Senators urge NCAA to widen scope of reform beyond college athlete compensation

Members of the Senate Judiciary Committee told NCAA president Mark Emmert and others Wednesday afternoon to broaden the scope of their proposals for major change in college sports if they want Congress to help.

Emmert and others have said the NCAA needs federal assistance to prevent chaos as college sports continue to move in a direction that would loosen restrictions on how athletes can be compensated. Emmert was one of five panelists during the first session of a Senate hearing Wednesday afternoon to discuss the ongoing debate over a college athlete's rights to make money from the use of his or her name, image and likeness.

The NCAA and the Power Five conferences -- represented in part on Wednesday's panel by Clemson athletic director Dan Radakovich -- have both presented plans for allowing athletes to monetize their NIL with certain regulations that they say are designed to prevent corruption, especially in the recruiting process that is unique to college sports. As part of both of those plans, the college sports stakeholders are asking Congress to pass a federal law that would create nationwide standards for how athletes can profit while in school and provide a "safe harbor" antitrust exemption that would protect the NCAA and its member schools from lawsuits related to the proposed rule changes.

Sen. Richard Blumenthal (D- Conn.) and Sen. Cory Booker (D- N.J.) pressed Emmert and the NCAA to go further in what they are willing to give to athletes. Blumenthal and Booker said they are working on developing a college athletes bill of rights to protect the health and well-being of athletes in ways that go beyond the opportunity to make money.

"You're asking us for antitrust exemption and pre-emption, and time is not on your side," Blumenthal said to Emmert. "I would suggest that maybe you should up your game here on all these other protections if you're even thinking about that kind of immunity."

Blumenthal and Booker are among at least a handful of members of Congress who are working on various approaches to legislation related to the future rights of college athletes.

Committee chair Sen. Lindsey Graham (R-S.C.) said he hopes to assemble a Congressional working group to put together a package protecting the rights of college athletes by Sept. 15. Graham said he didn't know if Congress would be able to pass a law before the upcoming election but believes the group can at least put together a bipartisan proposal in the coming months.

Emmert told the senators that the NCAA was not requesting an all-encompassing antitrust exemption but an "extremely narrow" one tapered specifically to litigation about NIL rules. Federal courts have ruled several times in the past decade that the NCAA violates antitrust law by capping what each school is allowed to offer its athletes in exchange for playing on their sports teams.

The court, however, has allowed the NCAA to continue to enforce those caps because its system is rooted in education and is different from professional sports. At least one federal lawsuit has already been filed to argue that the NCAA's attempt to add restrictions to future NIL deals is a violation of antitrust law that isn't related to educational purpose. Emmert is asking for an exemption that will allow them to open the door for athletes to make money from endorsements without the NCAA legally losing the ability to cap other types of payment that might come directly from a school.

"[Schools] need to be provided with protection so they can take action without threat of litigation," Emmert said.

Sen. Mike Lee, who chairs the Senate's subcommittee on antitrust issues, asked Emmert and Radakovich why any type of restrictions on how college athletes are able to make money with endorsements were necessary.

"Why shouldn't we let the free market protected by our longstanding antitrust laws including precedent on this issue play out naturally?" Lee said. "... When someone is trying to take their existing sphere and have it grafted into federal law, one must ask these questions."

Radakovich said they wanted to make sure that future endorsement deals did not become thinly veiled ways for boosters and other fans of a particular college team to pay athletes to induce them to play for that school. The fear among college sports leaders is that type of environment would lead to an unfair competitive advantage for some schools.

Booker asked Radakovich why those restrictions should apply to student-athletes when there are no NCAA rules that cap the amount of money schools can spend on coaching salaries, facility upgrades or other methods of making their programs more appealing to prospective athletes. The senator called those differences in opportunity "plainly hypocritical."

Radakovich said the legislation that he and other Power Five conference leaders are trying to move forward would help athletes more in the future. Radakovich said that athletes would be able to "capitalize on whatever market opportunities are available to them just like coaches, I think, have the ability to capitalize inside their marketplace."

The proposal put forth by those conferences, however, includes restrictions that are not imposed on coaches or others in the athletic department. For example, the proposal suggests that the new law should prevent athletes from signing deals with companies that are already sponsors of the university where they play. The proposal also suggested that schools should have the ability to block athletes from accepting an endorsement deal with a company that is a competitor of a university sponsor. Lee asked Radakovich, "Won't this rule out most opportunities?"

"It's problematic on its face, for sure," Radakovich said.

He added that the proposals were "guidelines for further discussion" and that there is time to continue to debate these issues and get them right. The NCAA is expected to finalize its proposed rules changes by Nov. 1 and put them to a vote in January 2021.