Would letting college athletes endorse products open Pandora’s box at schools like BYU?

GOP Sen. Mike Lee raises question about possible name, image and likeness law in Senate hearing

As Senate Democrats and Republicans largely agreed Wednesday that Congress should quickly pass legislation to let college athletes profit from their name, image and likeness, a Utah senator says there are legitimate concerns about what could happen if it’s allowed.

Sen. Mike Lee, R-Utah, said it could raise questions at universities about the products its student-athletes might endorse.

“For example, my alma mater, Brigham Young University, would have some opinions about which products its athletes might endorse and from what source they’d be coming, whether they might be endorsing products that are inconsistent with the university’s religious mission,” he said during a Senate Commerce, Science and Transportation Committee hearing.

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BYU, based in Provo, Utah, is owned by The Church of Jesus Christ of Latter-day Saints.

Committee Chairwoman Maria Cantwell, D-Wash., is leading negotiations to create a national name, likeness and image standard for college athletes as states consider and pass their own laws on the issue.

“There’s broad consensus that Congress should pass a law that guarantees college athletes the right to enter into ... agreements with third parties, the same right that all of their fellow non student-athletes have,” Sen. Roger Wicker, R-Miss., said at the hearing.

Lee said the product endorsement question wouldn’t be limited to religious schools.

“I could imagine a lot of other schools that aren’t necessarily religious in nature that might want to express concerns or limit the ability of student athletes to endorse certain products,” he said.

Lee asked NCAA President Mark Emmert how universities would balance their interests against individual interests.

Emmert said policies under NCAA review and legislative proposals have tried to identify product categories, including alcohol, tobacco, illegal substances for athletes to consume and gambling, that either the law or schools could prevent college athletes from endorsing.

“There’s, I hope, an opportunity at the national level but also at the institutional level to make those determinations, and student-athletes could then consider that in making their decisions about which institutions to attend,” he said.

Sen. Roger Wicker, R-Miss., greets NCAA President Mark Emmert at a hearing on student athlete compensation in Washington.
Sen. Roger Wicker, R-Miss., left, the ranking member of the Senate Commerce, Science, and Transportation Committee, greets NCAA President Mark Emmert as the panel prepares to hold a hearing on student athlete compensation and federal legislative proposals to enable athletes participating in collegiate sports to monetize their name, image and likeness, at the Capitol in Washington on Wednesday, June 9, 2021. | J. Scott Applewhite, Associated Press

Emmert urged Congress during the hearing to pass a national name, likeness and image law so that college athletes are operating on an equal playing field. At least a dozen states will soon implement their own laws, but about 35 states won’t have a policy in place, he said.

Lee also asked how treating athletes as employees affects a university’s structure and whether it would impact their tax exempt status.

Emmert said converting college athletes into university employees “fundamentally blows up college sports.”

“The notion of collegiate athletics is that they are not employees, they’re not hired professionals. They are in fact students who are participating in sports voluntarily,” he said.

Colleges would not get involved in endorsement deals between athletes and other entities, Emmert said.

“The university would not be a party to that negotiation in any fashion,” he said.

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Lee, as he has done in past hearings on the issue, also quizzed Emmert about the NCAA, which he has referred to as a “de facto collegiate athletics cartel,” seeking a partial or full exemption from antitrust laws.

“In your view, is the product that you offer that is under the category of amateur, collegiate athletics, is it so unique that it warrants the extraordinary step of either less accountability or no accountability under the antitrust laws?” the senator asked.

Emmert said the NCAA has not advocated for a full exemption, but is trying to avoid “serial” litigation either for previous actions or future actions in application of a name, likeness and image law. He said two lawsuits were filed immediately after the NCAA’s board of governors, made up of 24 university presidents, called for schools to adopt such policies.

“We’re trying to avoid moving toward a place where no good deed goes unpunished here. That’s the only thing that’s really under consideration,” he said.

Lee said the antitrust issue needs to be addressed moving forward.

“That doesn’t differentiate you from anyone else seeking an antitrust exemption,” he told Emmert. “The possibility of litigation is something faced by everyone in the marketplace.”

In April, Lee and several other Senate and House Republicans introduced legislation to take away Major League Baseball’s antitrust exemption.

As a professional sports league, baseball should understand the benefits of competition, Lee said then. Instead, baseball uses its “judicially fabricated” antitrust immunity to suppress wages and divide up markets for decades — conduct that is plainly illegal, and sometimes criminal, in any other industry, he said.