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The House of Representatives committee that I appeared in front of in late March has just produced a piece of draft legislation and so, at some level, I feel the need to respond to this occurrence. My biggest fear coming out of the hearing was that the committee might produce a truly bipartisan draft which nonetheless unnecessarily used Congressional power to regulate college athletes’ Name, Image and Likeness (NIL) rights. As I said in my written and oral testimony, I thought that such regulation was unnecessary and that the problems with this market were best handled by industry stakeholders including players through their independent players associations like the CFBPA.
So, I was actually relieved to see that the draft bill was a wholly partisan affair with Republicans drafting a bill that creates a new bureaucracy designed to heavily regulate the college athlete NIL market. The bill does this while also inserting many other anti-athlete initiatives and making no concessions whatsoever on enhanced health or educational benefits that are the core of our CFBPA Platform for Change. The bill, in essence, is an NCAA dream which should get no Democratic support. Even if the bill somehow passes the full House of Representatives — which is very unlikely given other, more pressing priorities — it certainly won’t pass the Democratically-controlled Senate or get signed into law by President Biden.
So, why even do this at all? Why put forward a nakedly partisan bill that you know has very little chance at becoming law? My guess is that this bill, and other NCAA-friendly bill drafts floating around this week, are designed to appease the lobbyists that are doing the NCAA’s bidding. Now they can say they “got something done” even if it goes nowhere. The NCAA has tried to get federal legislation friendly to them passed in the past and it has never happened and so I seriously doubt it’ll start with this bill.
Instead, I want players and athlete advocates to start realizing that the NCAA and the administrative class in college sports is likely to continue to take losses into the future. As such, rather than endlessly responding to dead-on-arrival legislation like this, we need to be articulating new ideas which better fit a future where athletes will continue to be empowered.
One such idea that I want to focus on today is that college athletes who appear in broadcast media should receive an NIL payment directly from their school and/or conference for these appearances. This idea, which I’ve seen referred to in some quarters as broadcast NIL (or BNIL), was one I spoke of frequently at the March congressional hearing as it is in our CFBPA Platform for Change as plank #4. That plank reads that college athletes should “receive a percentage of big money media rights revenue contracts for the players whose name, image and likeness are used in that media.”
BNIL payments from schools and/or conferences make a ton of sense given that these entities will be receiving increasing media rights revenue from a variety of sources heading into the future. We added this plank during our Penn State campaign given the huge new media rights revenues the Big Ten conference will be receiving starting this year. Additionally, when the College Football Playoffs expand to 12 teams in 2024, there will be new additional billions for schools and conferences to allocate to BNIL as opposed to just adding them to increased coaching and administrative salaries and bloat.
Back in October, the NCAA officially clarified that they banned BNIL payments from schools and conferences, but they could easily lift such a restriction. Beyond making intuitive sense given new media rights money, the policy would have three key positive effects for taking college athletics into the future.
First, BNIL payments to athletes directly from the schools and/or conferences would increase transparency and decrease the activity of bad actors. Right now, there some agents and collectives not acting in the best interest of athletes. The bill just proposed by the House committee argues that a new bureaucracy regulating these third parties is the answer. Such a solution would undoubtedly create more problems than it solves and those bad actors would simply find new ways to operate. Instead, BNIL payments directly to broadcast athletes from schools and/or conferences would be transparently administered and would disempower agents and collectives in general. Why would players go begging for scraps from these individuals and entities if schools were paying them directly through BNIL payments?
Second, BNIL payments would introduce competition for labor directly from the entities that benefit most from that labor. Right now, collectives and other outside entities are the only ones effectively competing for labor on behalf of schools. No other industry in America has such an absurd arrangement. Instead, the institutions and/or conferences themselves should simply compete for the labor of college athletes directly through BNIL payments. This would begin to establish a clearer and more transparent market for what that labor is worth.
Third, BNIL payments will help smooth the transition to a likely future where employment status of college football players becomes a reality. There are several different ongoing actions which could bring about such employment classification. As I’ve written before, many are now considering such a shift inevitable. Paying those athletes for their BNIL now — as independent contractors of the institution and/or conference — will help smooth the way to this likely future. The new money coming in over the next two years from new media rights arrangements should be earmarked for these BNIL payments. No “old money” would need to be touched and thus, as I’ve written before, there will be plenty of money to go around for all that athletic departments need to do.
As I said earlier, for BNIL payments to happen the NCAA would simply have to lift their restriction against them. Outside entities paying athletes would then be disempowered and we could begin to develop a clearer sense of what broadcast college athlete labor is actually worth. We can never go back to the amateurism of college athletics that was always more myth than reality. Instead, we need to be forward thinking with ideas that bring us into the future. I believe BNIL is just such an idea.
We’re preparing for a big summer here at the CFBPA and so as an addendum to this newsletter, I wanted to announce some important changes to our CFBPA leadership teams to help us prepare for this. First, we’ve added Justin Falcinelli to our Board of Directors as a second institutional Vice President. This allows for better communication between our Board of Directors and our member-led Leadership Committee. Additionally, this gives our Board of Directors five voting members instead of four which is more desirable should the board need to vote on something. Finally, we’ve added members to our Advisors group. Back in fall 2022 I regretfully forgot to announce the additions of Richard Southall and Neal Jameson as Advisors. Both have been great friends to me and the CFBPA. Richard is a well-known academic in the field of college sports reform and Neal is a labor organizer who has been invaluable to me as we explore new organizing opportunities. Richard heads the College Sport Research Institute (CSRI) and has allowed us to use CSRI’s annual conference for the last two years as a platform to promote our activities at the CFPBA. I am very grateful for this. At this year’s conference, I was able to meet Ellen Staurowsky, another long-time academic in the field of college sports reform. Ellen was enormously supportive of our work at the CFBPA and I’m excited to say has also agreed to come on as a CFBPA Advisor. I’m very blessed to work with such fantastic individuals.