Congress Members Lambaste NCAA's Vague and Restrictive NIL 'PR Document'
WASHINGTON, D.C. — Some had waited months, others years and even a few decades. The college sports world excitedly readied itself for this day as it approached, an indelible moment in NCAA athletics history, when the governing body of college sports would jettison 100 years of amateurism policies that so many believe are un-American. Like the kitchen sink, poof, it’d be gone, replaced by modernized rules governing athlete compensation, specific pathways for college athletes to profit from their name, image and likeness.
Eternally berated, the NCAA would claim a rare victory, a crowning achievement—maybe the crowning achievement—by ushering in a new era in college sports.
And then, on Wednesday at 8:30 a.m. ET, it released a report totaling 14,000 words, 31 pages, 18 subsections, seven sections and, as one Congresswoman put it, zero concrete ideas. “My initial reaction is it’s a PR document,” says Donna Shalala, the former president at NCAA member schools Wisconsin and Miami who now serves in the U.S. House of Representative as a Democrat from Florida.
FORDE: The NCAA Is Right to Support Athlete Compensation
Shalala slammed the NCAA for a vague, nonsensical piece, released only to entice the press and appease the public, she said in an interview Wednesday afternoon from her Miami home. In fact, if she had received such a report while still a university president, she imagines herself wondering aloud, “Why are we paying all these people at the NCAA if they can't give us more details than this?'”
Many key figures on the nation’s political stage held similar feelings about the NCAA’s name, image and likeness (NIL) report. The Congressional members most at the center of the NIL debate on Capitol Hill—the same ones NCAA leaders are pleading for help on this matter—spent much of Wednesday rebuking the governing body of college sports for a proposal, they say, that revealed too few details, included too many NCAA-friendly restrictions and, maybe most ghastly of all, contained a not-so-subtle request for a Congressional antitrust exemption.
Antitrust? Some lawmakers were befuddled at the notion. The gall. “I want to see them learn how to make a decision first. Wouldn’t that be nice? They don’t have to committee everything to death,” says Sen. Marsha Blackburn, a Republican from Tennessee and a member of a key senate committee involved in the NIL topic in D.C. “We were giving the NCAA a chance to get their act together, but I think their leadership is weak. They are tentative and have shown they can’t come through with a requisite list of standards. They need to realize that the shot clock has run out on them.”
Nearly each faction of NCAA athletics—coaches, athletic directors, school presidents - has at least one issue, if not 10, with Wednesday’s report. But it’s an external group, the most powerful governing body in the world, that really matters. Congress has the authority to alter the course of the debate over NIL, to write the final chapter, to cut the finale scene. Lawmakers can preempt dozens of independent state NIL laws by crafting their own federal legislation—almost certain to be pro-athlete—to avoid what NCAA leaders describe as a chaotic scene of potentially 50 different regulations.
Or, Congress could do nothing, setting up a collision course between the NCAA and one of its most athletically gifted states. Florida’s state NIL law, if signed by Gov. Ron DeSantis this year as is expected, takes effect July 2021 and allows athletes more NIL freedoms than the recommendations released Wednesday in the NCAA’s report. Without a federal NIL mandate, players from Florida State, Miami, Florida and others within the state’s boundaries will have available to them a bevy of compensation options, while the rest of the nation operates under more restrictive NCAA policies. “Why wouldn’t every five-star go to Florida?” asks Rep. Mark Walker, a North Carolina Republican and author of a Congressional NIL bill that’s currently on hold. “They already have an advantage because of the weather.”
Lawmakers, athletic administrators and legal experts describe this scenario as chaos. Lawsuits will be filed. Courts will be involved. “That’s why we’ve got to act and act fast. That means the NCAA has got to put a little more flesh on the bone than this proposal,” says Sen. Chris Murphy, a Democrat from Connecticut and one of the legislative leaders on this subject. “It’s Florida right now, but as we creep closer to that date, you better believe Tennessee, Alabama, Arkansas, South Carolina and every other state with teams in the SEC or ACC are going to start passing laws as well.”
Things aren’t only doom and gloom. In fact, a couple of Congress members expressed hope and optimism at Wednesday’s report. Many of the report’s principles are similar to those that Rep. Anthony Gonzalez (R-Ohio) has included in a Congressional bill he plans to unveil in the next “month or two,” he says. “Unanswered questions remain,” Gonzalez acknowledges. “It’s not ‘Mission Accomplished’ by any means, but I think it’s a good start.” The report is a mostly bare bones framework for NIL, a starting point from which administrators are instructed to form concrete legislation by Oct. 31. The new set of rules will be up for vote in January and then implemented to start the 2021 academic year.
