Thread by @andyhre

OK, in 45 minutes, Senate Commerce Committee testimony will begin re; the athletes rights NIL issue. I'll be trying to tweet what's being said and add a bit of commentary as I go, in this thread.
So this is 1/x.

The first thing I want to mention is that I am envious I wasn't invited, as the economist who started the state NIL movement out here in CA. But even with that envy, I also recognize the panel did not need another white male non-athlete.

(i mean I was an athlete back in the day .. captain of a club team Stanford Ultimate club team ... well the B-team!)

I have put a lot of hope in Rod Gilmore, as a former great college athlete and someone who now covers the game as a professional who is also a lawyer.

But it would have been nice to, e.g., include a female NAIA athlete like Chloe Mitchell, who is out there monetizing NIL right now and (one hopes) still able to been a college student in class and no exploding on first contact with well-earned income.
forbes.com/sites/karenwea…

anyway, having now disclosed my professional envy and my concern about the "who" of this panel, I need to get some coffee and get ready for the what. It is my hope there is a focus on "Athletes are Adult Citizens with Equal Rights" and those include equal access to the market.

I would ask you, every time you hear someone express a paternalistic concern that athletes might misuse their rights (and so they have to be denied them) to ask whether that's the standard a CEO or even an assistant coach is held to, and if not, why that witness thinks that's ok.

Similarly, when concern for, say, a so-so college program that might lose out on a high-quality athlete, seems paramount to that athlete's right to earn everything she/he is worth, please think about what the witness's priorities are.

There is good economic research showing that as long as schools don't choose to deny their athletes access to an NIL market, that a world with free NIL rights will be similarly balanced, in terms of the distribution of talent, as the current world. But even if it weren't...

..please ask yourself why a shift in where the talent ends up is more important than the athletes' right to earn full market value.

If an MBB athlete chooses UCLA over Gonzaga b/c of NIL, is that a problem for Congress? More than the current system where NIL isn't allowed?

Anyway, I need some coffee so until the hearing starts, be sure out check out this preview by @RossDellenger in SI:
si.com/college/2021/0…

See you in a bit.

@RossDellenger Oh, one last thing -- you can follow along with the hearing via the live feed at

commerce.senate.gov/2021/6/ncaa-at…

I don;' think this one made the cut on C-Span, losing out to some hearing on Belarus, but such is life.

@RossDellenger Having just read Ross's preview piece, I should probably mention that when Howard University president Wayne Frederick tells the committee HBCUs are potentially too poor to compete in a market-rate system for athletes, that @the_pcleague offered Howard, and every other HBCU...

@RossDellenger @the_pcleague a chance to change the system to put athletes' rights at the foundation, and also to make money for HBCUs. Some schools met with us and then said no. Howard didn't even take a meeting.

So more context for your thought process, as we hit the 10-minutes-til-showtime mark.

More context -- one of the witnesses, Rodney Gilmore, played for Stanford in the Elway era. Here's a very cool photo of him from way back when.

davidmadison.photoshelter.com/gallery-image/…

ok, we are live... Senator Maria Cantwell (D-WA) starting us off. She's discussing the bipartisan team of Senators who've been working on these issues.

Cantwell is the chair of the committee, having taken over from Roger Wicker when the Democrats won both seats in Georgia. She starts off by gushing praise on her home-state school (Gonzaga) and Howard, and then lands on the "articulate" faux pas in discussing Rod Gilmore

Cantwell points to Matt Mitten's written testimony, arguing against "Balkanization" in doping.

Economic comment: Allowing NIL is nothing like Policing against Doping. Al We should not use theories about economic "bads" to make rules for economic goods.

Roger Wicker is up now. R-MS.

He's the ranking member, previously the chair. His previously proposed bill was /bleh/

Wicker: broad consensus that Congress should enact an NIL law to give athletes same rights as other students. he then contradicts himself, saying the law should ban athletes getting paid to provide schools with services.

