Skip to main content

tv   NCAA Officials Coaches Testify on College Athlete Compensation  CSPAN  July 23, 2021 4:23am-7:17am EDT

4:23 am
4:24 am
merrick garland will be testifying on the president's budget request for his agency. you can see that live at 2:00 p.m. eastern here on cspan3. >> on this important hearing and want to welcome our witnesses as well. i first want to point out the committee has been so busy on many fronts i want to thank our colleagues for working so diligently on the endless frontiers act and point out the committee will be very busy in
4:25 am
the next few weeks working on our part of the surface transportation act and hopefully the broadband legislation that we also think should be part of infrastructure. so appreciate committee member indell jens in what has been a very, very busy work period but appreciate everyone's input in those issues. this morning we have a very important issue in front of us, which is the issue of name, image and likeness that my colleagues have been working on for a long time. senators wicker and booker, senators blumenthal and moran have been doing a lot of work on this issue for really, literally, the last several years. so it is our hope today that this hearing will bring focus and attention to how to resolve the issues that would allow us to grant these important rights to students and also make sure that we are taking care of our students on important issues like scholarship, health care,
4:26 am
transferability, making sure that women are treated equally within the sports arena, and making sure that we continue to have the standards that should be set to make sure that they are all protected. so today we're going to hear from a distinguished panel. so appreciative that all of them are hear. we'll first hear from our colleague, senator booker. but i do want to say a special thanks to -- we have two wonderful institutions who are going to be testifying today. gonzaga university and coach mark few. and the president of howard university, dr. wayne frederick. these are two great institutions. i have to say congratulations on a great season to gonzaga and a great program. and certainly, you've produced a great colleague of ours, a law student, senator cortez, we're
4:27 am
proud of the spokane institution and the whole state of washington. i want to say to dr. frederick, it must be a special delight and moment of the 2020 year that a former graduate of howard university raised her right hand and took the oath as the vice president of the united states. we see the vice president every day taking out the truth and service motto of howard in how she does her job. so you must be very proud of her. we're also going to hear from mr. rod gilmore, who is a very articulate advocate for n.i.l. rights and students in his football history, i'm sure he'll elaborate a little bit on that. the ncaa president, mark emmert, who hopefully will illuminate some of the issues of health care and why we should be covering more athlete's health
4:28 am
care cost and mr. matthew mccann and michael mitton who will look at the legal issues of name, image and likeness and how we can move forward. i believe this is the time to make progress on this issue. mr. mitten brought up in his testimony i think a very interesting point, not to steal his thunder, but his report says, quote, prior to the 23 adoption of wadc, which provides the basis for international convention against doping in the sport and that was later rad fied that a serious vulcanization happened with various states doing different things and thereby leaving an unfair and unjustified hometown favoritism. we can't afford that now. what we can afford is to take care of our students and student athletes. it's so important for us to
4:29 am
listen to the voices that have made so many of these points clear. dallas hobbs, a football player at washington state university, called attention to inadequate covid protections and formed a group of unity with pac 12 players. we also have heard from sedona prince, a college basketball player from the university of oregon who shined a spotlight on gender divide in college sports when she posted a video that compared her workout room to the workout room of male athletes during the tournament. we can do better. so we will have many chances today to get clarity on these issues. i welcome everybody in the hopes this discussion today will move us forward on legislation. so senator booker, thank you for joining us, thank you for your legislation and we look forward to hearing your comments this morning.
4:30 am
i'm sorry -- oh my gosh. >> my name is cory booker. >> it's already -- it's already been a long week. >> it's been a long week. >> my dear colleague, senator wicker has been such a leader here and appreciate his partnership on so many fronts and i turn to him for his opening statement. >> thank you, madam chair for holding today's hearing, i appreciate your comments and subscribe to the tone and objective that you outlined. it's a very important day to discuss the issue of college athletes, name, image and likeness, n.i.l. rights, last year the commerce committee held multiple hearings on this subject. we heard from stakeholders with a wide variety of perspectives, representing large and small colleges and universities. as a result of that process and
4:31 am
because of the insights gained from responses to letters i sent on behalf of the committee to dozens of institutions, the proper role of what congress needs to do on n.i.l. has become clearer. there's broad consensus, that congress should pass a law that guarantees college athletes the right to enter into n.i.l. agreements, the same right that nonathlete students have. such a law should have guardrails in if place to prevent pay for play schemes, and to prevent student athletes from being taken advantage of by unscrupulous actors. a federal law needs to ensure that institutions, conferences and athletic associations are not held liable for past rules governing for n.i.l. compensation during the transition to a new system. and it should be pre-emptive of
4:32 am
state law, creating a single national standard providing the same rights and protections to all student athletes across the country. for my part, i sought to take the first steps towards a law when i introduced the college athlete compensation rights act last year. i credit senator cantwell for moving quickly to start negotiations on a bipartisan path toward n.i.l. legislation. and time is of the essence because the senate commerce committee has not been the only body taking up the n.i.l. issue. in recent years, 18 states have signed n.i.l. bills into law. the first of them set to go into effect on july 1st of this year, less than one month away. after that date, some college athletes will be able to avail themselves of opportunities related to their name, image and likeness and some will not. schools and programs in some
4:33 am
states will be able to gain a recruiting advantage under these new laws, and some will not. one of the state laws will be going into effect in my state of mississippi and i'm glad to know that student athletes at ole miss, msu, southern miss and other institutions will not be completely disadvantaged, however inconsistencies between state laws are already emerging. the only way to ensure that all student athletes across the country have the same n.i.l. rights is for congress to act. i understand that n.i.l. is not the only issue of importance in the world of college athletics. we have spent a significant amount of time on issues such as providing better health care and support for educational outcomes among our college athletes. these issues deserve deep and thoughtful consideration,
4:34 am
especially if they overlap with the jurisdiction and expertise of other committees. but unlike n.i.l. these issues are not subject to a july 1st deadline. based on our discussions i believe we can reach consensus on a focused bill, addressing n.i.l. on a much faster timetable. to that end, i expect the testimony of today's witnesses will be quite helpful. i look forward to discussing with each of them the latest developments on the n.i.l. issue and the need for federal legislation. thank you, madam chair. >> thank you, senator wicker. and thank you for your continued focus on this issue and certainly appreciate the bipartisan discussions we've all been having. we will turn to our colleague, senator booker and want to point out senators moran and blumenthal have been part of this discussion and have held many subcommittee efforts to focus on this issue and on our
4:35 am
lead democrat and republican as related to the olympic reform bill that we passed out of this committee as well. so we have successfully passed bipartisan legislation. hopefully we can again. senator booker, welcome. >> thank you very much, chairwoman. i cannot say how grateful i am and humbled that you would include me in a formal hearing and how appreciative i am we've been having bipartisan discussions and the ernestness with which your office and the ranking member's office have been treating this. i want to give gratitude to senator moran, i know he's been a champion for justice in athletics at large and it's affirming he's leaning in to this as well. and, of course, my partner and friend throughout this whole process, i'm thankful for him as well. i want to just say i am deeply sorry that we're here. i was a newly minted senator sitting when the room was configured differently in this
4:36 am
room with a person i've come to have respect for, the head of the ncaa, talking about these issues. and nothing, or very little, has changed. i really respect what senator wicker is saying. we are here because of the real threat to college sports as we know it with a whole bunch of different cross cutting standards that will undermine the level playing field, or at least the degrees of the level playing field we have now. if we don't fix this problem sports as we know will change and we should feel that urgency. it's unfortunate that these issues that we think are ancillary are really central. if we don't use this opportunity to address the really painful issue we see from the gender issues that continue to persist, to the health and safety issues that continue to persist, from the exploitive issues around
4:37 am
education that continue to exist, i'm telling you rights now from my experience and my entire work as a senator, they have not changed from the hearing we had seven years ago. there is no guarantee that they're going to change or there will be any urgency to act on these issues. that's why we're drying a law. modern college athletes is a for profit industry exploiting men and women, taking advantage of their genius, talent, artistry, leaving them often injured with a lifetime worth of costs, sometimes looking back their universities are still making profits off of their names. the changes we are talking about should allow athletes, as i think we all agree, to benefit from their significant commercial value that's being exploited to profits of 15 to $20 billion, even large schools
4:38 am
are profiting off of them and sharing nothing with that. but there are deeper issues we should talk about as well that have not been fixed. since 2000 alone we've seen the death of at least 30 players who have died from heat-related illnesses. we now have a better understanding of what concussion does to athletes throughout their lives. but we are sitting here at a time the ncaa doesn't even have an enforceable concussion protocols. are our student athletes, are they really the center? if they were, we would do something about the forces creating such a dangerous environment for them. the truth is, the incentives are imbalanced. i've been on a field where the game is on the line, where millions of dollars are at stake, win bonuses and television contracts, on whether we win or lose, the incentives are to keep that player with the concussion in. i know players, i've sat and
4:39 am
talked with them, i'm sorry there's not players here for this hearing with painful stories about spine injuries, head injuries, neck injuries, going out of pocket to pay for them with no help from universities that made millions of dollars off of them. i've talked to people who were used to put people in seats and make incredible amounts of moneys for the university but we know their chances of getting a college degree at a time they're spending 50, 60, 70 hours a week, they're robbed out of that college degree. i know the ncaa brags about a 90% graduation rate but in the revenue generating sports, which disproportionately african-americans are present in, only 50% of graduates are graduating within six years. these things should be painful to all of us. they've been talked about for decades from the time i was playing almost 30 years ago, and nothing has changed.
4:40 am
once an athlete's eligibility is gone and their scholarship expires, they're of little use to the multi-billion dollar industry. but where's our hearts, our projections for them. to not address these injustices is tragic because the story we sell is that this is about the kids. this is about the athletes but that is fundamentally not true. and so, the exploration of a college athlete's career should not mean they're expendable. now is the time for the ncaa to evolve as an organization. to truly put the students first. and their concerns and their needs. so some people want to make this process simple as possible. pass a narrow piece of legislation as the july 1st deadline comes that's a threat to sports as we know it. i'm saying we cannot do that.
4:41 am
i encourage the committee to focus on the broader concerns, make it not about the profit but the people. not about continuing the billion dollar industry as we know it and protecting it, but elevating the floor to address these concerns. i've spoken to many colleagues on both side of the aisle. i know we care about the education, health and well being and yes, the opportunity to make a profit off your name, image and likeness. i want to conclude saying this. i've come to have a lot of respect for people in this game. i'm close to college coaches and athletic directors. i've been so touched by how many have reached out to me over the last year. just notre dame's leadership reached out to me and i thought they would never do that, because for the record i had my best career game ens them. i think it was an ncaa record,
4:42 am
60 catches, i think. >> or 70, i forgot. >> somewhere around there, sir. i hear from them that they are appalled that we haven't changed this. my most recent discussion with an athletic leader was, hey, what we do in our school should be the standard everywhere but it's just not. i'm telling you what's going on right now is a quiet injustice. senator blumenthal and i have made a lot of time to hear directly from athletes. incredible young women and men, their stories are agonizing. we cannot trust this will fix itself. this is the moment, this is the opportunity, and if we delay justice for those athletes, justice delayed is justice denied. i hope we will take advantage of this opportunity to fix these problems and make college athletics again -- or for the first time truly about the
4:43 am
athletes that are involved. thank you very much. >> thank you senator booker, thank you for your passion, thanks for joining us today. you've really set the crux of what we're going to try to talk about today and that is how do we cover these issues of health care and scholarship and have a discussion with our panelists about how we can get that done -- >> madam chair, if i can ask a quick question before senator booker leaves. >> certainly, yes. >> just to put a fine point on it, i appreciate your reference to our partnership and friendship, and our listening to the athletes. what we need here, in if essence, is a bill of rights for college athletes, would you agree? >> obviously, as you and i have been part of authoring an athletes' bill of rights. i have talked to lots of people and everybody agrees that the basic protections on gender issues, on health and safety issues, this is the least we can ask in an industry that makes so
4:44 am
much money. i know when the ncaa tournament came to newark when i was mayor, i was blown away by the wealth, yet you have student athletes telling their story like we saw in the most recent tournament on gender issues, how can we possibly be in 2021 and not have the kind of basic protections for young people and fairness from transfer rules to the ability to actually get an education at schools where athletes are still, like i did, putting in more than a full time's job worth in their sports. i think the word "bill of rights," whether that's triggering or not to some of my colleagues, we need to raise the floor to the protections of these athletes. my friend, i'm grateful to you and my colleagues across this stage for your heart and concern about athletes' needs. >> thank you. >> thank you, senator blumenthal. senator booker, again thank you for being here. we're now going to turn to our
4:45 am
panelists so we can have a discussion about these various issues. i want to welcome, as i said, head coach mark few from gonzaga university. dr. rod gilmore -- i'm sorry, dr. wayne frederick, president of howard university. dr. mark emmert, head of the ncaa. he will be followed by mr. rod gilmore, who is at a remote location but will be joining us after the -- after dr. frederick. mr. michael mccann. and mr. matthew mitten. again, welcome to all of you. you can see we've been doing a lot of work. and people have a lot of ideas about what the bottom line is. i think today we hope you will help us illuminate some ways and paths forward and appreciate you all being here. again, appreciate, certainly,
4:46 am
coach few being here and traveling from my home state, the state of washington. so welcome, coach few. i think you have to push a red button there. >> there you go. tough act to follow. i want to thank you for allowing me to testify. about the future of college sports and the framework for federal name, image, likeness legislation for our student athletes. i would like to thank chair cantwell and ranking member wicker. my name is mark few and i'm the head basketball coach of gonzaga, as the son of a minister, i understand the value of keeping this short, so i'm going to do my best at that. i started coaching at gonzaga in 1990 as a graduate assistant, which was basically a volunteer position.