The report provides two ways for athletes to earn compensation: (1) endorsement deals such as appearing in television or social media ads for a local car dealership or law firm and (2) work/business activities such as personal appearances, clothing lines and autograph signings. Athletes can use agents to strike such deals and can even sign with companies operated by boosters, as long as the ventures are not inducements for recruiting purposes and meet a fair market value regulated by the NCAA. Schools logos and apparel are prohibited from an athlete’s NIL ventures and a school cannot facilitate any NIL deals. “The report has the tone of the NCAA doing this great big favor for student athletes, but it should never be an issue to give back somebody’s rights,” says Walker. “It’s a good and hopeful day, but we’ve got to keep pushing.”
None of this is easy. The NCAA is shaking off a century of rust, forced into it by thousands of state legislators who’d seen enough of coaches and administrators making millions from unpaid labor. Gabe Feldman, an expert on NCAA matters and the director of sports law at Tulane, says the metamorphosis is akin to juggling flaming knives. The NCAA is modernizing rules in the face of pending and potential antitrust litigation while state and Congressional legislators are pressing with radical measures.
Feldman describes the report as an aggressive and massive step by an archaic body, but he acknowledges its vagueness. It leaves plenty of wiggle room for the finished product this fall. “There are a lot of shoulds and coulds in the report, not necessarily mandates,” he says. “It could end up being very close to a free market system or it could end up being an incremental move to allow limited types of payments. Most likely it’s something in the middle.”
Athlete advocates and pro-player lawmakers, however, are skeptical. The NCAA’s report differs in at least four key ways from many states' NIL legislation. It excludes group licensing deals, a necessity for the return of the 'NCAA Football' video game. It regulates agents and other representatives. It restricts certain types of endorsement deals (for example, according to the report’s recommendations, a player couldn’t sign with an apparel company, say Nike, that is a competitor with his school’s apparel brand, say Under Armour). And finally, the report says, the NCAA holds the right to regulate the fair market for NIL deals, potentially capping an athlete’s profits. “It’s hard to understand how this proposal would work in reality,” says Murphy. “Seems like there are so many hangups and restrictions on athletes that it might not be workable at all. If the end result is a whole new byzantine set of rules that can result in students suspended or kicked off the team, then I’m not sure this ends up helping kids.”
Fair market is a tricky subject. Ramogi Huma, the president of the National College Players Association and one of the NCAA’s harshest critics, says the free market should dictate athlete endorsement deals, not the NCAA, an entity that for so long fought against its players’ NIL rights. He believes the NCAA wants to cap athlete endorsement deals as a way to continue the healthy stream of donations into schools from boosters by limiting what they give to players.
The exclusion of a group licensing agreement irked some as well. NCAA leaders contend group licensing concepts are unworkable in college sports without player unions, something the NCAA would like to avoid. Experts, however, say unions are not a necessary piece to group licensing deals. “The NCAA is the only thing trying to stand in the way of the return of college sports video games,” Huma deadpans.
Within the 31-page report, the word “Congress” or “Congressional” is used 17 times. On multiple occasions, the document outlines the NCAA’s need for help from the governing body—a preemption of state laws with federal legislation and/or an antitrust exemption. The in-depth legal verbiage throughout the report—it outlines antitrust cases against the NCAA and other histories tied to NIL—points to its target audience: Congress. Says Feldman: “It was a little bit of a plea for help.”
But will they? Most lawmakers who spoke to Sports Illustrated on Wednesday quickly debunked the possibility of an antitrust exemption—which would protect the NCAA from NIL legal entanglements—painting the topic as a non-starter and a waste of time. However, preemption might be the way out—a federal bill that governs NIL, both superseding state law and the NCAA’s own legislation. Ironically enough, that’s exactly what the NCAA wants—except it’s hoping Congress’s version leans closer to its report than the state laws.
MCCANN: Legal Hurdles Await for the NCAA Over NIL Rules
Many Congress members agree on a need for a federal mandate to govern NIL, but the timing is less than ideal. The coronavirus pandemic has put the nation on hold. The Senate is reconvening next week, but the House has already delayed its return once. Since the virus gripped the nation in mid-March, Murphy knows of no movement on NIL legislation in the Senate, and Shalala actually believes that lawmakers should wait until the NCAA’s final version in January before introducing any bill. However, Gonzalez, Walker and Blackburn are more hopeful, with Blackburn claiming that a bi-partisan bill such as this could pass by the fall. In more positive news, members of a senate committee studying NIL are expected to speak Thursday with NCAA leaders, a legislative source told SI.
