The Washington PostDemocracy Dies in Darkness

The college sports debate comes to Capitol Hill, athletes not invited

NCAA President Mark Emmert, shown testifying during a Senate Commerce subcommittee hearing in 2020, will be back on Capitol Hill this week. (Susan Walsh/AP)

There is a continual undertow on NCAA issues that pulls even the most well-meaning people adrift. It’s a current of sentiment that says others know what is best for college athletes, who should run along and play while the grown-ups make the real decisions. A powerful Senate committee is about to hold a consequential hearing on the name, image and likeness rights of college athletes, and the list of people who will publicly testify looks like a jury from the 1950s. Six guys, most of them silver-haired, not one under 45. No women.

You can see the problem. I mean, you will literally see it Wednesday morning, when the Senate Committee on Commerce, Science and Transportation convenes to hash over NIL rights. Many senators are genuinely interested in NCAA reform; some of them have been working on achievable bipartisan NCAA legislation for a while and are asking good questions about the institution. But that’s just it — the focus is always on the institutions.

And so, NCAA President Mark Emmert again will be the lead witness, his brow furrowed, as he tries to decide what color paint might best cover up the rickety, peeling and disorderly house his “institution” really is, hoping to divert your attention from the thousands of athletes holding it up with the muscles of their backs.

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NCAA issues are hard. Working on them is like hacking through mangrove thickets. But they would be less hard if the Honorables would focus less on the institutional impact of NIL legislation and more on the personal. The simple fact is that a person’s natural-born name and attendant economic rights are inherently their own property. That the NCAA is having trouble unwinding the problem of its own creation, that it has immorally built a flush economy by purloining the images and likenesses of others and refused to stop despite a decade of court reversals and other warnings, should not hold up federal NIL legislation a moment longer. And yet.

Over the past year, eight pieces of federal legislation have been proposed, from Sen. Roger Wicker’s (R-Miss.) Collegiate Athlete Compensation Rights Act, to Sen. Jerry Moran’s (R-Kan.) Amateur Athletes Protection and Compensation Act, to Sen. Chris Murphy’s (D-Conn.) College Athlete Economic Freedom Act. None has passed, while leaders continue to wrangle in various committee hearings over how best to protect the “institution.” Similar hearings with similar witness lists have been held in various committees: the Senate Committee on Health, Education, Labor and Pensions; the Senate Judiciary Committee; and the Senate Subcommittee on Manufacturing, Trade and Consumer Protection. The differences boil down to this: Lawmakers disagree to what extent the NCAA should be granted cover, such as antitrust exemption, to ward off lawsuits by, you know, athletes.

Meanwhile, these hearings have the tone of a benevolent father discussing a limited allowance with an adolescent. “How much do you think you earned for washing my car, Joey?”

Those scheduled to appear Wednesday include Gonzaga men’s basketball coach Mark Few, Howard University President Wayne A.I. Frederick, ESPN’s Rod Gilmore and two law school professors who study NCAA issues. One of them is Matthew J. Mitten, a distinguished gent from Marquette Law who writes papers with names such as “A Regulatory Solution to Better Promote the Educational Values and Economic Sustainability of Intercollegiate Athletics and who has advocated for NCAA antitrust exemption because it is “a unique joint venture among institutions of higher education.”

Since when does a venture’s uniqueness justify its illegality?

This is a witness list outrageously stacked with pro-NCAA advocates, from Few — an institutionalist who has suggested politicians stay in their lane and leave the NCAA to solve its problems — to Emmert, who a full decade ago convened a “summit” to discuss issues plaguing college athletics and neglected to invite a single athlete.

Only occasionally do lawmakers hear athletes’ personal accounts — usually privately. Sedona Prince, a basketball player at Oregon, has spoken with legislators and will offer testimony to the Commerce committee, but it will be in writing. If she were allowed to speak publicly along with Emmert, this is what she would say: As a freshman at Texas, she badly broke her tibia and fibula. After multiple surgeries, she transferred to Oregon, where she struggled to pay medical bills in the tens of thousands of dollars, while the NCAA denied her so much as a GoFundMe campaign.

“I just think it’s outrageous that the NCAA continues to treat us like children and takes away our rights in the name of somehow ‘protecting us,’ ” Prince has said. Her written testimony will contain this plea: “No legislation should sacrifice college athletes’ rights and freedoms to protect the NCAA’s bank account.”

Perspective: The athletes are the only thing saving college sports from the NCAA

There is a business term called “input bias,” and Congress is suffering from it. It has heard from far too many chancellors, vice chancellors, law professors, athletic directors and commissioners parading to Capitol Hill in a quest to protect their institutional income. Input bias, a term coined by Wharton business professor Maurice Schweitzer, is what happens when information is used or misused to form false impressions that lead to flawed conclusions. Example: Exorbitant spending on research and development is not really a measure of innovation. A longer stay in a hospital does not mean better care. Just because you work in the office later doesn’t mean your work is better. And a flood of testimony from institutional representatives does not yield the best advice on how to reform institutions.

In fact, this litany of “institutional” testimony skews the issues. Example: If an Ohio State football player cuts a Campbell’s Soup commercial, should he have to disclose that money to the school’s athletic department and the NCAA, and should they have veto power over it?

This is one of the thornier “institutional impact” debates that has held up federal legislation.

But the answer cannot come from the institutions. It can only come from looking at the personal. Does a talented scholarship cellist have to tell a dean if he made money playing a gig? When Yo-Yo Ma was at Harvard, did he have to let the school decide whom he could play for, and for how much? Of course not. When Natalie Portman was at Harvard, did she have to disclose when she got a movie deal or what she was paid for a Star Wars role? No, because those would have been outrageous abuses; the school simply had no right.

So why on Earth should the NCAA be permitted to tell Sedona Prince that she can’t have an Instagram sponsor on the 240,000-follower account she built by herself?

This is how far off course the “institutional” undertow has pulled us — until congressional committees and hearings are completely upside down. Why is Congress so preoccupied with protecting the NCAA from Sedona Prince, rather than protecting Sedona Prince from the NCAA?

There are a lot of messages in that witness list, but the primary one is this: Congressional lawmakers are nowhere near granting college athletes their full rights. They haven’t even granted them a full voice.

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