4:47 am
at that time, gonzaga was in a really tough position financially and there were discussions of moving down divisions and even reducing athletic offerings. since then we have slowly worked our way up over many years and now are considered one of the top basketball programs in the country, which i think helps give me a really, really unique perspective on this very difficult matter. we, as previously mentioned, we are at a critical juncture in college athlete iks. it isn't an exaggeration to say the future of college sports is in jeopardy. and so, i want to talk about kind n.i.l. rights. we should have addressed these n.i.l. rights a long time ago. and i'm embarrassed that we're here having to deal with it right now. we should have handled this, but here it is. and these changes are long, long overdue. all athletes deserve to use
4:48 am
their own name, image and likeness in commercial endorsements and on social media. and i'm very much in favor of them profiting as much as they possibly can from this. they should be able to run a camp using their own name, sign autographs for money or profit off their popularity on instagram or tiktok. that absolutely needs to happen right now. we don't need an artificial cap on what a player's value is for n.i.l. we should rely on fair market value. but we do need some parameters to preserve the collegiate model and protect the recruiting environment. without these parameters, the unintended consequences could be disastrous. and they could be disastrous, especially for the nonrevenue sports outside of football and men's basketball. so my second point is, we need your help. at this point, this is not an issue of the ncaa or individual
4:49 am
states can fix. we can't run competitive, fair championships if every state has a different rule. and state n.i.l. laws go into effect in less than a month. we have players showing up on campus here this week. so only action here by congress can maintain some sort of semblance of a level playing field. a consistent national law is critical. for instance, i have the same number of scholarships to offer as my counterparts of universities ten times the size of gonzaga. that's one way a school with 5,300 graduate students competes in the national championship game twice in the past four ncaa tournaments. in regards to student welfare, in the last four or five years, like i said i've been involved in college athletics for 32 years now. but in the last four or five
4:50 am
i've witnessed the most drastic changes in regards to student athletes welfare, acknowledging we have a long way to go. at gonzaga we provide out of pocket health care expenses for two years after a student athletes' injury. we pay for medical insurance, provide scholarship if a student wants to return to school after their eligibility is expired, even if they're playing professionally and we continue that for as long as they want to try and finish their degree. we provide one on one guidance on nutrition and all the food they could possibly ever want or need. access to mental health services like coping with depression, suicide prevention, and even peak mental sports performance training. we offer elite strength and equipment training equipment. cost of stipends. extensive life skills programming and literally every
4:51 am
bit of academic apparel and shoes they would ever need. and it is my belief that all student athletes should have two years out of pocket expenses covered at minimum after they're done playing if for any athletic injuries covered. they should have the ability to come back to school and finish their degree after their eligibility is expired. the fact we do that at gonzaga e i guess we take it for granted. but schools that cannot afford this care to their athletes should get assistance from the ncaa because it's the right thing to do. in order to make that happen, the ncaa probably needs temporary relief from the myriad of lawsuits that might follow or are currently in court. my final point i want to talk about is the value in a college experience. in men's basketball, there are options available now to players who do not want to be part of the collegiate model and prefer
4:52 am
to be professionals. our top high school players are actively recruited to the g league have opportunities to play overseas or even play in new high school professional leagues, supposedly offering six figure salaries. these guys have options. if their goal is to get paid to play right away, they can do that. and sometimes college athletics isn't for everyone. however -- big however -- there are so many positive things going on in college athletics that we don't hear about and experiences worth preserving and supporting. kids able to go to college and be the first in their family to step in a college classroom and walk across the stage at graduation. students encouraged to access mental health counseling that maybe they didn't realize they needed. academic support and opportunities to prepare for life after college. players find a second family in coaches and the support staff at the university dedicated to ensuring they develop into the
4:53 am
adults they should become. this year alone has been an incredible challenge and it brought resilience and grit and perseverance because the guys wanted to compete. they wanted to play. they wanted to join their brothers and find enjoy again by playing the sport they love at an elite level. we know there are challenges that remain in college athletics i don't want to forget the good happening on campuses throughout the entire country. i can't tell you how many times my athletes have come back years after competing at gonzaga and told me being here was the greatest times of their lives. some of those guys are still currently in the nba and others never played a minute after leaving gonzaga. in closing, the ncaa college sports model in the united states is unlike anything else. there really is no comparison. no model to emulate and has provided access to higher education to millions of students. hopefully we can find a solution
4:54 am
that will empower, educate and provide an opportunity for these students to capitalize on their own n.i.l. without compromising what makes attending college and playing college sports such a special and transformational experience. thanks. >> thank you, coach few. thank you very much for being here and for that testimony. very helpful. dr. frederick, thank you so much for being here. look forward to hearing your statement. >> chairwoman cantwell, ranking member wicker. chairwoman cantwell, ranking member wicker and members of the committee, i want to thank you for the opportunity to offer testimony on the issue of ncaa athletes' rights, particularly those pertaining to name, image and likeness. today i'm representing the mideast ern athletic conference
4:55 am
but i'm also here as the parent of a 16-year-old who will be 17 on saturday, is a soccer player and is being actively recruited by over a dozen universities, other than mine i might add. i'm also representing my own institution, howard university, which is the only historically black college and university to win a division one ncaa championship and that was in the sport of soccer in the 1970s. as well as the more than 100 historically black colleges and universities throughout the country. i'm a practicing surgeon and also served as the manager of that ncaa double a division one team that had a history of winning that championship. in our institutions, academics and athletics are critical components of the education we provide, in the classroom and on the volley ball court we teach the importance of perseverance in overcoming any barrier, but
4:56 am
we also teach them to be their own advocate gs. this is a balance we should seek to strike in college athletics both on and off the court. i'm here to support the legislation that allows college athletes to receive compensation for use of their name, image and likeness. we believe that student athletes should be able to obtainagents. in addition, we also support legislation that would protect students who face sports related injury and medical expenses from incurring undue financial burdens. student athletes put dedication into their activities and deserve to be compensated for those endeavors and protected in the course of pursuing them. however, it is critical that we recognize that college athletics is not purely or principally a
4:57 am
money making venture and it's neither in the best interest of the students or the institutions for it to be so. sports is indeed a part of a student's education. even as we work to provide student athletes with greater rights to receive compensation. we should protect the amateur status of the sports. the enthusiasm for increasing rights of student athletes is tempered by our concern for lesser resourced institutions. many smaller schools don't have the funds to take on additional financial responsibilities. if they were required to pay for more medical expenses or field more staff to comply with rules and regulations around student compensation, the strain would force them to down size or eliminate certain athletics entirely. we desperately need federal legislation that would super cede the patch work of laws that exist on a state level and we need comprehensive laws that
4:58 am
apply equally to student athletes across the country while also recognizing the diversity across the programs. as a representative of hbcus, i have concerns about the burden on smaller colleges and universities, particularly those historically black institutions that do not have the same resources as some of our wealthier and more privileged peers. i remind you that howard university is the only historically black college where a five-star athlete decided to enroll. out of 1,100 college programs in in the ncaa, only 25 programs, 2.27% are profitable. the overwhelming majority of colleges and universities extend significant resources to support athl athletics. for example, howard university
4:59 am
expands some $14 million each year to support our sports teams. if new rules and regulations require us to produce more support, we would not be able to continue the programs we have, and we offer some 21 division one sports at present. we have the only swimming team at a historically black college and university, and that's not just about swimming but it's about the african-american experience in this country. african-americans are five times more likely to drown, for example. so our swim team has athletes that will compete hopefully at the olympics but we have athletes who are interested in spreading the learning of swimming throughout the african-american community. this would be a tremendous loss to our institution as well as the students whose opportunities for academic and athletic experience would be limited as a result. so it is with tremendous conviction that we are an advocate for expanding student rights for student compensation, however we believe that
5:00 am
guardrails must be established to protect smaller colleges and universities, as well as the student athletes who are not well positioned to earn compensation from the athletic pursuits or who play smaller sports that could be eliminated. and to piggy back on senator booker's presentation, the african-american athlete he described, 56% chance of graduating at howard university that's at 80%. so those resources we expend we're happy to expend those resources. while we recognize the complexity of these issues we believe there are compromises to be had that would appeal to all parties with a vested institution. so thank you and i look forward to your questions. >> thank you so much for your testimony and for your advocacy for your institution and apparently your soccer skills, too. something new to look up about howard university.
5:01 am
we're now going to turn to mr. rod gilmore, who's joining us remotely. >> thank you, madam chair. my name is rod gilmore and i'm pleased and honored to testify today. i played college football and basketball at stanford university and graduated in 1982, a little bit before my friend senator booker, he was a much better player, by the way. i graduated law school in 1986 and i practiced law for 35 years. i also work in sports media and have covered college football since 1990, the last 25 years with espn. i'm familiar with the on and off field issues facing college athleics given i've covered games and had relationships with coaches and players in the last 30 years. during those 30 years watched the ncaa and the universities avail themselves of our
5:02 am
country's free market and compete for entertainment dollars. it is a billion dollar a year -- a $14 billion a year industry, and despite the claim that is almost no one makes money, people keep rushing into this enterprise. for example, in 1984, there were 105 college football teams in the top division of college football. today that number has increased to 130. while the ncaa universities, coaches and administrators have benefitted from this lucrative marketplace, the ncaa stripped football and basketball players of their rights to share this in market. this restriction is arbitrary, does not help competitive balance and is an affront to our free market system. players are frustrated and upset. for more than 15 years they've
5:03 am
been asking for the right to market themselves like everyone else, including their fellow students. remember, monetizing name, image and likeness rights does not require any payment from the ncaa or a university. rather, money is paid by an unrelated third party to a player for being permitted to use their player's name, image or likeness in promotions for advertisements. however, the ncaa believes and i have had coaches and administrators tell me this, that third parties will pay less to athletic departments if those third parties are allowed to pay players directly. in other words, the athletic departments want to protect their revenue stream, which is why the ncaa wants a national name, image and likeness law. today, i remind the committee that college football and basketball players have had no ability to negotiate nor change ncaa rules and have no legal authorized entity that can negotiate on their behalf.
