Congress NIL witness: Some lawmakers needed to do ‘more homework on the basic subjects we were talking about’

The best characterization of Wednesday’s Congressional hearing allegedly centered on NIL is this: The discourse ran a mile wide but just an inch deep.

Seemingly ill-informed or under-informed lawmakers asked questions that were often superficial or irrelevant. Those questions were answered largely by panelists – by no fault of their own – who are not privy to NIL challenges faced by Power 5 commissioners, administrators and athletes.

On3 caught up with one of the six witnesses, Jason Stahl, the founder of the College Football Players Association. Stahl had perhaps the most memorable line from the hearing: “The federal government should stay out of the NIL free market.” He said the problems that plague college sports should instead be solved by people within college sports.

In a lengthy discussion with On3, Stahl explained what issues he wished had been discussed during the hearing and where he believes the industry is headed. Among the highlights:

+ Stahl believes the overarching problem is that the NCAA can’t give up its paternalism: “They can’t give up their paternalistic mindset toward these athletes. Quite frankly, I think there is just an absolute level of disrespect toward college athletes from the administrative class in higher education.”

+ He believes the NCAA’s playbook in pursuing federal intervention is similar to how it handled NIL: “This feels so similar. The writing’s on the wall, guys. It’s on the wall. Do you want the train to run you over again? Or do you want to just try to get out ahead of this and figure out how to smooth the pathway into the future that’s obviously staring at us?”

+ Stahl is frustrated because the whole NCAA is funded by the men’s NCAA basketball tournament, specifically that the labor that creates the value of that property doesn’t share in the money, which all flows upward. Stahl: “Just the absurdity of it all – the upward redistribution of wealth that is central to the college sports industry is horrifying.”

+ Stahl took issue with sentiments espoused by fellow panelist Patrick Chun, Washington State’s athletic director. Stahl: “For someone who makes as much money as him, who knows that the schedule of a college football player in season is something akin to a 60- to 70-hour work week if you include everything, for someone who makes $800,000 a year to use phrases like that, to say they need to be performing more quote ‘real work’ – he should be ashamed.” Stahl also said, “To say something like that in a public forum, it just shows how out of touch they are, how utterly and totally out of touch they are with the actual lived realities of a normal college football player’s life.”

+ Stahl believes some lawmakers needed to “do more homework on the basic subjects we were talking about. I just felt like the conversation I wanted to have in that room was impossible to have.”

The interview has been lightly edited for clarity and context. 

Q: What was your biggest surprise in the hearing?

STAHL: I think what surprised me the most is that we are now – gosh, it’s been 20 months into NIL, where we have this sort of lid taken off the opportunity for athletes to monetize their name, image and likeness for the first time like every other American. I really felt like there needed to be more homework done ahead of time on where things stand now. I felt like it was a bit of a time-warp feel, that this hearing could have happened four years ago, right? But the industry has moved so quickly. It has moved so far in the last four years. And I felt like there wasn’t enough education about where things stand right now. And I think there was sort of limited capacity of the panelists to do that education, given time constraints and other things.

Q: Was any progress made on any front Wednesday?

STAHL: I was the only panelist who very clearly said there does not need to be a piece of federal NIL legislation. I tried to stress this, but it’s just like it was sort of this black-or-white thinking here, right? Like either you want a federal bill to regulate college athletes’ name, image and likeness rights, or you want things to remain the exact same. I’m trying to carve out a much more nuanced position, which is to say, ‘There are problems in this market. There are people who are taking exorbitant fees. There are people who are not working for the athletes’ best interests.’ I said this all in my written testimony. But these are fixable, solvable problems if industry stakeholders come together, including the athletes through their independent players association, and figure out solutions. And so I went in there basically saying, ‘That’s what I want to make progress on.’ I want to make progress on understanding that it’s not this stark, binary either-or proposition. Like this can be actually like a bipartisan thing. It can be people coming together and figuring out solutions for very solvable problems. 

The problem, though, is that I truly believe the NCAA and the industry stakeholders right now – NCAA administrators, conference administrators, those who run the member institutions – they want to have their cake and eat it, too. They want to continue to have third parties effectively pay their labor. And they don’t want to have to pay their labor. But they want to control a lot of what those third parties are going to do. That is absurd. Because if you want to eliminate the power of bad actors in this space, like some collective activity – some collective activity is fantastic and they’re doing great things for athletes, but of course we know there are bad actors in the space. If you want to eliminate that, the best way to do it is to figure out a way to do revenue sharing through, let’s say, the conferences. We have these massive media rights deals that are going to be ramping up here. There’s going to be billions of new dollars in the system. You just spread that wealth around and just the overage of that wealth. So, again, I went in with just trying to have a kind of nuanced position to get people to understand it doesn’t have to be the federal bill or nothing. I thought I did as well as I could, because we’re in a room where basically everyone was saying, ‘No, no, it is either this black or white position.’

