Michigan lawmakers push 'fairness' bills for college athletes as NCAA feels the heat

Michigan state representative and Democrat Joe Tate was a three-year starting offensive lineman at Michigan State and a co-captain in 2003. Michigan state representative and Republican Brandt Iden was a tennis player at Kalamazoo College.

Brandt has introduced House Bill 5217. Tate has introduced House Bill 5218.

Together they are pushing legislation in Michigan to allow college student-athletes to earn compensation for their name, image and likeness, protecting their rights without risking their status as college athletes. It is similar to the Fair Pay to Play Act signed into California law last October. The law, scheduled to go into effect in 2023, allows college athletes in California to hire agents and be compensated for endorsements.

That legislation bypasses the NCAA ban on players receiving compensation beyond their scholarships. The two Michigan bills passed 8-1 in the House Oversight Committee voting in January and will next be reviewed by the House Ways and Means Committee before going to the House floor. Originally, Tate and Iden hoped to have the policy go into effect this July, but House Oversight Committee members approved an amendment that moved the starting date to Dec. 1, 2021, well ahead of California’s law.

“Across the board, there has been a lot of support,” Tate told The Detroit News. “Representative Iden and I, we’re seeing support, and it’s bipartisan. People view this as a fairness issue at the end of the day. Student-athletes should have an opportunity to take advantage of who they are. It’s been positive all around.”

It is a topic that has picked up considerable steam since the California law was signed and is not slowing down. Earlier this month, NCAA president Mark Emmert was questioned during a hearing on Capitol Hill about the Name, Image and Likeness (NIL) debate. Senators put the heat on Emmert, asking why the NCAA hasn’t tackled issues like this and said the system must be reformed. Emmert hoped Congress would reel in states getting involved with legislation to buy time for the NCAA to make modifications to its rules regarding NIL. The issue for lawmakers, however, was that Emmert and the NCAA have not delivered a plan.

A few weeks earlier at the NCAA Convention, Emmert said 2020 "can’t be a year of business as usual.”

“We’ve got to double down on the opportunities that we provide to our students,” Emmert said at the convention. “In some case, we need help from Congress, but this is our job and we got to be clear about it. This is ours to improve and make better.”

Ohio State athletic director Gene Smith is co-chairman of the NCAA working group that includes athletics administrations and was established to study the NIL issue. He said last month at the convention that “everything’s on the table.” The goal is to present some findings to the NCAA Board of Governors in April that could potentially be the basis for legislation that would be voted on early next year.

As it stands now, about two dozen states have similar legislation to what Tate and Iden introduced in Michigan working through the legislative process. The states could strong-arm the NCAA into addressing the issue with new rules for student-athletes. Already this week, news broke from the NCAA that it appears more than likely that in April the NCAA board will vote to allow a one-time transfer without penalty for all student athletes beginning this fall.

Can't wait for government

This is an issue of fairness for Tate and Iden. Iden has shared stories about summer breaks from college and being unable to advertise he was a Kalamazoo College tennis player when he offered tennis lessons for a fee. Tate has no complaints about his time at Michigan State and described a “great experience.”

“I wouldn’t be in the position I am now if it wasn’t for the experience I had playing college football,” said Tate, who joined the Marines, was twice deployed to Afghanistan during Operation Enduring Freedom and later earned an MBA and a Master of Science in Environmental Policy and Planning from Michigan.

But it is a different time than when he played, even though 2003 doesn’t seem all that far off.

“When you look at the changes that have taken place in intercollegiate athletics the past few decades, you’re seeing an issue that has been bubbling up for a number of years, this issue of fairness and inequality,” Tate said. “Student-athletes have essentially built this and grown this market where you have a large amount of resources and, frankly, money that has been funneled into this and they’re not getting an opportunity to take advantage of it. We want to make sure student-athletes are receiving a fair opportunity to take advantage of the situation they’re in.

“As a legislator, I want to look out for the best interest of the state. Seeing what California did, knowing, hey we may need to get in front of this and really look at this and try to push some policy here. Ideally, what I would like to see is a national model -- that would be the best way for this to work. I’m cautiously optimistic the federal government will be able to take this on, but we can’t be waiting for the federal government. We have to have something in place.”

Jaime Miettinen, of Miettinen Law in Royal Oak, is a student-athlete advocate and adjunct professor at Detroit Mercy, where she teaches sports law. She is delighted the state representatives are putting Michigan at the forefront of this issue.

“Because I do think it’s in the best interest of the student-athlete,” Miettinen said. “This whole Name Image and Likeness concept, the real legal term for it is the right of publicity, and that’s something you and I and everyone else has, but by playing in the NCAA, these student-athletes are forced into giving up that right. If they’re a walk-on, they’re still bound by the same rules of the NCAA. What do you say in that kind of circumstance?

