- 6 months ago
During a House Energy Committee meeting to markup the SCORE Act, Rep. Frank Pallone (D-NJ) spoke about the history of the NCAA to exploit student athletes.
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00:00Any further amendments?
00:02Yes, Ms. Trahan, you're recognized.
00:04Thank you, Mr. Chairman.
00:05I have an amendment at the desk titled Trahan 27.
00:11The clerk will report the amendment.
00:14Amendment to H.R. 4312, offered by Ms. Trahan, page 18, strike line 6 through 22,
00:22page 25, after line 15, insert the following, and redesignate subsequent sections accordingly.
00:31Section 8, enforcement.
00:33Without objection, the reading of the amendment is dispensed with,
00:37and the gentlelady is recognized for five minutes in support of her amendment.
00:42Thank you, Mr. Chairman.
00:44My amendment would give athletes and enforcers real tools to hold bad actors accountable.
00:50It would allow the FTC to enforce the SCORE Act by treating violations as an unfair and deceptive act.
00:58It would also give state attorneys general the ability to bring civil action on behalf of student-athletes
01:02enrolled at institutions in their states.
01:05And if government enforcers lag, under my amendment,
01:09athletes would possess a private right of action to seek relief when all other avenues fail.
01:15Listen, I appreciate the Chairman's attempt to codify athletes' NIL rights
01:19and institute baseline requirements on institutions, particularly on health and safety.
01:24And as I've made clear in this markup, although I think those provisions could go further,
01:29they are a reasonable start.
01:30But I must ask the obvious question.
01:34Regardless of the scope of athletes' rights
01:36or the level of requirement on the NCAA or schools,
01:41where is the enforcement?
01:42What if schools infringe on an athlete's NIL right?
01:47What if a university fails to uphold its health and safety commitments?
01:51And especially if we're granting broad exemptions from antitrust liability,
01:56how else can violations be held to account?
02:00A right that is legally unenforceable is not a right at all.
02:04It's just words on a piece of paper.
02:06And I know that my friends on the other side of the aisle understand this
02:10because just two months ago, we moved a piece of legislation
02:13called the Take It Down Act through this committee.
02:17The Take It Down Act, which was later signed into law,
02:19didn't just require online platforms to take down non-consensual intimate imagery.
02:26Its authors explicitly tasked the FTC with enforcement authority.
02:31I suspect it's because they knew that without enforcement,
02:34the bill would just be a bunch of empty requirements.
02:37My amendment would set up a modest enforcement mechanism
02:40for the SCORE Act at the federal, state, and individual level.
02:44It would simply ensure that the rights and requirements in the bill
02:48aren't left toothless by a dearth of enforcement.
02:52Thank you, Mr. Chairman. I yield back.
02:54Thank you. And any further discussion on the amendment?
02:56Mr. Fry, you're recognized.
02:58Mr. Chairman, thank you. I move to strike the last word.
03:00You're recognized.
03:02Mr. Chairman, the SCORE Act would create a much-needed
03:04national framework for college sports that offers the stability,
03:07clarity, and transparency that stakeholders,
03:10including college athletes themselves, have been calling for.
03:13The proposed amendment, however, would undermine the SCORE Act
03:16and put college athletics on an unsustainable ground,
03:19much like they currently are now.
03:21The amendment creates a new private right of action
03:23that enriches trial lawyers rather than protecting students.
03:26And if you look at the recent House settlement,
03:28half a billion dollars went to the pockets of the lawyers vis-a-vis attorney fees.
03:34Think about that.
03:35Half a billion dollars that could have gone to supporting
03:37hardworking college athletes instead of paying for a lawyer's second home.
03:41This amendment should be titled the Trial Lawyer Protection Amendment.
03:46The SCORE Act puts students front and center.
03:48If this amendment puts trial attorneys front and center,
03:51I urge my colleagues to vote no.
03:53Will the gentleman yield?
03:57Will the gentleman yield?
03:58I yield back to the chair.
04:00Oh.
04:03Any further discussion on the amendment?
04:06Yeah.
04:06You're recognized, Ms. Kess.
04:08Thank you very much, Mr. Chairman.
04:09I think Rep. Trahan's amendment is very well taken
04:15because here we have a, with the House settlement,
04:20the court settlement, and the SCORE Act,
04:23you have a total rewrite of college athletics.