(in case it's not clear, you can't ban so-called "pay-for-play" and also claim you are putting college athletes on the same footing as other college students, all of whom are legally allowed to be paid to provide services to their schools while also attending school)

Wicker uses a code word "focused bill" -- this is a way of saying "do not use this bill to force any other change in NCAA rules other than re: NIL"

Senator Booker is now testifying, to his own committee, which is funny in a DC way.

First thing out of Booker's mouth is praise of Bipartisanship. Second (ok, not actually second) is praise for Mark Emmert.

Booker now pivots and explains he's been in Senate 7 years and seen no change on these issues.

He calls NCAA a de facto for-profit.

Says athlete safety issues are more important than economic rights.

[I can't disagree that life>economic rights, but I hope Booker doesn't mean there should be a tradeoff]

Booker with an aside: "I'm sorry there aren't athletes at this hearing"

Booker points out how the NCAA gooses up its grad rates not focusing on revenue sports. [it's even worse than that, but that's a good start]

Ok, Booker makes a "I was bad at football" joke... I will allow him one, since he played.

I do hate how often elected officials feel the need to make some sort of jocular "i like sportball" comment in what should be a serious topic.

Cantwell emphasizes the non-economic parts of Booker's testimony. Now Richard Blumenthal (D-CT) asks Booker if he supports (wait for it) the Booker/Blumenthal bill called the Athletes Bill of Rights. No surprise, Booker supports his own bill.

Ok, now we are turning to the witness.

oh god, Cantwell confuses the two black men on a the panel.

Mark Few is up first, gets to go first b/c he's from Washington state, like Cantwell.

Mark Few shows that being a millionaire is no guarantee of a good haircut.

Few seems to have been coached NOT to say the word "rights" with respect to NIL. He says "we should rely on fair market value" but then pivots to explain things about competitive balance that seem contrary to that claim.... listening for code words

Now Few is talking about all of the things Gonzaga "provides" to athletes, which is all nice and all, but it misses the difference b/w rights and privileges. "Every bit of athletic apparel and shoes they could ever need" is not the same as equality under the law.

Few offers the "if you don't like it, go play in the G-League" argument.

This is not how the Sherman Act works.

Few offers a paean to the benefits of amateur competition. I didn't hear anything in the long list of benefits that wouldn't be better still with less economic exploitation.

Dr. Wayne Frederick of Howard is up now.

Unlike a lot of Univ. Presidents, Dr. Frederick is an actual medical doctor. No "Ed. D." controversy here!

Howard says MEAC supports allowing NIL commercialization. I missed whether he used the word "rights" or not. My bad.

(Frederick of Howard)

Frederick argues that requiring schools to do too much would end HBCU sports.

As I mentioned during my pregame tweets, Howard was among the schools that chose not to explore the PCL plan (back when we were the HBL) to grow HBCU sports revenues.

Frederick argues for how important Howard's swim team is, as a symbol, and then says that if Congress requires too many health & safety requirements, he'll have to cancel the program

Rod Gilmore is up next.

Gilmore played FB and Baseball at Stanford, is a lawyer and covers FBS football. He's appearing via video.

Rod points out that "Everybody's Broke" makes no sense given how many more schools are asking into D1, than out.

Gilmore explains that the NCAA strips athletes of their *existing rights*.

Gilmore points out that schools worry that some of the current money flowing to schools might flow to athletes instead.

Rod uses "Second Class Citizens" to explain why denying athletes the right to the free market is more than just about money.

Go Rod!

Now Rod points out the industry where money IS allowed, is overwhelmingly white, while the athletes in FB/BB are majority black.

Rod makes 3 points:

The NCAA does not need you protection, the players do.

Only make a national law if that will help the players. The state law regime is allowing the market to work.

Only make a national law if it adds value, like group licensing

[I disagree w/Rod that no state law allows group licensing, as I think CA, inter alia, does but I agree with his sentiment]

Rod explains that a national law focused on NCAA's "guardrails" then it will leave players out.

Following that, here comes the Staypuf marshmallow man.

Sorry, my bad. Next is Mark Emmert.

