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Tom McMillen on likelihood of federal NIL bill: 'Hopeful, but not hugely optimistic'

Eric Prisbellby:Eric Prisbell08/24/23


Buckle up for a pivotal fall in college athletics.

As college football readies for kickoff across the country, off-the-field developments promise to come fast and furious in the coming months and loom as far more consequential. The NCAA will continue its aggressive lobbying efforts in Congress, hoping by the end of the calendar year to secure a federal NIL bill. And developments emerging from the National Labor Relations Board hearing in November and the Johnson v. NCAA case in Pennsylvania could inch the enterprise ever closer to a potential employment model for student-athletes.

In an exclusive wide-ranging interview with On3, Tom McMillen, former U.S. Congressman and current CEO of LEAD1 Association, set the stage for a significant fall that will help chart the course for the enterprise in the coming years. Calling these next few months “very critical moments,” he said the true point of criticality won’t arrive for another year or two.

This is part one of a three-part discussion with McMillen that On3 will roll out in the coming days. Among the highlights:

McMillen said he remains “hopeful,” but “not hugely optimistic” that the NCAA will land its long-sought federal bill by the end of the year. He believes the ongoing wave of TV dollars-driven realignment moves has not helped efforts in Congress. And while the NCAA may check one box on its wish list with a preemption of state NIL laws, it is unlikely to land a formal designation that student-athletes can’t be classified as employees.

“There will not be a bill in Congress that comes out that codifies non-employment status,” McMillen said. “It’s dead on arrival. And so there’s going to be round two. Round two is going to be much more important – much more existential.” 

McMillen echoed sentiments from prominent college sports stakeholders in saying the NCAA needs to explore a comprehensive Plan B in case efforts with Congress fall short.

“They need a Plan B – and it’s got to be aggressive,” he said. “I think they have to take litigation risk. They should have probably done that in the very beginning. What happened was they created a vacuum. And all the [NIL] bad actors and aggressive actors went into the vacuum … And you’re better off addressing it, and coming up with a plan, than having either Congress or the courts throw it in your lap.”

(The interview has been lightly edited for clarity and context.)

Q: The two biggest questions this fall: Will a federal bill be passed? And, if so, what will it look like? What is your level of optimism that we’ll see a federal bill passed? What specifically are you watching to provide an indication of what direction movement on this front in Congress may go?

McMillen: “I’d say I’m hopeful but cognizant of how difficult it is right now in Congress. I sent a note out to our athletic directors last week because it seemed like [Senate Majority Leader ChuckSchumer had said that he and [House Speaker KevinMcCarthy had agreed to do a continuing resolution through mid-December, as opposed to letting the government shutdown Oct. 1. That still has to be done. But the fact that the two leaders endorsed it and, if true, it means there’s a window. Because if they had really gone through budget craziness in October, this would have been dead on arrival. You’re going to have a period where there’s going to be some chance to work on stuff. Remember, there are only 36 days in the calendar when Congress is in session through December. So the budget will take a lot of oxygen.

“The signals on this stuff are that Energy and Commerce is the key committee. I was on that committee. I was on the subcommittee. And what you have happening is a lot of people are putting bills in who are not on that committee. If you look at the [Florida Rep. GusBilirakis draft that came out, I was surprised they didn’t advance that further before the summer break. But I am told they are trying to get a Democrat on it, which has been really difficult on the House side.

“One of the things that surprised me is I thought the House would be the place for it to go the fastest because you have less rules; one Senator can’t hold you up. And, literally, if they got a bipartisan draft together, they can take it to the floor in a week, pass it and send it over to the Senate. So, I was surprised that the House has not made more progress. In the Senate, the people to watch are [Texas’ Ted] Cruz, because he’s the ranking member on the Commerce Committee and [Kansas’] Jerry Moran

“Other than that, there’s nobody else on Commerce involved with any of these bills. Like [West Virginia’s JoeManchin and [Alabama’s TommyTuberville, they’re going to have to get Commerce engaged, because all these bills are being referred to Commerce. For the most part, all this NIL stuff is Commerce – it goes to the Commerce Committee.”

Q: What else are you watching for in Congress?