Q: If one of the prime reasons for the hearing was to address pay-for-play schemes operated through donor-driven collectives, isn’t that an NCAA enforcement issue? Shouldn’t the NCAA have to answer why it is unwilling or unable to legally police its membership? Why is that brought before Congress?

STAHL: They’re worried about getting hammered in the courts for antitrust stuff if they do something like that, if they were to come in and try to, let’s say, aggressively police collectives that are paying football players for their football skills. I get that. But, again, they want to have their cake and eat it, too. They know there’s another pathway here – and it’s bargaining. It’s figuring out solutions with the athletes themselves in some way, shape or form. The overarching problem here, and I said it at the very end of my oral testimony – I wish we had talked about it more – the overarching problem is they can’t give up their paternalism. They can’t give up their paternalistic mindset toward these athletes.

Quite frankly, I think there is just an absolute level of disrespect toward college athletes from the administrative class in higher education. They wouldn’t want their own kids treated the way athletes are with this sort of infantilization of them: ‘We know what is best for you, we’re going to figure this out for you, we’re going to go ahead and just keep dictating things to you.’ It’s like how many court decisions do we need? They are adults. They can vote. They can serve in the military. So, yes, they actually can participate in a discussion through an entity like ours, or in other ways, if that’s what they want to do. They can actually participate in the discussion over the conditions and terms of their workplace. But because this administrative class is so trapped in their paternalistic mindset, it’s like they can’t even think it, they can’t even imagine a different way. And then someone like me comes there and says it, and it’s almost just like, ‘What is he talking about?’ Because I think they’re very trapped in that way of thinking.

Q: Do you subscribe to the notion that if there is revenue sharing – under an employment model or whatever it may look like – that the leverage athletes possess are not equal? That SEC football players would command more dollars than, say, men’s soccer players? And that it would lead to some sports at some schools being cut or reduced to club level?

STAHL: In creating our platform – I always like to return to the platform here because this isn’t about me, this is about this collectively agreed on set of principles that we’re organizing around and trying to achieve progress on. So I invite everybody to go look at this. But if you look, it says nothing about employee status. The one thing – and this was a frustration for me in the hearing – I felt like very often employee status was conflated with revenue sharing. They’re not the same. You can have one without the other. You can have both together. There’s all sorts of arrangements. You can have employee status without revenue sharing. You can have revenue sharing without employee status. 

And we have this platform. What does it say? A percentage of big-money, media rights revenue contracts for the players whose name, image and likeness are used in that media. That’s framed very precisely because it’s about the media rights contracts. We’re saying revenue sharing needs to happen through those media rights contracts. When I kept raising it, I was getting cut off, I think, about three times because Congressmen would sort of push me on something and try to trap me. And I would say, ‘No, no, no, no, what we’re talking about here is these media rights contracts. And we know there’s massive billions and billions and billions of dollars more coming into the system.’ Let’s take the overage. So if it goes from one to two and a half billion a year, that means we’ve got $1.5 billion new dollars per year.

Let’s just isolate the Big Ten, for instance. And so then we take the overage, and we negotiate what of that goes to the athletes whose name, image and likeness are used in those media broadcasts. And then, lo and behold, we’re not talking about the old money. Keep using the old money for whatever you use the old money for. But it’s just that they are so greedy that it’s just like they want it all. And they want to obfuscate and suggest that we’re going to cut softball. God forbid we’d have to cut some of our administrative class. God forbid we’d have to rethink the need for having so many coaching and training staff and whatever else.

Q: How about money spent on coaches’ buyouts?

STAHL: Buyouts, right. Don’t even get me started on buyouts. So, really, what we’re talking about here is let’s take the new money and just figure out a way to revenue share that new money. Maybe down the line a court makes, or the NLRB or whoever, makes the decision about employee classification and we have to adjust to that new reality. But we could do this right now.

Take CFP expansion, four teams to 12. Let’s say we get $2 billion in new dollars from that. Let’s figure out a way to revenue share. You know who is going to love it? Of course the players are going to love it. But fans are going to love it, too. What if you created a prize pool? What if you said, ‘The 12 teams that make it in here, let’s negotiate a prize pool, different levels, get to the championship game.’ You’re not going to have any opt-outs. You’re going to have a way better experience. But, again, this would require moving away from that kind of paternalistic mindset, and the greed – just the greed of, ‘We need to have it all. It needs to all go to us. We need to be the one industry in America that doesn’t have to think about how to split this gargantuan revenue with the people who make the whole thing go.’

