Senate Hearing Transcript on College Athlete Compensation July 1, 2020

Dr. Drake: (00:00)
… dollars for whatever, a t-shirt. I mean, just common sense limits that would be … I think I agree with that, Ms. Koller.

Mr. Sankey: (00:08)
I started to lean in, Senator, and then I was waiting to see how the answer was going to play out. I do believe there needs to be a structure around how this is deployed, some of which have been identified. I’ve not envisioned simply a numerical limit. I think sources are important to consider for limitations. I think the nature of those relationships that might be in legislation should be considered. I’ve had conversations generally about a numerical limit, and that’s not been the focus of our thinking at this point.

Mr. Carter: (00:38)
Okay. And I would just add to that. We talked a lot about market value and giving our student athletes the same opportunities as non-student athletes. So I think that you would refer back to the market value and certainly some common sense approach, and the structure needs to be there, but the market value is where we would fall back to.

Mr. Sankey: (00:54)
Okay. And [crosstalk 00:00:57]-

Mr. Winston: (00:56)
Senator, I’ll jump in here. Yeah, I’ll jump in here as well. Yeah. I don’t see a need for a limit per se. Obviously, when we think about common sense thought processes around how that’s paid out or restrictions around it, I would echo what Mr. Carter and Ms. Koller have said on this already.

Mr. Sankey: (01:22)
And Senator Thune, I’ve taken some of your time, so you go ahead and take another two or three minutes.

Mr. Thune: (01:27)
Oh, that’s all right. I did that. It was good to get that answer on the record and in more specific terms. Let me ask you, and this is for any of you, whether you believe that rules around name, image, and likeness should affect the college athletic recruitment process? And the second question is, will it affect the college recruitment process?

Mr. Sankey: (01:54)
The will it part, it absolutely has the potential. And that’s why in my comments, I observed the need to address the issue specifically. And I view that in several ways. One, if this activity is around recruitment, it’s simply an inducement and we lose the conversations that currently occur in recruiting around education, around geography, around the nature and support of the program and it becomes transactional. I think that is legitimately a concern that we should have.

Mr. Sankey: (02:26)
The difficult part is to create, whether it’s guard rails, fencing, framework for that limitation within legislation, and then to monitor that activity in a way that eliminates it or reduces it from recruiting. And I think it’s not simply an issue for high school students. I also think with what will be a freer environment for transfer student athletes, that same type of recruiting activity transfers itself to the college level under an unstructured name, image and likeness atmosphere.

Mr. Thune: (02:57)
Yes, sir.

Dr. Drake: (02:58)
If I may, I’m the son of a college athlete, my father went to college on a college scholarship. Wouldn’t have gone to college otherwise, because he wanted to play football, not because he wanted to go to college. And then actually he graduated from college, which he hadn’t never thought of and then practice medicine. Got a medical degree and practiced medicine until he was 99 years old. So it changed his life and it changed my life and our family’s lives. And so, the pathway was extraordinarily important. And I’m also then the father of a Division I collegiate athlete, now graduated and a visiting professor at NYU. But, I remember the recruitment process. He heard from 300 colleges when he was in high school and was recruited very actively by colleges in different states and then made a decision of the college he wanted to go to.

Dr. Drake: (03:46)
And it turned out to be a wonderful process for him, very affirming for him, and then gave him the ability to look across the country and pick the best match. And I think that’s a great part of this process. You’re not drafted and pointed to one team. I have a nephew who played in the NFL for six years and I’ve watched that process as well, and it’s quite a different process than the recruitment process. So I think that that’s something that needs to be protected. And we’ve seen with the laws that have passed already, that people in those states have been referring to … The state of Florida in particular, referring to Florida now as a place that students, athletes ought to come because of the NIL laws that would take place in Florida before others. And so, this one-upsmanship, as Commissioner Sankey has mentioned, has already started.

