NCAA president Mark Emmert on Wednesday will plea to U.S. senators to grant his governing body antitrust protection from lawsuits that he claims “threaten” and “interfere” with the NCAA’s ability to modernize its rules.
Sports Illustrated obtained a copy of the 1,900-word, four-page prepared testimony that Emmert plans to give as a witness before a hearing of the Senate Judiciary Committee, scheduled for 2:30 p.m. ET on Wednesday. From the college athletics world, Emmert will join Clemson athletic director Dan Radakovich and Pitt athletic director Heather Lyke as witnesses in the third such hearing on Capitol Hill regarding the raging debate over name, image and likeness (NIL). While the Senate Commerce Committee held the first two hearings, in February and June, the Judiciary Committee has used the NCAA’s antitrust request as a way to have a hearing of its own. The topic—antitrust protection—is expected to be at the center of the affair. Wednesday’s hearing will be split into two parts—the first on NIL and second on sports gambling.
Along with his requests for an antitrust exemption, Emmert will implore Congress, in maybe the most compelling way yet, to create a federal bill to govern athlete compensation. He seeks a universal standard to preempt what originally spurred his organization’s NIL action—dozens of states creating differing NIL laws. “I urge Congress to enact legislation that will provide for a uniform name, image and likeness approach that will result in fair and uniform competition for all student-athletes and protect and ensure opportunities for future student-athletes,” Emmert’s testimony says.
The testimony, though, is centered on having Congress protect the NCAA from antitrust lawsuits that have “consistently been used as a tool to undermine the Association’s collective efforts to modernize its rules,” Emmert will tell lawmakers. It is “untenable,” the testimony says, for NCAA rules to be subject to “repetitive antitrust lawsuits every time the NCAA makes a rule change.” The testimony portrays the need for such an exemption as dire and necessary in order to continue down a path in allowing athletes to profit from their NIL. “These legal and legislative impediments threaten the ability of the Association’s modernization efforts to be fully realized.”
However, it’s not so easy. While lawmakers agree that uniform federal NIL legislation is needed to preempt differing state laws, many of them are against granting the NCAA antitrust protection, an exemption that Congress rarely bestows. Over the last several months, a half-dozen lawmakers who are crafting NIL legislation have publicly denounced the NCAA’s need for antitrust protection. That includes Rep. Anthony Gonzalez (R-Ohio), a former Ohio State receiver, and Sen. Chris Murphy (D-Conn.). “The NCAA is asking for way too much,” Murphy says in a recent interview with SI. “They want the power to set the rules over endorsement deals, want preemption of state laws and they want an antitrust exemption. There is no way Congress is giving them all that.”
Several lawmakers are working collectively on potential NIL bills. Sen. Richard Blumenthal (R-Connecticut) is working with four others to craft bi-partisan NIL legislation, including Sen. Jerry Moran (R-Kansas), Sen. Cory Booker (D-New Jersey), Gonzalez (R-Ohio) and Rep. Emanuel Cleaver (D-Missouri). Sen. Marco Rubio (R-Florida) released his own NIL bill last month, but his legislation—heavily NCAA leaning—seems to have little support. The chairman of the Senate Commerce Committee, Sen. Roger Wicker (R-Miss.), told SI last month that he believes a Congressional NIL bill could begin working its way through his committee after November’s election.
Meanwhile, the NCAA’s own formal NIL legislative proposal is on track to be introduced on Nov. 1, to be voted on by January and to become effective at the start of the 2021–22 academic year next August, Emmert’s testimony says. The NCAA’s NIL working group conducted 15 in-person meetings and teleconferences between June 2019 and April 2020 to produce a loose NIL framework that the organization released in April to the chagrin of many lawmakers.
The Senate hearing coincides with the unveiling of the Power 5 conference’s own NIL legislation. A summary of that document was obtained last week by Sports Illustrated. The legislation is NCAA-friendly and encompasses a host of restrictions that are certain to arise during Wednesday’s hearing. Under the Power 5 plan, athletes cannot sign endorsement deals until they complete their first semester of college, can be barred by their schools from entering into certain NIL ventures and must make public NIL contracts with businesses and agents. Many lawmakers believe a universal NIL bill should have few such limitations.
Ramogi Huma, executive director of the National College Players Association, has been arguing that point with lawmakers for months. Huma, one of the NCAA’s most outspoken critics, will return to Capitol Hill on Wednesday as a witness, likely arguing vehemently against granting the NCAA antitrust protection. In fact, antitrust challenges against the NCAA have led to changes, such as cost of attendance, he’s said in the past.