The most important questions to ask Charlie Baker in Tuesday's NIL hearing

The 10th NIL hearing on Capitol Hill will arrive Tuesday – along with a big question over whether it will amount to anything consequential.

Even with enough drafts of federal bills circulating to make your head spin, the NCAA faces a steep climb to secure federal reform legislation, much less something that checks all the boxes on its wish list:

• A preemption of state NIL laws.
• Limited antitrust protection.
• And a formal designation that athletes are not university employees.

But Tuesday’s hearing, scheduled by the Senate Judiciary Committee and called “Name, Image and Likeness, and the Future of College Sports,” is noteworthy because it marks the first time NCAA President Charlie Baker has publicly sat before lawmakers since he assumed his role last spring. He has been lobbying elected officials for a federal NIL mandate and deserves kudos for his down-to-earth demeanor and communication style.

As history has demonstrated, these hearings can devolve into a pep rally and take unusual turns. But if federal lawmakers keep the questions and answers on track, there is plenty of insight to elicit from Baker on the NCAA’s view of the future of college sports.

Regardless of whether a federal bill ultimately emerges from Congress, here are nine key questions lawmakers would be wise to ask Baker as the NCAA continues to pursue a congressional lifeline:

In last month’s 9th NIL hearing, Rep. Morgan McGarvey (D-KY) asked, “Is the NCAA so inept right now that this is something Congress must legislate?” So why isn’t the NCAA the best entity to govern the NIL space? And is it possible to govern it in a way that wouldn’t put you at grave risk of further litigation?

This cuts to the crux of the matter and why Baker and others will sit before federal lawmakers on Tuesday. The NCAA should be willing and able to govern the NIL space without limiting athletes’ ability to monetize their brands. But as Big East Commissioner Val Ackerman said, in a post-Alston world, “we are paralyzed now in our inability to pass rules.”

To be clear, there is a reason why the NCAA is vulnerable to escalating legal challenges. Let Baker articulate why there’s a need for limited antitrust protection at a time when federal courts are increasingly looking askance at the NCAA.

The NCAA is engaged in multiple consequential legal battles, including the House antitrust case in Oakland and the Johnson case in Philadelphia. And you’re just weeks away from an important National Labor Relations Board hearing that will weigh whether certain athletes are employees of their universities. Why isn’t the NCAA actively working on a comprehensive Plan B – if efforts with Congress fail – rather than risk the courts or NLRB taking the lead in shaping a new college model?

This has been a criticism of the NCAA for some time. It has put all its eggs in the congressional basket, hoping for a lifeline. Meantime, many prominent figures believe an employment model is an inevitability. Granted, the NCAA is currently working on changes in the NIL space. But in the scheme of things those changes are more on the margins. 

To date, the NCAA has ceded the opportunity to take the lead in reimagining a new model. It has taken the role of a passive bystander, choosing instead to push back against large-scale changes through the courts. 

College sports is a collection of disparate athletic departments, with vastly different resources, funds and missions. How can you create an NIL policy that appropriately applies to all 1,100-plus institutions? Is it necessary to have separate rules for Power 5 athletes/schools?

The gap between the haves and the have-nots under the proverbial Big Tent is growing exponentially wider. For instance, Division III Cal Tech spends roughly $4 million per year on athletes. What are Ohio State‘s athletic department expenses? $225 million. 

There needs to be a recognition by Baker and others that all institutions can’t be governed by the same NCAA policies. In his Monday op-ed in The Athletic, Baker references that courts may mandate that student-athletes across all sports in all divisions receive identical benefits.

“Providing the same benefits to a Division I football player whose program generates enormous revenues and a Division III swimmer whose program generates none would be untenable,” Baker wrote.

Mindful of these differences, ask Baker if it’s time for further separation between Power 5 athletes and everyone else, in both how P5 is governed as well as the benefits those athletes can receive.

The Big Tent needs multiple tents.

What percentage of athletes who partake in NIL are exploited by so-called bad actors and predatory contracts? What percentage of athletes enter the transfer portal simply motivated by a larger NIL payday? Do you concede that at least some athletes who enter the portal do so because they are run off by coaches?