5:04 am
this has allowed the ncaa to focus on its ncaa to focus on its self-interest and economic being at the expense of players. players have been treated like second-class citizens without the right to enjoy the freedoms and the rights that the ncaa, r every other student and every other american enjoys. to me this is also a civil rights issue. it is disturbing that a $14 million revenue is made in large part on the backs of players. about half of the players are black. 60% of the players in division i basketball are black. but when their careers are over and former players look for opportunities in this lucrative industry, black players find that it is not welcoming. it is an overwhelmingly white industry. according to recent studies,
5:05 am
leadership positions are 85% white. this may be the only true way players can share in this lucrative market. i believe the committee should do the following three things. first, one, represent the players. the ncaa and its members do not need your protection. the players do. the ncaa is sophisticated, has expert consultants supporting their efforts. any action by this committee should be with an eye toward the best interest of the players who lack a formal organization or union to speak for them. second,ly only create a national law if it benefits the players. right now the states that taken action that provide players with names, actions and rights and those laws give players choices. if the states have different rules, players have a choice to look at different jurisdictions in which to play college athletics. there is no compelling need for
5:06 am
national image and likeness law if the players already have that right given by the states. we're seeing the market act, the market is creating what the ncaa would not create. three, only create a national law if it gives players something they don't have under the state laws. for example, group licensing. none of the state laws require players to come together and promote a single product and share the benefits of having promoted that. second, we need better health care protection during off-season workouts. you heard senator booker mention that we've had about 30 players die since the year 2000, often related to heatstroke. during that same period, only one nfl player has passed away. something has to be done on this front. and then the final point, we
5:07 am
need better post-eligibility health care for players. you heard coach few speak about gonzaga and their ability to provide for two years. the ncaa provides for five years. there are lawsuits pending against the ncaa currently, and as we heard earlier there is not a consistent concussion protocol that's being used. if national image and likeness laws only give the ncaa protections and guardrails and uniformity, then the players will have been let down. i hope this committee takes action and really focuses on the benefits of the players. thank you. >> thank you, mr. gilmore, and thank you for joining us remotely and talking about the differences in various states. we're now hear for dr. emeritt
5:08 am
from the ncaa. welcome. >> thank you, madam chair, and before i begin my remarks, if i could, on a completely different subject, i want to congratulate the committee on the passage of the endless frontier act. i spent the majority of my life leading research universities around america. what you did with that act and what the senate did is remarkable, an extraordinarily important effort and i really, really thank you for your leadership. it's going to make a huge difference for america. ranking member wicker, chair, and members of the committee, thank you for the opportunity to testify here today. over the last decade i've had the pleasure and privilege of serving as the president of the ncaa which supports more than half a million student athletes who participate in sports every year on 19,000 different teams. the 1,200 colleges and universities of the ncaa are right now in the process of passing historic rules to allow
5:09 am
new opportunities for student athletes to be compensated for the use of their name, image and likeness. these opportunities will allow student athletes to take advantage of the evolving landscape in multiple ways, and our schools intend to pass those rules as quickly as possible, preferably before the end of the month. like you we also seek a level playing field that provides nil opportunities for all college athletes in all the states and in a fair manner. this task is made virtually impossible by the many different name, image and likeness laws that are passed at the state level, along with the ongoing recurring litigation threats. however well intentioned the multiplicity of state laws are, they confuse rather than clarify the nfl landscape. this is why we are urging congress to pass legislation creating a single national nil standard. the schools that make up the
5:10 am
ncaa membership have committed to allowing nil opportunities to student athletes, and as you well know, our schools develop ncaa rules through a representative process that's not at all unlike the legislative processes in every state of the union. thousands of student athletes, coaches, presidents, administrators and stakeholders have provided extensive input into these rule changes. as a result, divisions i, ii and iii have developed proposed rules to allow students to benefit from the use of their nil. specifically these rule changes would allow college athletes to be able to be compensated for activities such as third party endorsements, social media opportunities, businesses they ever started and personal appearances they may make. importantly, the proposal includes guardrails that would ensure that nil payments are not a proxy for pay for play, that a national recruiting environment for college sports is
5:11 am
maintained, and that students are not employees of the universities or their colleges. ncaa members are focused on enacting these rules well before the beginning of the 2021-'22 academic year. still, there is an urgent need for federal legislative solutions so that we may provide all student athletes with a broad opportunity and a fair system of participation and competition. in order to do so, we urge that any federal nil bill include five key elements. first of all, we obviously seek, as we all seem to agree to, a uniform national model under which students can benefit financially from the use of their nil. secondly, any provisions in this bill have to also support title 9 protections across all sports and provide for fair opportunities regardless of gender. thirdly, we all recognize the
5:12 am
need for preemption of state laws to provide the kind of consistency we all want across the country. and, fourth, we need to safeguard the nonemployment status of student athletes to maintain the core principles of collegiate athletics. finally, as we have also heard, we seek a limited safe harbor protection to allow nil opportunities to proceed without schools being under constant threat of serial litigation. with these provisions it would maintain opportunities for college athletes in all sports, uphold title 9 protections, ensure that nil payments are not a proxy for pay for play and maintain the fairness in our recruiting processes around the country. we're proud of the role that college sports have played in creating opportunities for our nation's student athletes, especially for those who might otherwise have not had a chance to pursue a college degree. we know from countless stories
5:13 am
and studies that ncaa athletes throughout their lives are more likely to be successful in their life, and that these patterns of success subsist across all races and ethnicities. many have expressed concern about, and we've heard from a number of folks already, about the levels of support students receive beyond nil, including making sure that students athletes have full access to and assistance with health care and health care costs. sharing scholarship provisions protect education opportunities throughout their careers, and the need to promote greater ability for transfer between schools. please know that i and the schools have been continually addressing these issues, and as coach few noted, these student welfare issues have changed remarkably within the past five years alone. and know that i'm committed
5:14 am
personally to continuing to work with you in partnership to find solutions to all of those issues. i think, most importantly, together we have an exceptional opportunity. i think, frankly, a historic opportunity to change the national landscape for college athletics. while preserving all the college sports provides to our students and our community, we can also support and encourage our students' nil activities by giving them unique opportunities in life and preserving all those things that coffee few talked about. ly -- thank you for allowing me to provide critical input at this juncture. the schools at ncaa are prepared to work with you on these opportunities. >> thank you, dr. emmert, for your testimony. we'll certainly have questions on the issues and now let's turn
5:15 am
to mr. mccann. >> it is an honor to speak with you. my name is michael mccann. i am a director at the school of law. i also teach a course and my final course is tomorrow, fittingly. i also write for sportico and law reviews. i'm also the officer for court justice with former nba player and ucla basketball star ed o'bannon. i have five points which are detailed in my written testimony. first, nil rights for college athletes are long overdue. these athletes have been denied a right enjoyed by the rest of us, the right of publicity, the right to control the use of what makes us who we are, our name, our likeness, our voice, our signature. many college athletes are marketable. billions of dollars are spent on their industry. coaches, staff, companies that
5:16 am
build arenas, they're all paid to help recruit athletes, the same athletes who are denied nil. but money isn't what matters most about nil. it's dignity. ed o'bannon's case led to thousands of college athletes being paid for their likenesses appearing in video games without their consent. most were paid in the ballpark of $1,000 to $1,500. none got rich. that was never the point. it was, as ed stresses, about fairness. ed also emphasizes the disproportionate impact on students of color. the changes we're discussing today would address that impact. college athletes are college students except with a different set of rights. a student who is a musician, an actor, an artist, an influencer, a cheerleader, an e-sports player can ordinarily earn without endangering a scholarship or getting a team in trouble or getting a coach
5:17 am
fired. they can juggle their studies, too. this is not just about the star quarterback. per "axios," eight of the ten most followed basketball players this year were women. they could get social media influencing. we sometimes think of nil as big endorsement deals, but it doesn't have to be that. nil won't make many athletes rich, but it could make college more affordable. remember, only a tiny percentage of athletes ever turn pro. we can't forget that. their chance to earn is while they're in school. second point, learn from the states. as senator wicker noted, 18 governors have signed nil bills. several will take effect on july 1st. these laws are remarkably bipartisan and mostly similar. there are differences, sure, but that makes sense because states are the laboratories of
5:18 am
democracy, we know that. they performed different experiments and came to different conclusions. one option is to let this state market pay out. if one state finds that top recruits are signing in other states, it could adopt an nil statute or perhaps make an existing one more athlete friendly. that's the free market but that's not necessarily the best market. at least my third point, a federal model or national model would make more sense. nearly 30 years ago, a nirvana statute was held to violate the u.s. constitution. it impacted other states. to treat schools equally, the ncaa would have had to apply nevada's statute in other states. there was a patchwork problem, meaning other states could pass their own laws and the ncaa couldn't enforce one rule nationally. nil is different, i get that.
5:19 am
it's mainly about the relationship between the athlete and a third party. still, nil impacts membership duties. they prevent schools from following ncaa rules, at least ncaa rules that are currently in place. they also create a patchwork problem themselves as noted by other panelists. if every state is doing their own thing, how can everyone have a national rule. a standard would ensure that every athlete is treated equally regardless of what state they're from. my third point, nil reform should focus on nil. there are many issues facing college athletes.he can inhe can with it -- inequities,
5:20 am
powerlessness. they intercept law and policy. i encourage the committee, like most states have done, to focus nil legislation on nil. nil gravitates towards one area of law, the right of publicity, and needs immediate attention. that doesn't mean other topics aren't important. they should be addressed and they ought to be addressed soon. fifth, lastly, don't let perfect be the enemy of the good. to that end i have ten suggestions for a federal nil statute. i'll say them quickly. first, it's reasonable for schools to deny athletes endorsements when they conflict with a school contract. second, each school should be able to craft rules for permissible and impermissible endorsements. i went to a university but a teach at a public college. they're different but they should have that adversity. schools should be independent
5:21 am
and cautious. many schools don't have fair independent ideas of their issues. third, there should be leeway in terms of the law in potential litigation, but i don't support anti-trust exemption. i think there are other means. senator wicker's bill talked about a compliance defense. that is a more reasonable approach in a transition period. college athletes should know what signing a contract means, including tax implications. there are going to be independent contractors. for some, let's not forget, visa consequences. some are not from the united states and the situation is equitable for women and men in full compliance of title 9. there are enforcement features. athletes, as other speakers have noticed, should never be
5:22 am
forgotten. they should have a private right of action. eighth, a bill should permit adjustments later on. make sure there are benchmarks. some legislations talk about the federal trade commission taking over college organizations. that might be a good idea, but we don't know yet, they haven't had that duty. let's make sure there are benchmarks we can adjust later. ninth, the schools and athletes should share summaries of their contracts and prospective contracts. transparency needs to be a two-way street. tenth, video games and certain other products necessitate group licensing. that should be allowed. a trade association or a 514-c nonprofit could be a vehicle that provides that. thank you, and i expect the committee to assist me further. >> good morning, chairwoman cantwell, ranking member wicker and members of this committee. it is my honor and pleasure to testify before you today.
5:23 am
my name is matt mitten. i am the director at marquette university national sports law institute. i've been writing anti-trust laws which support my agreement with chairwoman cantwell and ricker. it becomes effective on july 1st of this year. as senator booker stated, there is an existential threat to college sports if this doesn't happen. a nationally uniform nil rights law which only congress can establish is essential to provide all intercollegiate athletes with the same rights that will both, one, enable them to earn fair market compensation
5:24 am
from third parties for their authorized use, and two, preserve college sports as a unique and very popular brand distinct from professional sports that currently provides very beneficial athletic and educational opportunities to hundreds and thousands of student athletes and $3 billion annually collective value of the scholarships that ncaa athletes receive. national uniformity will prevent the continuing development of conflicting and differing state laws as well as avoid the dangers and unintended consequences of professionalizing college sports and creating competitive balance inequities. especially for a substantial structural change that will, for the first time, permit student athletes to receive nil income above the full cost of their university education, and that
5:25 am
historically courts, including the ban in federal district court, have upheld rules from students receiving nil income. the federal rights law requires the three following provisions to achieve these objectives. one, the proliferation of state intercollegiate athlete nil laws which are establishing a patchwork of differing and conflicting rules. neither the ncaa or its divisions i, ii or iii can establish rights laws that are certain to comply with all existing and future state nil laws. two, a very narrow safe harbor protecting national intercollegiate sports governing
5:26 am
bodies and their member athletic conferences and educational institutions from prospective and retroactive federal or state anti-trust immunity for adopting and enforcing rules consistent with the provisions of a federal nil law as well as their current rules prohibiting college athletes from receiving any nil income. without it, the ncaa will be forced to defend continuing anti-trust litigation. for example, the pending case in all of our cases were filed immediately after the ncaa board of governors directed divisions i, ii and iii to develop rules permitting student athletes to receive nil compensation. these cases effectively assert that providing intercollegiate athletes with nil rights precludes the ncaa's defense of anti-trust litigation based on preservation of its traditional
5:27 am
amateur education model of intercollegiate athletics. and, three, explicit clarification that consistent with the clear weight of judicial precedent best explained by the marshall case, this federal legislation does not create or define college athlete nil rights to encompass or include the use of their names or athletic performances in any media broadcasts of games or sports events in which they participate. otherwise the unintended consequences of permitting intercollegiate athletes to receive pay for play and a professionalization of college sports may result as plaintiffs continue to relitigate this issue. collectively, these three requirements will ensure that the only uncertain outcomes will be during on-court college sports competition, not in-court litigation.
