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Documents reveal SEC's NIL lobbying strategy, concern about NCAA's ability to find solutions

On3 imageby:Andy Wittry07/19/23


On3 obtained documents that provide a window into the SEC‘s lobbying strategy for NIL regulation and an attempt to prevent athletes from becoming employees when a delegation from the conference visited Washington, D.C., in early June to meet with members of Congress.

According to the documents attained through public records requests, the SEC believes the NCAA can’t “fix” the current environment. Instead, the conference argues only Congress can.

“If states will not enforce the laws and states are going to prohibit the NCAA or conferences from enforcing these reasonable policies, congressional action is then the only way to provide a national, uniform standard for name, image and likeness activity,” SEC Commissioner Greg Sankey said Monday at the SEC Football Media Days. “And to draw the lines around the boundaries that it not become simply pay-for-play.”

Ironically, the NCAA’s own Congressional talking points sound quite similar to the SEC’s.

“Congress is the only entity that can stabilize college sports’ legal environment so that the NCAA can provide student-athletes with a fair, inclusive and fulfilling environment,” states a separate document containing talking points that the NCAA Office of Government Relations provided to member schools on June 15 that On3 later obtained.

On3 acquired the SEC documents from Florida in response to a request for any documents provided to any university employees or athletes before they traveled to Capitol Hill last month.

Florida athletic director Scott Stricklin, executive associate athletic director Lynda Tealer, Senior associate athletics director of strategic communications and broadcast productions Steve McClain, gymnast Trinity Thomas, EDGE Jack Pyburn and women’s basketball guard Zippy Broughton traveled to Capitol Hill.

They were part of a large SEC delegation that included Sankey, Alabama football coach Nick Saban, LSU coach Brian Kelly and Texas A&M athletic director Ross Bjork, among various other university presidents, administrators and football coaches. The SEC stakeholders’ visit to Capitol Hill coincided with an event called “The Future of College Athletics,” which the University of Arizona hosted in Washington, D.C.

McClain said Florida’s Government Relations Office provided the documents to each of the members of Florida’s travel group. An SEC spokesperson said the conference’s government relations representatives created them. McClain described it as a collaborative effort.

‘The NCAA cannot fix this’

The documents show little faith in the NCAA’s ability to regulate the current NIL environment.

“The NCAA cannot fix this, only Congress can fix this,” states the first of several “Key Points for Congress” from a second document labeled “SEC Day on Capitol Hill.”

The briefing document highlights the NCAA’s inability to prevent NIL deals from being used as inducements in recruiting.

“The NCAA has not shown the ability to effectively regulate NIL activities or enforce its rules prohibiting booster involvement in recruiting or inducements or pay-for-play,” the document states.

The SEC document identifies regulation of collectives as the best way to prevent NIL deals from impacting recruiting.

A bullet point regarding preventing NIL deals from being used as recruiting inducements states, “The SEC’s view is that prohibiting boosters/collectives from involvement in the recruitment of high school and transfer athletes is the simplest and most effective approach.”

SEC: Athlete employment could be ‘catastrophic’ for some

California was the first state to sign an NIL-related bill into law. It could be the epicenter of the future model of college athletics with Assembly Bill 252, which could implement a revenue-sharing model but is delayed until 2024, according to USA Today.

The SEC briefing document states, “We don’t need college athletics to turn into minor league professional sports.”

“Efforts like those that have happened in California mandating revenue create new threats around the support of Olympic and women’s sports,” Sankey said Monday. “The bill that was introduced that has been delayed failed to adequately recognize the existing requirements of Title IX.”

“NIL is not the end goal for the advocates of that first law in California, as they now seek to professionalize college athletics by permitting pay-for-play and classifying athletes as employees,” states one talking point from the background document.

The National Labor Relations Board‘s Los Angeles Region also issued a complaint against USC, the Pac-12 and NCAA, alleging that their joint employers of football and basketball players.

Another SEC talking point calls the potential employment status for athletes “catastrophic” for sports that aren’t self-sufficient in terms of revenue generation. The briefing document says many universities would be forced to eliminate both men’s and women’s athletic programs.

“We expect some lower resource universities to do away with athletics altogether,” the talking points state.