Mr. Thune: (04:29)
That would be one of the biggest concerns I have, representing a state where you’ve got some schools that are mid-major conference schools, Division II, many IA, is how it could affect the ability of some of those really quality schools. Many of which have attracted athletes from the region for many of the benefits that you all talked about. If this becomes a money issue, how that could impact that recruiting process. And I think that’s something we have to be really careful, or aware of as we work through this issue. And I will tell you it’s come a long ways. My dad was a Division I athlete, played at the University of Minnesota back in the late 30s and early 40s. He is one of the … In fact, he’s 100 years old and he, I think, by far is the only athlete still alive from that … When he was competing in the big 10.

Mr. Thune: (05:19)
But at that time, the idea of a scholarship was you worked for your room and board. He worked at a fraternity to make his board. So it’s changed a lot. And it’s great that these athletes have these opportunities, but we certainly want to make sure that this is done in a way that doesn’t create a lot of potential for bad things to happen. Thank you, Mr. Chairman.

Mr. Wicker: (05:41)
Thank you, Senator Thune. My dad was a junior college athlete back before World War II. And indeed, he will tell you at age 96, that it changed his life. Senator Tester, you are next. I’m guessing you ran cross country in college.

Mr. Tester: (06:07)
Pretty close. Well, I’m just going to tell you, my dad was a farmer and a meat cutter and lived to be darn near 89. So it’s a good thing. Hey guys, first of all, I want to thank all of you for testifying. I appreciate it. We need to stay in touch on this issue. I agree with Senator Thune about it’s got to be equitable. You cannot give advantages to the money to conferences, so to speak. If it does, we haven’t done our job. But more importantly, it has to be fair to the athlete. And I think that’s why we’re all here. My first question is for Mr. Sankey. Mr. Sankey, could you very briefly tell me the differences you see between the Florida law and NCAA’s proposal on NIL?

Mr. Sankey: (06:49)
Well, I think the challenge with what the NCAA has put together right now is it is principle-based, where Florida’s law is operationalized. From my perspective, the Florida law is pretty effective. I think it’s an improvement over what you’ve seen out of California. We obviously, through our university, had an opportunity to be in conversation about that law. I think the challenge for the NCAA’s working group report is how to actually legislate the rules. To legislate the rules in a way that would withstand legal scrutiny and one that would satisfy the extent, for instance, of the California law, which I’ve never thought is possible. And so, my basis for believing there needs to be a federal law is that these differences are significant. In particular, the effective date of the Florida law being next summer is of great significance in needing to move this along in a time efficient manner.

Mr. Tester: (07:49)
Gotcha. But, what you’re basically saying is, is the issue here isn’t necessarily the law itself, and don’t let me put words in your mouth, but it isn’t necessarily the law itself. It’s the fact that it needs to be a nationwide law. Any law that we have, there has to be a preempt, so you guys know the rule of the road for every state you’re recruiting from.

Mr. Sankey: (08:05)
Yes. From my perspective, Florida did what I would consider to be a pretty good job. They can’t preempt other state laws obviously, and they can’t deal with some of the legal issues I’ve identified today. The agent oversight is a concern still from that law. And I think that’s one of the challenges that would be present even with a federal law, is how do we oversee and hold agents or representatives accountable to standards in the right sort of fashion in real time?

Mr. Tester: (08:31)
Gotcha. Well, when Senator Moran had the hearing early on a few months back, we talked about catastrophic injuries. Mr. Sankey, this is for you. Do you think that if we do something on NIL that that would prevent … Are you asking us to … It would prevent us from doing anything else on an injury fund for injured athletes?

Mr. Sankey: (08:58)
No, not at this time. I’m not familiar with that exact conversation. I know of the fund. And in fact, there’s a conference our institute [inaudible 00:09:07] for disability insurance and loss of value insurance for student athletes on a regular [crosstalk 00:09:11]-

Mr. Tester: (09:11)
Right. But, I guess what I’m asking you is if we do a bill on NIL that is a national bill, you do not see that as preempting Congress from doing something in some other area to help athletes outside of NIL, for example, on injuries?

Mr. Sankey: (09:29)
I’ll do the dangerous thing, which is to say, no, I don’t, but I don’t know enough of the details to be the expert at this point. But, no, I don’t react [crosstalk 00:09:36] to that negatively in this moment.

