WASHINGTON — A U.S. House subcommittee hearing aimed at refining the draft of a possible college-sports bill drew significant interest and participation from legislators on Thursday, but provided few clues about a path forward.
Republicans and Democrats basically agreed that Congress needs to get involved in addressing the wide array of issues that have been raised by college athletes becoming able to make money from their name, image and likeness (NIL). However, significant differences remain about how to do that.
Draft legislation is being offered by Rep. Gus Bilirakis, R-Fla., who chairs House Energy and Commerce Committee’s innovation, data and commerce subcommittee — the panel that met Thursday in what was billed as legislative hearing. That’s a step up from an educational hearing, one of which the subcommittee held last March. But it’s short of a mark-up.
How the hearing unfolded
In his opening remarks Thursday, Bilirakis said he wants to file a bill “as soon as possible” because it’s needed “to save college sports as we know it.” And NCAA President Charlie Baker — part of a witness panel that also included three college athletes — continued to make the association’s case for a federal law that would, among other goals, resolve a patchwork of state NIL laws, provide the NCAA with some legal protection from antitrust lawsuits and prohibit athletes from becoming employees of their schools based on their participation in sports.
A 3½-hour session ensued, with questions coming from 19 of the 23 subcommittee members and eight more members of the full committee.
Along the way, Democrats made clear there would be a long road ahead in the House. And Rep. Lori Trahan, D-Mass., a former Division I college volleyball player and a long-standing advocate of athletes’ rights, said afterward she does not think a measure with an antitrust exemption or provision barring athletes from becoming school employees would pass in this Congressional session.
Bilirakis’ current draft would prohibit athletes from becoming school employees, and it would provide a specific form of antitrust protection that is narrower than the type for which the NCAA has been lobbying.
“It’s hard to imagine in this Congress, getting to an agreement on an antitrust exemption — on employment,” Trahan said. “That’s not going to pass both chambers and … Democrats and Republicans won’t come together on that one.”
Among the athletes who testified Thursday, Radford women’s volleyball player Meredith Page and Michigan softball player Keke Tholl, expressed reservations about the prospect of becoming employees while UCLA football player Chase Griffin said that based on the effort and hours they put in every week, football players “operate as employees currently.”
Other points of conflict
Variously, Trahan and fellow Democrats Jan Schakowsky, Ill.; Debbie Dingell, Mich.; and Frank Pallone, N.J., said they want to see a bill that addresses athletes’ medical coverage, health and safety standards, athletes right collectively bargain and greater Title IX enforcement.
Baker noted that under new NCAA rules that will take effect in August, all NCAA athletes will have access to health care coverage for athletically related injuries for two years after their college careers end and that Division I schools will be required to provide enhanced health and well-being services.
He also discussed his recent proposal for a new competitive subdivision whose schools would be required to put at least $30,000 into “an enhanced educational trust fund” for at least half of their athletes while remaining in compliance with Title IX. The proposal also would allow schools to make NIL deals with athletes, which Baker described as another way to enhance gender equity, as opposed to schools’ NIL collectives, which have tended to have a focus on football players.
The rub here is that the current version of Bilirakis’ draft would prohibit schools from having NIL deals with athletes.
In addition, Bilirakis’ draft calls for the creation of an independent, non-governmental, self-regulating organization that would oversee NIL activities. That organization would require registration by agents, by collectives and by third parties, which the draft defines as an entity that makes NIL payments to athletes, meaning a company that wants to have an NIL deal with an athlete presumably would have to register.
Griffin, the UCLA quarterback, criticized that idea, saying it would potentially discourage companies from doing business with athletes. “No other student is subject to” that type of regulatory arrangement, which he said would preserve the “outdated NCAA model.”
Baker, in his written testimony, also pushed back against the outside NIL oversight entity, saying the association believes that “schools, conferences and the NCAA — as opposed to a federalized structure – are best positioned to govern college sports.”
Sen. Ted Cruz, R-Tex., a member of the Senate Commerce Committee, has said he opposes an outside entity. He remains in negotiations with Sens. Cory Booker, D-N.J.; Richard Blumenthal, D-Conn., and Jerry Moran, R-Kan., over draft proposals that they have circulated in that chamber.
Bilirakis, nevertheless, remained upbeat about his proposal’s future.
He said in a statement Thursday night: “We heard productive feedback directly from student athletes, committee members, and other key witnesses during today’s hearing. We have momentum and I look forward to incorporating this input as we work to pass legislation that will achieve our goal of codifying NIL rights, protecting student athletes, and preserving the integrity of college sports.
‘I remain confident that we will strike the right balance and continue to advance a bipartisan, bicameral agreement on my bill that achieves these primary objectives.”
What else was discussed
With so many members taking part in the hearing, college-sports issues other than Bilirakis’ draft were bound to come up — and they did.
► Conference realignment criticism and concerns: Rep. Marc Veasey, D-Tex., pressed Baker about the scheduling and travel issues that athletes will face after conference realignments have set the stage with the Big Ten and Atlantic Coast conferences now stretching from coast to coast. He asked about the importance of addressing that rather than NIL.
‘The issue you’re raising is a legitimate one,” replied Baker, who then raised the possibility of competition being scheduled in a fashion under which multiple teams would travel to the same location and play more than one game over the course of a weekend.
► How an adverse judgement in an antitrust damages case would affect college sports: Rep. John Joyce, R-Pa., asked about what would happen if the NCAA and Power Five conferences lose in the House/Prince antitrust case, which could result in a multi-billion-dollar damages award for athletes and former athletes.
Baker said such a payment would be “applied probably across most of college sports” rather than being absorbed centrally by the NCAA.
In 2016, when the association settled the damages portion of another antitrust case for just over $208 million, the NCAA Board of Governors decided to fund the settlement from NCAA reserves and that no conference or school was required to contribute.
► Transgender athletes participating in college sports: Rep. Kat Cammack, R-Fla., and Rep. Debbie Lesko, R-Ariz., both pressed Baker on this issue, with Cammack asking Baker, largely rhetorically, how the NCAA can “maintain credibility” on Title IX while it allows “biological men to compete” in women’s sports.