The NCAA is tasking seasoned D.C. hands to help it figure out a world in which college athletes can earn cash off their name and likeness.
Clemson running back Kobe Pace (20) greets young fans after an NCAA college football game vs. South Carolina State on Sept. 11, 2021, in Clemson, S.C. | AP Photo/Edward M. Pio Roda
By HAILEY FUCHS
Over the past year or so, the college sports industry has taken it on the chin. States have passed laws allowing student athletes to profit from their name, image and likeness. And this June, the Supreme Court struck down restrictions on benefits for college athletes.
In response to the setbacks, the NCAA did what many beleaguered industries do: It turned to K Street for help.
For most of 2021, the NCAA and its large and powerful athletic conferences have moved aggressively to steer name, image and likeness (NIL) legislation, which would allow players to profit from their own celebrity but put rules on that compensation. In conversations on the Hill, they sought to limit their liability from future lawsuits that could result from congressional action. Those who have worked in this space say it is among the most significant — and potentially perilous — moments for major college sports in a century.
So far this year, the NCAA alone has spent $180,000 on lobbying, $60,000 more than the same period last year. The Power Five conferences — the Big Ten, Big 12, PAC-12 Conference, Southeastern Conference and Atlantic Coast Conference — have spent $900,000, all to influence legislation related to how student athletes can profit from their popularity and “modernizing” college athletics, according to federal filings.
The contracts with K Street accumulated quickly. Almost none of those conferences had registered to lobby before 2019, when California became the first state to pass legislation allowing student athletes to profit off of endorsement deals, the use of their image in video games and along with a host of other potential new revenue streams. Additionally, some NCAA member schools, which collectively have spent hundreds of thousands of dollars lobbying Congress on this and other issues, have sought to influence lawmakers on student athlete legislation. Those close to the negotiations say that in addition to their K Street representation, college presidents, coaches and athletic directors have all served as emissaries to the Hill.
So far, the NCAA and the major conferences have little to show for their investments. Democrats and Republicans have been negotiating on compromise legislation to create a national law governing pay for college athletes, but have butted heads over what financial protections the legislation should give schools, conferences and the NCAA itself — including shields from potential legal liability — and whether schools should share revenue with their athletes.
New Jersey Democratic Sen. Cory Booker (a former Stanford football player) and his Senate colleagues Richard Blumenthal (D-Conn.) and Jerry Moran (R-Kan.) have attempted to reach a bipartisan solution, after introducing dueling Democrat and Republican proposals over the past year. If they’re successful, it would be the first time that Congress has directly legislated the governance of college athletics. But while one Democratic Senate aide said staff had been holding meetings multiple times a week, if not multiple times a day, negotiations have stalled in recent weeks.
The NCAA declined to provide a comment beyond the remarks on its website, which affirm the association’s commitment to NIL opportunities for student athletes “consistent with the college athlete model.”
The multibillion dollar collegiate sports industry finds itself at one of the most notable crossroads in its history. In 2019, California became the first state to pass NIL legislation for college athletes, the culmination of decades of advocacy from the National College Players Association, a nonprofit advocacy group for collegiate athletes founded by former UCLA football player Ramogi Huma. They argued that student athletes, who have long generated money for NCAA sports, deserved the right to make their own money through endorsements and other deals.
As of today, dozens of states have laws or executive orders establishing rules related to NIL for college athletics, some of which went into effect on July 1, according to the National Conference of State Legislatures. California recently pushed up the deadline for its new law to take effect, to September 2021.
That’s prompted a scramble by the NCAA and college sports programs, who fear that state laws around NIL profits and additional litigation could jeopardize the world of amateur college sports altogether. Among the industry’s top priorities: a legal shield from retroactive lawsuits filed as a result of actions that violated whatever legislation Congress might pass before it is enacted. Advocates have also asked Congress to create a national standard for NIL, given conflicting state laws. And they do not want to be forced to share their own revenues with student athletes.
The fear of potential litigation has become more acute in recent months. The practical implication of the Supreme Court decision in June was that the NCAA could not limit in kind education-related benefits for players, like laptops or a study abroad program. But the case also created “an open invitation and in some ways a roadmap to future plaintiffs to bring antitrust suits against the NCAA,” said Gabe Feldman, an expert in sports law at Tulane University.
Not long afterward, the NCAA adopted an interim NIL policy that allowed students to profit from their name, image and likeness with very few parameters: an athlete must abide by the laws of the state where his or her school is located and should report NIL activities to the school.
The NCAA and the conferences fear that the patchwork approach could create an unequal playing field for recruiting. For example, one state may allow a player to wear the school’s logo in an endorsement, a designation that is likely to add value to the endorsement deal, and another may not — providing an enticement for a high school recruit to choose one school over another.
Huma and the National College Players Association are also lobbying the Hill on the issue. After a series of wins at the state level, he says that the athletes have already won on NIL and argues that any federal legislative effort should reflect that. “You can’t put the toothpaste back in the tube,” he said. But, he fears, the NCAA and the conferences are working to void much of the new freedom awarded to players by the states.
Huma’s camp has also lobbied against a liability shield for the NCAA, which he likened to “giving a criminal a badge.” Instead, he and others want better health and safety provisions for college athletes and have backed the bill Booker and Blumenthal introduced in December 2020, dubbed the College Athletes Bill of Rights, which would ensure that student athletes do not have to pay out-of-pocket medical expenses for sports-related injuries up to five years after a student stops playing. Schools would be required to contribute to a shared fund based on the revenues of their athletic departments. The bill would also direct the federal government to establish guidelines for how to handle sexual assault, traumatic brain injuries and other health, safety and wellness measures.
“Really, the NCAA and the conferences and the schools are asking Congress for a favor, and from our perspective they haven’t earned the favor,” he said. “There’s dead bodies, there’s people being sexually abused with no recourse that the NCAA is ignoring, so there’s a lot of issues in NCAA sports. If Congress gets involved, they should actually do something to make it better.”
Some industry advocates, most notably the Southeastern Conference, have pushed back against proposals that would require schools to cover student athlete injuries, given that it would likely require larger schools to compensate for lower resourced institutions that do not have the funds to do so, according to an operative with knowledge of the negotiations.
Democrats have sparred with Republicans — and the industry of college athletics — over what protections should be afforded to the NCAA and its conferences. Moran, who has conferred on the matter with big-time coaches including University of Kansas men’s basketball coach Bill Self and Kansas State University football coach Chris Klieman, introduced his own bill to standardize college athlete pay in February. Moran’s proposal limits the liability that the NCAA, conferences, and schools may be subject to, and also preempts any state law that is inconsistent with the act.
“The Amateur Athlete Protection and Compensation Act strikes an appropriate balance of ensuring our amateur athletes are protected and able to profit from their NIL while maintaining the integrity of college athletics,” Moran said in a statement, adding that he remains committed to finding a bipartisan compromise.
For now, Huma’s group faces a well-resourced opponent in its fight against a legal shield for the industry. He called the NCAA a “serial predator when it comes to breaking antitrust rules,” and argued that now was not the time to give the organization — which has faced criticism for its handling of sexual misconduct among coaches and team doctors as well as brain injuries among athletes — any rewards.
“It would be terrible for Congress to look past and ignore the dead bodies, to look past and ignore the abused bodies, in order to tweak some things to give the NCAA the power and favor when it clearly doesn’t deserve either,” he said.
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