Mr. Tester: (09:38)
That’s good enough for me. Ms. Koller, aside from name, image, and likeness and taking care of injured athletes, do you see any other issues that need to be part of a compensation discussion?

Ms. Koller: (09:51)
Well, I think we’ve discussed the issues in terms of compensation, but I think what needs to be part of the conversation is really athlete health, and safety, and wellbeing and national standards in that area as well. So I think that’s part of what my testimony was that we shouldn’t be so rushed to simply move on NIL that we forget. And Congress has held hearings on things like national standards for treatment of concussions, heatstroke, sports medicine. We have thousands of different approaches to how athlete healthcare is delivered because of the NCAA’s decentralized model. So what I would say is, is that as you look for a national solution and work toward a national solution on NIL, you not forget these other important issues.

Mr. Tester: (10:34)
Mr. Winston, first of all, I appreciate your career [inaudible 00:10:38].

Yeah. In Houston, mostly, Houston and Cincinnati.

Mr. Tester: (10:43)
Okay. Well, then I don’t think you weigh near what you did back in your [inaudible 00:10:48]. What I wanted to ask you is, is the schedule that you laid out didn’t include much for academics. I’ve heard this from other athletes, that if you’re a scholarship student, that your first obligation is to that sport. And it’s just the nature of the piece. I’m not being critical of college. What I’m saying is, is that, is it … I mean, is that pretty much it, football comes first, in your case, or basketball, or cross country, or whatever you might be and academics kind of fill in the gaps?

Yeah. I always somewhat joke that I was an athletic student, not necessarily a student athlete. Listen, it’s a tough schedule. It’s something that I think we understand even coming from high school, especially if you’re at a big high school program. There’s not a lot of time for extracurriculars either. It doesn’t make it okay, but I think it’s an understanding that, you’re right. I mean, you have a study hall until 9:00 and you go to bed and then you get up at 6:00 AM the next day and you start it again, right? And that’s something that unfortunately, quite frankly, maybe we get used to. Some guys really thrive in that structure, to be completely frank, but at the same time, you’re right. It’s a complete balancing act every day.

Mr. Tester: (12:06)
Okay. I’ll [crosstalk 00:12:06]-

Mr. Sankey: (12:07)
Thank you, Senator Tester.

Mr. Tester: (12:08)
I know. I just need to get from Mr. Winston, is calling the group licensing proposal, just so I can take a look at it and see [crosstalk 00:12:16]-

Yeah, I’m happy to send it.

Mr. Tester: (12:17)
Thank you.

Yep.

Mr. Sankey: (12:19)
Thank you, Senator Tester. Senator Cruz.

Mr. Cruz: (12:24)
Thank you, Mr. Chairman. Thank you to each of the witnesses for being here, for your good work. There are a lot of reasons people choose to come to Texas, and one of them is to play sports. And in Texas, we take our sports very seriously. Indeed, ESPN still ranks as the greatest national championship game ever, the game in 2005 when the Texas Longhorns and Vince Young stunned USC, and the Heisman Trophy winner, Reggie Bush. And I’ll tell you, Heidi and I were at that game in the Rose Bowl. And I for one agree with ESPN, that there’s never been a game like it.

Mr. Cruz: (13:07)
Texas is a home to 53 colleges and universities whose student athletes compete at the NCAA level. 23 are Division I. Of those 23 Division I schools, six are in the power five conferences, the ACC, the big 10, the big 12, the pack 12 and the SCC. Four of those six are right now the reigning national champions in at least one sport. One of the challenges of this issue that each of y’all are considering is how is it going to impact parody and competitiveness between big schools and wealthy schools, and those that may not be as big, and may not be as wealthy. Texas is home to a number of schools that are not in the power five. For example, the University of Houston, a phenomenal basketball school and Phi Slama Jama was as great a collegiate program. Yeah, I’m using it as an opportunity to revel at old memories.

Mr. Sankey: (14:12)
Get to the point.

Mr. Cruz: (14:17)
But the University of Houston’s in the American Athletic Conference. Dr. Drake, in your opinion, should the NCAA determine an NIL policy that will apply to all member schools, and how do you avoid giving additional advantages to large and wealthy programs?

