College Athlete Name, Image, and Likeness
Vital Considerations Regarding Federal Legislation
June 25, 2020
To: Speaker Nancy Pelosi, Senate Leader Mitch McConnell, House Minority Leader Kevin McCarthy, Senate Minority Leader Charles Schumer, Congressman Frank Pallone, Congressman Greg Walden, Senator Roger Wicker, Senator Maria Cantwell, Congressman Bobby Scott, Congresswoman Virginia Foxx, Senator Lamar Alexander, Senator Patty Murray, and Congressional Black Caucus Chairwoman Karen Bass
CC: Congresswoman Jan Schakowsky, Congressman James Clyburn, Congressman Anthony Gonzalez, Congressman Cedric Richmond, Congressman Mark Walker Senator Jerry Moran, Senator Blumenthal, Senator Marco Rubio, Senator Corey Booker, Senator Chris Murphy, Senator Mitt Romney
I am writing in response to NCAA sports’ pursuit of an unjust, unnecessary legislative bailout to avoid complying with state laws. NCAA sports seeks to operate above the law while legally sentencing college athletes, many of whom are African Americans from underprivileged households, into second class citizenship. Separate is not equal in education and college athletes should have equal rights and freedoms afforded to other students and Americans. NCAA sports is asking Congress to eliminate college athletes’ protection under both antitrust and labor law in return for tinkering with just a sliver of the racially discriminatory economic exploitation inflicted upon college athletes.
College athlete name, image, and likeness (NIL) pay is the smoke that hovers above the raging fire of injustices at the core of NCAA sports. College athletes’ economic, academic, and physical well-being continue to be consumed by an insatiable greed and a mentality that treats players as property rather than people.
America has not seen so many college athletes in modern times voice opposition to racial discrimination in policing, on campus, and elsewhere. Their anger over racial injustice has finally outweighed their fear of coaches who have sought to silence them. It would be a travesty that, in the midst of college athletes finding their voice, Congress gives legal cover and protections to cement the devastating racial discrimination that exists in NCAA sports.
Instead of excluding college athletes from antitrust protections, Congress can address certain restraints on trade directly through legislation. For instance, Congress can prevent NIL agreements from being used as inducements to lure high school recruits and college transfers to a particular college. It can ensure that colleges do not directly arrange NIL deals for their athletes. Congress does not need to give the NCAA an antitrust exemption to accomplish these things.
Similarly, Congress does not need to proactively exclude college athletes from rights under the National Labor Relations Act or state labor laws. The NIL pay in question does not have implications on employee status so there is no compelling reason for Congress to address the issue. Though college athletes have yet to prove that they are employees, this could change in the future. Plenty of students are university employees – including those who work in the student store, dining halls, and libraries. Congress should not block an avenue that could help college athletes address a host of critical issues such as health and safety and degree completion.
Ignore the Competitive Equity Myth
NIL arrangements with boosters, alumni, and college sponsors should not be banned in the name of competitive equity because competitive equity does not exist in college sports. These same sources already give athletic programs money that is used to recruit the best recruits, win the most games, and generate the biggest TV deals that allow rich athletic programs to continue their dominance. In their most recent report to the Department of Education, Ohio State reported $203 million dollars in athletic revenue while Florida Atlantic reported only $28 million in athletic revenue. They are both in the FBS Division. How can anyone suggest that these two colleges compete on an equal playing field? How can colleges, conferences, and the NCAA justify denying college athletes economic freedoms in the name of competitive equity when this severe disparity among colleges exists and is held up as the system that should be preserved? Colleges, conferences, and the NCAA have not moved to address these inequities – they haven’t banned booster payments to colleges and they don’t share athletics revenue equally in the name of competitive equity. In addition, other leagues do not ban 3rd party NIL deals with fan clubs and those leagues operate very well.
Any federal legislation should not sacrifice college athletes’ freedoms so that NCAA sports can pretend that competitive equity exists. Additionally, roster and scholarship limits keep the inequity from getting worse. There is a finite number of recruits each year and the top recruits already flow to the Power 5 Conferences. If fair legislation inadvertently changes recruiting migrations to where some of the top recruits begin to flow away from some of the Power 5 Conferences, it would actually increase competitive equity compared to where it is today.
Since my testimony in the US Senate Subcommittee on Manufacturing, Trade, and Consumer Protection’s “Name, Image and Likeness: The State of Intercollegiate Athletic Compensation” hearing on February 11, 2020, there has been several significant developments related to possible federal legislation on this issue.
