Don't expect 11th NIL Congressional hearing to move needle on new college sports model

On3 imageby:Eric Prisbell01/18/24

EricPrisbell

Andy Staples Explaining Letter Sent From NCAA President Charlie Baker | 12.05.23

The 11th NIL-related Congressional hearing offered a handful of notable moments Thursday but is unlikely to significantly move the needle as the college sports industry hurtles toward seismic change and a new financial model.

Titled “NIL Playbook: Proposal to Protect Student Athletes’ Dealmaking Rights,” the hearing carried significance because witnesses included NCAA President Charlie Baker – for the second consecutive hearing – as well as a first for these hearings: a current athlete in a revenue-driving sport in UCLA quarterback/NIL entrepreneur Chase Griffin.

In both his testimony and written statement, Griffin – whose presence as a current Power Five football player was refreshing – delivered a withering critique of Florida Rep. Gus Bilirakis’ discussion legislation, which would deliver the NCAA antitrust protection, codify that athletes are not employees and prohibit schools from entering into NIL deals with athletes.

Griffin said the bill includes more than 200 “negative references” to the NIL space with words such as regulate, prohibit, sanction, restrict and inducement. He notes that it is devoid of words such as freedom, growth, innovation, or Title IX.

“This bill simply codifies an outdated NCAA business model that Supreme Court Justice [Brett] Kavanaugh wrote ‘would be flatly illegal in almost any other industry in America,'” Griffin said. “If enacted, this bill would deprive another generation of college athletes of a proven and growing pathway to the American Dream.”

Griffin also appeared to make the case for a true revenue-sharing model, stating, “In every other aspect of American life, the expectation is that if you work hard, play by the rules and create value, you deserve to share in that value. Why shouldn’t this core American principle be true for college athletes?”

Other witnesses included: Missouri Valley Conference commissioner Jeff JacksonRadford volleyball player Meredith PageArizona State Associate Clinical Professor of History Victoria Jackson; and Michigan softball player Kaitlin Tholl.

‘We need to save college sports as we know it’

The hearing played out as change is occurring at a dizzying rate in college sports, and a sense of urgency is palpable among stakeholders nationwide.

“We need to save college sports as we know it,” Bilirakis said.

The NCAA and Power Five conferences could have to pay thousands of athletes some $4.2 billion if the association receives an unfavorable outcome in the House antitrust case. With a trial set for next January, the NCAA undoubtedly is seeking a settlement. 

At the same time, two National Labor Relations Board cases are independently weighing the question of whether at least some athletes should be deemed employees of their universities, an outcome that would radically reshape college sports as we know it.

“Momentum is in favor of the athlete and in favor of athlete compensation,” Griffin said.

Later, on the employment model question, Griffin said: “That’s not really up to the athletes. That’s up to the NLRB. But based on the time, effort and hours, we operate as employees currently.”

Baker unveiled his reform proposal, dubbed Project D-I, early last month to get the attention of Congress, which the NCAA is aggressively lobbying to pass a reform bill that would afford the association limited antitrust protection and codify that athletes are not employees. 

The crux of the proposal would, if implemented, move NIL activity in-house under schools’ umbrellas and allow for the creation of a subdivision for highly resourced schools. Those schools would be empowered to create their own policies and directly pay athletes from a trust fund.

“While the NCAA is making changes to improve outcomes for student-athletes across all three divisions, there are significant issues outside our control we believe Congress can address,” Baker said in his written testimony. “Mounting threats from outside entities could change nearly every aspect of college sports, without the input from student-athlete leadership and in direct opposition from educational institutions serving the historically underserved.”

Employment model a ‘grave concern’ for athletes

Baker asserted during the hearing that if all college sports were converted to an employment model, an enormous number of student-athlete opportunities would be lost because “the money just isn’t there.” Few across college sports would argue that the money to support an employment model does sufficiently exist at the lower levels of college sports.

Nonetheless, Baker did not address how an employment model would affect Power Four schools.

Griffin also articulated what legal experts noted to On3 in recent days: Granting the NCAA an antitrust exemption and codifying non-employee status for athletes is not necessary to implement Baker’s proposal. 

Another athlete, Page, the volleyball player at Radford, pinpointed a potential employee model as a particular concern for athletes. She specifically raised the prospect of such a model resulting in schools cutting non-revenue sports and how it would affect Title IX considerations.

“Many of these questions are at the forefront of the minds of student-athletes and need to be resolved before any new model is implemented,” Page said. “I urge you to take action as the employment model causes grave concern for other athletes to have the ability to do the same thing I have. To grow, to prosper, and acquire an education.”