Dr. Drake: (14:44)
Well, thank you, Senator. That is one of the concerns in the NIL program. Their issues would be large wealthy programs. Programs in urban areas, versus programs in rural areas, et cetera. And these are the devilish details that are being worked out to try to get as much parody as there can be. There’s not total parody, as we speak, but the idea is to try to move forward to something that gives more opportunity for student athletes without disadvantaging institutions unnecessarily, with the focus on the student athlete.

Mr. Cruz: (15:15)
It seems to me that if the NCAA is going to consider this initiative, that two guiding principles ought to be looked to. Number one, fairness, being fair to student athletes. And student athletes undoubtedly put enormous time, and energy, and dedication, and a great many of those student athletes are not going to go on to a professional career. And fairness is certainly important. A whole lot of revenue’s being generated often by, quite literally, the sweat of their brow. And so, fairness matters.

Mr. Cruz: (15:53)
But at the same time, preserving competitiveness. I think a test of success would be the competitiveness we see in sports today that any change in policy wouldn’t significantly alter it, to just draw all the money and power in a handful of schools and disadvantage the others. How’s then NCAA accounting for both of those principles, fairness and preserving competitiveness?

Dr. Drake: (16:28)
Well, thank you again, Senator. Fairness is extraordinarily important to us. The opportunity for student athletes is extraordinarily important. You mentioned a very important point. We, at the Ohio State University have about 1100 NC-2A athletes. So when we think about name, the marketable name, image, and likeness of individuals, would it be a handful? I mean, a few of them would be in that category. And we think very much about what happens to the other thousand-plus athletes that we have. My wife and I have them over for … Teams over for dinner and have been doing this for 15 years. And we get to meet our student athletes and talk-

Dr. Drake: (17:03)
… I’ve Been doing this for 15 years, and we get to meet our student athletes and talk to them about their experiences. And it’s a wonderful chance actually to hear what they’re experiencing and going through. And I will say that also I was a Medical School Professor for years. I was a Dean of Admission at my medical school. And I used to look at the student athlete grades as they came in. And I would say, “Gosh, if it’s a basketball player, I’m going to give him a little bit of credit for the winter, because they’re playing games, and traveling and all that.” And that was me trying to be smart as the son of a college athlete.

Dr. Drake: (17:31)
What I noticed is as often as not, they would actually have better grades and test scores during the time that they were in season, because of the discipline of working. I have summarized the discipline of working through what they were doing, helped a lot. So we think of these as great opportunities for the student athletes and want to make sure that we maintain that fairness. And so the three divisions are working on rules to be able to implement in a way that allows the competitive advantages to stay as fair as possible while providing opportunity for student athletes across the board.

Senator Ted Cruz: (18:02)
Thank you.

Mr. Wicker: (18:03)
Thank you very much, Senator Cruz. Senator Rosen joins us remotely.

Ms. Koller: (18:12)
Well, good morning, everyone. I hope you can hear me okay.

Mr. Wicker: (18:15)
You’re great.

Ms. Koller: (18:17)
Thank you. So thank you, Mr. Chairman, Ranking Member Cantwell, to all of the witnesses for appearing here today. Higher education has gone through a major upheaval since the start of the coronavirus pandemic. School closures, of course, forced universities and colleges to move classes online and cancel all of our wonderful sporting events. I think each one of us could vow, Senator Cruz, we all have some good team memories. So we’ll have to all talk about that when we can get together at lunch. But we love our college sports, for sure. But as college athletes begin to return to campuses for voluntary training, COVID-19 is on everyone’s mind. So in the past few weeks, a number of division one schools have reported college athletes testing positive for the coronavirus. Although, the NCAA has published guidelines, just guidelines for restarting college sports.

