On Capitol Hill the morning of March 12, 2024, Senator Ted Cruz hosted a roundtable discussion regarding the current state of NIL and the future of college athletics. The roundtable was designed to get the perspectives of numerous stakeholders to inform Congress about what is needed regarding a potential federal NIL bill. Contributors to the roundtable included legendary former Alabama football coach Nick Saban, Alabama Athletic Director Greg Byrne, ACC Commissioner Jim Phillips, college basketball players and NIL superstars Haley and Hannah Cavinder, their attorney and NIL expert Darren Heitner and The Collective Association President Russell White.
The discussion opened with Senator Cruz asking what the biggest challenges are in the current “wild west” of college athletics. Coach Saban started the discussion by saying the spirit of college athletics is gone and that “all the things that [he] believed in for all these years, 50 years of coaching, no longer exist in college athletics.” Saban said he got into coaching to create opportunities for young people to be more successful through personal development, academic support, and enhancing future opportunities for his players. He said that now with the transfer portal and collectives offering essentially pay-to-play, college football is just a form of free agency. It is no longer about the development of individuals. His wife told him, “All [the players] care about is how much you’re going to pay them. They don’t care about how much you’re going to develop them, which is what we’ve always done.” This seemingly was a contributing factor to his retirement after the 2023-2024 season.
Saban followed these comments later in the discussion by stating the following: “I don’t think that college athletics is really a business, college athletics is revenue producing.” The unanimous Supreme Court in NCAA v. Alston seems to disagree with Saban. Justice Gorsuch wrote in the opinion that “at the center of this thicket of associations and rules sits a massive business.”[1] The Court then cites the NCAA’s $1.1 billion annually generated by its March Madness tournament, and the College Football Playoffs valued at $470 million per year. Since then, the CFP signed a TV deal with ESPN worth $1.3 billion per season.[2] With college football and basketball generating billions in revenue a year, and their coaches often being the highest-paid employees of the university, it is hard to argue that these sports are not businesses.
ACC Commissioner Jim Phillips then listed five “pillars” that he hopes a federal bill will accomplish: (1) uniformity across all states that creates fairness and competition, (2) assurance that NIL is not an inducement for pay-to-play but related to actual services offered and rendered by a student-athlete, (3) recognition of the student-athletes as students and not employees, (4) protection of student-athletes from scrupulous actors through a standardized forms, contracts and agency/representative licensing requirements, and (5) the providing of legal protection to the NCAA to enforce these rules.
These points were echoed by Saben and Byrne, who believed that student-athletes should not be classified as employees and that the NCAA is in the best position to continue governing and enforcing rules if they get relief from their current pile of lawsuits. For the past year, NCAA President Charlie Baker has been lobbying Congress for an exemption to federal antitrust law, with courts striking down many of their rules and restrictions as anti-competitive in violation of the Sherman Act.[3] Byrne went even further, recommending there also be “safe havens'' from Title IX restraints. However, experts are conflicted on how and if Title IX would apply to an employment model and student-athlete salaries.[4]
Byren and Phillips stated their concerns for the future of Olympic sports if athletes were deemed employees of the school. At Alabama, football and men's basketball generate the revenue to fund the nineteen other sports at Alabama. Byren told the table that if student-athletes were paid as employees, sports such as swimming, tennis, and track, would be in danger. Phillips believed that universities having to pay salaries to student-athletes would reduce the current benefits provided, such as meals, mental health programs, and investment in facilities. Byren jumped onto this point, bringing up potential tax implications of all of these benefits under employment status.
The major consensus from today's roundtable was that student-athletes should be participating in revenue sharing. However, doing this without classifying student-athletes as employees remains unclear. Saban, Byren, and Phillips seem to suggest a special status for student-athletes must be created to achieve this. Student-athletes across the country believe that 20%-30% of revenue generated by college athletics should be shared with them.[5] Byren suggested that revenue sharing be individualized by sports with an equal split percentage across every sport, as opposed to the revenue of an athletic department as a whole. So, football players would only split the revenue generated by football, and volleyball players only split the revenue generated by volleyball.
If Congress passes a bill, it is evident that bipartisanship is necessary. A Congressional bill means that student-athletes do not have an actual seat at the negotiation table, making it pivotal both sides work together to ensure the welfare, health, and safety of athletes. Senator Blumenthal and Senator Moran seem to agree on this point. Senator Moran believes they are “this” close and wants to turn efforts into accomplishments. As Senator Cruz, almost correctly quoting Yoda, said, “there is no try, do or do not.” If Congress does this, they need to do it right by the athletes, or they should not do it at all.
The full discussion can be watched here.
Andrew Gagnon is a 2L at the University of Kansas School of Law, where he is a representative in the Student Bar Association and member of the Sports Law Society. He can be found on Twitter @A_Gagnon34 and LinkedIn as Andrew Gagnon.
[1] NCAA v. Alston, 141 S. Ct. 2150 (2021).
[4] https://www.on3.com/os/news/boise-state-legal-expert-sam-ehrlich-ncaa-using-title-ix-as-hostage-in-nil-reform/
