Congress Continues NIL Probing in Recent Congressional Hearing

Last Updated on January 21, 2024

Congress’s quest for a hand in college athletics continued Thursday during a hearing titled “NIL Playbook: Proposal to Protect Student Athletes’ Dealmaking Rights” hosted by the House Energy and Commerce Committee. In attendance were witnesses including NCAA President Charlie Baker, Missouri Valley Conference Commissioner Jeff Jackson, Associate Clinical Professor of History at Arizona State Dr. Victoria Jackson and three DI student-athletes.

The hearing focused on several aspects of committee chair Rep. Gus Bilirakis’ (R-Fla.) FAIR College Sports Act, which received a partisan response throughout the day. One of the issues Bilirakis and Baker happened to agree upon concerned student-athlete employment, which the FAIR Act stipulates is prohibited, “notwithstanding any other provision of Federal or State law.”

“We would like to work with Congress to codify current regulatory guidance into law by granting student-athletes special status that would affirm they are not employees of an institution,” Baker said in his written testimony. “This would create consistency across public and private institutions, protect the Olympic pipeline, and safeguard equitable, sustainable access for the more than 500,000 student-athletes, including international student-athletes and those student-athletes at under-resourced schools, most Historically Black Colleges and Universities, and all Divisions II and III schools.”

Mr. Jackson also emphasized that in a conference like his own, consisting of smaller, less-resourced DI programs, classifying student-athletes as employees would make the current financial model unattainable. Rep. Larry Bucshon (R-Ind.) also agreed with the clarification, citing the 2015 Northwestern case in which members of the Wildcat Football program tried and failed to unionize.

Rep. Jan Schakowsky (D-Ill.) also referenced the Northwestern situation in her opening remarks, mentioning how the group was concerned about many of the same things today’s student-athletes and NIL reform advocates are such as healthcare and athlete compensation.

For some student-athletes, such as witness Chase Griffin, a quarterback at UCLA, compensation through NIL has been life-changing in many positive ways. The senior said in his written testimony he has so far entered into “over 40 NIL deals with companies based in a dozen states,” adding he hasn’t had trouble operating amid conflicting state laws.

Griffin strongly opposes the FAIR Act, stating it “creates a new politically appointed bureaucracy and unprecedented regulatory obstacles for college students.” He notes that the bill contains over 200 negative references to NIL and restricts third parties like small businesses and advertisers to a point where they may not even try to work with student-athletes due to the effort. While the idea behind these restrictions in the FAIR Act was to limit collectives and boosters from taking advantage of student-athletes, they might have ulterior effects on other entities attempting to facilitate deals.

Griffin submitted poll results in his testimony from a survey conducted by The Athlete’s Bureau, a newsletter he started. Rep. Lori Trahan (D-Ma.) asked him about those results, specifically, about what group of people athletes trust the least. His answer? “Congress.”

The FAIR Act would create a US Intercollegiate Athletics Commission (USIAC) to oversee NIL dealings, expanding government into a sphere Griffin emphasizes does not want Congress involved. However, the lack of federal standards does pose difficulty for smaller, mid-major schools said Meredith Page, a witness and current volleyball player at Radford University.

What’s most important for those mid-major schools, Mr. Jackson said, is access to competition, which can happen with or without federal regulations. But, clarity on what is and is not considered inducement, as collectives tend to be involved in, is important so a lack of transparency does not become an issue.

A worry for student-athlete Kaitlin Tholl, a softball player at Michigan, is the idea that collectives will induce players to transfer or attend their school when there might not be any money left for them when they arrive.

The FAIR Act seeks to limit this by placing a buffer on how many days after a student enrolls a collective or agent may contact them in addition to prohibiting inducement-based transfers. Baker’s proposed Project DI also seeks to mitigate this by removing restrictions on schools working with student-athletes, allowing them to act as collectives by compensating student-athletes themselves.

This is a controversial proposal that is still being developed by the DI Council, but the sentiment remains that more transparency is needed from all sides of the NIL spectrum to make the space as safe as it can be for student-athletes.

A focus of the hearing was also what the Fair ACT did not include — healthcare provisions, addressing Title IX and the issue of international athletes not being able to participate in NIL. Rep. Trahan brought up these concerns as did Baker, mentioning their importance in whatever the resolution may be.

For now, there isn’t a clear consensus between Congress, the NCAA representatives and the student-athletes on what the NIL landscape should look like. What Griffin did encourage Congress to do, though, is to continue researching and listening to the voices of the student-athletes, as they’re the ones primarily affected in the end.

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