McCann: What It Was Like to Testify Before the Senate on NIL

·8 min read

This week I had the privilege of testifying before the United States Senate, at a hearing titled “NCAA Athlete NIL Rights,” centering on federal legislative proposals addressing name, image and likeness in college sports. Sitting at the microphone in front of senators and a national TV audience was about as intense as you’d expect. But there were also surprises and behind-the-scenes workings that made it a unique experience.

I’ve covered NIL for Sportico and teach an NIL course at the University of New Hampshire Franklin Pierce School of Law. It’s a topic that’s kept me and anyone else involved in the business of college sports busy of late. Unless Congress or the NCAA acts before July 1, new laws from states will require NCAA member schools to break their contractual obligations to the organization. The schools will face legal risk no matter what they decide: Violate a state statute or breach a contract.

Last Friday I was creating PowerPoint slides for my next lecture when two committee aides called. They had emailed me the day before, and I knew they were calling to discuss the state of NIL. I wasn’t aware they would also invite me to testify.

I’d spoken in front of Congress before. In 2010, I participated in an NFL roundtable discussion with other law professors that generated no news. Wednesday was an altogether different experience. The Senate hearing would be televised on C-SPAN and shown on PBS. It was also streamed online. The hearing sparked numerous stories in national media, including a terrific recap by my colleague Daniel Libit.

I found the experience captured some of the elements of a trial. NCAA president Mark Emmert was the de facto defendant, aggressively (and articulately) shielding the NCAA’s ill-advised inaction from rebuke while also pleading for clemency in the form of a favorable legislation.

Several senators from both parties—especially Democratic Sen. Richard Blumenthal and Republican Sen. Marsha Blackburn—functioned like prosecutors. Blumenthal warned, “The NCAA is at the table only because it’s been hauled kicking and screaming here,” while Blackburn bluntly asked Emmert, “Don’t you think it is time to call your leadership of the organization into question?”

Meanwhile, Chairwoman Maria Cantwell and Ranking Member Roger Wicker were in the center, both literally and politically. They resembled judges, with a focus on fair process for colleagues from both parties and signaling a desire to find solutions.

With the exception of Emmert, the others testifying, including myself, were more like actual witnesses: observers of college sports business, with insights from different vantage points.

And there were several things I observed from that witness stand:

1. The hearing went beyond NIL, potentially dooming a federal bill

While the focus was primarily on NIL, the hearing’s purview was more expansive, with a pledge to “improve athlete health care; and enhance scholarship protections and academic outcomes, among others.” These other topics, while extremely important for college athletes’ welfare, involve other areas of law. They also tend to attract opposition by constituencies (e.g., university leaders) that might be otherwise comfortable with NIL. The more topics that are included in federal NIL legislation, the harder it will be to pass a bill.

Sen. Ted Cruz took the hearing even further out with questions—respectful and direct—about the impact of transgender athletes and the political stances of the NCAA. Emmert was clearly ready for the questioning. He explained how the NCAA draws from the Olympics for guidance on transgender athlete eligibility.

The exchange could portend pressure to expand an NIL bill into topics beyond this particular corner of intellectual property law.

It also served as a reminder that any topic is fair game in a hearing.

To that point, Sen. Cruz or another senator could have asked other witnesses, including me, about transgender athletes and legislation in states restricting their eligibility. By that point in the hearing, I had answered NIL-related questions from three senators and felt good about my responses. We discuss legal issues concerning transgender athletes in my sports law course, but candidly I wasn’t as well prepared to discuss that topic. I quickly thought through an answer but didn’t end up needing it.

2. Like writing a news story, preparing testimony requires quick action and timely editing

When I was invited to testify, I was told Emmert and Gonzaga men’s basketball coach Mark Few, and others, would also testify. We’d each make statements and then senators would ask questions on the issue.

First, though, I’d need to draft written testimony and submit it by Monday at 10 a.m. My written testimony could be of any length—a dangerous amount of freedom for someone who’s normally confined by word limits and who doesn’t lack things to say about NIL.