One recent development exposes as false claims that the NCAA, conferences, and colleges would be unable to withstand competitive inequities or navigate around a patchwork of state name, image, and likeness (NIL) laws. The vigor and support these same entities have for complying with state, county, and city COVID-19 orders related to the return of college sports makes clear that they are capable of complying with an array of laws – just as other businesses involved in interstate commerce must do.
Competitive equity will be affected as some of the COVID-19 orders may limit or even prevent some teams from returning to sports this season. This situation will have a significant impact on athletics revenue and recruiting, which are the primary factors when considering competitive equity. Nonetheless, the NCAA, conferences, and colleges are demonstrating that state and local laws that will have stark impacts on competitive equity is compatible with “The Collegiate Model”.
To date, many athletes from football teams across the nation have players who have tested positive for COVID-19. Among football players testing positive are 13 at the University of Texas, 14 at Kansas State, 23 players at Clemson. 30 football players are in COVID quarantine at Louisiana State University. College sports is not immune from COVID-19’s disproportionate impact on communities of color as football teams have a disproportionate percentage of African Americans. If NCAA sports is willing to sacrifice the health and safety of their college athletes, their families, and communities, it can surely withstand inconveniences that allow college athletes economic freedoms associated with NIL compensation.
Additionally, the state of Florida has adopted name, image, and likeness legislation similar to California SB 206. In total, approximately 28 states are pursuing NIL freedoms for their college athletes. Federal legislation is not necessary to preserve college sports or ensure college athletes gain NIL compensation freedoms.
I would also like to inform you that the National Association of Intercollegiate Athletics (NAIA), an intercollegiate athletic association comprised of more than 250 colleges and 65,000 college athletes, announced a NIL proposal that mirrors the pillars of California SB 206 and virtually all of the other proposed state NIL legislation. The proposal would allow college athletes to secure representation and receive NIL compensation. This is significant. This proposal undercuts the NCAA’s notion that “The Collegiate Model” must impose overbearing restrictions and exclude various economic freedoms that the states are pursuing.
Another development is that on May 18th, 2020, the 9th Circuit Court of Appeals ruled in favor of plaintiffs who sued the NCAA over illegally price-fixing college athlete compensation. This is yet another instance of the NCAA breaking federal antitrust laws, laws for which they are currently seeking an exemption from. This ruling includes prohibiting the NCAA from restricting compensation and benefits related to a college education. As I stated in my testimony, each antitrust lawsuit against the NCAA has resulted in benefits for countless college athletes.
Finally, another antitrust lawsuit was filed on June 15, 2020 against the NCAA for its rules that prohibit college athlete NIL compensation. The NCAA’s claims in an earlier NIL case (O’Bannon v. NCAA) that NIL pay would destroy college athletics will ring hollow now that California and Florida have passed NIL laws; and NCAA leaders and conference commissioners now say players should have some NIL freedoms. Notably, this lawsuit seeks to open NIL compensation related to TV broadcast revenue, which is an important aspect of gaining economic equity for college athletes.
It would be especially unjust for Congress to turn a blind eye on critical aspects of college athlete well-being and economic equity that are much more important than NIL compensation.
Today, the NCAA says it has no duty to protect college athletes and refuses to enforce health and safety standards despite negligent deaths during workouts, sexual assaults against hundreds of college athletes, and athletic trainer surveys finding rampant mistreatment of concussions and other serious injuries nationwide. The NCAA says it has no duty to ensure a quality education for college athletes while football and basketball players’ federal graduation rates hover around 50% and many college athletes are pushed into classes and majors that they do not want to take for athletic eligibility purposes.
Economic equity for college athletes is inextricably tied to not only college athlete NIL freedoms and a significant portion of commercial revenue that their talents generate, but it is tied to their freedom from medical expenses, freedom from preventable sports-related injury and abuse, freedom from serious obstacles that impede degree completion, freedom to transfer once without punishment in pursuit of better academic and athletic opportunities, freedom from unfair athletic association investigations that can harm their economic stability and future, and freedom from illegal, cartel activity that stifles their economic opportunities.
The NCPA is asking Congress to decline NCAA sports’ request for narrow and unjust NIL legislation. Instead, the NCPA is asking Congress to pursue broad-based reform that is critical to college athlete well-being. The NCPA has background information and well as a roadmap for legislative provisions that will provide critical freedoms and protections for college athletes. I ask for a continued dialogue with each of your offices so that we can work together to bring forth a fair and just arrangement for college athletes.
Thank you for taking the time to consider these points.
NCPA Executive Director