What to know about the NCAA’s date on Capitol Hill
The NCAA returns to Congress on Wednesday for the first time in nearly two years. Much has changed since the Senate Committee on Commerce, Science, and Transportation held a hearing on NIL rights in June 2021. The question of whether college athletes deserve to monetize their name, image and likeness no longer is up for debate.
Since the NCAA installed its interim NIL policy on July 1, 2021, collectives have popped up across the country. Recruiting, specifically in football and basketball, has evolved with talks of cash payments commonplace. Administrators and coaches have been pleading for a national standard. Legislators from both parties have introduced legislation, yet nothing has advanced. But whether Wednesday’s hearing produces any progress is a legitimate question.
College athletics also has a new president: Charlie Baker, the former Massachusetts governor. Unlike every other president tapped for the job in the NCAA’s 72 years of executive leadership history, Baker has not built his profile from a college campus. Now he has his first date in Washington, D.C., days before the Final Four. Baker is not expected to be in attendance; he could remotely join the session. In fact, nobody from the NCAA is on the witness list for Wednesday’s hearing, which has been dubbed “Taking The Buzzer Beater To The Bank: Protecting College Athletes’ NIL Dealmaking Rights.”
“I think that we’re moving toward progress, but I think we have to qualify what progress is,” Porter Wright Morris & Arthur attorney Luke Fedlam told On3. He is also the founder of Anomaly Sports Group, which provides NIL education to college athletes. “I think that there is a movement – and we’re seeing it on the House side; I know that there’s movement going on on the Senate side as well – to potentially get to a place where this summer, before football season, where we potentially see some national legislation around name, image and likeness.
“The question will remain how deep and how far does it go. Because when we look at the various interests of all of the different stakeholder groups, they are not all aligned.”
How will Wednesday go? Here is what you need to know as the NCAA returns to Congressional chambers.
What’s happening Wednesday?
The House Innovation, Data and Commerce Subcommittee is set to hold a hearing at 10:30 a.m. ET. The meeting can be livestreamed here. Two Republicans will lead the hearing. Cathy McMorris Rodgers (R-Wash.) is the committee chair. Gus Bilirakis (R-Fla.) will assist Rodgers; he chairs the subcommittee.
Bilirakis has become a well-known figure in NCAA circles since taking over the consumer subcommittee. John Hickenlooper (D-Colo.) is the chair of the same subcommittee at the Senate level.
Ahead of the hearing, the subcommittee released a memo outlining seven topics for the event. The document also lists a number of areas of concern, which is the root of the need for federal legislation. Among the concerns is “dwindling athletic department budgets at the hands of NIL deal redistribution of capital” and the impact that could have on Olympic sports.
Another issue is the NCAA’s transfer portal and the institution of the one-time transfer rule, which allows an athlete to leave a school and not lose a year of eligibility. The memo states that “unforeseen consequences of the new transfer rules include the impact transferring can have on an athlete’s academic trajectory.”
Marc Isenberg teaches the “NIL Experience” at USC’s Annenberg School for Communication. Also a financial advisor, he has been studying the NCAA and athletes’ rights for years. He has seen the NCAA visit Capitol Hill multiple times and does not think Wednesday’s trip will be any different.
“I guess I try not to be cynical, but it just seems like the NCAA has tried this trick so many times that I don’t see this being any different,” he said. “One size fits does not fit all when it comes to so many things in life, particularly in NIL. So to try to come up with a uniform standard may sound good on paper, but in practice, it never works out that way.”
Who are the witnesses?
The hearing will include six witnesses who will speak to the current state of college athletics and the impact NIL has made. The six witnesses scheduled to testify:
+ Patriot League commissioner Jennifer Heppel
+ Virginia State president Makola M. Abdullah
+ Former Florida and NFL tight end Trey Burton
+ Florida State softball player Kaley Mudge
+ Washington State athletic director Pat Chun
+ College Football Players Association founder Jason Stahl
Of note: This is the eighth time the NCAA has had a date on the Hill and no current Power 5 football or men’s basketball player has testified in any hearing.
