WASHINGTON, D.C. — Nearly one year ago, inside a packed, high-ceilinged congressional meeting room, a month before the COVID-19 pandemic made such events virtual, Sen. Jon Tester, a Democrat from Montana, glared down from his pulpit at the president of the NCAA.
Sitting before a panel of inquisitive senators, in the true kickoff of the debate over athlete compensation on Capitol Hill, Mark Emmert begged for help from an entity that the NCAA had spent a century keeping out of its arena. He encouraged Congress to assist him with the issue of name, image and likeness (NIL), to intervene in the NCAA’s dealings, to save it from a plethora of differing state laws that threatened its amateurism model.
Seated on that high-rise platform and behind a mahogany lectern, Tester, in his rural twang, delivered a striking warning.
“I’m going to be honest with you,” he boomed. “You don’t want us to solve this.”
More than 11 months later, Tester’s threat rings deeply prophetic.
The NCAA is losing its grip on a year-long fight in the nation’s capital over athlete compensation. Charging in last February to seek a friendly congressional fix to the problem, Emmert’s organization is now facing a stark reality: The very same lawmakers it asked for help are now, having thoroughly examined the issue, proposing sweeping changes to his amateurism system.
Those most friendly toward the NCAA and its ideals have lost authority after election results gave Democrats control of the House, Senate and White House.
President-elect Joe Biden assumes the role on Wednesday, while in the Senate, his vice president, Kamala Harris, gives Democrats the deciding tie-breaker vote, 51–50. In addition to that, committee chairmanships, authoritative positions with power to create, amend and pass bills to the chamber floors, will switch from Republican to Democratic control.
Featuring a more expansive agenda than those across the aisle, Democrats are pursuing federal legislation that presents revolutionary changes to the college sports landscape. And they are confident about its passage.
CORY BOOKER: Why I'm Behind the Athletes Bill of Rights
Boasting their new power, U.S. senators recently skewered the NCAA during a video session as part of the organization’s annual convention. They made clear, unlike their NCAA-friendly Republican colleagues, that they are not, in fact, playing ball.
“The NCAA needs to get serious real quick about changing other aspects of their regulations,” Sen. Cory Booker (D-N.J.) told the NCAA’s CEO, Donald Remy, during a video session last week.
“Now that we’re in the majority, I’m telling you right now, I will make sure in every way I can that as we deal with NIL, that any legislation fundamentally includes other aspects of an athletes’ bill of rights,” Booker later said in a conversation with Sports Illustrated. “All of these things have to be addressed, and in a 50/50 Senate, I am confident that we’ll do everything we can to make any reforms comprehensive reforms.”
Lawmakers who are integral to the NIL debate on Capitol Hill, from both sides of the aisle and from both chambers, spoke to SI about how the shifting political landscape in Washington could impact college sports.
Consensus is that any federal legislation will be more protective of athletes (less restrictive endorsement opportunities, for example), less friendly to the NCAA (minimal to no antitrust exemptions) and more expansive than NIL (including healthcare protections, revenue-sharing, etc.).
But maybe the most important news is that the shift in power is impacting the timeline of federal legislation. The new Biden administration is expected to steer the two chambers toward issues involving COVID-19 and the economy, further delaying any real movement on NIL.
In fact, Sen. Richard Blumenthal (D-Conn.) believes college legislation will not move in Congress until after Biden’s first 100 days.
“We have bigger fish to fry,” says Sen. Chris Murphy (D-Conn.). “I think it’s aggressive that we’re going to have a bill sitting on the president’s desk this summer.”
Such a delay could put the NCAA on a collision course with the state of Florida, whose state NIL law takes effect in July. As many as 20 more states could join the fray this spring by passing NIL legislation that kicks in over the summer, creating what some believe will be a chaotic environment where athlete compensation is governed by differing state laws instead of a universal policy.
Meanwhile, the NCAA has delayed its own passage of NIL legislation. That’s not helping either, lawmakers say.
“I’ve seen this for decades with the NCAA—they’ve never known how to approach this issue,” says Rep. Colin Allred (D-Texas), a former Baylor linebacker. “We’re really back at square one. The clock is ticking.”