5:28 am
finally, as a faculty member at a school like gonzaga, the majority which provide economic subsidies to fund their intercollegiate sports programs, i'm very concerned that including student athlete health and safety requirements in a federal nil bill will substantially increase their costs and have the inintended adverse consequence of eliminating non-revenue sports and significantly reducing athletic participation opportunities at ncaa, national association of intercollegiate athletics and national junior college athletic association schools. voluntary participation in intercollegiate sports necessarily involves assumption of the inherent risks of injury. as a former chair and member of the ncaa's competitive safeguards and medical aspects of sports committee, i know that schools can facilitate the effective treatment of these
5:29 am
injuries as well as significantly reduce the risk of aggravated injury and future adverse health effects by following the committee's recommended best practices. thank you for considering my testimony, and i welcome your questions. >> thank you very much. so, obviously, a lot of material put on the table here, and i think it's our task now to take you all up on the notion that everybody wants to see nil rights and see legislation. the question is how are we going to get that done? obviously our colleagues have some very important viewpoints that need to be listened to. one area that i want to probe on, dr. frederick, you specifically mentioned the meac institutions and the notion that you only have limited ability to address some of these issues. obviously coach few, and i would say probably the pac 12 have been doing some of these things already and have created a
5:30 am
standard. so we have been doing our own analysis, and to me, requiring division i and division ii schools to help cover these health care costs would be an important goal for us to achieve. dr. emmert, what can the ncaa do now? obviously we heard mr. gilmore and others talk about the incredible amount of money that's in college sports today. what can you do to guarantee us that we could help with these institutions like howard university or others who can't afford to have the out-of-pocket expenses that other institutions are currently handling? >> thank you, senator, for the question. i think it's probably at the crux of much of this, is there's general agreement, i suspect, among the panelists and others that student athletes ought not to be reaching into their pocket
5:31 am
for covering independent expenses that are above and beyond -- up to their deductibles, for example, and their insurance. many of the division i schools in the power 5 conferences and others as well are doing so today. the question is, first of all, how would that language be crafted and what would be the size of the cost of all of this for schools? but having said that, if the focus was on what in division i are often labeled by the ncaa low resource institutions and those costs were simply out-of-pocket costs, doubtless there is a way to determine within division i resources how to cover some of those costs. there is a variety of different vehicles for doing that. the challenge everyone has to recognize is that there is no ncaa money, it's all the
5:32 am
schools' money, the ncaa serves as a pass-through. but if the schools want to, and i would be willing to put this question to them, okay, can we find a mechanism for funding out-of-pocket expenses in low resource schools, it's certainly a doable phenomenon. the amounts of money, at least based on the modeling we've done, are not unreasonable. where it becomes very challenging is across divisions ii and iii. there are probably ways to ascertain how that might be done, but the devil would be in the detail. what is it precisely they would need to be paying for? if it's out-of-pocket expenses meaning those costs for the deductibles of a student athlete for sports-related injuries only for some fixed period of time, that might be a manageable amount of money with the dollars that flow through the ncaa distribution system. >> i think -- to me there is a
5:33 am
lot of money in sports and there's going to be a lot more money in sports. i'm a big believer that as we move towards internet models, there will be lots of ways to monetize activities. so i would hope that we could make a commitment to help dr. frederick's institution and other meac schools meet those obligations so we can move forward. i get that all the panelists are not on the same point with this, but to me this should be an easier, yes, we can get this done. i want to ask dr. frederick, because this issue of heat impacts and horrific news of actual deaths from this. why can't we just get better health standards to cover the ncaa institutions to set a standard for what health could be, even if it's done here at a federal level, the guidance that must be followed by institutions? >> i think this is an important
5:34 am
point, and especially when you look at heat-related issues and concussions in particular. the nfl, for example, i think has been a model in terms of embracing this issue finally, and we have to have standards of where the athletes compete, et cetera. i think some of the issues are around education and resources. we must insist that the number of trainers that are out there with the athletes and somebody monitoring the conditions, follow the individual athletes with what is taking place. this is not just about heat, but athletes have other issues. while i was at the university of connecticut, there was a soccer player who i befriended who developed testicular cancer that led to a major mass in his abdomen. while we talk about health expenses, his medical bills were
5:35 am
taken care of fully and he was able to graduate. so while this doesn't always happen, there are medical issues that happen in their athletic endeavors that schools try to cover. and like many schools, there is a health trust. so how we cover health costs, you just need one of those horrific incidents that cost i over 250,000 and triggers your excess layer and right there your budget, especially for some marginal budgets, of two of those incidents that costs 500,000. for the 14 million we may expense it's a huge deal. so putting into a fund that dr. emmert has suggested, that's potentially one way to do that. the last thing is somebody has to be an arbiter of what
5:36 am
constitutes an injury during the time that you are playing versus sometimes we recruit athletes who come to us with injuries, and subsequent to that, who is going to be the arbiter if someone shows up two or three years later with a chronic issue that occurred before they started playing for us. we're going to need some type of arbitration around that issue as well. >> thank you. senator wicker. >> well, thank you very much, and it's obvious that all six of these witnesses have put a great deal of thought into very excellent testimony. i really appreciate the efforts there. let me start with you, dr. frederick. you come down on the side of a uniform national standard of a compensation. how would a patchwork of 51 different laws impact recruiting
5:37 am
and fair competition among universities within your conference? >> i'll give you two examples. one is a personal example. i'll take my son to philadelphia this weekend to play in a soccer game. several coaches are going to look at him there. the coaches are looking at him from north carolina and new jersey and they have two very different approaches. i've been on zoom calls with both sets of coaches. one is talking about nil rights. my son and i have no clue about an image he's going to market. and the other coaches are talking strictly about academics and his competition in school. so already just as a parent it is extremely confusing if you have 51 states with different laws and you're looking at schools trying to decide what type of experience your student would have. and then on the recruiting side, as a college administrator, i can tell you we just started a division i golf team. we have a young lady who has
5:38 am
committed to us, and i know more about her clothing brand than -- her clothing company than i do about her golf game or her academics, because the recruiting atmosphere around that is very, very different. so our ability to compete in d.c. where there is no such law and no such guidance is going to be impossible as we try to recruit someone like that to us. i mentioned mika who is a five-star basketball player who has come to an ncaa school. one of the conferences we had in recruiting him was exactly that, the fact that soon enough, laws were going to come to pass that would have left us unable to compete with other states where schools would have been able to offer him the opportunity for nil. >> let me turn to coach few for the same thing.
5:39 am
coach few, the state of washington does not have a state statute. could you take a minute and tell us how that's going to affect your recruiting or how that is affecting your recruiting? >> i mean, it's -- in some ways it's impossible to project, but, i mean, in many ways it isn't. it will never be the same. we recruit nationally, even internationally. and, you know, to not have the ability to compete on some sort of a level playing field with people that can provide monetary gift or endorsements or things like that would put us at a disadvantage that we could not make up. i don't think the story of gonzaga playing in two international games would have happened if this was around prior. >> mr. gilmore, you seem to be
5:40 am
outnumbered on this panel 5-1, and i'm sure you're equal to that task. your response to coach few, i guess, would be that's a decision that the duly elected leadership of the state of washington made and we ought to see how this plays out. i want to give you an opportunity since it seems five members of the panel have another view. would you like to weigh in and respond to their testimony in that regard with regard to the patchwork? >> i think we lose sight of the fact that the ncaa is operating a national business, and that is not unique in the united states. we have businesses every day that are forced to comply with
5:41 am
laws in various states. and they do it quite well, and it hasn't created crazy, crazy chaos. there is some uniformity that is nice that would certainly work for the ncaa. we understand that. but what seems to be coming across is a reluctance to participate fully in a free market and to have protections from a free market. as you mentioned, the state of washington is free to decide that they do not want to have laws that relate to name, image and likeness while oregon next door may decide that they do, and that may have an impact on recruiting. we have seen in the last few months that what has happened in this era where states are making decisions about nil, we have seen coaches and directors go to state legislatures and say to them, hey, look, i want to be able to recruit effectively
5:42 am
between my neighboring state, and elections have been providing that. i don't think there is any doubt in my mind when we look at how markets have operated, there will be no need for a uniform law. i'm not against a uniform law, but if we're going to have a uniform law, it needs to be very thoughtfully done about how we are helping players. for example, we talk a lot about guardrails, when the guardrails seem to be there to protect the ncaa and the institutions, we want to protect them from the marketplace. for example, you heard testimony earlier about, well, athletic departments should be protected against the contracts that may conflict where a player might -- can't have a contract that the athletic department has with a similar entity. well, that's a market protection. and private parties normally can handle that with exclusivity.
5:43 am
if they have the ability to say you can't make a deal with any players, they can negotiate that. but to protect the revenue stream for the athletic department, and, for example, say that a player cannot have, just to use an example, an agreement with nike or underarmour because the athletic department has one is really prohibitive and isn't fair. it's a margin protection for the university. it may very well indeed those contracts could co-exist with players having the right to that kind of sponsorship but wearing the required university attire during university events. the protections are a concern for me. i also want to go back and address the cost issue for protecting players with health insurance. we seem to keep talking about this on an individual level for schools, and i was pleased to
5:44 am
hear dr. emmert talk about some revenue sharing. i think we need to remember that this is an overall enterprise which the ncaa and its member institutions have engaged in in sports, and sometimes very dangerous sports. and they have this responsibility of wanting to protect their players, and two, to comply with title 9. and they ought to be charged collectively with making sure that that is done and not simply whether you've got one rich school that can afford it and then another school that can't afford it. the ncaa and the member institutions have collectively decided they want to be engaged in this, and at the very least, players should have a health care, the protection to know they're safe in practice, and that when they're done playing, if they have chronic injuries or they have injuries resulting from their playing, it would be
5:45 am
protected. it shouldn't be just, well, your university can't afford it. >> thank you. i'm letting some go past their five minutes, but we have a number of members and i want them to get their questions in, and people answering questions, if they could help us out there, that would be great. my colleague, senator blumenthal. >> thanks, senator cantwell. i'm proud of your leadership and having this meeting today. you've been extraordinary and pushing toward a bipartisan consensus that i think is within reach. i want to thank the ranking member as well for his leadership. today is a banner day for connecticut. we have become the 19th state to pass an nil law, which we expect the governor to sign shortly. what we're seeing is a chain reaction of states filling a gap
5:46 am
in protecting people. it is classically what happens in our federal system. i've been at consumer protection for three decades now, and this historical pattern is repeated every time, where states fill a gap and then a national standard is sought by a group that fears a patchwork. and i will tell you that i will oppose and help to block any nil standard that is weaker than connecticut's. i expect this congress should block any nil standard that is weaker than the strongest state standard. and we need to listen to the athletes. they are the ones who are all too frequently outnumbered in this conversation. and if you listen to the
5:47 am
athletes, what they will tell you is they want more than just to be shown the money. they want more than just nil, they want a strong, enforceable standard for health and safety and educational opportunity. because the overwhelming number of athletes in this country will never make a lot of money off nil. but all too many of them will suffer life-changing injuries or derivation of educational opportunity and other kinds of harm we're seeking to protect against. let's be very real here. the ncaa is at the table only because they were hauled kicking and screaming after waiting too long, and they're here only because they fear that
5:48 am
patchwork. the states are, in effect, running to the top. the ncaa in its rules -- nothing personal, dr. emmert -- is racing to the bottom common denominator, and we have to avoid that happening. so i want to ask you, dr. emmert, taking your testimony here, and you've heard the statistic about 30 college football players dying from nontraumatic causes during workouts in 20 years compared to only one in the nfl. would you agree with me on behalf of the ncaa that schools that violate safety standards, especially intended to prevent concussions and heatstroke, should face enforcement actions with financial and operational consequences. that's part of what we believe is necessary in a college athlete's bill of rights.
