Senators Disagree on How Much Congress Should Get Involved in College Athletics

Texas forward Jericho Sims (20) and North Carolina forward Armando Bacot (5) tip off for the start of an NCAA college basketball game for the championship of the Maui Invitational, in Asheville, N.C., on Dec. 2, 2020, Kathy Kmonicek/AP Photo

Senators agreed on collegiate athletes benefiting financially and in other ways but differed on how much Congress should get involved, if at all.

The Senate Judiciary Committee heard from stakeholders on Oct. 17 about the future of college athletics, from the issue of Name, Image, and Likeness (NIL) to college athletic compensation and benefits.

The last time the Senate held a hearing on the issue of name, image, and likeness was in 2020.

NIL rules have been a prominent subject in the last few years as college athletes have fought to get paid. The NCAA had prohibited its athletes from receiving money from sponsorships and other income streams that professional athletes enjoy, but in 2021, the Supreme Court ruled that this NCAA prohibition was unlawful.

So far, 32 states have NIL laws, with California being the first to pass one, according to the law firm Saul Ewing, which represents NCAA athletes.

Currently, Bronny James, son of NBA star LeBron James, is the top-earning NIL athlete, worth $5.9 million, according to the sports website On3. The younger James will soon start his first season with the University of Southern California men’s basketball team. He is expected to declare for the NBA draft after the season.

The witnesses—including Charlie Baker, former Republican governor of Massachusetts and current NCAA president—had different views about the future of college sports and how much, if at all, student-athletes should receive in compensation and benefits.

This includes whether student-athletes should be treated as employees of their college or university—a status that would have significant impacts on athletic programs and whether they, namely the small programs, can survive if they have to allocate their budget toward paying student-athletes. Other issues include equal pay between men’s and women’s athletics programs and how NIL programs impact the competition between athletic programs attracting student-athletes.

‘Much-needed Modernization’

“It is no surprise to anyone here today when I share that college sports are at a time of great change and much-needed modernization,” Mr. Baker stated in his written testimony. “This change is largely due to the cultural, legal, and financial forces that are coalescing to evolve student-athlete needs and expectations.

“Given our association’s mission to provide a world-class athletics and academic experience for student-athletes, we recognize that the NCAA needs to modernize ourselves to shape a fair, fulfilling, inclusive, and sustainable future for college sports.”

Mr. Baker noted the NCAA having new initiatives such as creating a “student-athlete health insurance fund” to provide student-athletes “access to health insurance for athletically related injuries up to two years after graduation.”

Mr. Baker expressed appreciation for Congress getting involved in the NIL issue and cited legislation, including one introduced by Sens. Cory Booker (D-N.J.), Richard Blumenthal (D-Conn.), and Jerry Moran (R-Kan.) called The College Athletes Protection and Compensation Act of 2023.

However, another one of the witnesses, Walker Jones, executive director of The Grove Collective, which supports NIL athletes at the University of Mississippi, said that student-athletes deserve to be financially rewarded for their work.

“We are not conflicted in supporting any other agenda except assisting those student-athletes who choose to find opportunities to maximize the power of their brand,” he said in his written testimony. “Our focus and commitment singularly point towards our participating student-athletes and the long-term viability and health of collegiate athletics.”

Mr. Jones warned against Congress “drafting federal legislation that places control over collegiate athletes back into the hands of traditional powers” like the NCAA.

Meanwhile, another witness, Jill Bodensteiner, vice president and director of athletics for Saint Joseph’s University, said that her small school’s student-athletes do not want employee status. Otherwise, she said, they would have to experience what employees go through, such as paying taxes on their wages.

“They do not want to go through the state workers’ compensation system for their injuries,” she stated in her written testimony. “They do not want to punch a timeclock and stress about what is considered compensable time under the Fair Labor Standards Act.”

Don’t Want to Receive a W-2 and Pay Taxes

“Our student-athletes do not want to receive a W-2 and pay taxes instead of receiving financial aid, most of which is a qualified educational benefit that is not subject to income tax,” added Ms. Bodensteiner. “Our international student-athletes want to compete, and that likely would not happen due to the work limitations on their F-1 student visa status.”

Nonetheless, Ms. Bodensteiner said that students should be able to financially benefit through NILs. The NIL system, however, she said, is broken for numerous reasons, such as them not being subject to Title IX rules, which mandate equality between men and women’s programs that receive federal funds.

“My hope is that Congress, the NCAA, and the membership institutions can work together to improve certain aspects of college sports while maintaining the core of a system that is working extremely well for thousands of student-athletes, including those at Saint Joseph’s,” she said.

Another witness, Jack Swarbrick, vice president and director of athletics for the University of Notre Dame, called on Congress to get involved in college athletics “to resolve, once and for all, the status of student-athletes as students rather than employees.”

The other witnesses included Big Ten Commissioner Tony Petitti; Trinity Thomas, a University of Florida gymnast; and Ramogi Huma, executive director of the National College Players Association.

Senators, while largely agreeing on student-athletes benefiting off their own brand, diverged on whether Congress should get involved in collegiate athletics and, if so, how much.

Sen. Richard Blumenthal (D-Conn.), who was chairing the hearing in place of committee chairman Dick Durbin (D-Ill.) while he is recovering from knee surgery, said, “We need to avoid a race to the bottom in Name, Image, and Likeness.

“A bidding war among colleges that often tempt college athletes with unscrupulous deals or agents and put colleges at the mercy of an unequal playing field.”

Mr. Blumenthal asked all the witnesses if they are against the formation of a medical trust fund for student-athletes to cover their injuries, especially those which are long-term; if they oppose stripping scholarships from student-athletes who suffer career-ending injuries or are cut from the team; health and safety standards for student-athletes; and that programs that earn a lot of money cover insurance and medical costs of their student-athletes. None of them raised their hands.

The committee’s ranking member Sen. Lindsey Graham (R-S.C.) warned about “chaos,” a “bidding war,” and an “absolute mess” if the Senate Judiciary and Commerce Committees do not act in a year on the issues facing college sports.

Sen. Thom Tillis (R-N.C.), however,  warned that if Congress were to mandate student-athletes be considered college or university employees, small schools like St. Joseph’s would have “a skeleton of an athletic program” since “the numbers don’t work” financially. He also said that while there should be “rules of the road,” creating national standards for college athletes would require Congress to get involved.

Other issues surrounding college athletics were brought up, ranging from student-athlete safety to biological men competing in biological women’s sports to the unionization of student-athletes.