Bad takes and big questions from the Senate NIL hearing
Did questioning from the "world's greatest deliberative body" shed light on what a potential federal NIL might look like? Unclear! But it sure raised some dumb takes!
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Okay! That’s a lot of housekeeping. Let’s shift to everyone’s favorite thing about college athletics…political haggling!
The first Senate hearing on NIL issues happened on Wednesday
There’s a pretty good chance that Congress is going to pass some sort of national NIL (name, image and likeness) bill, either this year, or in the future. Sen. Rubio has already proposed a bill (I’ve read it and do not think very highly of it), and it is probable that there will be others. On Wednesday, the Senate Commerce Committee held the first hearing on NIL, although it quickly devolved into conversations about other NCAA issues.
If you were expecting the hearing to avoid many of the worst arguments about NIL over the last year or so, you’d be wrong. Here are some of the worst takes:
I don’t really know how anybody could argue with a straight face that at Ohio State, perhaps the single most popular college football team in the country, has only three or four players that would command any interest on the open market for their NIL services.
Heck, Ohio State probably has at least three first round picks in that starting 22, and another three who are projected to go in the second round, plus more who are likely future top NFL picks.
Are we supposed to seriously believe that nobody in football-mad Columbus would be interested in working with any running backs, wide receivers or defensive linemen for an overwhelmingly popular and successful football team? That only a first round pick would be able to attract any commercial interest? Come onnnnnnn.
This isn’t just a throwaway bad take from an administrator who should absolutely know better. It’s been a key argument for many defenders of the current status quo. Not that many athletes would benefit from an open NIL marketplace. High level athletic administrators, both at the NCAA, conference and institutional level, have sought to frame the NIL debate as only the purview for the most famous football players. But that just isn’t true.
If it was, why go through all this effort to go to Congress to solve this squabble? If NIL truly only impacted a few dozen athletes a year, surely the NCAA could handle it themselves, right?
The NCAA puts an awful lot of responsibility on 18-year olds. They’re trusted to make their own decisions about what schools to attend, balance rigorous athletic and academic demands, and potentially even sign waivers before they can participate in athletic activities. They’re allowed to play in intercollegiate games. Hell, they can vote, they can sign up for credit cards, they can buy firearms, and we can send them off to war.
We’re supposed to believe that those responsibilities are acceptable, but that getting a few hundred bucks to promote a brand on Instagram or Twitter would be beyond their emotional and intellectual abilities?
Give me a break.
If the NCAA was really and truly worried about putting too many demands on young athletes, they’d push legislation to limit their athletic obligations. They wouldn’t send them on cross-country flights to play games at 9 PM on school nights. They wouldn’t ask them to sign any documents that could be construed as COVID-19 waivers. Member institutions seem perfectly comfortable asking quite a bit out of 18 year old kids right now.
By all means, schools should work to provide athletes with the representation and tools needed to properly evaluate economic opportunities, and help them make good decisions. Congress could even make such obligations a requirement in any NIL law. But it’s time to stop pretending that college athletes do not have the capacity to engage in those decisions.
Finally, there’s this humdinger:
The argument that an open NIL market would hurt women’s sports goes like this:
Essentially…the booster or marketer decides to send money directly to the athlete, instead of the school. Faced with diminished revenues, the school then decides to cut funding for women’s sports.
This argument is bad!
For one, we should not treat it as some sort of inevitability of nature that diminished revenues from boosters must mean that athletic departments must cut into the budgets of women’s sports. If they do, that is because of a specific choice an institution made. If there is less money coming in, a school could decide to spend less on marketing, or on administrative salaries, or on travel, or on a gazillion other things. If they decide to cut funding from volleyball, that’s on them, not because some local Ford dealership decided to give a little less money.