Public service announcement: You’re going to hear the words “bad actors” a time or 10 on Tuesday. College sports stakeholders routinely paint a dark picture of the NIL world by saying it is laden with bad actors who take advantage of and exploit athletes, coercing them into signing bad contracts.

Granted, there are instances where that is the case.

No question.

But federal lawmakers should stop Baker and others from tossing around generalities and painting the space with a broad brush. Please provide some sense of scale and scope. 

Athletic programs possess any number of inherent recruiting and competitive advantages, including resources, coaching pedigrees, geography, admission standards, etc. Please lay out why it is specifically necessary to address the patchwork of state NIL laws with a national preemption.

Baker and other college sports leaders acknowledge that the NCAA did not properly get out ahead of NIL more than two years ago. In the absence of an ironclad policy with appropriate guardrails, other entities – including state legislatures – have emerged to shape the contours of the space. 

One criticism some have of some new state NIL laws is that they stipulate that the NCAA cannot police certain NIL activity in their state. That issue would carry more weight if the NCAA were in fact demonstrating an appetite to police NIL activity anywhere.

Thus far, it has not.

Potential changes to the NCAA’s NIL policy would allow schools to have a more hands-on approach to help athletes with deals. But many industry leaders argue that the NCAA should go further and green-light collectives to formally move under the umbrella of schools’ fundraising arms. What’s the counter-argument against that?

Numerous prominent college leaders believe it’s a win-win for collectives to formally move under the umbrella of the university’s fundraising arm. It would streamline fundraising efforts, enabling both the fundraising arm and collective to essentially row in the same direction. It would also address a growing concern: donor fatigue. 

Buttressed by university muscle and resources, it would add more credibility to the collective’s operations because it would no longer be a third-party entity. In doing so, would force schools to ensure they are Title IX compliant with NIL activity because they could no longer claim they are separate from the collective.

Even though NCAA policy stipulates there needs to be a separation between the university and collective, NIL sources say more than half of all Power 5 schools are working closely – to varying degrees – with their collectives. It’s been documented that some 95% of collective dollars go to male athletes. Are schools evading Title IX responsibilities as their affiliated collectives distribute the overwhelming majority of dollars to males?

Many legal experts, including Title IX authority Arthur Bryant, say the NIL space is barreling toward a Title IX reckoning. The Drake Group, a nonprofit advocacy organization, has sent multiple letters to the Office for Civil Rights, seeking guidance on schools’ relationships with collectives. 

When asked recently about potential revenue sharing, Notre Dame Athletic Director Jack Swarbrick said, “I don’t hear a lot of ideas that have Title IX at the forefront. They need to. That’s important.”

It’s also important to get Baker on the record about Title IX implications related to schools’ relationships with collectives. 

Enormous TV rights deals fueled massive conference realignment this summer. Many athletes will soon routinely make cross-country trips just for conference games. Yes or no – should at least Power 5 athletes deserve a slice of the broadcast revenue pie?

The summer realignment madness undercut the NCAA’s already flimsy argument that the athletes should not get a piece of the TV revenue pie. Now Michigan football coach Jim Harbaugh says it’s time for revenue sharing, and other prominent voices say it’s at least time to start exploring it.

ESPN analyst Jay Bilas has told On3 that college sports is a professionalized model in every way except one: players still don’t receive compensation from schools or leagues. It’s even harder to make the case that they don’t deserve it now.

Cross-country trips for intraconference games, multi-billion-dollar TV contracts, a coming 12-team College Football Playoff that could fetch some $2 billion from multiple TV partners. At least for Power 5 football, does amateurism still exist? 

RIP, amateur model. It’s dead. It’s been dead. And it’s difficult to maintain a straight face while twisting oneself in knots trying to make arguments that it’s still alive. But give Baker the chance to do so.

He acknowledges some differences between P5 sports and the vast majority of college athletics. Truth is, amateurism is gone and not coming back. The only question now, at least for P5 athletes: How soon will a truly professionalized revenue-sharing model take hold?