Emmert is praising how many benefits the NCAA will give once they pass an NIL rule "later this month"

Now he says many state laws confuses things.

Note how Emmert never says "NIL rights" - it's always "compensated for the use of their NIL"

Also please do not drink every time you hear guardrails, unless it is after Noon where you are.

Emmert's 5 points:

1) One single national law
2) support T9
3) preempt state laws
4) Please don't allow schools to pay athletes even if they want to
5) Please ban lawsuits if we continue to collude on pay

Emmert: if we had had to follow the antitrust laws in the past, some poor kids might never have gone to college.

Emmert ends with a plea that the NCAA remain relevant

Mike McCann is up -- he's the first of two law profs, He reminds the committee he also co-authored Ed O'Bannon's book.

He says all peo

he says all of the people in the system get paid, except athletes.

McCann then pivots to explain that the dignity of FULL rights matters more than the money. McCann, channeling his discussions with Ed O, explains that equality matters.

McCann turns the NCAA's "go pro in something other than sports" against them, explaining that means schools take away most athletes best years of sports $

McCann makes a great argument for a state-based system, but then argues a "dormant commerce clause" sort of reason to have a national law.

McCann argues for a clean NIL bill w/o adding in other things. I think he means well by this, but I think it will be used by regressive forces.

His best point is he says "have more athletes and ... economists..." testify. The two most important!

McCann has 10 suggestions. Can't keep up with them, but he says a committee to review fair market value is bad, and that a blanket antitrust exemption is bad.

argues for a trade association or 5013c to allow video game group licensing.

Matt Mitten up next. Sports Law prof at Marquette.

[I have found him to often be more pro-NCAA than many in the field]

Mitten argues for a national law. As I expected, he is reciting NCAA legal talking points in favor of "amateurism" -- using words like "preserving its brand"

it's rare to hear people using that phraseology without being retained by the NCAA in some capacity.

Mitten's 3 points:

End State laws. because future laws might be too permissive for the NCAA to comply.

Give the NCAA antitrust immunity, INCLUDING the ongoing House & Oliver cases.

Make sure the NIL rights does not including TV rights.

Mitten is going all-in as pro bono NCAA expert witness. (I hope it's pro bono!)

he says that if TV Media rights are included in NIL law, then athletes will make too much money.

Also he is "worried" that schools will cancel sports if Congress goes too far on health and safety.

Mitten is very pro-NCAA.

Emmert "There is no NCAA money, it's all the schools money"

and then says the organizationcould vote to change how the money is distributed.

Too hard to unpack that in a tweet but suffice it to say cartels often struggle with how to distribute $/

Wicker asks Dr. Frederick of Howard as how the patchwork of state laws will affect competition.

This is a question where a medical doctor is not the right person to reply. He gives the expected "it's bad" answer w/o any economic nuance for why it could be good.

Wicker turns to Few and asks how the absence of a law in WA will hurt his recruiting. Few says he can't compete w/o a state law.

I wish someone would say "WA doesn't outlaw NIL now"

Wicker turns to Rod Gilmore, emphasizing Rod is the only one in favor of a state law approach.

Rod says the NCAA operates a national business and lots of companies follow state laws. He says there will be an equilibrium.

Gilmore emphasizes that "guardrails" are designed to protect the NCAA from guardrails. Very strong point that the NCAA wants protection from the sort of negotiations that a normal business would have to deal with.

Sen. Blumenthal is now up. Blumenthal is the co-author of a somewhat left of center NIL bill.

He is also a former state atty general, and he argues that state law is good. Says Congress's NIL law should be no weaker than the strongest bill.

Emmert tries to pin Emmert down on health and safety and then tries to stop a filibuster. Emmert resumes the filibuster.

Blumenthal tells Dr. Frederick that Howard's costs can be covered by cost sharing across the NCAA. Frederick agrees.

Sen. Jerry Moran (R-KS) is up now. He has authored a right-of-center bill on NIL.

He very carefully calls college athletes "amateur" and emphasizes he supports the "collegiate model" which is NCAA slang for amateurism.