That said, the chances of a bill working its way through two committees, two chambers, at least a half dozen amendments and alterations and potentially multiple votes, all during a pandemic, seems like a longshot. Wednesday’s report didn’t help either. “This is a framework, not a plan,” Sen. Cory Booker (D-N.J.) said in a statement. “While it’s encouraging to see the NCAA taking baby steps (after much prodding by state and federal officials), more substantive action is needed, and quickly to achieve justice for college athletes.” Some lawmakers took the vagueness of the document to mean that the NCAA is tossing the topic toward Capitol Hill with a sign that reads Please help and hurry! “There’s this whole section about Congress has to help, but I couldn’t tell what they wanted us to do,” Shalala says. “It looks like they threw up their hands and said, ‘You guys figure out what the guardrails are!’”
Lawmakers aren’t the only ones with qualms and questions, says Tom McMillen, a former Congressman from Maryland who is now president of Lead1, which represents FBS athletic directors. The NCAA report recommends that each school monitor their athletes’ NIL ventures, which would mean a significant increase in case load for an athletic department’s compliance staff, along with other department entanglements. In a memo to NCAA leaders in March, Lead1 proposed a third party administrator, like an independent clearinghouse, manage that process—and not the schools. “Most of our ADs do not want to deal with this,” McMillen says. “They want it as far away from them as possible.”
Coaches have their own gripes. Chiefly, they are concerned with the unintended consequences of agent and booster involvement in NIL ventures, says Todd Berry, the president of the American Football Coaches Association. Head coaches are ultimately responsible for the institutional control of their programs. Will they be on the hook for a rogue booster who exceeds fair market value on an endorsement deal with his star quarterback? And how will the NCAA enforce such rules? “As a group collectively we have concerns that there are no regulations on this that can be enforced. If it’s not enforceable, then there are no rules,” Berry says. “If you’re driving down the highway and the speed limit is 55 and you know there is no one to enforce it, then you are going to speed.”
The NCAA’s recommendations Wednesday begin a path of “blurring the lines,” Berry says, between a student athlete and a professional athlete. Agents, boosters and even coaches themselves could weaponize NIL, using it as a recruiting tool in a manner that is difficult to enforce. But isn’t there cheating already? Sure, says Berry, but not like he predicts under NIL. “We know what third parties and parents and kids ask for. It was very easy in the past to say ‘No, can’t do that because it’s against the rules.’ That’s going to be harder now,” he says.
Berry says coaches have discussed a potential solution that avoids an overhaul in the NCAA’s amateurism rules: allow players to leave for professional football at any time during their careers, even after their high school senior year. The sentiment among many coaches, Berry says, is simple: If you want to make money, go pro. There hasn’t been any proposal or formal vote on that matter. “A lot of our coaches—and I’m not saying all—have said, ‘I’d rather have that, go do your own thing, then throw away the model we currently have, a good student-athlete model,” Berry says. “Schools spend a lot of money on these athletes. They are getting strength and mental development, school, meals, housing.”
This infuriates athlete advocates like Chip LaMarca, a Republican Florida state House member who was the primary sponsor of the state’s NIL law. But he and Berry agree on one thing at least: They disagree on Wednesday’s report, both for completely different reasons. Berry and coaches think it went too far, while LaMarca and many other lawmakers believe it didn’t go far enough. LaMarca castigated the NCAA in a statement, citing unnecessary regulations and language. He feels the NCAA, instead of creating a mess of 31 pages, should have modeled its report after the Florida law. It’s two pages. “I feel like every time they take a stab at it they make it more difficult and confusing,” he says. “To me, it looks like they’re just protecting what they have. They’re going to protect the kingdom.”
State laws can be repealed or delayed, but LaMarca doesn’t see that happening in Florida, especially after studying the NCAA’s vague and restrictive report. So without Congressional nationwide legislation, both the Florida NIL law and the new NCAA NIL rules will likely go into effect around the same time next summer. Experts see this ending in three ways: (1) federal legislation superseding both, (2) the NCAA and Florida duking it out in court or (3) the Uniform Law Commission developing universal language in state legislation. ULC is beginning to study a potential uniform state law act, but this route has one very large hole: States won’t be forced to adopt it, says Feldman, who is assisting ULC in the endeavor.
So what’s it all mean next July? Happy Sunshine Staters. “Students will know they made the right choice to come to Florida,” LaMarca laughs. “The other 49 states are going to have to figure it out.”
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