Ms. Koller: (19:09)
It is left up to individual schools to decide on how to implement health and safety policies. So the lack of a unified response from the NCAA may result in what we see playing out in the States, a patchwork of mandatory and voluntary guidelines potentially resulting in spikes and transmission of the virus in some states, and some schools and not in others. And some colleges test their students every week. Others only when you have symptoms. And so we need a strategy generally for the coronavirus, where we need a 50 state strategy, one for our whole country, not a 50 one state strategy. We have to have a nationwide approach. So for division one athletics, it seems advisable to have a one school strategy for all those 353 schools when we combat the virus. So Dr. Drake, does the NCAA plan to issue universal coronavirus guidelines to all participating colleges and universities?

Dr. Drake: (20:12)
Thank you, Senator. This is under discussion actively on a daily basis. And we will be talking about this later on in this week. I certainly support that.

Ms. Koller: (20:23)
But you’ve used your oversight powers in the past most notably in addressing sexual assault. So I believe that in extreme cases, such as matters of a global pandemic, that the NCAA should step in to provide a nationwide framework. Not all schools have the resources to develop this. And we want to protect the health and safety of all our student athletes. They are our children. And we need to be sure that if there’s any long lasting effects of this virus, we don’t want to expose them to a lifelong chronic health disease. And so do you know so far if this lack of a uniform guideline, if they’re impacting people’s decisions to come back to school?

Dr. Drake: (21:08)
No, I couldn’t answer that, Senator. I mean, I’ll say that the policies, because it’s a 50 state organization with 1,100 schools, the health policies tend to be guided locally over the years. That’s been the tendency. This is a new obviously evolving circumstance. And we have guidelines that we’ve used at our institution, which I support and would recommend for everyone. And as I said, the NCAA, my colleagues there, and I have been discussing this on an ongoing basis as the pandemic has rolled forward.

Ms. Koller: (21:39)
Well, I hope that you address that because I think that having a level playing field, we’re talking about sports here, would be great that all universities, colleges, whoever is under your umbrella, they’re operating off the same set of rules. It makes a lot of sense. And we’re going to just build off of what people have spoke about before in just the remaining time that I have. We know that given the time commitment that the athletes spend in practice, training, traveling for their respective sport, and the comparatively small amount of time they spend in the classroom, is there a case to be made that some of these athletes are really no longer amateurs and should we be reconsidering how we define student athlete? And how do we ensure that given these demands college and universities are giving student athletes realistic time they need to have a quality education that’s going to serve them the rest of their life? And Dr. Drake, you can go ahead and answer again, please.

Dr. Drake: (22:39)
Thank you very much. We believe very much in the student part of student athlete, as Commissioner Sankey and others have said. Our student athletes graduate at an even higher rate than our general student body. And for them to maintain their eligibility, they have to maintain progress through school. And we support that and think that all the time. It’s been an avenue toward getting to school for so many students. We appreciate that. An avenue towards staying in school for so many. But also an avenue toward graduating from school for so many. And that’s an important part of our work.

Ms. Koller: (23:11)
Well, I appreciate all of your work and we want to set all of our students up for success after they graduate. And that’s the purpose of this hearing today. Thank you.

Mr. Wicker: (23:20)
Thank you very much, Senator Rosen. Senator Moran.

Senator Jerry Moran: (23:24)
Mr. Chairman, thank you. Thank you to you and the Ranking Member for conducting this hearing. Thank you for the opportunity you gave Senator Blumenthal and I to have a hearing February the 11th related to this topic of NIL. And now in this hearing, perhaps more broadly, just the care and wellbeing of student athletes. Let me start. I’ve got so many questions and so little time. Mr. Sankey or Mr. Carter, I want to talk about the A5 conferences. The requirement for providing healthcare, it’s my understanding that among the reforms that came about, I think in 2015, there’s a requirement that A5 schools must provide medical care to former student athletes for at least two years after graduation. Under this requirement, what kind of care, what kind of costs are covered? And what’s the magic number about two years? Is there any suggestion or belief that it should last longer than that?

Mr. Sankey: (24:28)
I don’t know the exact expenditure. So I’ll allow Keith to share a perspective from a campus. You’re correct that we did at the autonomy five level adopt that legislation. A debate about two years, as I recall, generated from discussion at a state level and the PAC 12 Conference introduced the original concept, which we all supported. And in fact, even without legislation, we have provided medical care at a campus level for student athletes, post eligibility. That’s more a habit than a requirement that’s taken place over the years prior to that legislation, which as you noted, does now exist.