Q: Just so I’m clear, in your view of revenue sharing, SEC football players, for instance, would receive more than, say, softball players, correct?

STAHL: Yeah, because, again, we’re talking about the media rights revenue. So when we’re talking about that, what would we do? We would isolate the sports through which are just on my television screen that I’m staring at right now. Who’s ever on this screen? And then, yeah, you would have to kind of figure this out. Well, here’s the percentage that comes from football. Here’s the percentage that comes from basketball. Here’s a percentage that comes from women’s basketball. Here’s the percentage that comes from softball. And, yeah, I think that that would be the best way to figure it out – and figure it out, again, with the overage.

But what I’m trying to do here is just open up a conversation. I’m not even saying, ‘Oh, everything I’m saying is correct.’ I’m just saying, ‘Let’s just start the conversation,’ as opposed to wasting all of this time. This feels so similar to [how the NCAA dealt with] NIL. It’s just like, yes, we’re going to spend the hundreds of millions of dollars in legal fees and lobbying and public relations fees to deny this specific class of Americans the right to monetize their name, image and likeness. We’re going to spend all this money to do it. And then, lo and behold, what a shock, at the end we lose. The state laws go into effect. Athletes are allowed the same rights as other Americans. This feels so similar. The writing’s on the wall, guys. It’s on the wall. Do you want the train to run you over again? Or do you want to just try to get out ahead of this and figure out how to smooth the pathway into the future that’s obviously staring at us?

Q: That conversation – a more narrowly focused one – about the pros and cons to revenue sharing would have been instructive. Such as, what does that model look like for a baseball player, a basketball player? What are the Title IX implications?

STAHL: This is not in any way to disrespect anybody that was there. I just think that panel would have worked, but for a different hearing. I think for this hearing, like, if you want to invite people in to have a conversation – even say about NIL, just to make it simple – and then under NIL you could talk about things like revenue sharing because that’s how I like talking about NIL. Like, the athletes’ name, image and likeness is used in media broadcasts. And we need to talk about that and acknowledge what it means for revenue sharing.

Let’s just say that’s the conversation you want to have. Who would you want there? You want me. You want a Power 5 football player. You want a Power 5 men’s basketball player. Sure, (SEC commissioner) Greg Sankey, some sort of conference commissioner. (NCAA president) Charlie Baker. Maybe (LEAD1 CEO) Tom McMillen, who was there. I had some good conversations after the hearing with Tom. That’d be a good start. I think then you could have maybe one of the collectives. It is very tricky because my knowledge of collectives now, it’s like, there’s going to be some people from collectives I don’t want there. There’s [also] going to be ones more universally acknowledged as being on the up-and-up and really trying to do good work for college athletes. Somebody who runs that and says, ‘Yeah, we’re really trying to do this right, and here’s what that looks like.’ That, seems to me, would have been appropriate.

Q: If the NCAA doesn’t get what it wants – a federal bill to provide antitrust protection and affirmation that student-athletes aren’t employees – what’s the organization’s Plan B?

STAHL: I just look at this situation like, OK, if I was Charlie Baker, here’s what I would do. But there’s just no way it’s going to happen. Plan B? God only knows. This plan seems just backward thinking. It seems, like, do anything else besides this kind of thing. We haven’t even gotten into – the NCAA is a 501(c)3. The fact that they’re lobbying to the extent that they are, it’s not on the up-and-up. The fact that it’s full-court press lobbying, full-court press legislative wrangling. I can send you the IRS [information] about 501(c)3’s. It is not allowable. I mean, Charlie Baker doesn’t even move to Indianapolis? It is so frustrating because the whole edifice, the whole institution of the NCAA is funded by that one [men’s NCAA] tournament. Just the absurdity of it all – the upward redistribution of wealth that is central to the college sports industry is horrifying.

Q: Is there a question you wish was asked and answered that wasn’t?

STAHL: In my oral testimony and written testimony, knowing I was coming into a heavily Republican setting, I very much was trying to speak to those people. And there was a lack of responsiveness to it. Was there a question I would have liked to have been asked? I would have liked maybe one of those Republicans to really hear what I was saying and have it maybe discombobulate their thinking a bit. And ask something simple like, ‘Why should the federal government get involved in this market?’ Corey Staniscia, who helped found Dreamfield [an NIL platform] and has worked with a collective down in Florida, he’s Republican and an advisor for the CFPA. And we talked afterward and he said, ‘I just would have thought there would have been more response to what you were saying from the Republicans.’ I really was trying to speak to them. Not to say that this market doesn’t need to be regulated or this market doesn’t have problems. I wasn’t saying that. I was saying the feds should stay out of it because there are other ways to take care of the problem. And those in the industry regulating itself. …

Do I think agents and collectives and others who are taking 20 percent and 30 percent in fees is wrong? Absolutely. And do I want those people disempowered? Absolutely. But the best way to do it is not through the feds. It’s through figuring out rules and regulations we all agree to, figuring out enforcement mechanisms, then providing free legal counsel that is on the up and up for athletes. It’s screening agents and attorneys and licensing them as the NFLPA does. This is the conversation I wanted to have. But it was so much sort of rah-rah boosterism combined with just really needing to do more homework on the basic subjects we were talking about. I just felt like the conversation I wanted to have in that room was impossible to have.

