The NCAA’s date on Capitol Hill was a big missed opportunity

Leave aside all the nonsense – the lawmakers throwing pep rallies for alma maters, mischaracterizing the Alston v. NCAA ruling, meandering into topics like robot tackling dummies – and the kindest summation of Wednesday’s Congressional hearing is this: It was a missed opportunity. 

For nearly three hours, several lawmakers made clear that they’re either misinformed or under-informed about the complexities of the fast-evolving college sports enterprise. None of the six witnesses could speak to the NCAA rules that allow schools to help NIL collectives raise money. Two of them, Patriot League commissioner Jennifer Heppel and Washington State athletic director Pat Chun, demonstrated a lack of understanding of how collectives even operate. 

The U.S. House’s Innovation, Data and Commerce subcommittee hearing was long on tangents, short on enlightenment. As one prominent stakeholder told On3, “Continued naiveté from D.C.” And all parties departed with the NCAA not an inch closer to receiving the lifeline from Congress that it so desperately seeks. 

“To me, the hearing was not really about NIL and protecting athletes’ NIL rights,” Mit Winter, a college sports attorney with Kansas City-based Kennyhertz Perry, told On3. “It was more about using some of the current narrative around NIL – that that athletes are being taken advantage of, etc. – in an effort to continue to allow schools and the NCAA to operate professional sports teams without the athletes being properly compensated and having other rights granted to professional athletes.”

Among the witnesses, the money quote came from Jason Stahl, the College Football Players Association founder: “The federal government should stay out of the NIL free market.” He also said the problems that plague college sports should be solved by people within college sports. 

Wednesday was a squandered chance to hear from new NCAA president Charlie Baker, any Power 5 commissioner, anyone affiliated with an ambitious NIL collective or anyone who currently plays Power 5 football or basketball. In fact, this was the eighth time the NCAA has had a date on Capitol Hill and no current Power 5 football or men’s basketball player has testified in any hearing.

It was a missed opportunity to discuss what increasingly looks like an inevitability on the horizon: an entirely new construct in which NIL will be brought in-house on campuses and at least some athletes may receive a slice of an athletic department’s revenue pie.

After the hearing, one prominent NIL source said the “real conversation” needed to include how, according to the Knight Commission on Intercollegiate Athletics report, $126 million is the median revenue for a Power 5 athletic program, with 11 percent going to athletes and 41 percent to staff, coaches and severance. “That is going to take center stage, whether we like it or not, in the Johnson v. NCAA case,” the source said. “So we probably should be talking about how NIL fits into that and, beyond that, what the new college sports model is.”

Instead, we got lawmakers trying to grasp and discuss pay-for-play schemes, now orchestrated through a collective. Why is this even an issue for Congress? Why isn’t the NCAA asked pointedly whether its enforcement unit – now with the lower circumstantial evidence threshold – is willing and able to legally police its own membership? Pay-for-play schemes aren’t new; now, though, they are hatched above the table.

“If that’s what the NCAA, the legislators, and the witnesses are most concerned about, a federal law isn’t needed to address those issues,” Winter said. “The NCAA just needs to enforce its own policy. I think the NCAA has realized it’s going to be hard to enforce those rules. And instead of dealing with that on its own, it’s asking the federal government to help it enforce its rules through federal legislation.”

After the hearing, Amy Perko, CEO of the Knight Commission, said in a statement to On3 that the commission endorses the oversight of management and application of NIL rules by an entity led by a board with a majority of independent directors, none of whom would be employed by the NCAA, conferences or member institutions. 

“Given concerns that college athlete perspectives have been underrepresented in decision-making, we believe it is essential that this board should include current and former college athletes,” Perko said. “An independent board, granted authority by an appropriate governmental body, would help eliminate inherent conflicts of interest to ensure NIL decisions are in the best interests of college sports and athletes – rather than the conferences and institutions they represent.”

In the NCAA’s first return to Congress in nearly two years, the hearing was dubbed, “Taking the Buzzer Beater to the Bank: Protecting College Athletes’ NIL Dealmaking Rights.” But much of the commentary and questioning signaled efforts to restrict rather than protect those rights. Contrary to the hearing’s name, Winter said protecting college athletes and making it easier for them to be compensated for the use of their NIL was not the hearing’s actual focus.

“It was clear from most of the legislators’ questions and comments, and from the composition of the witness panel, that the hearing was instead designed to focus on restricting certain types of NIL compensation and college athlete compensation in general,” Winter said. “It’s clear that a federal law that comes out of this committee will try and differentiate between ‘good’ NIL compensation and ‘bad’ NIL compensation, and will try and prohibit what the committee perceives as ‘bad’ NIL compensation.”

There was no focus on what might be the seminal question facing college athletics. That was posed by Betsy Mitchell, the athletic director at Division III Cal Tech, before the January 2022 vote in Indianapolis on a new NCAA constitution. She wondered if multiple constitutions are needed, given the growing disparity among the some 1,200 member schools, bluntly asking: “Why are we still trying to stick together?”

She later said, “We do not have one model of college sports. Those days are long over.”

But the six witnesses at the hearing did not present a strong cross-section of those disparate missions and resources. There was Makola M. Abdullah, president of Division II Virginia State, who was aware of all of five NIL deals among his athletes. There was Heppel, the Patriot League commissioner, whose schools aren’t flush with multimillion-dollar collectives. Again, there was no current Power 5 commissioner or revenue-producing athlete. 

Witnesses espoused the same talking points the administrators across the industry have voiced in recent months: the need to create a uniform federal law to preempt the patchwork of state laws and more transparency when it comes to whether NIL deals “pass the smell test.” 

“I think there is consensus that the current state is unsustainable,” Julie Roe Lach, the Horizon League commissioner, told On3. “I don’t think there is emerging consensus on what the solutions are. Getting money for NIL is a good thing, as long as it is for NIL. If you’re getting money because you’re being recruited to a school, and it’s a veiled recruiting inducement, that’s not what the rule is.”

Wednesday’s discussion could have addressed whether the NCAA – or perhaps a third-party entity – is best equipped to legally policy the NIL landscape without making itself even more vulnerable to an avalanche of potential litigation. It could have drilled down on what sources view as a “Hail Mary” attempt by the NCAA to turn to Congress to grant it antitrust protection and to stipulate that athletes are not employees.

Tom McMillen, CEO of LEAD1 Association, which advocates on policy issues for FBS athletic directors, has told On3 that college sports is on an “inexorable road” toward an employment model. That has far-reaching ramifications, encompassing everything from Title IX to the potential of sports being eliminated or dropped to club level. Regardless of when and if employee status is coming, there’s the potential for schools to give athletes more resources on campus related to mental health, better medical coverage, scholarship protections, legal and accounting resources and more. 

But instead of those discussions, we got Buddy Carter (R-Ga.), wearing a Georgia sports jacket, bringing an autographed Georgia football and concluding his time with an enthusiastic “Go Dawgs.”