[crosstalk 00:25:06] Does that cover all student athletes?

Mr. Sankey: (25:10)
The new rule did, that’s right.

Okay. Anything further on that?

Mr. Carter: (25:16)
I’ll just piggyback on that just briefly. Obviously for us, we’re here to talk about student athletes and I think for this particular issue, it’s the right thing to do. And I think for us, we’re going to make sure that our student athletes are healthy. We want to make sure that we talk to them in the recruiting process about how this is a family, and we want to take care of you, and the things that you need to get done. We want to make sure that we come forward with that at the end as well. So I think it’s a great policy. With Commissioner Sankey, I’m not exactly sure on why the two years was a part of the policy, but certainly we want to take care of our student athletes.

Let me turn to transferring to other schools. My understanding is that in most circumstances after transferring to a different institution, the student athlete must sit out for a year before becoming eligible to play again. Is there a belief that that’s the appropriate requirement? Do you think that a student athlete should be able to transfer without having to sit out for that year? If not, in what circumstances do you believe that would be appropriate? And I would welcome the comments of any of our witnesses.

Mr. Sankey: (26:26)
We’re clearly moving in that direction. So there are, I think five sports, there are really three in which I deal on a regular basis, football, men’s and women’s basketball, that have that one year residence requirement. The others will have the ability to have an exception to that rule. By January, the NCAA nationally has said that it will entertain a review legislation to alter that one year transfer withholding. We have just removed the set of restrictions on communication to free up communication, destination and financial aid once you transfer. I think that was a good first step. This next consideration needs to consider issues like academics. I think that’s an important part of the transfer world. I also believe the team to which an individual is transferring and those student athletes have to be considered, and how you prepare a team and collect the team.

Mr. Sankey: (27:18)
But I’ve certainly indicated openness to the change that you’ve identified, which is the removal of that residence requirement. But I think there are some considerations that need to be introduced rapidly so that we can solve this problem sooner, rather than later.

I have several other questions, but I’d welcome anybody else who has a quick comment on this one.

Mr. Wicker: (27:38)
Who wants to volunteer?

Don’t encourage them, Mr. Chairman, I want to ask about scholarships. What’s the most common reason that a student athlete scholarship is revoked? And are there circumstances in which if you told us why an athlete’s scholarship was revoked that we would find that objectionable? Are they always revoked for what would seem to the average American, to us on this committee, which may not be the same thing as average Americans, I’ll go back to the average Americans. Would they find it objectionable for the way that student athletes are treated in regards to maintaining their scholarships and the circumstances in which they might be revoked?

Mr. Carter: (28:22)
Yeah, I would say that probably a couple of reasons. One would be an academic reason. One would be that if they were not fulfilling their academic requirements, that’s obviously a reason. And then certainly if there was a disciplinary reason that reached a level that we deemed that the student athlete did not need to be at our university. Those are probably the main two reasons. But, obviously most of the time student athletes are there. They have that scholarship and they’re going to be able to have that throughout their career.

Dr. Drake: (28:50)
Senator, I think that most Americans would be surprised that the circumstances under which student athletes keep their scholarship. That it’s not something that play on the field has removed from them. And that the way you bring them in and support them through their educations routinely.

Thank you for that answer. I thank you, Mr. Chairman.

Mr. Wicker: (29:09)
And thank you, Chairman Moran. And Senator Blackburn, are you with us?

Senator Marsha Blackburn: (29:17)
I’m with you. Thank you.

Mr. Wicker: (29:17)
You are recognized.

Thank you, Mr. Chairman. And I thank you for the hearing today on this. But I will tell you for our guests that are there and we thank you for the time that you’re giving us. It ought not to take another congressional hearing to have the NCAA address NIL issues. And as Chairman Moran mentioned, this is the second time we have had a hearing on this. And we had Dr. Emmert in front of us earlier this year for what proved to be a very unsatisfactory hearing and approach. So I want to do some yes and no questions. And Mr. Carter, we’re going to start with you. Full disclosure, my son ran cross country there at Ole Miss. My daughter is also an Ole Miss grad. But let me work through a series of questions and just starting with you going all the way through the list to Mr. Winston. A simple yes or no. Do you believe student athletes should be able to profit from their NIL? Yes or no?

