’s signature, Florida would join California and Colorado as the only two states to pass NIL legislation. The big difference: Florida’s would take effect July 1, 2021, about 18 months before California and Colorado’s. The legislation sped up the NCAA’s NIL timeline and, some believe, will do the same for a potential federal law. Walker and Gonzalez, both Republicans, have expressed optimism in federal NIL legislation passing this year. In fact, Walker outlined a timeline of getting a bill to committee by June, processing it through in July and it reaching the House floor in September or October.

Others aren’t so optimistic. In fact, Murphy says the California state bill may take effect, in 2023, before federal legislation passes Congress. “I’m going to do my best to prove those odds wrong,” Murphy says, “but I think that’s where I’d put my money.” Plenty of hurdles stand in the way, not the least of which is a worldwide pandemic. Despite this being somewhat of a bi-partisan issue, another barrier is emerging: It is an election year in a split Congress—the House is controlled by the Democrats and the Republicans control the Senate.

Booker believes there is enough “energy” around the issue to possibly have a bill pass next year. Shalala thinks that NIL legislation may have to start on the Senate side. She’s had conversations about the topic with the most powerful lawmaker in the Senate: McConnell, a Republican from Kentucky. “The Senate hasn’t moved on anything this year, so it would be surprising, but let me tell you that Mitch McConnell cares about this issue because he cares about Louisville and he is more knowledgeable than probably any senate majority leader we’ve had before,” Shalala says. “He literally follows college sports. I’ve chatted with him about this. He said, ‘I’ll be interested in hearing your ideas.’”

A potential NIL bill would fall under the Senate Committee on Manufacturing, Trade and Consumer Protection, where a subcommittee has been formed to specifically study NIL. Committee members, those who grilled Emmert during that two-hour hearing in February, have the authority to stop legislation from reaching the Senate floor. “A big talking point with the subcommittee is that name and image is pretty cut and dried, but likeness is not,” says a legislative source with knowledge of the subcommittee’s discussions. The subcommittee doesn’t plan to allow the NCAA to “drive the bus” on the NIL issue, the legislative source said, but it plans to listen to its proposals and ideas.

Unanimous consent among committee members is often needed to quickly pass bills onto the Senate floor. As of March, NIL didn’t have unanimous consent. “No bill has moved quickly right now, even for bipartisan bills,” says the legislative source. “The way the Senate floor is working right now, you really have to have a unanimous consent, without anyone putting a hold on it. Everyone has their own issue with (NIL).”

What are the impacts?

Before the coronavirus pandemic shuttered the country, some politicians and industry experts gathered for one last hearing on NIL. There, on March 11 from a building across from the U.S. Capitol, Maurice Clarett explained to lawmakers how extra money during his days as a running back at Ohio State could have helped him avoid an NCAA infraction. As a freshman in Columbus, Clarett couldn’t afford an $1,800 new transmission for his vehicle, so he borrowed a friend’s car. Harmless, right? The NCAA deemed that an impermissible benefit, Clarett said, and later penalized Ohio State for the violation.

While the NCAA softening its approach on athlete compensation may help avoid such future situations, the rule changes come at a price for institutions, athletic directors say. Schools will need to increase staffing of compliance departments that will see a boost in case loads. One ACC athletic director says the school would need to hire at least three more compliance officials. While many Power 5 programs could afford to add staff, Group of Five schools are in a different financial position, especially given the coronavirus’s impact on athletic budgets.

Monitoring potentially hundreds of athletes’ NIL ventures—from endorsements to speaking engagements, from autograph signings to book deals—would become one of the largest undertakings on any campus. “That is going to be chaos,” says one Power 5 athletic director. “There’s no other way to put it. It’s so different from college athletics and what our system is built for.” The AD, who wished to remain anonymous, expects NIL laws to further widen competitive gaps among schools. The rich may get richer. Schools with large donor bases and those in metropolitan areas will have advantages. They’d naturally have the ability to offer more opportunities than those in small markets with fewer alumni. “Eventually schools that are alike will form alliances for competitive purposes,” the AD says.

But many don’t expect athletes to generate significant cash through NIL deals. Data illustrates that payouts “aren’t likely to be huge,” Donald Remy, the NCAA’s chief operating officer, said in a panel discussion at Georgetown Law in January. “Now, don’t get me wrong,” he continued, “for some individuals, they might be, but for the vast majority of people in this space, they’re likely not to be.” One SEC athletic director, speaking on condition of anonymity, says the “most unseemly” part of NIL is a school’s boosters striking deals with its athletes. “Booster says, ‘I’m going to put you in a law firm ad and pay you all this money,’” the AD says. “Some people say that’s already happening now.”

Like Emmert himself, many school administrators are hoping Congress eventually creates federal legislation governing NIL to circumvent state laws taking effect in the future. Without a federal mandate, “it’s going to be chaos for all of us,” a Power 5 AD says. Others are hoping Congress at least grants the NCAA antitrust exemption, leaving it free of potential legal matters over NIL. In interviews with SI, several lawmakers expressed openness to eventually approving an antitrust exemption for the NCAA, but more negotiation is needed. “If they want an antitrust exemption, there are going to be folks that want commitments from them,” Murphy says, “specifically and most likely on broader compensation for players and sharing the financial upside of the sport with the athletes.”

So what’s this all mean? The NCAA’s unveiling this week of its NIL plan, while long awaited, isn’t the end of this debate. In fact, among those in the nation’s most powerful elected body, it is just getting started. “I think Emmert is in a really difficult position. He knows that he’s in a position where he needs Congress, but he doesn’t have consensus,” Murphy says. “He’s in a very difficult position when he speaks publicly. He’s got to acknowledge that we’re at a point where Congressional action is necessary, but he doesn’t have much to offer as to what the NCAA wants.

“I’m glad that they are finally at the table, but I am deeply skeptical the NCAA is going to be able to come up with a solution that is right for the kids.”