Terry Lyons

Issue of Name, Image and Likeness Created Unrealistic Congressional P.O.V.

By TERRY LYONS

BOSTON – This week saw two – count ‘em – TWO – Congressional bills to create oversight on the issue of Name, Imagine and Likeness for College athletics. Those two bills, will be added to a previous submission by Senator Lindsay Graham and a host of other lawmakers – Fed and State – have made for a “4th Down and Long” in addressing the entire foundation of the NIL concept.

With the latest, call it the third whiff, the United States House and Senate should be out!

On March 29, 2023, Congress held a hearing which came less than a month after former Massachusetts Governor Charlie Baker had assumed the position as President of the NCAA. It also came about a month after the NCAA had its first ruling in an NIL infraction case.

In early February, 2023 Congressman Chris Murphy (D-CT) introduced the “Collegiate Athlete Economic Freedom Act,” a bill co-sponsored by Massachusetts Congressional Rep Lori Trahan (D-MA) who is a former NCAA volleyball athlete from Georgetown University.

The Murphy/Trahan bill did not have specific language pertaining to an employee-employer relationship, a key legal designation that has all of the college athletics stakeholders concerned about that relationship and its influence on future legal maneuvers. Murphy’s bill also advocated athletes should receive a portion of athletic department revenues. Some of that language is included in the “College Athletes Bill of Rights” filed in December of 2022 by Senators Cory Booker (D-NJ) and Richard Blumenthal (D-CT).

On May 19, Senator Lindsey Graham drafted and introduced the “College Sports NIL Clearinghouse Act of 2023.”

“The purpose behind the NIL clearinghouse would be to monitor compliance, establish and enforce penalties and provide educational information to athletes. The legislation provides some protections to athletes, including prohibiting institutions from limiting playing time or making changes to scholarships as retaliation for an NIL deal. Yet, universities would have the power to prohibit their athletes from entering into agreements that would violate state law or the student conduct code.

“Institutions would also have the right to, “provide each enrolled student-athlete a list of entities” athletes would be prohibited from entering business relationships with. The clearinghouse would provide any information to the Federal Trade Commission, the Department of Justice or the attorney general of any state.”

Graham’s draft also called for third party oversight of Name, Image and Likeness for college athletics, removing the NCAA office and Baker from the equation, a proposal that would further place the NCAA in a position of weakness. The shifting power in collegiate sports has moved greatly to the College Football Playoffs and to the individual college conferences – all playing games of musical chairs to fight over worthy college football programs to hoist from one conference to another (see: Colorado, UConn and the constantly swirling rumors of expansion to the BIG 12).

The most recent Congressional take was the “Protecting Athletes, Schools, and Sports Act of 2023,” which contrasts with previously submitted “The College Athlete Economic Freedom Act.” The recent take, introduced by Senators Tommy Tuberville (R-Alabama) and Joe Manchin, (D-West Virgina), includes more protection to the NCAA and its member universities and colleges.

It had the backing, as you might expect, from Baker who issued a statement saying, “This important legislation is a major step in the right direction to ensure the health and safety of student-athletes, includes key measures to increase consumer protections and transparency in the NIL market, and aims to protect women’s and Olympic sports.” (Note: Olympic sports is an easy way for colleges to say – NOT College Football).

At issue as the Federal legislators play dueling bills is the fact individual States are getting into the act, usually with input from their local institutions all looking out for their own small world and short-term success.

Alabama football coach Nick Saban addressed key issues when he did a lengthy interview with the online publication that used to look like Sports Illustrated. Touching on all aspects of the NIL craze, Saban said, “I’m not trying to spearhead a solution. I talk to (SEC Commissioner) Greg Sankey a lot. I talk to [SEC associate commissioner] William King. I hear the other coaches in our meetings. I’m just trying to help provide information to [the United States Senators] so they know what the issues really are. I’m trying to also direct them to people I think can input the solution, like Greg Sankey and those kinds of people. Everybody needs to look at the issue from 1,000 feet. I don’t want to take opportunities away from players. I just think the mechanisms around how they get those opportunities need to be more standard for everyone.”

Saban speaks from a lofty position at the top of the power base pyramid of college football, but he notes the quagmire (awkward, complex and hazardous position) created as the introduction of NIL collides with college athletics.

“I think one of the things is everybody having a different state law,” said Saban. “A lot of people blame the NCAA for a lot of this, but the NCAA sometimes gets caught. … Because of the changes we’ve had in what’s legal and not, they can’t enforce their own rules and they’re in a little bit of a dilemma, too.”

Ya think, Nick?

As previous typing here at WWYI, the main issue the NCAA, the schools, the Feds and the States all seem to miss is the fact NIL now means “Now, It’s Legal,” for all the friends of the programs, the boosters (aka very wealthy alum), the local businesses supporting colleges, the former athletes who’ve struck it rich in the professional ranks, and “want to give back” to the place where they started their careers.

The Tuberville-Manchin bill proclaims, ““Student athletes should be able to take advantage of NIL promotional activities without impacting their ability to play collegiate sports,” said Tuberville, the former college football coach. “But we need to ensure the integrity of our higher education system, remain focused on education, and keep the playing field level.”

Yet, it’s first line of defense is a colossally unrealistic – let’s call it stupid – statement of the proposed law, noting:

INDUCEMENTS—

1) IN GENERAL—An individual, booster, or third party may not offer or provide a prospective student athlete or a student athlete with any compensation or benefit that is intended to induce the prospective student athlete or student athlete to enroll in or transfer to a particular institution of higher education.

Yeah, right!

Where does that gem leave the issue?

What sayith the wisdom of WWYI? – “The lethal Bouillabaisse of NIL (Now, It’s Legal) consists of desperate and disparate worlds, all with their own specific agendas. They all stir the nasty ingredients put forth by State legislation, Federal legislation, the NCAA, the Colleges and Universities, the so-called Student-Athletes who play Football and Basketball, the Student-Athletes who do not play Football and Basketball, the TV networks, the wealthy boosters/former athletes, the Conferences, the Conference Commissioners, individual school Athletic Directors, and the “Collectives” – business groups trying to make a buck by brokering NIL deals often graced by the University but not necessarily in the best interest of the individual athletes.

Many of the issues are confronted each and every day by professional sports entities who pay players on the table, as opposed to the old-school ways of under-the-table. The league/franchise owners and the players’ unions sit down and negotiate a “Collective Bargaining Agreement” that addresses every issue of league/sport operation – from regular season compensation to playoff shares, from schedules to travel regulations, from per diem to mandatory appearances, from marketing rights to use of IP (trademarks) and more.

The more the NCAA and its member schools, along with the Feds and States, try to avoid the pro model, the deeper they fall into the NIL rabbit hole.

Sooner, rather than later, there will be no way out.

HERE NOW, THE NOTES: The artist formerly known as The New York Times Sports section, aka The Athletic, created a FAN-Tastic take-out highlighting the work of Boston Celtics tv play-by-play man and Gowdy Award Hall-of-Famer Mike Gorman. The Athletic’s Jared Weiss did the reporting and typing and, quite frankly, deserves consideration for the annual Pro Basketball Writers Association awards for his work.

The story is a must-read and it was brought to WWYI’s attention by column-consumer and now contributor Rich Hussey, an NBC Sports Hall-of-Famer in his own right.

Back to the Athletic – the article highlighted Gorman’s entire career, his relationship with the late Tommy Heinsohn – his TV sidekick for 40 years (2,800+ broadcasts) and his plans to retire after this season.

One thing, well make it two things are for sure. Mike Gorman and the late Tommy Heinsohn will never be replaced. Never.