US Senators Joe Manchin and Tommy Tuberville asked the NCPA for its positions and perspectives as they consider introducing college athlete NIL legislation. The NCPA responded by dispelling key NIL myths and with a call for the senators to support broad-based reform to address issues important to college athletes.
Dear Senator Manchin and Senator Tuberville,
I appreciate you sharing your support for the well-being of college athletes as well as your concerns regarding college athletes’ NIL freedoms. Thank you for inviting me to share the NCPA’s positions and priorities regarding potential federal NIL legislation.
The NCPA helped support the adoption of over a dozen state NIL laws, including the first NIL law adopted in California. I had the privilege of testifying in a number of these states, in the US Senate, and in the US House of Representatives regarding NIL and college athletes’ rights. I also served as an advisor in support of players in the Alston v.NCAA and the O’Bannon v. NCAA antitrust lawsuits. The NCAA is a chronic antitrust violator and college athletes have paid the price financially for decades. Though the Alston v. NCAA lawsuit did not address NIL, the 9-0 Supreme Court ruling in athletes’ favor made clear that the NCAA is not above the law. This ruling established an authoritative precedent and means that the NCAA would likely be sued if it continued to break antitrust laws by restricting college athletes’NIL opportunities.
The NCPA has been consistent in its positions that college athletes should have the same freedoms and rights afforded to other students and Americans. Prior to the adoption of the California NIL law and the Alston v. NCAA ruling, some voiced an array of concerns:players’ NIL freedoms would ruin amateurism, competitive equity would end, allowing boosters to get involved in college athlete NIL deals would be unfair,and a lack of uniform NIL rules would be impossible to navigate. Your letter soliciting my input includes some of the same concerns so I am addressing each one individually.
First, I would like to state that the NCPA is advocating against federal NIL legislation that fails to address issues that are far more important than NIL. These important issues include establishing and enforcing health and safety standards to prevent serious injury, abuse, and death among college athletes. It also includes ensuring that college athletes’ are not left to pay sports-related medical expenses and do not have their scholarships eliminated/non-renewed for injury or without just cause. It’s also important that colleges publicly report the degree to which they are in compliance with Title IX, and for Congress to ensure that the NCAA and conferences cannot discriminate against female college athletes.
Some critics have asserted that the current status of NIL is unsustainable. The NCPA questions why more than 80 workout-related deaths among college athletes over the last 20 years, hundreds upon hundreds of sexually abused athletes, discrimination against female college athletes, and chronically poor graduation rates among Black college athletes do not seem to cross the threshold of what is considered “unsustainable”or important enough for Congress to act. College athletes are in desperate need for you to demonstrate your commitment to protecting college athletes by ensuring any legislation that you introduce or support, addresses these issues. Congress has ignored these problems for far too long. I raised these issues in a Congressional hearing over 20 years ago and both the NCAA and Congress failed to act. The NCPA implores you, please do not fail to act.
The NCPA is in full support of the College Athletes Bill of Rights which was recently introduced by Senator Booker, Senator Blumenthal, SenatorPadilla, Senator Schatz, and Senator Wyden. The NCPA encourages you to support this legislation which would establish uniform NIL rules, ensure the certification of athlete representation,and addresses the other important issues I mentioned.
NCPA Positions on NIL and Related Concerns
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 report to the Department of Education, Florida State University reported $155 million dollars in athletic revenue while Florida Atlantic University reported only $32million 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 among colleges in the name of competitive equity. In addition, other leagues do not ban 3rdparty NIL deals with fan clubs and those leagues operate very well.
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.
Ignore the Amateurism Myth and Oppose an NCAA Antitrust Exemption
College sports is not amateur. It is a $15 billion per year commercial industry with multibillion dollar TV deals and multimillion dollar salaries for coaches. The amateurism myth is used as an excuse for the colleges, conferences, and the NCAA to illegally monopolize athletes’ commercial value. Perhaps it was stated best by the NCAA’s former Executive Director, Walter Byers:“Collegiate amateurism is not a moral issue; it is an economic camouflage for monopoly practice.”
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. Congress does not need to give the NCAA an antitrust exemption to accomplish these things.
It would be 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 narrow NIL compensation.
Today, the NCAA says it has no duty to protect college athletes. 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.
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 athletes’ well-being. This broad-based legislation should include uniform NIL laws that incorporate NIL freedoms granted to college athletes by states across the nation. I ask for a continued dialogue with both of your offices so that we can work together to bring forth a more fair and just arrangement for college athletes.
NCPA Executive Director