McMillen: “The things that you have to watch for coming back are: Does the House Commerce Subcommittee come out with a more updated draft because their original draft in May was really kind of behind the curve. It wasn’t as advanced as Manchin’s bill, wasn’t as advanced as [Connecticut’s RichardBlumenthal’s bill, and there were some imperfections in it. And I think that they’ve only come out with a bill. So that’s a signal. 

“The other thing interesting is there are very few women involved in these bills. If you look at all the bills on NIL, there’s only one woman, [Massachusetts Rep.] Lori Trahan, a friend of mine. Women make up 28% of Congress, 25 women Senators and some 130 women House members – yet there are no women involved, and with Title IX and women’s sports. To me, that’s a real glaring omission that more women are not involved in this. That does not make me optimistic about it. They’re blatantly not part of these bills. I’m kind of surprised.

“So, will they get it done? I think there’s a shot … I’m not hugely optimistic, but I am hopeful. And I think that the fact that hopefully they delay the budget deliberations to December will give a small window, hopefully, to get this done.”

Q: A flurry of disparate bill proposals have circulated this summer. Is there one that looks like a winning bill to you after some fat is trimmed or some changes are made?

McMillen“Machin, even the Blumenthal, Moran and Booker bill – those bills are really good bills. When I look at the driver here, it’s going to be the Commerce Committee. Maria Cantwell (D-WA), the chair, has been very quiet. Their staff is going to try to piece together a compromise. It will be pieces of all those bills. Moran is in a very good position because he is on that committee. Cruz is in a very important position because he is on that committee. Chances are their voice is going to be a little louder than anyone else’s voice. And you have to look at it that way.

“I’m sure there are a lot of negotiations and discussions amongst offices about getting a consensus bill. But it would have to be the Commerce consensus bill because it is going to have to come out of that committee. And I would say the same thing in the House. If the House can find a Democrat to get on board, to me that would be a big signal that they are ready to move a bill.”

Q: With the election cycle almost upon us, is the end of the calendar year a hard deadline to get federal legislation passed?

McMillen: “I don’t think it’s a hard deadline. But I think it becomes harder once the election year cycle [comes]. I think it gets really much harder.”

Q: Some prominent athletic directors I’ve talked to – including Oklahoma’s Joe Castiglione and North Carolina’s Bubba Cunningham – would like to see a comprehensive Plan B explored in case efforts with Congress fall short. How considerable is the risk, if any, that the NCAA is taking by choosing not to craft a broad Plan B? That strategy allows for outside entities, like the courts and the NLRB, to perhaps determine a new model, correct?

McMillen: “What [NCAA President] Charlie [Baker] said is very true. The NCAA, by punting back when all this launched, was a big mistake. They folded up when Alston [U.S. Supreme Court case] came in unanimous, and that was very unfortunate. I don’t think they are going to get anything to do with employment. Everybody has it on their wish list. They want Congress to codify a non-employment status. But if you look at all those bills – there may be one – but all the bills are pretty silent on employment, which I expect. 

“I don’t think employment is on the docket right now. But what can the NCAA do? They could mandate some kind of registry, and they can mandate transparency. They can also probably put some [restrictions] in on boosters. Because if you look at NIL, 95% of the deals are real NIL. They are kids making money off their publicity rights. The 5% in number, but more in dollar amount, are all based on inducements. So, how do you get a hold of that? That’s going to be a challenge. But I do believe putting recruiting rules in place might be defensible in the courts because even Justice [NeilGorsuch said about a ‘Lamborghini rule’. The NCAA can have the Lamborghini rule. They can say, ‘You can’t give a kid a Lamborghini.’ They were given almost a safe harbor to having real recruiting restrictions. 

“Now I’m not a lawyer and I’m not going to play one here. But I think they have to take some risk here – litigation risk. Then maybe if it doesn’t get done with Congress, it doesn’t mean it can’t get done next Congress. So, the fact that they are taking a step forward, and maybe falling a little bit short might even compel Congress to act in the [second round.] I totally agree with Joe and Bubba. They need a Plan B. And it’s got to be aggressive. I think they have to take litigation risk. I think they’ve said they would, so I think they’re going to do that. They should have probably done that in the very beginning.

“What happened was they created a vacuum. And all the bad actors and aggressive actors went into the vacuum.”