NCAA president Mark Emmert appeared before the Senate Judiciary Committee on Wednesday to argue for federal legislation governing athletes’ ability to get endorsement and sponsorship money.
The NCAA has shifted its position on endorsements and sponsorships as states like California and Florida have passed laws allowing college players to receive third-party income. The NCAA has said that it wants to modify its name, image and likeness rules ahead of the 2021-22 seasons, but it’s repeatedly said that it would like an assist from Congress to pass legislative framework for the NCAA’s rules. And as part of that framework, Emmert and the NCAA would like Congress to grant antitrust protection.
“The history of antitrust lawsuits brought against the association over the last several decades reveals that federal antitrust law has also consistently been used as a tool to undermine the association’s collective efforts to modernize its rules. While these lawsuits have, for the most part, been unsuccessful, the association has been required to devote valuable resources to defending them, resources that could have been far better spent on supporting student-athletes, as has been highlighted by the growing financial impact of the current global pandemic. The NCAA recognizes and has respect that it should not be immune from antitrust scrutiny in all of its actions. But, likewise, it is untenable for NCAA rules to be judged as unlawful and subject to repetitive antitrust lawsuits every time the NCAA makes a rule change. Without appropriate protections, these antitrust challenges will continue — as evidenced by the most recent NIL class-action lawsuit filed against the association just last month — and will interfere with the association’s ability to effectively nd efficiently support the evolving needs of student-athletes.
“These legal and legislative impediments threaten the ability of the association’s modernization efforts to be fully realized. Thus, on behalf of the NCAA Board of Governors and the association’s 1,100 member schools, I respectfully seek Congress’ assistance to preserve the opportunity for college athletes to participate in fair and uniform national competition, ensure student-athletes remain students and not employees of a university and protect the association from ongoing litigation related to its efforts to update rules associated with NIL. We are hopeful that, with your partnership on this issue, our member schools can continue to provide opportunities for and enhance the experiences of the nearly 500,000 student-athletes who participate in college sports each year.”
The NCAA said when it announced potential changes to its name, image and likeness rules that there were a lot of things to sort out before the 2021 football season begins. It’s counting on Congress to provide a lot of help.
O’Bannon suit filed in 2009
The NCAA saw its first modern high-profile challenge to its current ban on third-party income for athletes with the O’Bannon suit in 2009. Instead of trying to figure out how to change NIL rules after the suit was filed, the NCAA wasted years and years fighting to keep its antiquated structure and only recently started hurrying to make changes after states forced their hand.
Sen. Cory Booker (D-NJ) played college football at Stanford and was part of the committee hearing. He noted how many of the NCAA’s rules need changing throughout its duration and pointedly questioned Emmert.
Emmert noted that while the NCAA had made its concussion protocols better in recent years he admitted that there were no ways to penalize schools that don’t follow protocols.
“As a former college football player I know that for athletes who do things wrong, like for an athlete who sells his jersey to get a little bit of money so maybe that their family can fly out and see them, there are strict consequences enforced regularly for athletes who make those mistakes,” Booker said. “But when it comes to the health of their brain, what we now know about traumatic brain injury, that you’re not enforcing this standard is exactly the problem.”
Emmert also, inexplicably, noted that he had never seen a player lose a scholarship because of injury. Athletic scholarships have long been renewable on an annual basis. Only over the course of the last decade have schools and conferences started guaranteeing a player’s scholarship for four years or more.
Does NCAA need antitrust exemption?
Ramogi Huma, the executive director of the National Collegiate Players Association, was also on the panel with Emmert. He said “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.”
Huma argued that since athletes are not considered employees of their schools, they shouldn’t be preemptively excluded from rights under national or state labor laws. He also said Congress can put restraints on certain types of financial compensation athletes can get without getting into antitrust issues.
Economic equity for college athletes is inextricably tied to not only college athlete NIL freedoms and ensuring they receive 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 athletes’ 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.
Judiciary chairman Lindsey Graham (R-SC) said during the hearing that he would like to have a plan for a bill in place regarding NCAA image rights by Sept. 15 but noted that he wasn’t sure if a bill would get through Congress before the end of the year.
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Nick Bromberg is a writer for Yahoo Sports.
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