5:49 am
>> first of all, thank you, senator. i think the questions that you and others have been raising about health care are obviously central to what the ncaa is about and what it was created for more than a century ago. if i might just make sure everyone understands, there are, indeed, science-based standards around many of the issues that were being talked about, including how to treat heat-related disorders, how to deal with concussions -- >> i apologize for interrupting, but my time is limited. i think it's a yes or no answer. i hope the answer is yes, you do believe in such standards. >> i believe there needs to be some system by which schools are well educated, well aware of and are expected to behave in a manner consistent with all the best medical practices out there. >> let me ask you, the drake group has called the ncaa's rules on sexual assault, quote,
5:50 am
toothless, end quote, quote, willingfully inadequate, end quote. there is a crisis of sexual assault in college sports. what is at stake here is more than just money. it's fairness and dignity, racial justice and gender equity. my hope is that the ncaa will commit to those principles as well. >> absolutely. >> and, dr. frederick, because my time is limited, i'm going to be quick in this question. you've expressed very understandable concerns about the cost impacts of these standards. the answer is very simply cost sharing. some schools are rolling in money as a result of this almost $20 billion industry. if they share some of the cost
5:51 am
of schools like howard or others that are not profiting in the same way off the blood, sweat and tears of athletes, wouldn't that allay some of your concern? thank you. adam chair, i'm going to observe your admonition and end my question there, but i'll pose some additional questions. >> thank you for that. i appreciate that. senator moran? >> thank you, senator fisher, for yielding to me to go next. thank you, madam chair, for this panel. this is one of the best panels we've had certainly on this topic but just generally in front of the commerce committee for a long time. everybody has added to the debate, and to my knowledge, and think to my colleagues' knowledge. while senator blumenthal sounded very ociferous there, he still remains my partner to try to
5:52 am
find a compromise so we can get something done. college athletics has grown into a very profitable billion-dollar industry, but the rules surrounding athletic compensation has not kept pace. i'm of the view that it absolutely needs to change. i believe it's important that we empower athletes to capitalize on their name, image and likeness. however, at the same time i want to ensure the integrity of what i guess is called the collegiate model, but what it means to me is that we afford the opportunity for many student athletes to receive an education, and if we don't do this right, those who receive the compensation from nil may benefit at the demise of those who are playing in sports that are not, quote, profitable, and those who have no capability, therefore, of capitalizing on name, image and likeness. it seems to me that we know that college basketball and college
5:53 am
football generally subsidize other sports and the athletes who get to participate in those programs. i've introduced a bill that is not necessarily the ideal bill even for me, the athletes protection compensation act, but it's designed to find something that is the sweet spot that brings sides together and try to meet a july 1 deadline. let me ask, first of all, on this july 1 deadline, mr. mitten, i want to visit with you, professor. you started down a sentence and i thought you were going to end your sentence differently than you did, so i'm going to ask my question as something i thought you were going to say. as state laws go into effect and student athletes begin to hire acts, sign endorsement deals and advertise their nil, what happens on the occurrence if we don't have a law in effect by
5:54 am
july 1? student athletes and college athletic programs progress under their state laws, they begin to adapt and comply with those laws, and if we fail to act by july 1, what confusion or challenges do we face or do the athletes face or the program? so my question is designed to elicit an answer about the importance of the july 1 deadline for congress to act. >> thank you for that question, senator. the essence of sports is that everyone plays by the same rules. it's not only rules of the game, eligibility, but in this context, all student athletes nationwide, regardless of sport, should have exactly the same nil rights. not every state recognizes name, image and likeness rights. they're often known as the right of publicity. there are roughly only 30 or so. there are going to be, as others on this panel including coach few mentioned, there is going to be a competitive advantage provided to certain schools.
5:55 am
that's one thing that's very problematic. that's one of the other hallmarks of sports, distinguishing the sports from other forms of entertainment. so we certainly need to have that. so that's what i would say, is that the cat is going to be out of the bag, so to speak. >> how do you put the cat back in the bag after july 1? >> i don't think you can. i think that is exactly the problem. and what's going to be the rules that everybody plays across the board? that's the main thing. >> let me ask about this venue of topics related to nil. commissioner gloria navarez recently wrote that it would be
5:56 am
disastrous for women sports. she went on to note that even though the wcc had won nine national championships in soccer and six in tennis, men's basketball programs like that of mr. few's at gonzaga -- my words, not hers -- quote, pays the lion's share of the cost of every other opportunity we provide in every other sport. the simple reality is that the only sports that generate necessary revenues to be self-sustaining are football and men's basketball and all other sports rely upon those two sports to fund their operations. dr. fredericks or others, how do you think that the distribution of athletic revenue directly to student athletes would affect collegiate athletics in general? >> it will impact it very negatively. like i said, at the swim team at howard university, we have other sports we will not be able to maintain if it becomes unequal, especially in terms of recruiting. as we talk about revenue, the
5:57 am
television revenue that we generate is miniscule compared to -- >> which will distinguish the opportunity for all athletes, black, white, women, female. there are aspects that effectuate athletes who can earn revenue based on their name, image and likeness, correct? >> absolutely. because nil, they will gravitate to certain areas. they will gravitate to a power 5, the biggest schools where there is a media market. >> senator shotz. >> thank you, chair and ranking members. i have a tactical question for us in the next three weeks. if we're trying to enact a national nil standard, dr.
5:58 am
emmert, i'm trying to figure out why we would also try to complicate this matter by providing immunity against claims from former students? what's that got to do with the subject at hand? >> it's a critical issue as you heard from a number of us. the reality is that there has been in the past and there already is in place a series of legal challenges that have, in my terms, fallen under the no good deed goes unpunished clause, and that means that as soon as, indeed, the board of governors told all of the divisions to begin to think through passing nil law, nil rule changes at the ncaa, we immediately had lawsuits filed for our failure to have done so in the past. and those are two suits that are already pending as we speak.
5:59 am
we want to do the right thing here. you've heard from everybody in this panel that passing an nil bill at the congressional level is critical to moving forward in part because we want to get this done and we want to do it and not be then immediately sued for having done the right thing in this case. >> professor mccann, do you want to weigh in here? >> yeah, thank you, senator. there are certain legal issues that would arise if congress doesn't take action. and one would be the relationship between the ncaa and its member schools would vary by state. and in the past -- and i'm not going to speak for president emmert -- but in the past the ncaa has brought litigation over that issue. about 30 years ago there was a case in nevada that i mentioned earlier that if one state has one set of rules and another state has another, it interferes with the relationship between the national organization and its members. so i think that some type of
6:00 am
national rule that is clearly the rule would mitigate that risk. >> now, what's that got to do with indemnifying the ncaa from past efforts? >> i would separate those two things. >> if the congress doesn't act soon, are you planning to pass injunctions with states and nil laws? >> that would be taken up with the universal body of presidents, but so far that decision hasn't been made. >> can you tell me your decision-making process? do you have a lean? have you had a discussion? >> there's been no decision made. >> i get there's no decision made, but you're here and i'm asking you what you're going to do and i'd like to get a little clarity on where you are.
6:01 am
it's absolutely true that procedurally you haven't decided. i'm asking you whether it's likely or no, what your thoughts are on this. >> again, it won't be my decision, it will be the board of governors decision, but i believe for universities themselves to file lawsuits against their own states is a very challenging thing to do. >> final question for professor mccann. as we consider this legislation, the ncaa is asking to, in their words, clarify that athletes are not employees. the implications here -- i mean, it sort of sounds benign and it even sounds logical to a certain extent, but the implications here are pretty significant. osha wouldn't have jurisdiction, eeoc wouldn't have jurisdiction, nrlb, that seems to be a
6:02 am
consequential choice here, and again, a separate question from the nil. i guess what i'm observing here as an expert in legislative politics, if you will, is that dr. emmert is asking for a really big train a the action of an nil standard, and i don't think we're prepared to do that in terms of executing on it, and i'm not sure these things are on point with the narrower question of nil and i wonder if you can comment there. >> i don't view that as a clarification, i view that as massive change. i don't see the need to declare that college athletes are not employees. i think that's a separate issue from nil. moreover, that is an issue that's been addressed by the national labor relation agency, nlrb, and this is also a universal act. by states, private and public universities are viewed
6:03 am
different on that question. i don't see the need to discuss an nil bill, just like other things we've discussed are separate from an nil bill. dr. emmert, i don't view that as a clarification, i view that as a massive change. >> thank you very much. >> senator thune. >> thank you, madam chair, welcome to the panel. this is a complicated subject and one i wish the ncaa could have figured out because there are certain things the federal government does well and certain things the federal government doesn't do well. this strikes me as something we may not do well, so i'm interested in hearing from you about what you think a professional should become law, and obviously conferences don't follow state lines. we've got lots of multi-state conferences that could have different laws in place. so it seems to me that now we're in a position where we have to do something. but what we do is still appoint
6:04 am
of discussion. there are a couple proposals, i think you may be of aware of that have been introduced by members of the senate. i'm interested in your thoughts about either or both of those, and there may be others. more than anything else, i think you're in a much better position to guide this process in terms of what the potential set of rules might look like than maybe we are. and -- but i am very interested in this discussion we were having about employer/employee, and i think dr. em merett you mentioned in your written statement that you didn't think that you couldn't support anything that would essentially create an employer/employee relationship, and i asked you to reiterate your view on why that's something that you -- a prerequisite for legislation. >> thank you, senator thune. the issue of employment status versus being a student
6:05 am
traditional student athlete is that it's been defined historically at the core of what college sports is all about. if student athletes are classified as employees of their university, their college or university, it does -- it is as senator shots pointed out, it does change fundamentally the nature of that relationship. it moves student athletes out from underneath the guise of educational law, for example, to employment law. i believe that's what the good is that right was alluding to, and for one, that means title 9 is no longer relevant because that's education law, not employment law. it changes the relationship between coach and student athletes as coach/student to employer/employee. it changes everything about what college sports really is and why we have created college sports 120-some years ago. so everybody in higher education
6:06 am
sees that question as one of the core issues to defining college sports versus professional athletics. >> so just, again, by way of -- i come from a state. we have two mid major universities, and a number of division two schools in south dakota. and you've touched on this a little bit, i think, some of you have in responses to questions already. but how do you see this playing for a university of south dakota or a south dakota state university where you've got a mid major program, the transfer portal already which i think is very much a benefit to athletes, makes it harder, i think, for a lot of those types of schools to retain athletes once they get them there, but how will this affect recruiting athletes? and does it put these types of universities at a competitive disadvantage relative to a power 5 conference? >> well, i think first of all, coach could answer part of that
6:07 am
question very well. i think the -- especially with the patchwork that we're going to see starting july 1st, those schools that are in states that allow name image and likeness opportunities are going to have an enormous advantage in the transfer portal as well. because student athletes will, indeed, be looking for opportunities to transfer to schools where they can monetize their name, image and likeness. it's one of the reasons we need, of course, the nationalized rule. the second component is we need the set of guardrails that we've been describing so that students can monetize their name, image and likeness, but it's not being used as a recruiting inducement. coaches and others will in the recruitment process be including in the pitch, an opportunity -- a specific opportunity for a specific contract or a specific endorsement deal at a specific place. that's precisely what we want to
6:08 am
avoid. and the legislation that's been discussed here in this chamber has always included those kind of guardrails. >> coach? any comments on how it will impact? >> like south dakota and washington, you would be put at a huge competitive disadvantage and one that would be very difficult to make up both when the student athletes are coming out of high school and also as they have the opportunity to transfer. and speaking to the doctor's point, having some sort of parameters in line so we can keep some sort of semblance of competitive equity and recruiting, you know, where we're talking about each of us being able to give a similar
6:09 am
experience to these players, and it not turning into basically a bidding war where it's just monetarily based. >> that's what i'm afraid could happen. it's a benefit to all of us to hear specifically from people who i consider to be experts who deal with this every day, what they -- what they think this might look like if we are to legislate on this, and i think from a time standpoint, we don't have a lot of time. we need to come up with something in fairly short order. i hope we can get working on that right away. >> thank you. senator tuster? >> thank you. want to thank the panel. i appreciate your commitment to making sure that not only do we have a good opportunity for student athletes, but we have good universities behind them.