And so, here we are. A year after approaching Congress for help, the NCAA hasn’t even passed its own NIL rules and is now at the mercy of a new controlling party threatening a broad-based bill that will not only overhaul the sport, but also may not take effect ahead of state laws.
In short, it’s a mess. And it is only the beginning, surmises Gabe Feldman, a Tulane law professor and expert on NIL matters.
“Maybe NIL is just the starting point for congressional involvement in college athletics,” he says. “A year ago, it seemed like the end point.”
While this issue has been described as bipartisan in nature, the gap between Democrats and Republicans is wide, from specific concepts of a bill (does it restrict athlete endorsement options or give NCAA antitrust protection?) to the breadth of the bill itself (does it legislate beyond NIL?). The three most noteworthy athlete compensation bills introduced in Congress each represent a school of thought along the spectrum of this raging debate.
Booker and Blumenthal’s College Athletes Bill of Rights is on the far left of the scale, a somewhat sweeping legislation that includes revenue sharing, lifetime scholarships and unrestricted endorsements. Sen. Roger Wicker (R-Miss.), the former chair of the Commerce Committee, is on the far right, a narrow bill focused only on NIL and featuring NCAA protections and athlete restrictions. Anthony Gonzalez’s bill, the only one of the three with bipartisan support, falls somewhere in the middle.
Murphy is crafting a fourth bill that is expected to be athlete-friendly with little-to-no player restrictions or NCAA protections.
Murphy, Blumenthal and Booker are the highest-ranking political figures spearheading this issue, and they sit on powerful Senate committees that each have a claim of jurisdiction over any college athletics bill: Commerce, HELP (Health, Education, Labor and Pensions) and Judiciary. All three committees will have new Democratic chairs, and of them, Maria Cantwell (D-Wash.), the new chair of Commerce, has been maybe the most outspoken on the issue, voicing her opposition to granting NCAA antitrust at a Senate hearing last year.
Antitrust protection is one of the many conceptual sticking points between the two parties. The NCAA, as to avoid incessant litigation, is arguing for its inclusion. Some Republicans agree. Democrats primarily do not.
Another point of contention is the amount of control a school has on its athletes’ endorsement opportunities. Can they restrict them in some way? If so, how much?
In Booker and Blumenthal’s expansive bill, the sticking point is with the breadth of the bill itself. It goes too far, many Republicans and even some Democrats say. Blumenthal is prepared for a long fight over one specific concept: the revenue-sharing provision.
“That could be complicated and require more [debate] time,” Blumenthal acknowledges.
In a Democratic unified government, “antitrust and guardrails on student athletes have no shot,” says Tom McMillen, himself a former congressional lawmaker who now presides over Lead1, which represents the athletic directors of the Football Bowl Subdivision.
Murphy says the NCAA is living in a “fantasy world” if it believes that Congress will grant it authority to determine rules around athlete endorsement deals. “Adults shouldn’t be in the business of telling these hyper-talented athletes what money they can make and can’t make,” he says.
Meanwhile, Biden’s exact stance on NIL is unclear. Gonzalez says he started discussion with the new administration last month, and while officials have been open to dialogue, the congressman is unsure of Biden’s opinion on the issue.
That’s not the case for the incoming vice president. Harris is a co-sponsor of Booker and Blumenthal’s Athletes Bill of Rights. Over the course of the last year, she’s made her feelings known.
“I’ve spoken with Kamala about this during our time in the Senate,” Murphy says. “I know she has strong pro-athlete feelings.”
Allred can see a scenario where the Biden administration brings stakeholders together to explore NIL and come to an agreement with leaders from each chamber. That’s the best route for quickest passage of congressional college athletic legislation, he says.
But another wrench was tossed into the situation last week. The NCAA, poised to pass groundbreaking NIL legislation during its convention this month, suspended a vote because of two uncertainties: claims from the Department of Justice that new rules could violate antitrust provisions and a looming Supreme Court case ruling that could impact amateurism.