Mr. Carter: (30:34)
Yes.

Okay, Mr. Drake.

Dr. Drake: (30:40)
I’m sorry. Yes, I got it.

Ms. Koller: (30:41)
Yes.

Mr. Sankey: (30:43)
I’m working on moving to a yes.

Yes.

Okay. All right. Thank you. And second question. Has the NCAA adequately handled the situation? Again, Mr. Carter, start with you. Yes or no?

Mr. Carter: (31:00)
Not yet. No.

Okay.

Dr. Drake: (31:04)
Not completed. So we’re in process.

Ms. Koller: (31:08)
No.

Mr. Sankey: (31:08)
It’s a work in progress.

No.

Okay. And the third question. Will a patch work of state laws be problematic?

Mr. Carter: (31:24)
Yes.

Dr. Drake: (31:25)
Yes.

Ms. Koller: (31:27)
Not as much as they say.

Mr. Sankey: (31:30)
It will, yes.

I agree with Ms. Koller, it’s overstated the issues that will happen from a patch work.

Okay. Well, what we know is that the NCAA has not adequately addressed this. They have that a patch work would present some problems, and that student athletes should be able to be compensated for their name, image, and likeness. Let’s see, Mr. Carter and Mr. Sankey, let me come to you. And Ms. Koller touched on this with putting things in legislation being a little bit prescriptive. And I think we’ve all looked at the report that came from the NCAA, and that was not satisfactory to say, “Here are some guidelines. We may or may not take a vote.” That is not addressing the issue. And I think you all have to agree, this is an issue that has gotten away from you.

So Mr. Carter, and then to Mr. Sankey, how can Congress help ensure accountability and transparency in this legislation, in NIL legislation? Expecting that the NCAA is not going to on their own come up with something. So how do we ensure accountability? How do we ensure transparency in this?

Mr. Carter: (33:11)
Well, I think obviously that’s why we’re here today to talk about a lot of these potential solutions. And I think that we’ve outlined a framework that makes a lot of sense. There are certainly some things that we need to be cautious of. And we talked about those. But I do think that putting our foot on base at some point, obviously we have a timeframe. We’ve got about 12 months before this goes into effect in Florida. So I think that doing that, and then certainly coming back to where does the final enforcement and monitoring lie? And I think that ends up with a hybrid approach where the NCAA is involved, Congress is involved, and then ultimately probably a third-party is involved to help administer this when it’s all said and done.

Do you think that there should be a morality clause included in legislation, so that-

… Included in legislation so that there would be a way to deal with bad actors?

Mr. Carter: (34:08)
Absolutely. Yeah. I think we’re going to have to anticipate those types of things. I think that certainly with the recruiting issues, potential issues that we’ve talked about with agents and different people that are going to be involved in the process, I think there’s got to be some guard rails there to protect against that.

Okay. Mr. Sankey.

Mr. Sankey: (34:28)
I think Keith identified the need for a third party. I would absolutely be open to that approach. As currently structured, I’m not convinced the NCAA enforcement model is designed to handle this issue in real time. Where that authority rests, I think remains for conversation, and I think it is an important conversation.

So you see a third party as opposed to a committee from the NCAA handling this.

Mr. Carter: (34:59)
Senator, I’m open to that. I’ve not seen other models that solve the problem beyond that part of the conversation.

Thank you. Yield back.

Chairman: (35:11)
Thank you, Senator Blackburn, Senator Blumenthal.