Second, it is by no means settled that an open NIL marketplace means that schools will get less money from boosters. I talked with lawyers and business professors about this a few months ago, and they agreed. Pulling all of your donor money from an institution and giving it directly to college kids is actually pretty risky for the donor, and there’s a good argument to be had that a business would still get more bang for their buck by working with a university, especially since athletes are only on college rosters for a few years. A smart fundraising department, one that has cultivated real relationships with donors, should be able to handle a NIL marketplace.
And third, insinuating that an NIL marketplace disadvantages women athletes ignores the fact that a whole bunch of them will be making money themselves. This is a great Twitter thread that explains how many athletes could benefit. I interviewed a few experts on this for SB Nation, and they all told me the same thing. Women athletes have valuable NIL rights.
It stinks that we’ve been arguing about NIL for over a year, and some of these same, tired talking points keep getting brought up. But thankfully, the entire hearing wasn’t just another regurgitation of stuff we’ve all been screaming about on Twitter for months. It did raise two pretty important questions.
Is the ability to control your NIL a right, or a privilege?
I’d love to hear more politicians give specific answers to this question, because how you really engage with NIL regulations depends entirely on the answer.
My reading here is that most senators, both Democrats and Republicans, don’t really believe that an athlete’s ability to control and profit from their NIL is really a right, but rather, something that the NCAA might bestow upon them, or at least allow. If this is where your thinking stems from, then the NCAA’s insistence on guardrails, or exceptions, or regulations, may appear more reasonable.
But if you believe that it’s a right, a right that just about every other college student enjoys, then suddenly the pressure isn’t on the athlete to argue why he or she should be able to enjoy an NIL marketplace, but on the NCAA for why those rights should be curtailed at all. Economist Andy Schwarz lays out the consequences of this thinking more elegantly than I can right here.
If enough politicians come around to the idea that athletes enjoy a positive right to their own NIL, then the NCAA and their allies are going to have to come up with much better arguments for why those rights need to be constrained. I don’t think that’s where folks are now, but that could change.
What else will Congress demand to regulate if they get involved in NIL?
One of the disadvantages in going to Congress to solve your problems is that you don’t get to control how Congress decides to solve that problem. It may very well mean that they decide to become much more involved than you would have originally liked.
It’s hard for me to imagine a world where the NCAA gets their antitrust exemption without having to accept additional regulations or concessions from the government. One of those areas may very well be tied to health care, as multiple senators hit college administrators hard on waivers, liability, COVID-19 plans, and long-term health care.
I think this quote is telling:
As is this one:
Now, there are lots of reasons why the NCAA doesn’t have a nationwide framework. I think The Athletic did a very good job explaining why, but for the TL;DR crowd, the current legislative system makes enforcing any sort of D1-wide standard of care almost impossible. For liability reasons, the NCAA is okay with that.
That system might not survive congressional oversight. I think it is possible that NIL reform could be tied to athlete medical reform. Perhaps that means better nationwide standard of care enforcement (with actual penalties). Perhaps that means obligations to provide medical care for injuries sustained during athletic activities. Perhaps it means any number of other things.
I don’t think that’s the only regulatory angle Congress could potentially take. I wouldn’t be surprised if at least one Senator tries to tie NIL reform to limitations on athletic spending. It could be tied to sexual assault reporting. It could be tied to student outcomes. It could be tied to any number of other benchmarks.
It’s also possible that Congress decides to punt on the whole dang thing. We are, after all, in an election year, and in the middle of a pandemic. There are a ton of other issues that might require more immediate attention, no matter how much administrators lobby for a national standard.
As more states push for their own NIL bills, it will be interesting to see how the NCAA’s tactics might change.
I know this can be frustrating to follow as a fan. For a lot of folks, you follow sports precisely because you want to think about something other than what various Senators might do, if only for a little while.
But thanks to institutional inaction, it’s now up to Congress to sort out some pretty thorny issues about what the hell amateurism is really allowed to mean in 2020.
Here’s hoping that more Senators find time to do a little more reading beyond the NCAA’s press clippings.
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