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Recap of the 10th NIL Legislative Hearing on Capitol Hill
On behalf of Margules Law Group, P.A. | 10/18/2023 | Firm News

On Tuesday, October 17, 2023, the Senate Judiciary Committee held a hearing on Name, Image and Likeness (NIL) and the Future of College Sports. This hearing marked the 10th meeting on Capitol Hill regarding NIL since collegiate leaders began lobbying Congress for federal NIL legislation in 2019.

This hearing marked the first time NCAA President Charlie Baker, former Governor of Massachusetts, testified in front of lawmakers since taking over the NCAA in March. Baker, since the beginning of his time as NCAA President, has frequently lobbied for congressional help in the form of federal NIL legislation.

Other witnesses for the hearing included Big Ten commissioner Tony Petitti, Chief Executive Officer (CEO) of Ole Miss’ Grove Collective Walker Jones, former Florida gymnast Trinity Thomas, National College Players Association (NCPA) executive director Ramogi Huma, St. Joe’s athletic director Jill Bodensteiner and Notre Dame athletic director Jack Swarbrick.

Notably, no current Power Five student-athletes were chosen to testify in front of the committee about their experiences with Name, Image and Likeness.

President Baker discussed the NCAA’s recent proposed changes to boost athlete protections. Those changes would permit schools to:
- Proactively assist in the development/creation, execution or implementation of an athlete’s NIL activity.
- Provide services to support NIL activity such as tax preparation and contract review.
- Provide access to equipment to support NIL activity such as camera, graphics software, etc.
- Communicate with third-party licenses about NIL opportunities for athletes, including securing specific opportunities.

However, Baker continued by warning Congress that the NCAA needed an antitrust exemption to combat legal threats to college sports. Further, Baker wants Congress to deem that college athletes are not employees and says that he has personally spoke to at least 1,000 college athletes regarding the label of employees, and he says that he did not come across one athlete that was in favor of the title.

According to a Sportico/Harris Poll survey in August, 64% of U.S. adults voted in support of worker protections for college athletes. It would have added a ton of credibility had President Baker listed some of the name of the supposed 1,000 college athletes that were against the label of employees.

Only Ramogi Huma of the NCPA testified in support of athlete’s employee status and argued against any Congressional decisions that would preempt it.

“The NCAA is a chronic antitrust violator and a glaring example of why antitrust laws are needed in this country,” Huma said.
St. Joe’s athletic director Jill Bodensteiner testified that athletic departments would suffer immensely from paying their athletes like employees and that it would ultimately be to the detriment of the athletes.

It was Sen. Josh Hawley and Sen. John Kennedy who pressed against the NCAA’s stance on amateurism. Amateurism is the NCAA’s typical fallback when pressured to compensate the athletes that generate universities millions of dollars per year.

“Isn’t this fight over the fact that the kids are now getting some of the money that the adults were getting before?” Kennedy said. “I have got a lot of sympathy for the kids. The adults seem to be able to take care of themselves, but it is the kids that make all of this possible.”

Since Notre Dame’s athletic director was present at the hearing, it seems important to note that Notre Dame is contracted to receive $22 million per year from their NBC football-only contract, as well as about $11 million annually from the ACC, in which the rest of their sports compete. Additionally, Notre Dame head football coach Marcus Freeman earns around $5 million per year including bonuses.

Notre Dame’s athletes are not permitted to receive a penny from those TV deals.

As mentioned, Big Ten Commissioner Tony Pettiti was present during the Senate hearing. The Big Ten signed media rights deals last year that will pay the conference more than $7 billion over the next seven years.

Big Ten athletes are not set to receive a penny from those TV deals.

Sen. Kennedy warned collegiate leaders about the consequences of government regulation in college sports.

“I’d be real careful about inviting Congress to micro-manage your business,” Kennedy told President Baker.

This hearing was an evolution of previous Congressional hearings that primarily focused on educating on NIL and inducements, and moved into deeming athletes as employees and revenue sharing.

It will be interesting to see what, if anything, comes from this hearing. But it is a positive sign for the athletes, that the dialogue has shifted to conversations regarding their ability to share in a portion of profits they help generate on an annual basis.

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