Senator Blumenthal: (35:17)
Thanks, Mr. Chairman. We come here in the context of a history of athletes unfortunately being used as profit centers. They are a source of revenue to the colleges. Very often they are unable to benefit from their name, image, and likeness. By now, I think we’ve thoroughly established it in this committee, through our subcommittee hearing back in February, and now in this one, but there’s just abundant evidence of the profiting by schools at the expensive athletes. It may be for causes that are regarded as worthwhile, like financing other sports or the cause of athleticism and the university in general. But I think the question for us is, how do we protect the athletes? How do we make sure that they are not, maybe inadvertently victims of a process that puts them behind profits? And I think the latest example, frankly, are these waivers. Senator Booker and I have introduced legislation that essentially would prohibit them. And, president Drake, you and I spoke yesterday about the buckeye pledge. I’ve since reviewed it. I know in good faith you told me it was a pledge, but it says very explicitly that, “I understand that although the university is following the Coronavirus guidelines issued by the CDC and other experts to reduce the spread of infection, I can never be completely shielded from all risk of illness caused by COVID-19 or other infections.” Then it goes on to say that, “The signer,” and the athletes’ signs this document, acknowledges that, “These expectations and pledge are a condition of my participation,” et cetera. The other pledges are even more explicit. University of Tennessee, which we have, for example, university of Missouri, I understand we’re trying to get SMU. But all of them, as the university of Missouri says, “I pledge to accept the responsibility to abide by these guidelines in order to keep myself, my teammates,” et cetera.

Say they use the word risk and they provide for an assumption of risk by the athlete. That is in effect a waiver from my standpoint as a lawyer, and I guess my question to the panel is, isn’t it unethical to ask a college athlete to assume the risk of participating, which has the effect of waiving rights in court if that athlete becomes sick and if his or her future is in peril, not to mention their health, if they are affected by Coronavirus? Isn’t that unethical and shouldn’t it be illegal? Don’t you think that the measure that Senator Booker and I have introduced should be passed forbidding these kinds of waivers? We can begin with you or any of you.

Dr. Drake: (39:32)
Well, let me speak maybe first, Senator Blumenthal. I appreciate your question and our conversation. And I’ll say that I don’t support a waiver or an assumption of risk in a legal sense. What we want to do is to make sure that people are behaving in a responsible fashion to protect themselves and their community.

So on behalf of Ohio State University, if any athlete ever sued, you’re an institution, you would say, no rights have been forgone or waived or sacrificed.

Dr. Drake: (40:05)
I certainly would say that.

As a result of this document.

Dr. Drake: (40:09)
Yeah. Just, I mean, period, I would say that we would not want this, anyone to sign any of their-

I hope your lawyers agree with you.

Dr. Drake: (40:16)
Well, I hope so too, but again, our goal really was to make sure that the students took their individual behavior as an important thing that they were going to follow to make sure that they were doing what they could to protect themselves.

Chairman: (40:32)
Thank you, Senator Blumenthal, Senator Capito.

Senator Capito: (40:35)
Thank you, Mr. Chairman, and thank all of you for being here today. Mr. Sankey, when that question was asked, should athletes be able to be compensated for their name, image, and likeness? And you said, you’re leaning towards, you’re trying to get to yes. I’m with you. I’m trying to get to yes here, but I’m also realist to realize this train’s left the station and we got to do it right.

So briefly, I have several concerns. One is on the title IX issue, and many of you mentioned this in your statements, but I am concerned for the women athletes. My daughter was a division one athlete. I was actually one back in the day myself, and we’ve come a long way obviously since the 70s, but I am concerned of what I could see as developing inequities in the ability to earn from your name, image, and likeness for a female athlete, as opposed to the more higher profile sports that the male athletes are playing. Mr. Sankey, I’ll ask everybody a question on that.

Mr. Sankey: (41:36)
It’s a bit of a hypothesis, and my assumption is, football being what football is, there will be a great deal of this activity driven there. But, we’ve had women’s basketball teams win national championships, two play at the same time in a national championship contest with highly prominent young women involved, their gymnastics on our network every Friday night has drawn attention, but I am concerned that the amount of NIL activity around football and men’s basketball will pull away funding from women’s sports.

Ms. Cole.

Ms. Koller: (42:10)
Senator, I think this is an area where there’s just a gender equity opportunity. So title IX, of course, does not apply at all to name, image, and likeness deals [inaudible 00:42:21].

Ms. Koller: (42:18)
(silence)

Senate Hearing Transcript on College Athlete Compensation July 1, 2020

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