Here's what lawmakers should ask NCAA president in Congressional NIL hearing

Approaching his first anniversary as NCAA President, Charlie Baker on Thursday will testify at an NIL-related Congressional hearing for the second consecutive time and for the first time since unveiling his potentially landmark reform proposal early last month.

To set the scene, the rate of change is increasing in college athletics – as is the urgency felt by stakeholders nationwide.

The NCAA and Power Five conferences could have to pay thousands of athletes some $4.2 billion if the association receives an unfavorable outcome in the House antitrust case. With a trial set for next January, the NCAA undoubtedly is seeking a settlement. 

At the same time, two National Labor Relations Board cases are independently weighing the question of whether at least some athletes should be deemed employees of their universities, an outcome that would radically reshape college sports as we know it.

So Baker is back on Capitol Hill for a hearing titled, “NIL Playbook: Proposal to Protect Student Athletes’ Dealmaking Rights.” He unveiled his proposal to get the attention of Congress, which the NCAA is aggressively lobbying to pass a reform bill that would afford the association limited antitrust protection and codify that athletes are not employees. 

Other witnesses will be: UCLA quarterback/NIL entrepreneur Chase Griffin; Missouri Valley Conference commissioner Jeff Jackson; Radford volleyball player Meredith Page; Arizona State Associate Clinical Professor of History Victoria Jackson; and Michigan softball player Kaitlin Tholl.

Gathered in part from recent conversations with a variety of sources, here’s a variety of questions that lawmakers should ask Baker – once they can tamp down cheering for their respective alma maters (an issue in previous hearings):

Why do you believe an antitrust exemption is needed for a model where schools or teams are able to directly pay college athletes? Does the NCAA want to cap athlete compensation in some manner? Why are college athletes the only group of people in the U.S. that need a federal law to regulate and restrict their right to monetize their NILs and govern their right to publicity?

Let’s do away with the window dressing. Let’s get to the heart of it. They can include NIL in the title of these hearings. They can talk about consumer protections, rail against pay-for-play schemes and utter the word “chaos” countless times during these hearings.

Allow Baker to lay it out: He is making his second appearance as a witness because time is running short. The NCAA believes receiving limited antitrust protection is mission-critical to fend off mounting legal threats. It believes it needs Congress to codify that student-athletes are not employees to get ahead of the NLRB, whose ongoing proceedings continue the slow march toward at least some athletes being deemed employees of their universities. Whether such a formal designation is constitutional is another important question, legal experts told On3.

Your proposal calls for schools in a separate subdivision to be able to compensate athletes directly from a trust fund. Why stop there? What is the argument against athletes receiving a slice of the broadcast revenue pie?

In his written testimony, UCLA’s Griffin appears to make the case for a true revenue-sharing model, stating, “In every other aspect of American life, the expectation is that if you work hard, play by the rules and create value, you DESERVE to share in that value. Why shouldn’t this core American principle be true for college athletes?”

Over the last eight months, there’s been a marked evolution in public sentiments expressed by leading college sports stakeholders regarding revenue sharing. Early last summer, only the most progressive thinkers publicly told On3 and other outlets that it was time to at least explore what such a model would entail. Most said it was premature. 

But now, an increasing number say it’s not only time to explore the model but it’s time to move forward and share revenue with athletes. It is difficult to find a key stakeholder who will publicly say revenue should not be shared with athletes.

Developments in the House antitrust case this fall – which could result in the NCAA and power conferences being forced to pay $4.2 billion in retroactive NIL pay and broadcast rights revenue to thousands of athletes – jolted the entire industry. Most believe revenue sharing is inevitable. The industry is merely delaying the inevitable. 

During your 10-month tenure, you’ve emphasized the need for the NCAA to evolve and put student-athlete interests at the forefront. You’ve also pushed in your proposal for schools to be able to pay athletes at least $30,000 annually from a trust fund. Do you support athletes being empowered to collectively bargain those financial terms with their schools? If college athletes are given a special status by Congress under which they cannot be employees of schools and conferences, are you in favor of a model that would give them the right to collectively bargain for compensation and other aspects such as player movement?

If the NLRB deems at least some athletes to be employees of their universities, they would be empowered to create unions and collectively bargain their benefits. However, revenue sharing can occur without an employee model. If it is ushered in over the coming years, athletes still need a seat at the table to help create the model and fairly negotiate terms.

In a recent survey of 128 ACC athletes by Athletes.org, 60% said they’d like to be involved in discussions about the creation of a model like the one Baker proposed in his December memo. When the College Football Playoff – not the NCAA – moved to triple the size of its postseason tournament, athletes were not involved in those discussions, despite the additional games creating additional risk of injury.

Baker has been widely applauded for introducing a bold proposal.

It is a conversation starter – and only a first step. True progress will reflect the athletes themselves having a hand in helping to shape key aspects of a new, sustainable model. Given Baker’s stated goals of prioritizing the interests of the student-athlete, lawmakers should pin him down on how exactly athletes should be involved.

The draft discussion of the Bilirakis bill would grant the NCAA two big-ticket items: antitrust protection and codification that athletes are not employees. But it would prohibit schools from entering into NIL deals with athletes – which directly conflicts with your proposal. Do you support the reform bill?

That was the interesting aspect of the discussion draft. The NCAA in its proposal was more forward-thinking than what is laid out in this bill, which would prevent NIL activity from moving in-house.