6:10 am
doctor, thank you for being here. thank you for the conversations we've had before. i'm sure that the ncaa has monitored all the nils coming out of the recent states. can you -- and i don't want to spend all day on this, but can you tell me one that's particularly unworkable. >> there are various -- first of all, good afternoon, senator. good to be with you again. but the corpus of the state laws around what can be included in nil is largely similar. there are other elements around them that are highly dispret. some of them, for example, allow independent third parties to provide cash benefits to student athletes for a variety of their personal needs. that would be extremely disruptive to the recruitment system that the coach was referring to. >> okay. so i think it's a little
6:11 am
different than most laws when done by a state, and i'll tell you why. because i think that there's some opportunities here. sports is important. probably more important than it should be. okay? but you have a state, i don't want to pick any schools, but one of the big boys, and the state legislature can make this law so it gives them an incredible recruiting advantage in the overall mix of things. would you agree with that? >> absolutely, and we've seen that play out in reality. >> and so would you also agree, then, that if we were to do a national bill that would apply evenly across the board, so it wouldn't be a patchwork that that would be something that could help our student athletes and help the universities behind them? >> i think it's the only sensible approach to this. so yes, indeed, i do. >> so i want to go back to another thing that -- and that deals with health and safety measures. i am told that they're voluntarily currently. is that true?
6:12 am
>> there is not an enforcement system in place at the national level. every university is expected to follow all the health and welfare protocol that are in place, and when they fail to do so, it's usually dealt with at the institutional level and at the state level. >> and i would just say that hopefully the ncaa is monitoring that and giving some advice because quite frankly, you got an 18-year-old kid that doesn't know fully how his body works anyway or her body works anyway, and to be put in a position they might not know when their body is truly in distress. okay? >> yes. we do very much that. i can talk with you offline about all the ways in which that occurs, but yes, that's -- that's a very important aspect of what we do out of the national office. >> okay. i want to talk about -- would
6:13 am
you be opposed for the universities across the board, that they could do things like give them tools like ipads and things like that, as far as helping move the ball along? >> not only whould would i not be opposed. it happens now and is consistent with the rules. >> good. i am very concerned that if we set up a patchwork, and i mean, there's a thought we could benefit in montana from it. we got no pro football team. they'd be the big dogs, but the truth is i want it to be even. i want it to be equitable and have a fair shot at stuff. the coach has done a great job taking gonzaga to a different level they weren't at 30 years ago. they can live off that for a while. and maybe forever. but the truth is things ebb and flow. and if the nil, and we need to keep the student athlete in
6:14 am
line, if the nil isn't done right, isn't it a fact that it would impact all the other sports that are out there that gives opportunity for a lot of folks that we never see on tv that espn never reports on and would take away opportunity from them? >> i think the failure to pass a national standard would, indeed, deny them that opportunity. i believe that, in fact, there's plenty of data to support it that student athletes from less visible sports, from less visible institutions can be remarkable impacts, especially in the social media world, and that in a place like montana state, by the way, senator, once a bob cat, kind of always a bob cat. i hope that doesn't offend you. >> yeah. >> so i hope it would provide opportunities that don't exist today for student athletes in a place like montana. >> amen. look, this is a solvable deal.
6:15 am
it's going to take folks communicating and everybody at the table and the leadership of the chairman of this committee. thank you. >> thank you, senator. i appreciate you being here. we're going to senator fisher remotely. >> thank you. i appreciate all the witnesses that we have here today to discuss nil policy considerations for our student athletes. as you know, 21 state legislatures have enacted nil legislation to date and several more states are in the process of passing their own nil bills. with so many state activities that are happening on this issue, there are a lot of questions about how we maintain that level playing field. and this concerns not only equity among states, but also equity among institutions in the same conference. sports of the same institutions, and student athletes in the same sport. professor mcgahn, you mentioned
6:16 am
that student centered resources provided by colleges for nil should be furnished consistent with title ix. how do you envision maintaining the title ix as this moves forward? >> thank you for the question. i think as a starting point, there needs to be procedures in place for compliance officers at schools to ensure that when student athletes are presented with potential opportunities, including social media opportunities, that they are not advised in a way that is geared to help mainly the men's players. specifically the players on the football team and the basketball team. so as a starting point, there need to be some sort of procedures in place, and secondly, what we've seen is a lot of schools are turning to companies to represent them in
6:17 am
terms of nil opportunities for their athletes. that process has to be monitored to make sure, i think, to make sure that title ix isn't being shielded or veiled by using a third party, that if a private company is involved with providing advice, i think it needs to be done in a way that ensures that the advice is equitable for the women and men on the teams. because i worry a bit that if there are other companies involved, that we won't have the transparency to know what's going on in terms of the advice being provided to the student athletes. and i also think as an educational point, a lot of them are not going to have agents. a lot of them are going to have a chance to sponsor a camp back home. things like that. more modest incremental step in the their lives. and for them, they're going to need help. they're not going to go hire a lawyer. they're not going to hire an agent. what happens if they're a
6:18 am
youtube influencer? what's going to review that contract? there need to be educational opportunities to make sure they're not taken advantage of. >> right. you know, we've heard quite a bit today about the state by state approach. what would you say are the wiggest potential risks with that approach, and whether it's for title ix or other key considerations? >> i think as a starting point, i know the doctor didn't talk about the legal implications, and i understand why, but i think if it goes to state by state, we could see litigation. that's not the end of the world. i'm a lawyer. we go to court. it's not always a bad thing, but i don't know if that would be in the best interest of the athletes or the schools. >> right. >> there's that. >> okay. >> and secondly the recruiting aspect that was talked about, that we could do the state by state free market approach and
6:19 am
states could jockey with each other to make the most athlete friendly laws and look, with sports betting, that's what's happened. with other industries, that's happened. but i do think once we go the state by state approach, the doors shut. it's going to be very hard to get back in once states adapt their own rules and become accustomed to them. >> among the states that have enacted the nil legislation, nebraska included a provision that is giving flexibility for colleges and universities to adopt the nil rules early if need be. president frederick and president em effort, i'd like to focus on university's roles in the nil conversation. would you both please comment on how universities can ensure compliance and help our student athletes navigate this really complicated landscape of state nil laws, ncaa rules, and
6:20 am
institution ral policies, please. >> yeah. we'll certainly have to do so with great difficulty. every time we recruit a student, depending on what the set of it is, we have to look at it. it's akin to having a seat belt law that's different in 51 states. somebody driving from new jersey to north carolina can take their seat belt off on the way and have different laws. i don't think we want that. doing that with different state laws is going to be difficult. and if you are in the state or the district of columbia as how it is, trying to assist with recruiting, compliance around these issues while recruiting athletes is also going to be very difficult. the other -- last concern i have is like pole sports. when athletes compete in different states, they're subject to tax law as an example. would there be loopholes in the law that allow nil even if
6:21 am
you're in a state that doesn't have it, for the athletes that are competing in conferences that maybe are going to multiple states? i think when we talk about lawsuits that could be filed, we are risking an opportunity there for having loopholes where people may begin to file lawsuits because they're being denied an opportunity for nil because a state does not have a law that's passed. >> thank you. >> senator, i think you put your finger on one of the most important reasons for having a national standard, and that is the difficulty that individual athletes, individual recruits, individual schools and coaches, compliance officers on the campuses will have in trying to navigate all this catchwork of policies and rules. imagine the -- an athlete that coach few might be recruiting that athlete is looking at multiple schools and multiple states and maybe an international student. they would have to pause and think about as dr. frederick
6:22 am
said n the tax implications in one state versus another. what does it look like and mean? and schools themselves would have to figure out how do i advise our student athletes and provide them with the kind of support that professor mccann was talking about based upon their states? and then even what rules apply to a student athlete is that the rules that the state whether they're playing or the rules in the state where they come from. the rules in the state they're going to conduct a camp in. all of that becomes highly variable, and it's one of the primary reasons we need to respond with an effective approach. >> thank you. >> sthaung. senator rosen. >> thank you. i want to thank you for holding this important hearing today and to all the witnesses for being here. the nevada state legislature recently passed and the governor signed into law a bill that
6:23 am
beginning in 2022 that will begin nevada athletes to be compensated for the use of their name or likeness and contract with an agent. additionally the new law includes a provision allowing universities to require student athletes to take courses or receive training that's going to require them in contracts and financial literacy. so i know we're building upon a lot of my former colleagues' a lot of the former questions they just had. professor, could this training save them from potential predatory contracts and help them learn and maintain money management skills they can even use after school, and are there other ways we can equip our student athletes with these kind of tools they're going to need to advocate for themselves? >> thank you for the question, senator. yes, i agree. i think training the athletes
6:24 am
and educating them on the implications of signing a contract. in law school contracts have a whole semester course. it's complicated. there are many issues. to ensure an athlete might be 18 or 19 years old knows what he or she is doing, i think advice would be provided. the tax implications, the fact they may be an independent contractor to the company they're signing with. do they know they have to pay their taxes later. they get paid up front? that's not necessarily common knowledge. a lot of them may not have checking accounts or things like that. so to ensure that they're up to speed on that, similarly the issues of immigration law which i think need to be noted. that if an athlete is from another country, what are the implications of signing a contract on their visa. i would hope that the federal bill, if there is one, contains some type of resources in place to ensuring that the athletes are educated on those issues,
6:25 am
and it can't just be take a couple courses and go on. it has to be continuous. and maybe schools should have in place a person designated with that role to ensure that the athletes are being educated properly to ensure that they're not taking advantage of. again, i know we think of agents and all of that. a lot of them are not going to have agents and hare not going to go to a lawyer. they're going to ask a friend. they're going to ask a teammate. they're going to ask a coach. things like that. we need to be prepared to ensure that they're not taking advantage of and having checks in place. >> also -- >> may i weigh in on this question, please? >> yes, sure, of course. >> i think it's a laudable goal to want to provide support for athletes. but what i continue to hear is that we talk about players like they're second class citizens
6:26 am
again. we put requirements on them that we do not put on ordinary students or ordinary citizens. if we want to encourage and provide support for players to be financially literate and the like? that's a laudable goal and great, but to make it a requirement at that point we are saying you are different from your classmates. you are different from every other citizen in this country. you do not have the right and capacity to freedomly contract. we have to treat you differently than your classmates. and that is a consistent theme that comes up that is an issue. we have to be really careful about being overly paternalistic about players. we can certainly provide resources and opportunities and support, but to have requirements that make them different from their fellow students is what has been going on for years and is an issue. we talk about this, and talk about guardrails, for example,
6:27 am
to protect the players. what i'm hearing today is the burden is being put on the players when it comes to guardrails. we have, for example, we talk about recruiting issues and possible pay for play. we have existing recruiting rules. it's up to the ncaa to enforce those rules. to enforce them against the coaches and against the institutions. that violate the rules. we've seen a number of cases where that hasn't happened. instead, we are way more comfortable putting the burden on players and cutting back their rights and saying recruiting is going to be a problem, so we have to punish the players and we have to limit their rights. that is not a fair and appropriate way. we keep talking about having a level playing field. and a level recruiting field. that does not exist currently. we know that. if you have any experience in athletics right now, we know the richest conferences pay the most to their coaches.
