Four takeaways from the name, image, likeness debate as NCAA prez Mark Emmert appears before Congress

A panel of five witnesses, including NCAA president Mark Emmert, testified before a U.S. Senate subcommittee on Tuesday as the issue of student-athletes profiting off of their name, image and likeness took a national stage in Washington, D.C. The hearing took place amid a growing belief that it will take an act of Congress to bring uniformity to a major issue facing collegiate athletics.

During the session on Tuesday, even Emmert ultimately conceded publicly that, as the NCAA works to revamp its rules, "we may need Congress's support in helping maintain uniform standards in college sports." The issue over name, image and likeness rights for NCAA athletes continues, and it took a monumental step on Tuesday with the fight taking center stage in front of the U.S. Senate. 

Here's four takeaways from the hearing, looking at some of the more pressing topics that were discussed on Tuesday. 

1. The debate over state laws going into effect: Rep. Anthony Gonzalez (R-Ohio) is drafting legislation in the House that he hopes will bring a "bicameral, bipartisan" resolution to allow student-athletes to profit off their name, image and likeness. Most everyone involved agreed Tuesday that such a result would be a favorable alternative to states enacting their own laws like many are in the process of doing now.

"The question before us today is how can we prevent state-by-state chaos and protect the collegiate athletics system that is beloved across the nation?" Gonzalez said before the committee.

If individual states pass differing laws on the name, image and likeness, it would almost certainly lead to variations that would create competitive imbalance among NCAA schools. But proponents of change in the debate praised states for their progressive efforts in addressing the issue. In fact, National College Players Association executive director Ramogi Huma, a former UCLA football player, thanked the states for being the catalyst that has brought the NCAA to the table to agree that change is needed.

"Our concern is that there is going to be an overreach by the NCAA, and they are going to turn it right back to what it looks like today," Huma said. "Because, in reality, they would have never been here at this table without the states pushing."

2. What would new NCAA rules really accomplish, though? The NCAA is in the midst of a legislative cycle now, and Emmert said there could be a draft of new rules completed by April that it would be willing to share with Congress. But would any new rule put in place by the NCAA dissuade 20-plus states from continuing with legislation? If not, states could merely continue drafting their own rules, which would frustratingly bring the debate back to square one.

"We believe that, given its role, the NCAA -- informed by its schools and conferences -- is best positioned to provide a uniform and fair NIL approach for all student-athletes on a national scale," Emmert said. "But we cannot effectively achieve our goals if we are pulled in various and potentially inconsistent directions by state legislatures that may be focused on serving one set of constituents rather than serving the entire array of participants that the NCAA's own rule-making processes are designed to serve."

That's where Congress could help, Emmert added in his remarks. Besides, it would be January 2021 before any new NCAA rules would go into effect, according to the NCAA president.

"On the one hand, we want to allow opportunities for students to benefit from their NILs," Emmert said. "On the other hand, we want to preserve the character and quality of the uniquely American phenomenon of college sports. And with ongoing serial litigation and NIL legislation pending in over half the states, we may need your help to accomplish this on a nationwide basis."

3. The issue of caps on student-athlete earnings: Huma's organization, which has sponsored state-level legislation to allow student-athletes to profit off name, image and likeness, is taking the stance that there should be no cap on what a student-athlete can make off their rights. "We don't want to see caps," Huma said. "Caps don't protect the players. A cap would reduce the opportunity economically."

Conversely, Emmert expressed hesitance on how a system with no caps on earnings potential would work. "I think the question is what can and cannot be done in the current legal context," Emmert said. "The current legal context and the litigation environment that we find ourselves in makes it extraordinarily difficult to determine what boundaries can indeed be set on those forms of compensation that might come toward a student-athlete without turning that student into an employee of the institution."

If the resolution on name, image and likeness leads to athletes being deemed employees of the universities, there is concern that players could have their scholarships revoked at the discretion of their "employers" and that non-revenue sports could suffer under the weight of a system that views all student-athletes as employees, even though only a small percentage of the athletes would be profiting off the system.

"While all college sports participants might be alleged to have equivalent opportunities to profit from name, image and likeness activities, I believe that the present discussion is principally about football and men's basketball players, and I am certain that the participants in these two sports will harvest the vast majority of the opportunities," Big 12 commissioner Bob Bowlsby said. "It follows that this disparity will ultimately diminish other sports on campus. This diminishment could come in the form of reduced scholarships, declining budgets or even sport eliminations."

4. Concern over recruiting and transfer inducements: One fear expressed by witnesses and members of the Senate subcommittee centered on the prospect of schools or third parties using financial incentives as a means of recruiting prospective athletes and potential transfers. The argument against such a system is that, if left unregulated, could create an environment where universities with the best commercial partnerships could afford to incentivize top athletes in recruiting while other universities in rural settings with fewer financial or endorsement opportunities would suffer.

Huma countered that point by suggesting that power conference institutions already attract the top student-athletes under the current system and that scholarship limits would remain in place. "It's not going to magically produce double the amount of talented athletes," Huma said.

On that topic, however, there seemed to be no easy answers Tuesday about how to prevent third parties from orchestrating player recruitment while also ensuring that universities are not put in a position that requires them to be employers.

"As it pertains to a new model of collegiate licensing and a loosening of restrictions on how student-athletes might activate around their personal name, image and likeness opportunities, I find myself supportive of the concept but daunted by the shadow that lies between the idea and the reality," Bowlsby said. "I am particularly hesitant regarding the viability of the guard rails that are nebulously asserted to be capable of ensuring boosters, donors and other interested third parties are not disruptive, unregulated and unwelcome participants in the recruitment processes."

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