Many believe the NCAA’s delay is linked to the power shift in Congress. The NCAA doesn’t want to pass legislation that would be “dead on arrival,” says McMillen, who agrees with the vote delay.
“They've got to take the temperature of Congress,” McMillen says. “The Republicans aren’t going to be driving this train anymore.”
Many lawmakers, even those friendly to the association, expressed disappointment in the vote delay, using it as another example of the NCAA’s stubbornness toward modernizing its archaic rules. Legislators say that the NCAA’s own NIL laws could help shape a framework for a congressional bill.
“I think it could help if y’all got something done to say, ‘We’re moving in this direction,’ ” Gonzalez told Remy during the NIL video session last week. “There is skepticism on Capitol Hill that you aren’t going to do it.”
In the meantime, the implementation time of Florida’s state law creeps closer and closer. While Booker says Florida’s situation is a “forcing mechanism” for lawmakers, others disagree.
“The state of Florida doesn’t create deadlines for the United States Congress,” Murphy asserts. “Obviously college athletics gets a little messier when Florida’s law goes into effect, but nobody dies.”
So, what would really happen if state laws take effect this summer with a uniform federal standard? Ramogi Huma, the executive director of the National College Players Association, believes NIL can be governed on a state level. In fact, he expects states that have paused NIL deliberations because of COVID-19 to re-engage this spring.
Huma, one of the most outspoken NCAA critics, is not in support of a narrow congressional NIL bill. While Emmert and NCAA leaders met with lawmakers over the last year to argue for an NIL-only federal standard, Huma argued for a broad-based bill with the same legislators.
He has assisted multiple state governments in creating universal language for their NIL laws, crafting them so as to avoid NCAA litigation. Huma expects anywhere from six to 20 more states to pass NIL laws by the summer. Already, a half-dozen states have laws on the books. They include Florida, California, Colorado, Nebraska, New Jersey and Michigan. While most have 2022 or 2023 enactment dates, some are exploring the idea of moving up their date to match Florida.
“There’s going to be a stampede of NIL laws in many of these state houses so they don’t get left behind,” Huma says. “The next few months will be very telling. The big story is the states. They’re moving. The states are already operating in a way to go against the NCAA.”
Many college athletic administrators claim that differing state NIL laws would create unequal footing in recruiting. Lawmakers with football pasts tend to agree.
“It would be chaos,” Allred says.
“I would compare it to if the state of Ohio called holding but you go to Florida and they don’t call holding,” says Gonzalez, a former receiver at Ohio State.
So what does the NCAA do if state laws take effect without a federal standard? What if Florida schools begin recruiting by using NIL endorsements? The easy answer is litigation. A ruling this spring or summer from the Supreme Court could set the stage for a Florida vs. NCAA court battle, says Feldman.
For the first time in more than 30 years, the Supreme Court will hear a case involving the NCAA. The high court will review a court decision in an antitrust lawsuit, NCAA v. Alston, that could dramatically impact the NCAA’s long-standing amateurism model. A Supreme Court decision in the case, which will review whether the NCAA’s eligibility rules regarding athlete compensation violate federal antitrust law, is expected by the end of June.
“If the Supreme Court rules in favor of the NCAA and amateurism, the NCAA can go to federal courts and argue Florida’s law needs to be stopped because it interferes with NCAA amateurism rules and those rules were blessed by the Supreme Court,” Feldman says. “It could bolster the NCAA’s argument that states should not be able to enact their own NIL laws.”
Meanwhile, 11 months after Emmert sat in front of senators pleading for a congressional NIL bill and promising his own set of NIL laws, the NCAA sits empty handed, part of its own doing.
In the most fiery exchange last week between Booker and NCAA CEO Remy, the senator scowled at Remy for suggesting the association has progressed and modernized rules since the days that Booker played tight end at Stanford.
“Have you made progress? Yes,” Booker responded to Remy. “But are there casualties and pain and hurt and wrong that need to be addressed? Hell yes. And for you not to address it and for you to satisfy yourself with a feeling we’ve made progress while so many young people are getting a raw deal, that is unfortunate.
“We have a college sports [industry] that is sick right now. There are people who have been hurt by her.”