6:28 am
they have the best td deals and they year in and year out attract the most elite players. it is not a level playing field. nil will have very little if anything to do without those major conferences with the most money will continue to do the best. it might provide nil might provide an outsider to breakthrough, because a state may have an institution, a state, where a player decides i'm a quarterback in arizona, and i've got my name brand going here. there's no need for me to go to alabama and start fresh. i'll stay here and maybe that program starts to rise. but this notion that we have a level playing field and we need to protect that is an incorrect notion, and again, i just want to reiterate, we need to be careful about being overly paternalistic in treating players like second class citizens and that somehow -- or
6:29 am
not able of having the rights of their fellow students or fellow americans. >> thank you. i appreciate your comments. perhaps we set up career counseling centers so people can take advantage of it if they choose, just like we do for all kinds of other majors. thank you for your time. >> thank you. senator cruz? >> thank you, madame chair. doctor, as discussed as considerable length, the states are moving very quickly to establish their own frameworks for name, image and likeness. you state in your written testimony that, quote, conducting college athletics among a patchwork of state laws is untenable. why do you believe we need a
6:30 am
federal law to address this issue? >> thank you for the question, senator. i think, again, this is one of the cruxes of the debate in front of us right now, obviously. there seems to be at least among the members who have spoken a general agreement that a singular -- having a singular policy at the federal level will allow all students across the country, whether they have a state law or don't have a state law, to be able to take advantage of these opportunities starting july 1st, there will be a dozen or so depending on what happens in the next couple weeks, states where student athletes will be able to go out and monetize their name, image and likeness and there will be 35 or so that won't be able to do that. we will have a situation where schools and those other states won't be in the position to be able to recruit as effectively. the student athletes in many of these states will have very
6:31 am
different standards that they'll have to be operating under, and the only way that we can get a reconciliation of all of that is by having a single national model. >> what do you consider to be the impact on other sports, presumably the lion's share of the revenue is going to come from the more high profile sports from football and basketball and sports that dominate tv coverage. what do you see as the impact of monetizing name, image and likeness on lower profile sports, whether sports that are not covered as often on today or women's sports in schools? >> if, senator, the policy only deals with direct name image and likeness and doesn't include a revenue-sharing model, then i think it can have a very positive impact on women and olympic sports. it can provide them with greater opportunities to gain access to
6:32 am
media markets to be involved in a variety of nil activities. indeed, this current year we have softball going on right now. there have been some extraordinary performances that young women would be able to build upon in their social media profiles and potentially monetize. if crafted properly, it could be supportive of the sports. if conversely it required a revenue sharing model that took resources away from the dominant sports that produce revenue, it could have a number of negative, even cataclysmic impact on olympic sports. >> i agree with you on the importance of women's sports and girls sports. i've got two daughters, ages 10 and 13, and my youngest daughter is an avid softball player. and i think it is wonderful, the discipline and teamwork and all the skills that are developed
6:33 am
through participating in athletics. i will say, i am concerned about how political it has gotten on transgender athletes. the ncaa said they support the opportunity for transgender student athletes to compete in college sports. and the ncaa further said when determining whether championships are held, ncaa policy directs that only locations where hosts can commit to providing an environment that is safe, healthy, and free of discrimination should be selected. that was a nonremotely subtle threat for the ncaa to target and boycott any states where legislatures are acting to protect girls sports and women's sports. now, it used to not be controversial to observe that there are bio logical
6:34 am
differences between boys and girls and when it comes to athletics, there are -- can be significant physical advantages for those who are born biologically male in terms of strength and size, and that's why we have girls sports and boys sports and mens sports and womens sports in organized at athletics. the science continues to demonstrate that. indeed, university of manchester study indicated that male puberty provides a 10% to 50% physical advantage with the gap widest in activities that use muscle mass and explosive strength. why does the ncaa think it's fair to girls or to women competing in sports to expect them to compete against individuals who were born biologically male, and is the ncaa concerned about some of the results we're seeing? for example, connecticut high
6:35 am
school track where biological males are setting record after record after record in girls track, and winning the championships. is that fair to the girls and women who had been competing in the sports? >> first, this is a challenging issue, and the member schools of the association have worked very hard to try to not make it a political issue, and rather to be aligned as closely as possible with the olympic movement with what goes on in the both usa olympics and the international olympics. so roughly about ten years ago, maybe a little longer, the association adopted a policy that both tried to strike the balance between both inclusive position allowing student athletes to have an opportunity to participate but also strikes a balance with fairness, much in agreement with what you were just saying, trying to find the fairest playing field for competition. the conclusion was that student
6:36 am
athletes in ncaa competition who are transgendered women, for example, are allowed to compete but only after a doctor's care for no less than a year and have had testosterone suppression treatments that have lowered their tes test roan to functionally those levels of a woman. those cited in c connecticut, based on what i read, would not have been allowed to compete in ncaa championships. our policies align with those of the olympic committee. we're also monitoring very closely, and indeed, working with the ioc around some of the research you cited so that we can modify as need be our policies recognizing differences in a sport by sport basis. the ioc right now has instructed the sport federations to look at extent research and other research that may need to be done to find out whether or not
6:37 am
there can be fair competitions in individual sports because they use different muscle mass and strength skills. so we've been constantly trying to stay abreast of the science and making sure we're striking a balance where we don't put women athletes at a disadvantage while trying to provide an inclusive environment. >> thank you. >> thank you. >> thank you. and thank you for the attention to this issue. and for this hearing. i certainly appreciate it. i appreciate that each of you are here with us today. as you heard from senator blumenthal earlier, this is something that we are focussed on, and we are determined to find a resolution to this. dr. e weather ert, i think that it is disappointing that your board of governors chose not to vote on the nil rules, and under
6:38 am
your leadership, student athletes have been really sidelined when it comes to those issues, because of an ncaa that cannot seem to make up its mind. so my question to you is simply this. do you think it is time to call your leadership of the organization into question? do you think you are still capable and fit to lead this organization to make a decision that is going to be fair to the student athletes and their parents? >> with all due respect, that's not a question i need to answer. that's a question those for whom i work need to answer. in terms of the ability of the association to make decisions, as the conversations here and in the past have demonstrated, this is a complicated issue.
6:39 am
and the universities have been working for now nearly 24 months, trying to find an appropriate solution to come up with rules and policies that meet all the questions that have been discussed here and all the matters that are under consideration here. they are scheduled to vote on that before the month is over. >> okay. well, you know, the university of tennessee has managed to figure some of this out. in the state of tennessee they have. it's unfortunate you're going to have -- and we've had a couple of witnesses talk about the unfairness of states that have one set of rules and then another on an issue of this magnitude, but ut is deploying comprehensive nil resources for student athletes, specifically designed the nil courses co-taught by the haslem college of business faculty ut athletics
6:40 am
and the college of communication and information, they are all working with students on nil concepts for the record, i'd like to get your take on this. have you reviewed their program, and what do you think? >> i'm familiar with what university of tennessee is doing and a wide number of other schools that are preparing for the advent of supporting student athletes in many of the ways that professor mccann was talking. i'm enthusiastically supportive of it. >> okay. well, professor mccann and professor mitten, who are -- what entity do you think should be there to oversee implementation of the nil? the ncaa has proven that they are incapable of taking up this task. so we'll start with you, professor mccann, and then to professor mitten.
6:41 am
>> sure. thank you for the question. i think that the organization that should oversee it, the ncaa should be a part of that. it oversees colleges. it already has systems in place, there are member institutions. i think it would be disruptive to exclude the ncaa from any role. i think athletes need to be part of the conversation. they need to be directly involved. no matter the entity, whether it's a joint entity between the ncaa and something that legislation suggests, i do think athletes and former athletes need to have a direct voice. >> athletes and their parents. >> yeah. they're adults. right? they are adults. and i think rod commented earlier about we want to make sure we're treating athletes the same as classmates. if you're a musician at a college, you can sign a recording contract. i think there's something to be said for that. i think the ncaa needs to be a part of it.
6:42 am
i would say athletes do as well. that's my view. >> okay. >> yeah. i think certainly the ncaa -- let's start with congress. the uniformity, that's a significant part of it. and providing -- requiring education as you mentioned. i applaud what has happened in your state. because that's critical, and with all due respect, i do disagree with mr. gillmore on this point. the education and regulation of agents is empowering student athletes. there is a long history of agents taking disadvantaging professional athletes. that needs to be a component of it. that -- you know, the certification of agents and how they're going to be regulated, that's something that's done outside by an entity other than the ncaa. but the ncaa does -- should have
6:43 am
some authority to sanction its member institutions. that are violating the rules, that hopefully congress will establish. >> well, we agree with you, and we thought the ncaa was going to be able to step forward and set the rules. and had said to the ncaa, if you cannot do this, we will do it for you. that is the posture in which we find ourselves right now. is the inability of an organization that makes a tremendous amount of money whose leadership has paid a amount of money, and it is all coming from these student athlete events, but yet, the inability to move to a point of decision has just been an insufferable, insufferable event for so many of these student athletes and their parents.
6:44 am
this is why the states have taken it upon themselves to do what the ncaa has proven incapable of doing. so you know, we have legislation before us, taking inaction. us taking an action may be a requirement. we certainly do think the ncaa has a role as an organization to play. but it is imperative that the leadership of this organization get the job done and not leave students in the balance. whether it is education or health care, or nil, or any other of the various issues that you're tasked with overseeing for the health and well being of these student athletes. thank you, madame chairman. >> thank you. >> senator lee. >> thank you, madame chair.
6:45 am
i'd like to start. it seems from your system as well as previous reports that the ncaa has an inclination to consider and perhaps advocate for either a partial or a complete exemption from anti-trust laws. in your view, is the product that you offer that is under the category of amateur college athletics. does it warrant less accountability or no accountability under the anti-trust laws? >> thank you for the question. i think first and foremost, it needs to be clarified that i have not heard issue i haven't, i don't know who has advocated on behalf of a total anti-trust exemption. quite the contrary. i think that the issue at hand is simply around the application of this particular nil rule. and that the need is for the
6:46 am
avoidance of serial litigation either for previous actions or future actions in the application of the nil law. immediately upon the announcement of the -- my board of governors, a group of 24 university presidents, calling for the membership to pass an nil law, there were immediately two lawsuits filed for nothing not done so sooner. we're trying to avoid moing toward a place where no good deed goes unpunished here. that's the only thing under consideration. >> all right. let's talk about compensation for a minute. i think there are some legitimate concerns over what might happen if you allowed name image likeness. to whom does it go? and what questions does it raise for member schools? my alma mater, i would imagine would have some opinions about which products the athletes
6:47 am
might endorse, and from what source they'd be coming and whether they might be endorsing products that are inconsistent with the university's religious mission. this wouldn't be limited to religious schools, though. i can imagine a lot of other schools that aren't necessarily religious in nature that might want to express concerns over limit the ability of the student athletes to endorse certain products. so what can you tell me about this as we talk about name image and likeness compensation? how do we balance the ability of the institution and the individual on the other hand? >> the policies that are being reviewed right now by the ncaa and included in many of the education proproposals have tried to identify product categories that either the law itself or institutions could
6:48 am
indicate they don't want student athlete endorsements in. in typically it's about alcohol, tobacco, any substances that are considered illegal substances for athletes to consume. sometimes it's around gambling and other participation. so there's, i would hope, an opportunity at the national level, but also at the institutional level to make those determinations. and student athletes could consider that in making their decisions about what institutions to attend. >> how would treating an athlete as an employee of the university itself affect the university's structure? and do you think could that also have an impact on the university's tax exempt status. >> i'm not a tax lawyer. i may defer to my lawyer friends
6:49 am
to answer some of that. i think most fundamentally, senator, converting student athletes or having them change into an employee, employer relationship blows up college sports. the notion of college athletics are these are not hired professionals. they are students participating in sports voluntarily. >> so in the case of name, image likeness compensation, would that be paid to the student athlete individually or would it be paid to the university and held in trust? how would that work? >> it's intended to all be handled directly between a third party, a sponsor, a third party entity with no relationship with the university and the individual athlete. the university would not be a party to that negotiation in any fashion. we also have sought to have clarity about what you're asking directly in legislation itself. it clarifies that no provision
6:50 am
in this statute would, indeed, convert a student athlete into an employee of the university. >> okay. can i ask one brief followup question. i want to make sure i understand the answer to the first question. you are seeking at least anti-trust exemption in part. i understand that you are not seeking it in full. can you help me understand the uniqueness of your product and your market such that you believe you need protection from it? >> well, senator, first of all, i don't remember what step in the three part anti-trust process that falls under, but i think the first. and, again, i'm not a lawyer. and others could probably answer with more specificity. but the concern of the schools is that they would be maybe subject to serial litigation around the implementation of an
6:51 am
nil, the nil rules. we have seen two suits filed against them on this issue exactly so their concerns aren't just punitive. they're real. and they want to make sure that they are not subject to that kind of litigation again. narrowly around just the nil rule itself. >> i understand. my time expired. thank you for the time. i will note we'll need to address that issue. that doesn't differentiate you from anyone else seeking an anti-trust exemption. the possibility of litigation is something faced by everyone in the marketplace. >> yes, i understand, sir. >> thank you. it is my intention. we have one more member who is on their way here to ask a question which i'm going to let senator blumenthal go ahead and ask a second round question until they arrive. but it's my hope that once senator scott is here that will be the end of our members who are willing and interested in
6:52 am
participating in today's hearing. to give you a little feel here for how much longer we're going to be, but i'll turn to my colleague for a second round of questions. >> thank you so much, madame chair. i'll yield to our republican colleague when he arrives. >> we have touched on this elephant in the room, the nearly 20 million, $20 billion in revenue that is made and generated by the blood, sweat, and tears of college athletes, and yet, there are the haves and have nots in college athletics, and i believe in sharing health costs. i think it's a path forward. senator booker and i have proposed a medical trust fund as a health safeguard for all
6:53 am
student athletes with the most profitable schools pitching in more than the less profitable ones so that there's a use of a pool of funding to cover out of pocket medical expenses and the costs of long-term injuries, that brain trauma, concussions may have effects well after the time that athletes are injured, and coach few knows about me injuries and spinal injuries. there are about 4,000 knee injuries and 1,000 spinal injuries every year in college football alone. so we have a challenge here that we do have the money to meet.