Second, I’d need to prepare oral remarks, which I would deliver as a speech at the start of the hearing. My oral remarks, I was told, would be held to five minutes, and though they could be the same, my structured written statement—a rigorous legal exercise itself—came in at 2,800 words, or 22 minutes, according to a speech app.

After many hours, I pulled together a five-minute speech, but I wasn’t totally at ease. A former Hill staffer warned me there could be a “red light” shown at the hearing if I approached five minutes. I created two versions of remarks, the shorter of which I dubbed the “red-light version.” I didn’t want the embarrassment of being cut off on national TV for long-windedness. As it turned out, no red lights flashed.

3. For one morning, D.C. seemed largely back to normal

The staff told me it would be a hybrid meeting, so I could appear in person or remotely. My family and co-workers gave the same advice: This is a big deal, and I should appear in person. I’m glad I took their advice. It was awesome to experience.

Between the slowly ending pandemic and aftermath of the Jan. 6 attack, I wasn’t sure what to expect when I arrived at the Capitol. Since the pandemic began, I haven’t ventured far from home or work. I figured there might be a lot of people wearing masks—the country’s leaders are in the building, after all. They are also fairly common in the suburb where I live. But that wasn’t the case. Seeing people walk around like in normal times gave off a welcoming vibe as I entered the Senate building and walked to the hearing room.

I also anticipated police barricades and a heavy security presence, but they were not as omnipresent as I suspected. I understand in recent weeks there have been modifications that, while preserving security and deterrence, have restored some degree of normalcy.

I arrived in the hearing room with fellow witness Matt Mitten, a sports law professor at Marquette and friend. As Matt and I were chatting, Emmert said hello to us. He also mingled with senators, probably a sensible move given the challenging situation his organization faces.

4. Senators were collegial and not overtly partisan

It might be a reflection of how NIL isn’t a partisan topic, or perhaps it’s the personalities involved, but microphone grandstanding and showboating questions—to say nothing of flashy and selective TV news edits—didn’t dictate the tone or pace of Wednesday’s hearing.

Sens. Cantwell and Wicker handled the hearing in a collaborative manner, and all of the committee members took the subject seriously and focused on gathering information. The senators also deferred to one another and didn’t interrupt each other or, for the most part, witnesses.

In a world where Congress is often depicted as dysfunctional and hyper-polarized, the hearing was substantive. The committee has a difficult task ahead in crafting a bill that would advance past committee and receive enough support on the floor to present to President Biden before July 1. If they fail, I suspect it won’t be due to personal conflicts or partisan rancor.

5. Hearings can last longer than you suspect!

While waiting in the security line to enter the building, I asked a committee staffer how long the hearing would go. I thought he would say an hour, maybe an hour and a half.

“Probably around three hours.”

He was spot on.

The duration was a test of mental endurance. It also was an opportunity to take it all in. I might never again testify before the Senate, so I made a point of snapping a mental screenshot.

The room, Russell Senate Office Building 25, was spacious and very bright. Most of the senators were initially not seated, but several joined during the hearing, and others participated by video. There were a handful of journalists present, including my former Sports Illustrated colleague Ross Dellenger. The room had a comfortable temperature and, for the witnesses, no shortage of water bottles within reach.

While the hearing progressed, I periodically watched photographers walk by, sometimes almost crawl by to avoid the TV cameras, and contort themselves in odd positions to capture shots. Click after click. I felt lucky that the suit I wore, which I haven’t put on since before the pandemic, still fit.

The length of the hearing turned out to be a positive for governance reasons, too. Many senators were engaged, with generally substantive questions, indicative of a desire to find facts (even facts only loosely related to NIL). I was asked a handful of questions, and each concerned a legal issue related to NIL, such as Sen. Schatz’s question to me about whether granting the NCAA immunity from NIL-related litigation should be retroactive. It’s something Emmert seeks.

As he sat next to me, I urged against it.

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