NIL hearing shows desire to pass bill to help NCAA. How it gets there is uncertain

WASHINGTON – Another hearing on Capitol Hill showed yet again that there is considerable Congressional interest in legislation concerning college sports – and nearly equal disagreement about what a bill should look like.

The NCAA, which is anywhere from eager to desperate for federal intervention on a variety of matters, can at least take heart from one recurring theme in Tuesday’s hearing by the Senate Judiciary Committee that was titled, “Name, Image and Likeness, and the Future of College Sports.”

Between athletes’ activities making money from their NIL and their recently enhanced ability to transfer without penalty, “college football is in chaos,” said Lindsey Graham, R-S.C., the committee’s ranking member.

College sports is “in need of reform. It’s in need of reform now,” Richard Blumenthal, D-Conn., said at the outset of the session that he chaired in place of Dick Durbin, who was absent because of recent knee surgery.

Twelve other members of the committee spoke and asked questions of a seven-member witness panel that featured NCAA President Charlie Baker. Joe Manchin, D-W. Va., who is not a member of the committee but has co-authored a college-sports bill with Sen. Tommy Tuberville R-Ala., was afforded a special-guest appearance.

Over the course of more than three hours, nearly all expressed in some form that there is a need for action or that they wanted answers from Baker and the NCAA on NIL, transfer rules, athlete health and safety, the prospect of athletes being deemed employees of their schools, the NCAA’s desire for legal protection from lawsuits challenging its rules, changes in visa rules that foreign athletes’ ability to have NIL deals in the United States, and the NCAA’s approach to trans athletes.

“I know everyone has different opinions about this,” Manchin said. “ … I’m hoping all of us can work together and take the politics out of it. I know it’s hard to do that anywhere.”

ROAD AHEAD: Can Congress pass an NIL bill? Depends who you ask

Baker seemed to making an effort in that regard. In his written testimony, he said the NCAA is “open to working with Congress” to have put into federal law a variety of NCAA rules changes and likely rules changes that are aimed at benefitting athletes. Among those are scholarships that guaranteed against injury or an athlete being cut from team, funding that allows athletes to complete their undergraduate degrees well after their eligibility expires and healthcare that would cover athletes for injuries suffered while playing for their schools for two years after they leave school.

This has long been point of emphasis for athlete advocates, who have argued that while it’s positive for the NCAA’s membership to make these enhancements, there’s nothing to prevent the membership from diminishing them in the future.

Meanwhile, Big Ten commissioner Tony Petitti said his conference's schools are open to providing additional health and welfare benefits for athletes and for athletes to receive benefits even greater than that "directly from institutions." While he did not specify what those items might cover, ideas that have been floated range from schools being willing to pay for athletes’ graduate education, to providing cash bonuses for graduation.

Republicans generally appear more willing to pursue a bill largely limited to replacing a patchwork of state NIL laws with a national standard and to provide the legal protection that the NCAA covets. Ted Cruz, R-Tex., has circulated a draft bill that takes this approach – and he advocated for that again Tuesday.

But John Kennedy, R-La., told Baker and other representatives of schools on the witness panel: "You might regret asking Congress to intervene here. ... I'd be real careful about inviting Congress to micro-manage your business. … I've got a lot of sympathy for the kids, I've got to tell you. The kids make this all possible."

In addition, Josh Hawley, R-Mo., said: “I think we’ve got to find some way to give these student-athletes a voice. … Currently I think there’s a huge power disparity.”

Democrats generally appear more intent on pursuing a bill that covers greater athlete protections. Sheldon Whitehouse, D-R.I., in addressing long-term healthcare for athletes, noted "we do this with (military) veterans all the time." He added that if veterans encounter health problems related to service "20 years later, the VA provides coverage."

Blumenthal, who has circulated the draft version of such a wide-ranging bill along with Sens. Cory Booker, D-N.J., and Jerry Moran, R-Kan., asked each of the witnesses whether they opposed any of four features of that bill: The creation of a medical trust fund to support long-term athlete healthcare for injuries suffered while playing for their school; requiring at least high-revenue schools to cover all insurance and out-of-pocket medical costs for athletes; guaranteed scholarships; and what he termed enforceable health and safety standards “to protect college athletes from serious injury, mistreatment, abuse and death.” (This as opposed to the many guidelines that the NCAA has in place).

None of the witnesses said they opposed any of those concepts.

Blumenthal then said: “Your views on this issue are profoundly important and show that we need to think beyond just NIL standards.”

But Blumenthal expressed skepticism about notion of athletes becoming employees of their schools.

In concluding the hearing, however, Blumenthal said: “One point that comes across loud and clear is that the present system isn’t working. It is broken, and corrective action taken so far is commendable (by the NCAA), but so far inadequate. And Congress has to do its job to protect student-athletes.”

The question that remains is: How?