Q: How about a panelist that could give us a true sense of scale and perspective – how many athletes have been fleeced by agents or collectives? What do those cases look like, how common are they?

STAHL: Yes, yes. And if folks are going to come in and say, in the case of, let’s say, Mr. Chun, who is best situated to make the argument. We have a Power 5 head of an athletic department. He’s been around. He’s been AD elsewhere [Florida Atlantic] and so forth. If he’s going to come in and he’s going to make the case for a federal NIL bill, OK, when you’re asked, ‘What should be in that federal NIL bill?’, you should have an answer for it. And I don’t think he had a clear answer. What do you want in here? What is it? Tell me. I just want to talk about the ideas that you have.

But I just feel like even that base level from people who were advocating for that position, they had no answer to the specifics of the legislation. Guys, if we’re going to write the legislation, we have to know what’s in it. Or are we just going to let the lobbyists write it? Maybe that’s the actual answer. You’re just going to let the lobbyists write it and so you don’t really need to worry about the details, which that’s horrifying too, that people who are paid $800,000 a year, as Mr. Chun is, don’t even have to set forward specifics that they would want in this piece of legislation.

Q: A question perhaps to Chun could have been that if we have a federal NIL bill, how can we be assured it would protect NIL rights for athletes instead of restricting those rights?

STAHL: Exactly – and that’s the concern. Even in a case where you have a situation where it’s like, OK, maybe this collective is or maybe this agent or whatever, the fee is exorbitant, and it needs to be reined in because you need to have licensing of attorneys and you need to think about ways to disempower bad collectives, right? Athletes are still getting money. They’re still getting money. Like what we want to do at the CFPA is make sure they are getting more money. It really is that simple. And if you have people skimming 25, 30 percent, as opposed to taking a more reasonable fee, that means it’s less money in the pockets of athletes. That’s wrong. We want to make sure that they get more of the money. But when it comes down to it, do you know what the best way is to disempower collectives? It’s for the conferences to pay the athletes out of the media rights money. But they don’t want to say that. They want to have their cake and eat it, too. They want to keep all the media rights money for themselves and disempower the collectives. 

One of the other things that drove me nuts – and I was trying to get it in in an answer but I was allowed so few windows – Chun said he’s in favor of, I’m reading from my notes here, real work or real NIL work or true NIL. But he’s not in favor, I guess, of collectives paying, let’s say, a football player simply for their football skills, making a couple of appearances or something. For someone who makes as much money as him, who knows that the schedule of a college football player in season is something akin to a 60- to 70-hour work week if you include everything, for someone who makes $800,000 a year to use phrases like that, to say they need to be performing more quote ‘real work’ – he should be ashamed.

Q: It seems naïve not to consider the structured and almost overloaded nature of an athlete’s schedule, especially in-season, right?

STAHL: They’re not performing real work already? They need to go out and pimp for some brand, too, to make money? I mean, come on. To say something like that in a public forum, it just shows how out of touch they are, how utterly and totally out of touch they are with the actual lived realities of a normal college football player’s life.

Q: This isn’t a question of where this all should lead, but where do you think this all will lead?

STAHL: I think people in the industry, for obvious reasons, pay most attention to what this sort of administrative class is doing and the decisions they’re making, and they’re going to Congress and Charlie Baker this and Greg Sankey that. And it’s not that that stuff doesn’t matter. But I think this hearing showed you, like, I don’t know, are they going to be the ones that move the ball forward? I think after my experience, I’m just like I don’t think that’s the case. And so I think it’s us. I think the next step that would be positive for the industry in pushing it forward to where it needs to go is for the players to assert themselves and to assert the enormous power and the enormous potential that they have. But they still have to have an awakening to that truth. They still have to realize; they still have to not be scared. And fear is the enemy. I’ve said it many times: They have to overcome that fear. And I know it’s hard to do. You can overcome that fear. And once a subset of them do, whether it’s a team or a conference, this industry is going to move to a good and positive future where the athletes will get the health and safety protections they need and share in the wealth that they generate.