Witnesses submit their testimony before the actual hearing, then will be asked questions during their time on the microphone.
The College Football Players Association made some headway this summer when it launched a chapter at Penn State, led by quarterback Sean Clifford. That venture then fell apart as he backed out, apparently while under pressure from the Big Ten, and eventually joined the conference’s Student-Athlete Advisory Committee.
The CFBPA’s three demands: independent medical care enforced by a CFBPA representative, post-football health protections and a percentage of media rights revenue for the players. Stahl will speak to those three tenets Wednesday.
“Somebody’s got to be there to bring in a critical perspective and that’s what I’m doing,” he told On3. “I think, written memo and oral testimony, I have two goals. Goal number one, get people to think about and talk about NIL and media rights’ revenue sharing in ways that they have never heard before. … The second is to really try to put health and safety stuff on the table.”
NIL has been a partisan issue, with Republicans and Democrats disagreeing on what should be permitted and also arguing over enforcement. Republicans generally have tilted toward legislation strictly focused on antitrust protections for the NCAA and NIL oversight. Democrats generally have not shied away from a broad bill that could include items such as lifetime scholarships, athlete health care, revenue sharing and more NIL rights.
Casey Floyd is a co-founder of NOCAP Sports, a comprehensive NIL technology platform. He previously was the director of compliance at Michigan; he also worked in compliance at Utah and for the Summit League. He sat on the National Association for Athletics Compliance’s Legislation & Governance Committee, which provided feedback to the NCAA on legislative proposals. Now working to assist athletes in NIL, he sees a problem with Wednesday’s witness list.
“This is a Republican-controlled hearing, so they’re picking these witnesses,” he told On3. “That’s why there’s been no Power 5 football and men’s basketball players. That’s why the coaches aren’t involved. They’re picking people that are going to stick to the narrative. That’s really what we’re looking at.”
Why does the NCAA want to see change come through Capitol Hill?
Over the past 20 months, NIL has forced the NCAA to evolve. For all the work the O’Bannon and Alston cases did to keep the NCAA from putting further restrictions in place, the next battle is currently being waged in the court system. Johnson v. NCAA could ultimately decide whether athletes are school employees.
The odds of Congress enacting legislation that would include a prohibition of athletes classified as employees seem rare. The NCAA’s big hope Wednesday is to rekindle conversations on the Hill about the need for a national standard for NIL.
Multiple administrators, including Pac-12 commissioner George Kliavkoff and SEC commissioner Greg Sankey, have tried to start conversations with legislators. What does the enforcement of NIL look like at the federal level? Recently, Baker discussed the pros of a “uniform standard contract” for NIL.
“On the deeper side, if you start to get into international student-athletes and their ability to participate in name, image and likeness, you start to run into issues of immigration,” Fedlam said. “That is a much more hotly contested partisan issue within Congress. If you start to look at should the NCAA have a safe harbor from litigation from past student-athletes who couldn’t participate in name, image and likeness, that becomes a bit of a harder discussion.
“So there are some areas that I think, depending on how deep you go, become much more complicated and much more partisan and challenging to pass.”
The hearing also could result in members of the subcommittee asking why the NCAA needs Congress’ help. It could also be an example of the NCAA jousting to push its agenda. As On3’s Andy Wittry reported, an internal memo from the ACC outlined three things that the Power 5 conferences wanted to prevent through federal legislation: college athletes being classified as employees; granting athletes their name, image and likeness rights in media telecasts of competition; and NIL or third-party payments being used as “recruiting or participating inducements.”
Wednesday could mark the start of new, NIL-driven conversations in Washington, D.C., or become the latest NCAA-related hearing to result in no movement.
“I think that we are definitely in a moment of pivotal change,” said Brittney Whiteside, vice president of collegiate partnerships at Altius Sports, which advises nearly half of the Power 5. “Change can come one of two ways. One is through federal legislation. Two is through what we are traditionally used to, which is the NCAA acting as the governing body of the membership.”