The SEC also produced a timeline of the major court cases, bills or hearings that could dramatically change the future of college athletics.

In the next three calendar years, as outlined in the SEC’s timeline of current court cases and hearings, some athletes could be ruled as employees by the NLRB or through Johnson v. NCAA, the California State Legislature could implement revenue sharing with athletes or the NCAA could owe a potentially crippling settlement if it’s on the losing end of House v. NCAA.

SEC doesn’t favor booster involvement

The SEC documents also outline opposition to several groups or movements. In addition to efforts of some California lawmakers, they include the potential for collectives increasing their control within college athletics and lesser-resourced Division I schools for whom the SEC doesn’t want to potentially be forced to subsidize through federal legislation.

“Our universities do not favor booster involvement in recruiting and are concerned that control of the day-to-day administration of our athletics department will shift outside the universities to collectives and groups of wealthy donors,” states one bullet point in a document titled “SEC Day Briefing Final.”

“One of the concerns that I’ve been public about is transferring control at an institutional level of rosters, who’s on a roster, pressure on playing time from coaches and then up the chain of command to athletics directors and presidents or chancellors to an outside entity,” Sankey said Monday, when On3 asked him about the SEC’s talking points and the future of collectives. “People have opined about booster influence but with collective activity about which we’ve read. I think it magnifies that concern. Who’s really in charge? So that informs the talking point.”

The SEC’s pushback comes as collectives across the country have organized to provide a unified voice for collectives to leverage their position.

Last week, The Collective Association (TCA) was publicly launched. Three of the seven organizations that are founding members – Classic City Collective (Georgia), The Grove Collective (Ole Miss) and Spyre Sports Group (Tennessee) – support athletes at SEC schools. The TCA plans to soon release a revenue-sharing model for college athletes that does not require athletes to become employees.

“I have read with interest this formation of a collective association, or a collective collective, I guess. A collection of collectives,” Sankey said. “And William King, our associate commissioner of legal affairs, has reached out to some just to have a conversation to learn more. We have to be in a constant learning mode, and we want to exercise care. We want to do that in collaboration with our campuses.

“So there was a contract extension announced for me. I work for our presidents and chancellors by agreement and we’re going to make sure that our presidents and chancellors’ influence in decision-making is inherent in whatever conversations, including that with the collection of collectives.”

What the SEC says it needs from Congress

The briefing document outlined five goals under the heading “What We Need from Congress.” The conference’s five needs outlined are:

  • Establish a uniform set of NIL rules
  • Keep NIL out of recruiting
  • Prohibit pay-for-play and clarify that student-athletes are not employees
  • Protect student-athletes from unscrupulous actors and ensure compliance with rules
  • Provide legal protection to allow for change in college athletics without resulting in existential legal exposure

However, the SEC document says its desired legal protection would not come through an antitrust exemption. The Sherman Antitrust Act “outlaws all contracts, combinations, and conspiracies that unreasonably restrain interstate and foreign trade.”

“This would not be in the form of an antitrust exemption as many have claimed, but instead would allow for positive changes to occur in college athletics in a manner where institutions would be protected from being sued by former athletes when these positive changes occur,” the briefing document states. “The legal threats could force universities to eliminate sports offerings.”

Interestingly, the documents indicate SEC could be willing to negotiate for legal protection as the conference acknowledged the weight of its request for legal protection.

The SEC document indicates a willingness to provide additional guarantees regarding the quality and access of college athletes’ education and healthcare in exchange for its desired federal legislation.

The SEC briefing document stated, “We realize liability protection is a heavy lift and, in exchange, we are willing to discuss a new federal standard that requires additional benefits for college athletes to include access to post-eligibility healthcare, scholarship protection after leaving school, and academic satisfaction guarantees, but we do not favor a federal mandate requiring conferences or universities to subsidize D-I schools that are unable to pay for these types of benefits themselves.”

Will the SEC’s NIL lobbying efforts work in time before lawmakers’ focus shifts to the 2024 election cycle?

Time will tell.

Meanwhile, states across the country, including within the SEC footprint, continue to pass advantageous NIL legislation. And coaches and administrators, including those within the SEC who lobbied for new legislation, continue to publicly thank the politicians who made it possible.