6:54 am
and my best information is that the media rights for march madness alone bring in $800 million to the ncaa. so let me ask you, coach few, because i appreciated the remark that i'm quoting. schools that cannot afford to provide this care to their student athletes should be able to get assistance from the ncaa because it is the right thing to do. would you agree that kind of assistance ought to include helping with the long-term cost of injuries, a medical trust fund or some way of guaranteeing fairness to student athletes in that way? >> i do. i definitely believe in that. how that comes about, is set up, is probably over a simple
6:55 am
basketball coach's mind. but it certainly is something that i would champion and agree to, and -- but i would add, as i think somebody referenced, our commission's article, we do pull in a lot of money and do a lot of things, but we share most of that money within the conference and try to sped it out to all our programs that aren't as revenue producing like ours is. >> and doctor, would you agree with coach few? >> yeah. i do agree with coach few that revenue sharing is an opportunity to do that, but i think if we're going to look at that as well, i think -- and we don't have time by july 1st, but i think we need to look at things like annuities, et cetera, for clelk athletes as well so that that we don't
6:56 am
create two differential statuses, and i think the earlier comment by mr. gillmore, we want to be careful about not creating a whole infrastructure around just managing this issue for athletes that takes away from the services that we're trying to supply for the vast majority of our campuses that don't play athletics. that's the other concern i have about the compliance officers and other things we may have to build in to manage these things. >> thank you all for your testimony. i see that senator scott has arrived, and i will yield to him. >> thank you. senator scott. >> thank you everybody for being here and caring about our student athletes. i finished two years ago i was in florida and focussed on
6:57 am
making sure all our kids could get a good education. they could afford it. we got the second lowest tuition in the country. according to a report, we're number one in higher education because we were focussed on our students getting jobs and getting good-paying jobs. we actually had a system we paid our universities that way. they shared on top of the other resources, $580 million a year and they competed on who did the best. that's how they got the money. i think it's really important our students had the opportunity to make sure they get a great degree, and if we love love college sports, i want to make sure when the students finish, not all of them get to play professional sports, but they have an opportunity for a good degree. florida passed a law that's going to take effect next month. it's going to allow our athletes to start earning compensation. it's going to show transparency for the agreements. it's going to guard against conflicts of interest, and it hopefully protects athletes'
6:58 am
scholarships. those of you that are familiar with it and have come in i'd love to get your thoughts on what they've done in florida. >> i am familiar with the law. we've been tracking on various laws for the past year or two. i think the florida law includes almost all of the core what i'll call loosely the core nil components around the ability of the student athlete to monetize their name, image and likeness. it's not in that sense dramatically inconsistent with the nca rules in in other states. i think in the florida law the challenge that's really different than other laws as i remembered in my head is the way it gets administered and handled. one of the concerns about the application of the rule around
6:59 am
fairness is to try to have an independent third entity. no not the ncaa. we should not have anything to do with it. and the bills proposed in this committee and elsewhere include the creation of a third party entity to manage the relationships. it also deals with the questions senator lee was asking as i recall, the florida bill has all of that transaction being conducted out of the athletic department. i think that's a challenge. it certainly is very different from the way other states envision it. many other states don't even speak to it. it's one of the reasons we need a national standard. but the goals that i perceive of as inherent in what the florida legislature was trying to do, i think are perfectly consistent with what we've been discussing here today and what we advocate. >> anybody else? >> yes. senator scott, i'll weigh in on that. one of the beautiful things
7:00 am
about the florida law is that it triggered the competition in nearby states to come up with their own laws so they would not be at a recruiting disadvantage, and that triggered and spurred a lot of activity in the states surrounding florida, particularly your south eastern conference programs. and i'd also like to just address the revenue sharing issue that has come up a couple times. and while i know from talking to players that revenue sharing is something they're strongly interested in and that last summer the pac-12 players that represented a group perceived revenue sharing from the conference, the committee probably would be well-advised not to mandate revenue sharing. while it is something that occurs at the professional level, professional athletics,
7:01 am
that involves unions and the like, i think you don't find if revenue sharing model in the bids world generally speaking. so it's difficult to push that and accept that. however, what should be allowed is the right of any conference of any school within a conference that believes its in its own best interest to have some form of revenue sharing, whether that's in a particular sport or all sports. that should be made at the conference level or the school level. there's no need to have a mandate in the national bill saying that there will not be revenue sharing allowed. i don't think it's appropriate to have the revenue sharing at a national level to be mandated or prohibited. at the conference level or school level, it should be left to them to determine that if that's what they need to be competitive in a marketplace, that should be their choice. >> how do you think the revenue sharing will impact -- we have
7:02 am
within government and florida a&m, sports teams, how does it impact their ability to compete with the florida legislation or other legislation? >> yeah. i think it will be a negative impact. the ability to recruit will challenge the smaller sports, again. i think a lot of this conversation is about football and basketball. and we appreciate that. but, for instance, florida to my knowledge sponsors probably some 19 to 20-something sports. i don't see them being able to continue to maintain the sports without it. they are leaving and joining another conference primarily because of travel costs to north eastern schools. it's as detrimental as that. i think this doubles down on the disadvantage by not having that opportunity for them to have those opportunities.
7:03 am
>> do you propose how to do it differently? >> i think there's a couple things i'm concerned about when we talk about revenue sharing. one is some of the health costs. again, i want to make sure the athlete is at the center of the conversation. and i think the first thing about revenue sharing we should think about is what benefits the athletes. and so having revenue sharing around health care costs i think is important. so that we can maintain that, and then i think the secondary issue such as maintaining the other sports,ette, we should look at. the other thing we haven't discussed is these are student athletes and we must have a look at graduation rates. it's interesting that for all the conversation that we talk about, there's vehicles for the young men and women to get an education. and there's very little discussion about the graduation rate that should be looked at. and some of the disadvantages that have occurred have been
7:04 am
long-standing. there's a reason why howard hav standing. there's a reason athletes from hbcus, only one has won a national championship. and i just want to make sure that some of these laws, as we look at them, as we look at the national law, we don't double down on that disadvantage and don't ensure that an hbcu never wins another example. >> thank you, madam chair, i appreciate this hearing. >> thank you for your bipartisanship on it. senator lujan will be our last questioner. >> thank you, chair cantwell, for your leadership as well as ranking member wicker.
7:05 am
student athletes sacrifice year to year. they're the backbone of these programs. so fair recognition for their work is long overdue. and i'm grateful that new mexico has recognized this. on july 1, my home state will be among the first to allow student athletes to be compensated for the use of their name, image, and likeness. student athletes are the driving force behind a $19 billion industry yet 86% of them live under the poverty line. these numbers are shocking and unacceptable. mr. mccann, yes or no, will protecting students' rights to the u.s. of their name increase the health and wellbeing of our student athletes? >> yes, it will help them because some will be able to generate income that they wouldn't otherwise get. that will help their experience and make college more affordable. >> the upcoming legislation puts new mexico at the forefront on this national issue. not only will new mexico be the among the first states to allow greater student control over
7:06 am
their names, image, and likeness, a number of universities in new mexico will be the first in the conference to recognize these rights. mr. gilmore, what impact do you expect on these institutions that are the first that allow students' rights over their name, image, and likeness? >> i think the impact will be very positive for those students and for the institution. i think anyone who has been involved with athletics will tell you the stories we hear from year to year, players who are, as you mentioned, struggling financially, who have families that struggle financially. players who send part of their scholarship money back home to support their families. that these are real problems, and that for players, women included, in various sports, who will have an opportunity to have additional income, to support themselves in college or to help their families, is going to be a huge boon for them and will be a very, very favorable thing for those universities that take that step. >> i appreciate that.
7:07 am
now, i have a simple yes or no for the panel. i'll start with you, coach, thanks for being with us today. yes or no, should every student athlete have a right to earn money from their name, image, and likeness? >> yes. >> doctor? >> yes. >> mr. gilmore? >> yes. >> dr. frederick? >> yes. >> mr. mccann? >> yes. >> and mr. minton? >> yes. >> given that, why did it take so long? we've been having this argument for over a decade, coaches are making millions of dollars while students make nothing. doctor, can you answer that? >> i've addressed that a couple of times already, senator. it's a very challenging topic, obviously. the nca rules are all made by the schools themselves through a
7:08 am
representative body that functions very much like congress does. they have been debating, discussing this, working toward this moment for at least three years now. and it is a very complicated subject. coming up with the general consensus about what the outcome should be has been relatively easy. getting people to agree on the details of it has been extraordinarily complex. but i'm very hopeful that we finally have the schools at a place right now where they're ready to pass a national standard. that, however, will not alleviate the need for federal legislation because new mexico and others have moved forward and passed laws that i think you and i would agree are very positive. they also are very different in the way this is being described around the country. and most everyone agrees that we need a single national standard rather than 50 different rules, and that's why we're here today, i hope.
7:09 am
>> one last question of mr. gilmore. athletes from new mexico are competing at the highest level across a variety of sports. in fact, the ncaa division 1 championships are starting today with a number of new mexico's athletes competing. in the high jump, 5,000 meters, the steeplechase. they worked hard to get there, i wish them all luck and hope they bring back the gold from all these events. mr. gilmore, how do we ensure new legislation addresses the needs of all student athletes across all sports? >> i think part of the immediate response to that is just making sure we're not putting restrictions on athletes. a free market works best for them. the reason this legislation has taken so long and moved slowly is that it's been focused on protecting its revenue stream for itself and for its athletic departments. that has really driven this, brought this to a standstill,
7:10 am
because that's the focus, how do they protect what they have. it's very easy for the institute to have removed its restriction, opened it up and allowed players to immediately start receiving those benefits, whether it's a player who has his own camp or is a social influencer or whatever, they could have really taken steps forward. but it's the protectionism that's been an issue and the paternalistic nature of it. once you remove those things, we're talking about athletes in all sports. there are studies already that have shown some of the most likely beneficiaries of nil will be women athletes in other sports. they may be some of the most popular on campus and through social media. so this is going to benefit athletes across sports, not just football and basketball players. and that is one of the real reasons why it's really important to have it. and new mexico has taken that step already. >> i appreciate that as well. i yield back, chair cantwell,
7:11 am
thank you again for the time. >> thank you. i do want to thank everybody for participating. to that point, mr. gilmore's point, we are going to have a panel in the future that will include a panel of athletes so that we can hear their illumination of the health care scholarship standards and education issues. so that concludes our hearing for today. again, i thank all the witnesses both in person and virtually for this. i want to thank my colleagues, as you can see, my colleagues are ready to dig in. they gave this hearing more than half of them participated in this and that is a lot for the united states senate, to be as active on this policy. so you can see the determination. we're determined to get this done. so your testimony today helped move this ball down the road for us to do that. i probably agree with many of the things that coach few and senator blackburn said.
7:12 am
i wish we weren't here having to deal with this, but we are going to make sure that this issue is addressed. so again, thank you for all the illumination today. there is -- any senators who would like to submit questions for the record, if they can do so by two weeks, june 23, 2021. with that, the hearing is adjourned. [inaudible conversations]
7:13 am
[inaudible conversations]
7:14 am
[inaudible conversations] [inaudible conversations]
7:15 am
[inaudible conversations] [inaudible conversations] >> the house committee investigating the january 6th
7:16 am
attack on the u.s. capitol holds its first hearing tuesday. officers from the u.s. capitol police and washington metropolitan police department will tell members what they saw and experienced on that day. watch the hearing lye tuesday beginning at 9:30 a.m. eastern on c-span3, online at or listen with the free c-span radio app. ♪ ♪ ♪ >>


info Stream Only

Uploaded by TV Archive on