Thread by @andyhre

Someone asked me to jot down what I think would be important if *I* were crafting NIL legislation in Congress, coming from my personal perspective as someone involved in this space for 20+ years, and working with @the_pcleague. My thoughts follow in this thread.

1)Any federal legislation should come from a standpoint that college athletes are adults and full citizens. Enshrining into law some lesser status (e.g., they cannot endorse a CBD brand even though another student could) makes them second class citizens.

If a school is worried about unsavory endorsements, it can negotiate limits on the athlete’s rights as part of the general negotiations just as they do now with coaches.

2)Market are great ways for determining market value. Substituting a committee to determine “fair market value” Is a bad substitute for the market and ...

is another example of how people want to carve out second class citizenship for athletes, as if they don’t deserve the full fruits of their market value.

3)When people say they are afraid the market will come up either the “wrong” value or will be a “fake,” they are implicitly assuming that athletes have two sources of value – for their NIL and for the athletic services

– and that while NIL payments are now “good,” payment for labor services is not. Again, this assumption is a form of assigning athletes second-class citizenship because where else would being paid for having (legal) elite personal skills be prohibited?

This suggestion is a sort of poison pill, that gets the law to treat “amateurism” as a legal restriction, because if we say we’re worried an NIL payment might secretly be a payment for athletic services, and we prohibit that, we’re making the “amateurism” rules into Federal law.

No proponent of athletes’ rights, labor rights, or civil rights should be ok with that back-door approach to legalizing prohibitions on payments for labor services.

4)The response to this will then be that if athletes can be paid whatever the market will bear, this will interfere with the proper choice of where to go to college, which should be immune from market forces or considerations of price.

I always say that if colleges were actually worried about preventing students (and their parents) from considering price when choosing a college, then they would not charge for tuition. Virtually every family considers price when selecting a college,...

& many students attend, say, in-state public schools over out of state (public or private) schools because of cost, even if they might have preferred the other options, because of price. We sell college education in a market, and ask students to make $ decisions all the time.

The reason colleges are suddenly against money being a decision factor for athletes is that their value is so high that schools would be paying, rather than charging, for them to attend.

It's a bad reason to deny athletes the right to the highest bid for their services. Grad students & Profs do this just fine. Being a full-fledged adult citizen means having the right to weigh education, athletics, and compensation in full, and making the best choice.

Denying athletes that right, again infantilizes and reduces them to second-class status, and this is made more because the reason is simply to save colleges from having to operate in a labor market, even though they do just fine in every other labor market they operate.

5)This leads to the final point, which is that schools will say that this market for NIL and/or labor will lead to competitive imbalance in sports, and so NIL payments should be prevented from influencing recruiting. This is entirely backwards.

First, college sports are incredibly imbalanced, both in recruiting and in outcomes. Alabama, Ohio State, and Clemson consistently get the best football recruits. Duke, UNC, and Kentucky do the same in basketball.

There is lots of good economic scholarship that explains why this would not change if athletes could be compensated via a more market-oriented system.

Secondly, just as athletes should have the full right to their full value, schools too should have to operate as adults, rather than coddled children, in the market. If a school doesn’t want to pay the going rate for the best talent, ...

either for financial or philosophical reasons, they should live with the consequences.

A school asking Congress to curtail athlete right and full citizenship, simply so they can get a discount on running backs in the market is a horrible political justification for maintaining a two-tier citizenry system.

Finally, I would insist Congress be explicit with how Title IX to applies.

The current uncertainty as to whether Title IX’s financial proportionality rules apply beyond the cost of attendance (COA) is hindering the development of the market and will thwart win/win transactions.

There are two obvious choices: either Title IX obligations apply to all NIL payments or else Title IX financial proportionality (which the regs reference re: “financial assistance”) stops once compensation crosses from financial assistance into pure ( & taxable) compensation.

Both are potential policy options with pros and cons, but whichever you choose, make it clear so market participants can plan...

either putting aside a portion of the individual athletes’ market value payments for cross-gender matching, or allowing markets to operate without the need for such set-asides. Pick one and be explicit so the market can function without the inefficiency that uncertainty creates.

/End of Thread/
(at least for now)

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