The NCAA is determined to fast-track this portion of Baker’s proposal. During last week’s annual convention, the Division I Board of Directors, as expected, green-lighted the D-I Council to begin creating recommendations pertaining to the proposal. Among the items in play, moving NIL activity under the umbrellas of schools is the most achievable on an accelerated schedule – it’s the lowest-hanging fruit.

Many industry leaders have long called for this move to help streamline NIL efforts, address donor fatigue and add credibility to the overall operation. Opponents cite additional Title IX concerns and added liability risk for schools. 

The Bilirakis bill checks the big boxes for the NCAA. But it prohibits the most achievable element of Baker’s proposal. It would be interesting to hear Baker assess the bill as it is currently laid out.

The decades-old argument among college sports’ administrative class was that if schools directly paid athletes it would ruin the truly unique American institution that is college sports. By proposing that highly resourced schools be able to directly compensate athletes from a trust fund, is that not an explicit acknowledgment that it would not harm college sports if schools paid players? Does it also acknowledge the reality that some college sports are professional sports, and that the athletes are being compensated for their athletic performance?

First, it was the notion that allowing athletes to monetize their brands would devastate college sports and dampen the nationwide popularity of college football in particular. Then, the same naysayers claimed allowing athletes to transfer without sitting out a year would have the same effect – even as the coaching carousel has been on tilt, creating an equal amount of disruption throughout the landscape.

Truth is, the college football product is strong. It’s coming off its most-watched season on all networks in history. The man who lived in the portal last winter, Deion Sanders, won Sports Illustrated’s Sportsperson of the Year. And college football will continue to thrive amid massive realignment, the advent of NIL, incessant portal activity and even if athletes are compensated directly from schools.

Pin Baker down on this.

The truth may be a surprise to those lawmakers still hollering from mountaintops that NIL is causing sky-is-falling chaos. 

In the October Congressional hearing, you said you’ve talked with 1,000 athletes since assuming your role in March, and not one told you they wanted to be a university employee. However, polling conducted by Bill Carter with Student-Athlete Insights of just under 1,100 athletes between Oct. 22 and Oct. 27 found that 73% said they’d favor employee status. How do you square that?

No one is calling Baker a liar. Employee status is a complex dynamic and responses could vary depending upon how a question is asked. 

But it’s been interesting to watch how Baker, an effective communicator, has been attempting to frame the all-important employment model debate in recent months. He has repeatedly stressed that athletes do not want to be employees, comments that drew some criticism because of a perceived paternalistic tone. He also has repeatedly emphasized the perceived negative effects of such a model, including the prospects of athletes being fired.

However one feels about an employee model, it would not be a clear win for athletes. It is a mixed bag, by most accounts. But the discussion also somewhat obscures what’s at the very heart of the NLRB cases involving USC and Dartmouth: How much control, if any, teams and schools exercise over athletes?

The answer will go a long way in determining whether at least some athletes are deemed employees of their universities. Expect a years-long process.

You’ve said that you want to protect all athletic programs from “one-size-fits-all actions.” Based on that sentiment, would you agree that it doesn’t make sense to try to manage every college sport under the same model?

This wades into more nuanced aspects of a future model. What compensation and benefits should field hockey players receive? How about football players? What about Big Ten football players versus Mountain West football players?

There are enormous differences between Power Four football and basketball and other sports. There are also sizable differences just within the sport of football, given the size of media rights deals, access to the expanded College Football Playoff, etc. 

Let Baker explain more about trying to avoid a one-size-fits-all concept and whether one model would adequately address the differences among sports.

Why do you think it’s problematic for schools and/or teams to use the promise of financial compensation in recruiting?

When is college sports going to get beyond the notion of recruiting inducements and promises of financial compensation being a transgression? They are permitted in virtually every other aspect of life.

We’re moving toward a model where, if the NCAA gets its way, schools will be able to compensate athletes directly from a trust fund. Some athletic departments have more money and will want to choose to allocate more dollars to athletes than others.

Schools have always possessed a number of advantages, from resources to facilities to coaches to geography. This is just another one. Now it’s above the table. And there’s no clear reason why it should continue to be prohibited.

Do you want the Power Four to remain under the NCAA’s umbrella?

As legal threats mount and the revenue gap between power leagues and everyone else widens, there will continue to be speculation surrounding an eventual power conference breakaway from the NCAA.

The issue has largely focused on whether there will be a breaking point for the likes of SEC commissioner Greg Sankey, Big Ten commissioner Tony Petitti, etc., commissioners who watch antitrust lawsuits arriving fast and furious. Would it be preferable for the power conferences to break away from the NCAA, create their own policies and govern themselves – rather than standing under one proverbial Big Tent among some 1,100-plus institutions often futilely trying to find common ground?

I’d like to hear Baker make the case for the Power Four remaining under the NCAA’s umbrella. The truth is, if the Power Four break away, they will also likely take their basketball and move to stage their own lucrative postseason basketball tournament. That roughly $1 billion annually payout for March Madness – the deal with CBS and Warner Bros. Discovery runs through 2032 – represents the vast majority of the NCAA’s annual revenue – it’s the golden goose.

As the Power Four increasingly move to operate in a more professionalized manner, whispers of an eventual breakaway, and its far-reaching implications, will only grow louder.