Set in their beautiful offices in Washington, D.C., the Aspen Institute hosted another forum in their series of “The Future of Sports”, this time with a focus on “The Role of Government in Athlete Pay.” Ultimately, the tranquil setting did little to distract the high-level audience from focusing on the continued drama surrounding the NCAA.
After a brief introduction from the Executive Director of Aspen’s Sports and Society Initiative, NCAA President Mark Emmert took the stage for an interview with Aspen’s Jon Solomon. Solomon modeled his demeanor after his wise namesake and tried to provide neutral questions and a reasonable platform for dialogue with Emmert. Despite those efforts, it was clear to everyone in the room that Emmert was feeling plenty of tension around the hot issue of the permissibility of compensation for the use of the Name, Image and Likeness (NIL) of a college athlete.
The NCAA as a whole has been far too slow reacting to this issue. Emmert’s appearance did little to quell the feelings of many in the room about the NCAA’s ability to manage the process. Emmert continued to advocate for maintaining the current college sports model, but seemed at a complete loss to articulate how that model would be sustainable. Emmert estimated that he spends about 75% of his time on NIL issues and made a considerable effort to emphasize (to a relatively well-informed audience) that all of the rules are made through a representative democracy of the 1100 schools.
Emmert expressed ongoing concern about the potential for patchwork legislation which would create a maze of differing regulations in the 20 states that currently have proposed laws. While Emmert did acknowledge the need for federal legislation, the NCAA’s delay in seeking support for this solution is going to hurt its ultimate goal. The NCAA has literally taken decades to seek this reform. Even in the last ten years, when the issue was gaining momentum, it stubbornly dug its heels in the sand until California passed its NIL law.
Though California’s law is not going to take effect until 2023, other states legislatures have made it clear that they will not wait that long. New York, Florida, Illinois and many others are well into their legislative processes and appear unlikely to exhibit the patience of allowing the NCAA a four year ramp up period.
Perhaps the most clear result of Emmert’s comments is the complexity of the issues as they relate to: i) Title IX; ii) unionization; iii) potential for athletes as employees, and iv) other often unconsidered consequences. Issues such as how a group licensing model would allocate the fees and what type of different legal structures might be needed were thrown into the discussion without any real solutions. The lack of solutions is especially disheartening because these are not new issues for the NCAA.
Yet, after listening to the subsequent panels, it became clear that no matter what solution would ultimately be selected, virtually nobody in the room (nor on Capitol Hill) appears to trust the NCAA to be part of the solution. Panelist after panelist expressed frustration not only with the NCAA’s current position, but with its stubborn refusal to meet with stakeholders to discuss reasonable alternatives. Multiple panelists including Ramogi Huma and Mark Walker referenced their rebuffed attempts to set up meetings with Emmert and NCAA officials.
The College Sports Experts panel consisted of Moderator Ben Strauss (Washington Post), Michael McCann (law professor and legal analyst for Sports Illustrated), Ramogi Huma (founder of the National College Players Association) and Amy Perko of the Knight Commission.
Since these conflicting state laws will have the effect of substantially regulating commerce among states, McCann believes that many of the laws will be challenged on those grounds. He strongly believes that federal regulation will be the only way to go. As far as the NCAA is concerned, McCann has long been a critic of how the NCAA has handled many of these issues and questioned how the NCAA would require the compensation be tethered to education, specifically stating that it would cause huge problems if the schools retained oversight on the endorsement deals.
Huma was one of the first leaders beating the drums for compensating college athletes. His major concerns focused on the difficulty of getting the players’ voices heard as well as making sure that any federal bill is essentially a “players” bill (meaning in favor of the players) rather than an NCAA bill. He was particularly concerned that any federal legislation would not roll back the advances that are already contained in some of the state legislation.
Perko placed a heavy emphasis on the Knight Commission’s role in prioritizing education and the health and safety of the student-athlete. She pointed out how far we have come since 1970 and highlighted the advances that have been made outside of the NCAA regulations (i.e. College Football Playoff and the proliferation of merchandising). Like others, she raised concerns about how the support of players is regulated.She harshly criticized the cap on disability insurance payments made by schools on behalf of players likely to be selected high in upcoming professional draft. Her agitation was based on the comparison to the lack of cap on head coaching salaries. Her voice was consistent with McCann, pointing out that the schools and the NCAA should not be involved in monitoring or controlling NIL compensation.
The Political Panel consisted of Moderator Tom Farrey of the Aspen Institute, North Carolina Congressman Mark Walker, Michigan state representative Joe Tate and longtime sports leader Donna Lopiano, President elect of the Drake Group.
This third panel focused on the political issues and the tenor of the conversation shifted to an even more critical assessment of the NCAA’s involvement in NIL issues. The panel was particularly adamant about limiting the NCAA’s role and future in governing college sports.
Walker has introduced federal legislation which would allow the free markets to be accessible to the student-athletes. His proposal would ensure that student-athletes would not need to sign the moratorium on capitalizing on their NIL. He expressed disappointment he has been continually denied meetings with the NCAA and with Mark Emmert. Walker stated that Emmert’s comments “come across as privileged” and that “Emmert does not have a good understanding of the types of backgrounds” from which many of these student athletes arrive. According to Walker, statistics show that 40-45% of these athletes arrive from impoverished communities.
Lopiano has long been critical of the NCAA’s governance and articulated the growing dislike of the way the NCAA has handled the business of college sports. She believes that the NIL bill will mean the death of the NCAA definition of amateur status. Given her belief that the NCAA is not a respected body, she was vigilant in asserting the need for creating a new oversight agency. Such agency would prevent the NCAA from playing any role in determining: i) which types of NIL compensation would be allowed; ii) how the compensation would be distributed; and iii) when it should be distributed. She pointed to organizations such as USADA (United States Anti-Doping Agency) and Safe Sport (which investigates and prevent athlete abuse) as examples of agencies that have been specifically created to fill a particular need.
Michigan state representative Joe Tate believes that it is important to allow college athletes to have an agent represent them in these types of business negotiations. He would like to see a more substantive idea of fairness embodied in any legislation. When I spoke to him after the panel, he was clear that the NCAA and the member institutions should not have any significant role in managing the NIL process.
As the third panel concluded, Farrey posed a variety of questions, but ultimately it became clear that the entire panel felt change was imminent, likely before the California bill is set to take effect in 2023. None were willing to predict what that final change will look like, but it is clear that none felt the NCAA would be a willing partner to a solution.
We are moving towards to a free market system meaning that more regulation is unlikely to be a manageable solution.
To watch the sessions and read more opinions of the proceedings, click below:
- STREAM: Aspen Institute: Future of College Sports: Government’s Role in Athlete’s Pay
- USA TODAY: Two US Senators appear to be taking aim at NCAA even beyond NIL Controversy (Steven Berkowitz)
- NY DAILY NEWS: The NCAA isn’t serious about paying college athletes (Jane McManus)
- SPORTS ILLUSTRATED: Mark Emmert, NCAA Turn to Congress Amid NIL Debates (Ross Dellenger)