I watched the last big dumb NIL hearing so you didn't have to

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On Wednesday morning, the House Subcommittee on Innovation, Data, and Commerce held a hearing called “Taking the Buzzer Beater to the Bank: Protecting College Athletes’ NIL Dealmaking Rights.”

I’ve listened to several congressional and state-level hearings on NIL and college athletics, and honestly, most of them have been pretty frustrating experiences.

I would have been tempted to skip this particular hearing, but this was the first congressional hearing in the post-Mark Emmert era. It was the first hearing by this specific Congress, and I believe the first federal hearing chaired by Republicans. If the NCAA wants to get anything college sports related passed this year, it’s going to need the support of some House Republicans, so what the hell, maybe this one would be different…or at least interesting.

I hate being thoughtlessly and reflexively cynical about these sorts of meetings. But hearings like these make that cynicism, well, justified. Two and a half hours of congressional grandstanding, State U cheerleading, empty questioning and more did little to assuage any concerns that this Congress…the body that the NCAA is depending on to save college sports…really knows what they’re doing.

If, for some reason, you actually want to watch the whole thing, you can do so here:

Let’s start with who they invited to the hearing

This hearing called six witnesses: – Jennifer Heppel (the commissioner of the Patriot League), Pat Chun (the AD at Washington State), Dr. Makola M. Abdullah (president of D-II Virginia State University), Kaley Mudge (softball player, Florida State), Trey Burton (former Florida football player) and Jason Stahl (executive director and founder of the College Football Players Association).

This hearing was technically supposed to be about NIL, with a heavy emphasis on collectives. The politicians repeatedly asked questions about NIL payments and contracts used as recruiting inducements, agent fees, the relationship between collectives and athletic departments, etc.

But they called a football player who graduated in 2014, well before NIL was a thing. They called a softball player with under 10,000 Instagram followers. They called the commissioner of a league that doesn’t have a single NIL collective supporting a member institution (and where only a tiny % of athletes are doing any NIL activity), the president of a D-II school who admitted that the total value of all NIL activity at his institution was less than $10,000, the director of a single-sport advocacy group, and the AD who represents one of the smallest athletic departments in the P5.

I thought everybody gave thoughtful answers to the questions. All six had important and useful insights to share about college athletics reform, health and safety improvements, athlete employment status, and more. But on the narrow subject of NIL…this group was lacking in some important, first-hand experience.

I think part of the problem here is that I don’t think Congress, even now, fully appreciates the differences between brand-based NIL deals, and “roster-value”, or bagman-NIL. The very problems Congress and the NCAA are trying to address, as well as potential remedies, are very different, and trying to pretend both markets operate the same way will only lead to more confusion.

If a future legislative body wants to hold another hearing just on NIL, I would recommend they call some of the following people:

• At least one individual who actually runs a collective, ideally a larger one that supports a major P5 program.

• An expert on influencer marketing, ideally one that works with athletes. Brand-based endorsement deals are not new, even if NIL kind of is.

• A current P5 football or basketball player, ideally one who was a top 300 caliber recruit…somebody who is likely to have had firsthand experience in the bagman-NIL marketplace.

• Economists, business professors or journalists…i.e, those who study this market, but who do not have a direct financial stake in the market operating in a particular way.

If you want to talk about how an employee model might impact sports or schools without massive broadcast deals, by all means, let’s talk to softball athletes and D-II HBCUs and the Patriot League. But that isn’t what this particular hearing was supposed to be about.

Not everybody was taking this seriously

In her opening remarks, Rep. Jan Schakowsky (D-IL) said that she was going to leave the hearing to attend a different hearing, then come back. Multiple members of congress incorrectly stated what the Alston case actually meant. Almost every question was prefaced by the politicians falling over themselves to praise their local State U. One member of Congress put on a new jacket to troll the Florida fans in the hearing.

This is not the first hearing on NIL. These lawmakers have staffers to create briefing books, as well as access to nearly any expert in the country they could possibly want to talk to. There’s just no excuse to call this sort of hearing, take time away from other potential issues, and not take it seriously enough to get the basic facts right or ask real questions for the witnesses.

Look, I used to run a network of fan sites for a living. I get it. If you want to troll your buddy who represents another state, I can think of a dozen blogs, message boards and sports talk radio stations that would love to hear from you. Honestly, it’d probably be a smart way to do constituent outreach. Go Talk About The Noles if the spirit moves you to do so.

But honestly, I thought some of the fawning and cheerleading were over the top. If you want to help create policy that will help college sports, then do the homework and treat that hearing like you’re actually doing the business of the People of the United States.

I think a few members of Congress actually did some real prep work and tried to ask actual questions, like Rep Harshbarger (R-TN), Rep. Trahan (D-MA), Rep. Lesko (R-AZ) and Rep.Pallone (D-NJ). But they were not, in my humble opinion, the standard.

What does anybody actually want, specifically?

The only idea that appeared to have some element of bipartisan support was creating a “national NIL standard”, an idea supported by most of the witnesses as well (Stahl being the exception, who testified that Congress should stay out of NIL). But what does that actually mean?

Only Chun would have been able to speak to how different state laws actually impact recruiting or deal composition, and Washington doesn’t even have an NIL law. The policies that make it harder for Washington State and Washington to promote collective or NIL activities are tied to a state ethics law that has nothing to do with college athletics. Nobody else was able to get very specific about how differing state laws are a problem, only that the current system is “chaotic.”

Multiple lawmakers, particularly Republicans, expressed concern about NIL deals being used as inducements…but nobody really got into the weeds about why inducements are bad, or about how a national standard would prevent those inducements from happening. Is the federal government going to investigate those claims? If not, how will the NCAA do it without an antitrust exemption?

If there are concerns about athletes being taken advantage of by “bad actors”, (something I actually think is a legitimate concern), is Congress proposing taking a more active role in the regulation and certification of agents? Of collectives? Does the NCAA think that any “bad actor” problem is solved by widespread price transparency alone? What about the bad actors that have .edu email addresses?

Sure, these are wonky, in-the-weeds questions, but that should be what these conversations are for! In two and a half hours, I saw little to make me think most of these lawmakers had really thought about these issues, and the folks they brought in, weren’t the best folks to give them answers.

TL;DR, I came away unimpressed

If there’s a path toward bipartisan legislation that President Biden will actually sign, I didn’t see it today. If lawmakers in the House have legitimately been following this issue for the last 18 months, I didn’t see it today. It would have been difficult to tell this hearing apart from most of the other hearings over the last two years.

I’m probably more sympathetic to the NCAA wanting legislative help than most sportswriters. I don’t like the all-or-nothing approach on Twitter, particularly from those who have a financial stake in a less-than-efficient NIL marketplace.

But if this is the best that Congress can do, then all of that cynicism is justified.

What I saw on my TV was a truly disappointing way to spend three hours.

And I would know, I watched a lot of Big Ten football last year.

Hey real quick, here’s what else we wrote this week:

• I interviewed an associate AD at FDU to learn what actually happens after a tiny department is thrust into the limelight after a major upset. We talked about sponsorship deals, FDU’s unique SID hire, and more.

• The ratings for the Men’s Final Four are probably gonna be worse than last year. Who cares?

• I dug into the archives to see official Big Ten memos detailing exactly what other schools the conference considered adding back in 1990, right after they added Penn State. Schools like Nebraska, Rutgers, Pitt….and Texas?!?

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