He also makes a very socialist argument -- odd for a Kansas Republican -- that he is opposed to some earning money in a market if others won't

Moran asks Mitten a loaded question about why even a day of state laws w/o a national law would be bad.

Mitten argues that because some states don't have Right of Publicity laws, the field will not be level. I would love to ask him how MLB solved that problem

Wow, Mitten says that even if a day goes by with "the cat out of the bag" it can't be fixed.

I doubt he meant that, but he said it.

I'll note that Moran says Gonzahga, not Gonzaga.

Moran and Frederick talk about why capitalism is bad b/c some people will earn less than others.

Brian Schatz (D-HI) asks Emmert -- if we need an NIL bill pronto, why complicate it with antitrust immunity?

Emmert says b/c we get sued a lot for past stuff.

Schatz asks McCann to weigh in. McCann answers an unrelated question. Missed opportunity.

Schatz asks if the NCAA is going to file injunctions against state laws.

Emmert refuses to answer. Schatz asks for clarity -- do you have any thoughts. Emmert only says he doubts schools will sue their own states.

Schatz is asking good questions, pretending (I think) to be ignorant, but he seems very educated on some issues.

Says Emmert is asking for a really big trade for NIL concessions.

McCann says declaring athletes as not employees is big deal and unrelated.

I like Schatz, and not just b/c I spent 5 great days in his state this month.

Sen. Thune (R-SD) is up. He asks Emmert to restate why employment status is important.

Emmert commits the fake dichotomy of student vs employee.

Says they lose benefits of educational law. Says T9 won't apply.

I hope he is asked how schools have some many student-employees

Thune asks Emmert to explain why South Dakota schools will suffer if athletes get better rights.

Emmert says states with NIL laws will have advantages. Then Emmert says "guardrails" are needed to prevent schools from using NIL to recruit.

Short digression on this point.

Schools use money to recruit students -- all kinds of students -- all the time. Discounts, stipends, fellowships, etc.

This is a bright line -- if you think athletes do not deserve the right to be offered the best deal to choose a school, you're explicitly in favor of lesser rights for athletes than, say, history grad students.

Sen. tester (D-MT) is up.

Tester asks Emmert which of the 19 states with NIL laws are "particularly unworkable"

Emmert says some states allow 3rd parties to provide money to athletes. GASP!

Tester seems to be very pro-national law.

tester talks about health and safety stuff. Emmert says H&S very important.

Tester says he wants national equity, and tees up Emmert to concern troll about other sports.

Emmert complies with the set up.

Bad state laws will hurt less visible athletes.

Sen. Fischer (D-MI) is up

Fischer asks McCann how T9 works with NIL.

McCann says make sure advice is the same across gender

McCann says if a 3rd party is involved in advising athletes, Congress should make sure the T9 standard applies there.

Fischer asks McCann whether T9 is hurt by the state-by-state approach.

He doesn't answer the T9 question.

believe it or not, I am getting bored and this is my field of study. The questions are so leading and unchallenging.

It is interesting to see Republicans hate on state rights, though!

So, @JayBilas, did you know that when you do commercials for Wendy's, the patchwork of state laws re: right of publicity, makes it a nightmare for you?

Senator Rosen (D-NV) is up now. Asked McCann a question that I missed. McCann gives a somewhat paternalistic answer re: financial literacy. Gilmore comes in hard against paternalism, saying forcing an athlete to take a class that others who earn money don't now.

Gilmore emphasizes that it is not fair to limit athlete rights to get a "level playing field" when such a level does not exist. He argues NIL might help the little guys.

Rod is doing yeoman work here trying to remind the committee that athletes are full citizens.

oh, god, Ted Cruz is up. brace yourselves.

Ted Cruz is about to rip into state rights. He asks Emmert to explain, again, why state laws are bad.

Emmert repeats the litany of worries that is mostly "states may lose out if they choose not to compete."

Cruz then asks Emmert to concern troll about women's sports. Emmert actually doesn't take bait. Says NIL qua NIL won't hurt women.