“It’s a right given to us, it’s an intellectual property right and so it’s distinct from employment law concepts, it’s distinct from Title IX concepts, and it’s something when we’re talking about third parties outside of the universities offering compensation to these college athletes, it’s not something that is directly connected to the NCAA’s business operations itself.”

What Miettenen likes about the Michigan bill is its simplicity.

“It’s bare bones,” she said. “It can be flexible enough with whatever rules and regulations come in the future, because I do think ideally, we would like to have one big scheme to operate with this. But the NCAA has sat and done nothing for decades when this has been a conversation in the legal community for decades, longer than I’ve been alive, since the 1980s, since it started to become a big money-making industry. I think it’s going to be piecemeal because the federal legislatures right now have to work with the NCAA and take what they say with a grain of salt. The NCAA is going to try to push its beliefs into federal legislation rather than actually listening to what everyone on all sides has to say.”

'Moving parts'

There hasn’t been much opposition to the Michigan bill, but Daniel Hurley, chief executive officer of the Michigan Association of State Universities, said that while he agrees “in concept” with the bills supported by Tate and Iden, he cautions there are many layers to consider. He said Tate and Iden met with school presidents a few days ago during a regularly scheduled board meeting and had a productive discussion on the NIL topic.

“It’s not opposition to the concept as much as it is how to set forth an appropriate policy framework,” Hurley told The Detroit News. “There are a lot of moving parts (and) a lot of potential unintentional consequences. I had a few of the legislators (last month) afterward say, ‘Boy, your points are all on point, they all make sense,’ but they still passed on an 8-1 vote. It’s a populist issue, let’s be honest.

“The two overarching points to me is, national problem, national solution, and not a state-by-state patchwork. The fact is, legislation is going like wildfire around the county, starting with the domino of California. You take a scenario, it’s three years from now and you have an Ohio resident that went to an Indiana university and transferred to a Michigan university. From an interstate commerce standpoint, how’s that going to work if one state doesn’t have a NIL bill and the other two have them and they’re different, and then you have federal regulation and NCAA policy? I’m not an attorney, but there are a vast array of legal issues.”

Hurley said there are additional meetings schedule with the state representatives and is grateful that the original ambitious July 2020 goal has been moved to December 2021.

“That’s an extra year and half on our part, and it’s a year prior to California’s enactment date,” he said. “We are going to be pushing for an enactment date that is what most of the states are looking at, and most of them have an enactment date of Jan. 1, 2023. While it’s nice to see Michigan be a leader in state policy, we also don’t want to look foolish in its enactment and rush ahead of all the other states. By then, between the states coming together, Congress and there NCAA, there might be a little more policy continuity by then in place.”

Being on the forefront of this issue is important to metro Detroit lawyer Jordan Acker, a 2006 graduate of the University of Michigan elected to the university’s Board of Regents in 2018. Specifically, he believes it important for UM to be out front, and he made that point during a Regents meeting in December when he championed the NIL cause. Acker said student-athletes are denied the ability to market their image while the NCAA and universities make billions.

“Ultimately, I feel like Michigan plays a special role,” Acker told The Detroit News. “Michigan is among a few schools in this country that are the ones that people tune in for day in and day out. You saw it -- Michigan-Alabama (bowl game) gets a huge (television) rating, Michigan-Notre Dame, huge rating, a bunch of these schools that have these outsized roles. Ohio State, the same way. They have an outsized role in college athletics. If you’re one of those schools, you have to say, ‘What can we do to make things more fair, more ethical for our student-athletes?’”

Acker’s issue is that student-athletes provide some of their hardest work and top earning years to their universities. He used former Michigan quarterback Denard Robinson, nicknamed “Shoelace,” and softball start Sierra Romero, the National Player of the Year, as examples.

“These are athletes, their prime earning potential, their prime years of being in the public square because of the nature of their skills and their sports is during college,” Acker said. “How do I tell Sierra Romero that if Nike wants to pay her to go sell mitts to high school athletes that she shouldn’t do that? How should I tell Denard Robinson that I see people out on the streets selling shirts that say Shoelace for $22 a pop or jerseys with the No. 16 on them, that he shouldn’t get a cut of that?

“We have to talk about how we’re going to fix this situation. The reality is, the states are going to move fast. I expect that eventually this is going to have to be something that Congress resolves, but we need to resolve it in a way that is fair to the student-athletes that’s fair for the universities and make sure we’re not in a position where we’re magnifying some of the other less savory things that go on at other universities as well.”

As the wheels turn on the NIL issue in Michigan, Tate said he is grateful to be part of this movement with Iden and for the support the bills have had so far.

“I’m pretty optimistic about it,” Tate said. “Being a former student-athlete and hopefully being able to help and allow student-athletes to have a more rich experience in college is something I’m really excited about.”