WASHINGTON — NCAA president Mark Emmert believes that some state laws and federal proposals to govern college athlete compensation would fundamentally alter intercollegiate athletics and make it “nearly unrecognizable,” he says in a written testimonial submitted to Congress.
Emmert’s 3,100-word testimony offers a window into his appearance later Wednesday in front of a panel of U.S. senators in what will be the fifth hearing on Capitol Hill over how NCAA athletes should earn money from their name, image and likeness (NIL).
According to his testimony, Emmert is expected to again encourage lawmakers to create a federal bill to universally govern NIL while also expressing concern over a hodgepodge of differing state NIL laws that, he writes, “threaten the NCAA’s ability to provide uniform NIL opportunities as well as fair, national competition.” Ongoing litigation against the NCAA, coupled with the varying state laws and some Democrat-backed proposed Congressional legislation, endanger the very nature of college athletics, he says.
“These proposals, such as those that require revenue-sharing, would threaten to turn college athletes into paid employees of their institutions and jeopardize opportunities for the hundreds of thousands of student-athletes who compete in sports that do not generate revenue,” he writes in testimony.
Emmert will join five other witnesses here in Washington on Wednesday for a 10 a.m. hearing before members of the Senate Commerce Committee, the congressional group with jurisdiction over NIL. It is the most significant NIL hearing yet. The event is the first such since Sen. Maria Cantwell (D., Wash.) took over as chair and comes amid a somewhat chaotic time.
Over the last several months, Cantwell has orchestrated an effort to reach a compromise on a congressional NIL bill, one that might offer a uniform policy. But time is running out. A whopping 18 states have passed their own laws to govern NIL, five of which take effect July 1, tossing college sports into what experts say will be chaos. Schools in states with NIL laws will operate under them while others follow the NCAA’s own legislation, which should be approved by the end of the month and is expected to offer athletes fewer freedoms than many state statutes.
Wednesday’s hearing will be a public unveiling of the conversations that, for months now, have happened behind closed doors between aides of five U.S. senators working toward a compromise on congressional NIL legislation. They include three Democrats—Cantwell, Cory Booker (D., N.J.) and Richard Blumenthal (D., Conn.)—and two Republicans—Roger Wicker (R., Miss.) and Marsha Blackburn (R., Tenn.).
The hearing takes place as the negotiations have somewhat stalled as lawmakers focus on more important congressional matters, legislative sources tell Sports Illustrated. Though some held faint hope that a compromise bill could pass by July 1, the latest delay has dashed any hope of such a quick passage, aides say.
And still, plenty more negotiating is left to be done. Gaps remain between the two sides, not about NIL but about elements expanding beyond athlete compensation. Democrats are pushing for a more broad bill, one that incorporates athlete long-term medical care, revenue sharing and lifetime scholarships. These remain the primary hurdles for Republicans like Wicker and Blackburn, who are championing a more narrow legislation that focuses only on NIL.
Wednesday’s hearing is expected to feature arguments from each side, both through lawmakers’ questions and witnesses’ answers. Some of the witnesses have been strategically selected to represent one side or the other—those supporting a more broad bill vs. those for more narrow legislation.
For instance, Howard University president Wayne Frederick, another witness, is expected to represent smaller, low-resource institutions that may struggle with financing policies beyond NIL.
Frederick fully supports athletes earning compensation from endorsement deals, according to his witness testimony, but he believes that requiring schools to fund athlete long-term healthcare, share revenue with athletes and offer them lifetime scholarships could bankrupt many athletic departments and result in the discontinuation of Olympic sports.
He suggests that schools receive funding to assist in these matters, either from the NCAA or from the federal government. Power 5 programs are already required to provide at least two years of postseparation medical care for athletes. The Pac-12 provides four years of this.
For the small programs—those that lose money on athletics as a whole—this is a heavy and expensive burden.
“As a representative of the MEAC and HBCUs, I have tremendous concerns about many of the proposals that would create tremendous burdens on smaller colleges and universities, particularly those historically Black institutions that do not have the same resources as some of our wealthier and more privileged peers,” he says. “It is important to recognize that, out of 1,100 college athletic programs in the NCAA, only 25 programs (2.27 percent) are profitable.”
Longtime ESPN analyst Rod Gilmore, another witness, is expected to express his support for a broad bill, one that grants athletes medical care and educational opportunities years after they leave the school. He wants any federal bill to also feature group licensing and to have no restrictions on athlete endorsement deals.
“If this committee addresses only NIL, then the NCAA will be the major beneficiary of that legislation—not the players,” he says in his testimony.
The broad vs. narrow argument isn’t the only issue separating Republicans and Democrats. The NCAA wants a narrow antitrust safe harbor to protect it from litigation over NIL and wants any congressional bill to fully preempt state law. Democrats are firmly against both.
Two other witnesses, law professors Michael McCann and Matthew Mitten, will give their expertise on NIL. And a sixth witness, Gonzaga basketball coach Mark Few, is, like Emmert, urging Congress to pass a federal solution to avoid recruiting disadvantages among states.
In Few’s written testimony, he describes college sports as being at a “critical juncture” and that its future is “in jeopardy.” The coach pleads with lawmakers to create a uniform policy, notes the amount of positives in college athletics that often go unnoticed and, in one of the most interesting statements, scolds his own sport for not solving the NIL issue years ago.
“I really wished we would have addressed this a long time ago,” he says, “but here we are and we need to make changes.”
More NIL Coverage:
• NCAA President Mark Emmert Recommends Action on NIL Rules by July
• The Hidden Industry of NIL and the Changing World for College Athletes
• In Stunning Change, Florida Pushes to Delay Its State NIL Law Until 2022
• Georgia NIL Law Would Allow Schools to Share Athletes' Endorsement Money