I think (correct me if I am wrong) this is the first time Emmert acknowledged that his past T9 claims re: NIL were false.

Cruz plays the father of daughters card.

Cruz is the first to veer off topic, goes after Emmert being in favor of equal rights transgendered athletes.

There is lots of need/room to discuss the complex issues of gender and sport but Ted Cruz & Mark Emmert are not the two people I want leading the discussion

Actually, Emmert's answer is a lot more informed than I expected.

Sen Blackburn (R-TN) is up. She is very anti-NCAA without being pro-athlete, which is a neat trick.

Emmert dodges the question as to why the NCAA is so slow, saying blame my bosses, not me.

Blackburn asks Emmert about UT(ennesssee) NIL plan. he says "blah blah"

Blackburn asks Mitten and McCann as to who should take up the NCAA's dropped baton.

McCann says NCAA should be involved. But adds Athletes need to be involved. Blackburn suggests parents should be involved. McCann reminds her that athletes are adults,

Mitten says he disagrees with Gilmore that college athletes shouldn't be treated differently.

But he says NCAA needs to be the enforcer of the new NIL law congress adopts. Can't disagree more that private orgs should be enforcer of public law.

Blackburn is shocked that the NCAA is slow and bureaucrtic.

Sen Lee (R-UT) is up.

Asks Emmert if "amateur sport" warrants no accountability under the antitrust laws.

This was a softball to allow Emmert to clarify all he wants is immunity from *past* violations of the antitrust laws.

Lee asks Emmert how to balance institutional interest vs individual.

(I would think that Lee, as a supposedly strong conservative, would say that markets are great ways to sort that out)

He does not seem to think so here.

Lee asks a softball question about why it's bad for schools to employee students.

Emmert just repeats the line.

Lee circles back to ask why NCAA is unique and need protection. Emmert makes some dumb antitrust joke. Emmert says he is concerned that schools will be sued if their old justifications for collusion are shown to be false.

Lee says that doesn't make you unique

Blumenthal is going to ask some more questions b/c Rick Scott is late.

he is just talking about his bill -- I will use this moment to freshen my coffee.

Blumenthal asks Few if solving athlete healthcare issues important. Few agrees and then very correctly testifies that he is not really qualified to address how.

Sen. Scott (R-FL) is up. His mic was off. Sadly it has been fixed.

Scott is touting how great Florida is. Says FL has an NIL law kicking in in a few weeks. He asks the panel to say what they think of Florida's law. Emmert says Florida is generally in accord with where the NCAA plans to have its rules.

Emmert says Florida has a 3rd party to supervise NIL deals. I don't recall that as being in it. Is it, @DarrenHeitner ?

Rod Gilmore reminds Scott that Florida helped trigger state level competition that is pushing things forward.

Also suggests mandatory revenue sharing is potentially detrimental. Suggests allowing it, just not mandating it. [I agree!]

Dr. Frederick says if there is revenue sharing, it should be focused on athletes' benefits. Says focusing on grad rates is important.

He emphasizes HBCUs don't have resources to use athletics to build their academic brands. Hmm, I wonder who discussed that re: HBCUs before

Sen. Lujan (D-NM) is final senator up. he praise NM's new NIL law.

Asks McCann whether NIL will help wellbeing of students. McCann says yes.

Lujan asks Gilmore if being first to do NIL will have impact. Gilmore talks up the benefits of NIL for athletes from poor backgrounds.

Lujan asks everyone everyone if athletes should have a right to earn from NIL. They all says yes. Lujan says "so why has it taken so long"

I wish I could answer that for them!

Emmert says "bureaucracy is hard" without saying "um, we opposed this as recently as last year"

Lujan asks Gilmore a question about steeplechase.

No, he actually asks how to ensure all sports benefit. Gilmore focuses on freedom as the equalizer. he explains the NCAA has taken so long b/c they didn't want to give up their money/power.

ok, we are done. I need to end this transition from vacation to work and begin work in earnest.

Hope you found this a helpful exercise.