Congress looks slow to move on name, image and likeness
A U.S. Senate hearing Wednesday did little to push momentum ahead of July 1
By Dennis Dodd
Three weeks before name, image and likeness rights will begin one way or another for college athletes, desperation is setting in. That was the overarching message Wednesday from a U.S. Senate hearing on NIL.
After years of arguments, hand-wringing and lawsuits, it has come down to this: Congress must act to control some version of amateurism in the next 21 days. If not, there is the perception that extra benefits will be running wild in the streets starting July 1.
"We need your help," Gonzaga basketball coach Mark Few told legislators. "This is not an issue the NCAA and individual states can fix."
That might be the most compelling NIL statement from a sitting Division I coach. It's out of his hands; it's out of the NCAA's hands. On July 1, at least five states will implement NIL laws that will allow athletes in those states to have benefits the other 45 states do not permit.
Then what?
"How do you put the cat back in the bag after July 1?" Sen. Jerry Moran (R-KS) asked Marquette law professor Matthew Mitten during the hearing.
"I don't think you can," Mitten answered. "I think that is exactly the problem."
Sen. Maria Cantwell (D-WA) is doing laudable work trying to assemble a bipartisan NIL bill through her chairmanship of the Senate Committee on Commerce. It was her hearing Wednesday. However, there is growing evidence that a federal bill coming from Commerce -- if it is indeed developed -- won't be enough.
There is the thorny issue of disclosure. Should athletes be required to share their endorsement contracts with … anyone? Schools have gone to great measures to shield students' information from the public. That's federal law. Shouldn't the schools be held to the same standard in NIL? Should the schools' themselves even know what the profit margin is for an equestrian athlete marketing an apparel brand?
If not, does anyone trust the NCAA to decide what is too much? Does anyone deserve to know? If not, there essentially will be no cap to NIL earnings.
Curiously, none of those questions were asked during Wednesday's three-hour hearing.
That's just one of the significant issues, and again, time is running out.
NIL going forward is really about liability -- allowing the athletes some form of their rights while protecting the NCAA from being sued over it. The NCAA is desperate -- there's that word again -- for legal protection against a class-action suit by players from the past suing for their NIL rights.
That's why we're here in the first place. Ed O'Bannon saw his image on the cover of a video game and wanted compensation. A former West Virginia running back who last played in 2012 sued the NCAA over unlimited educational benefits. An appeal of that case is currently in the U.S. Supreme Court; it threatens to upend the collegiate model separate from NIL.
The NCAA sees these legal actions as ominous and unending if they are not protected. Others seen them as transformative.
Just don't expect anything of substance to happen by July 1. That is becoming clear.
Few's statement put it out in the open in the halls of Congress: Help us.
The states' NIL laws are similar but disparate enough for concern. On July 1, athletes in Alabama, Florida, Georgia, Mississippi and New Mexico will be able to sign endorsement deals, sell autographs, own YouTube channels and more.
Be advised: Deals have already been signed with athletes' needing only the calendar to change to hit the send button on contracts.
There will be startling amounts of money thrown around. Elsewhere in the country, athletes won't have those rights unless the NCAA grants what would be a temporary waiver.
"Only Congress can pass a national solution for student-athlete NIL rights," wrote the Power Five in a joint statement Wednesday. "The patchwork of state laws that begins on July 1 will disadvantage student-athletes in some states and create an unworkable system for others. As leaders in college athletics, we support extending NIL rights in a way that supports the educational opportunities of all student-athletes, including collegians in Olympic sports who comprised 80% of Team USA at the Rio games. We continue to work with Congress to develop a solution for NIL and expand opportunities."
There are those who argue that extra benefits are already running wild in college athletics -- every day. There is dark money flowing underneath the table in recruiting. NIL rights won't solve that problem. Separate from that, there is a competitive advantage Alabama has that won't be impacted one or way or another by NIL. Two words: Nick Saban.
Privately, the NCAA believes it can be protected from these disparate laws by a 33-year-old Supreme Court decision in the Jerry Tarkanian case. The so-called "Commerce Clause" saved the NCAA in 1988 allowing it to punish the former UNLV coach even though several states had passed due process laws. That would have required NCAA enforcement to be more like criminal proceedings.
But that will take time and lawyers (wanting a 30% fee) to work such a case. No one involved in NIL has that time.
Competitive advantage? Happens every day. States have different tax laws. There's a reason folks are moving out of California in droves. Tax breaks attract businesses. Other states choose not to offer such tax breaks. The real world functions with those issues.
The NCAA is still portraying itself as the ultimate paternal gatekeeper. If it can't have some control over an issue it has ignored for far too long, the less-than-real world of college athletics will collapse. In reality, as each day that passes with no action taken, the NCAA's power diminishes.
The NCAA has sat on proposed NIL legislation at least for six months while waiting to see what the government does. First, it was the U.S. Department of Justice with antitrust questions. Last month, NCAA president Mark Emmert called for his organization to enact that proposed legislation.
Well, we're still waiting.
"We recruit nationally, even internationally," Few said. "To not have the ability to compete on some sort of level playing field against people who can provide monetary gifts is a disadvantage we could not make up."
This came from the coach of a small private school in Spokane, Washington, that just played for the national championship. Few also just signed the No. 1 player in the country and landed the No. 2 recruiting class.
Each day, Few recruits against other super powers from states, some of which will have NIL rights in three weeks and others that will not.
Does NIL disparity take down Gonzaga? If so, Texas and Miami would already be winning national championships with its existing competitive advantages. Despite the advantages of weather and being in powerful media markets with Fortune 500 companies in populous states, the Longhorns and Hurricanes haven't been to many Final Fours lately.
Does NIL change all that? We need an answer quickly.
Time is running out.