04:28So now universities can directly pay student-athletes.
04:32You're, this is setting up, along with the settlement,
04:36the court settlement, revenue sharing.
04:38And then athletes can also still have outside name, image,
04:46and likeness deals.
04:47Okay, so what happens under revenue sharing
04:50if a college or university says,
04:54okay, we're going to pay this student-athlete,
04:56and they never do?
04:59What is the recourse?
05:02Because they're, reading, reading the SCORE Act,
05:05that was one thing that really jumped out to me.
05:07Okay, what is, what's the, how does a student-athlete
05:11appeal a decision or enforce this?
05:14And there's just nothing there.
05:16And then if you read it,
05:17along with that very broad preemption section
05:21and liability shield,
05:24there really is no recourse at all for the student-athlete.
05:28So I think this is a, this is a, an important question.
05:31It's a reasonable question.
05:33You, if you really are, want to help student-athletes.
05:37This is just something that's, that's fairly routine.
05:40Mr. Chairman, is this something else, another one of the issues
05:44that we can possibly work on together before the hearing,
05:48uh, the markup next week?
05:50We'll discuss it, but I will tell you this,
05:53that, uh, basically if they, if the school violates, uh,
05:57this particular policy that's in, in the bill,
06:00the, the anti-trust exemption will be removed.
06:04That's why.
06:05And that's a, well, that's a good point, too.
06:07That kind of goes back to Rep Tran's previous amendment on,
06:11or idea on sunsetting this.
06:13That might, that might be one avenue.
06:15But I'll yield the, the balance of my time to Rep Tran.
06:18Uh, thank you.
06:19You're recognized.
06:19Thank you, Congressman, for yielding.
06:21I, I just want to make sure I heard that right.
06:23How, what is going to be the governance in terms
06:26of revoking the anti-trust exemption?
06:27Well, I'm making a statement, and it's in the, in the bill,
06:31the particular bill at hand, that if there's a violation
06:35of this particular, uh, legislation by the school,
06:39then the anti-trust exemption will be removed.
06:45So that's, that's an enforcement mechanism,
06:47as far as I'm concerned.
06:49Okay.
06:49So I would have a lot of questions,
06:51and maybe we can work this out in the time,
06:54I guess it's a week, uh, that we have between now
06:57and, uh, when this gets marked up full committee.
06:59I mean, there isn't a plan for enforcement.
07:01What I'm unclear on is who's actually going
07:03to bring that violation?
07:05Who's actually going to enforce that violation?
07:07And then the exemption that gets revoked,
07:12is that, uh, the whole anti-trust exemption
07:15that is applying to the, to the conferences
07:18and to the NCAA is no longer?
07:21I mean, I don't, I don't read the bill that way,
07:23so I just want to get clear.
07:24Let's, uh, again, I want to talk to you about this.
07:27Okay.
07:27So, uh, let's set a time.
07:29I just, I just want to make, we are.
07:31No, no, no, listen, you're making a legitimate, uh, request.
07:34Okay, I appreciate that.
07:35And, uh, let's, let's make it better, uh, if we possibly can.
07:40And one thing that I, just while I have the time,
07:42because I want to compel the rest of the committee on this,
07:46there is no enforcement mechanism.
07:48There is no recourse right now for states or for individuals.
07:53There is a liability shield into perpetuity with no sunset,
07:58no revisiting by Congress.
07:59And so I want us all to, you know, understand that deeply
08:04before we go ahead, because it doesn't feel pro-player to me.
08:09It doesn't feel like this is an extension of athletes' rights.
08:13It feels like we're putting a couple of modest player protections
08:17in a bill on, based on what we know right now,
08:21and not being able to revisit it later,
08:24and not giving them tools to advocate for themselves.
08:27The liability will yield. I'll, I'll be happy to work with you on this.
08:30But again, if the terms of the agreement is violated,
08:35the antitrust exemption will be removed.
08:38So, uh, I think there is an enforcement mechanism,
08:41but, uh, we can have further discussion.
08:44So this is, I think this was, I think this was my time.
08:47And that, with all due respect, Mr. Chairman,
08:51that's not going to be good enough for the student-athlete
08:53that doesn't want to get into it for revocation of the whole liability sheet.
08:57They just want fairness.
08:58They want to be paid what they entered into.
09:01They want enforcement of the contract.
09:02They want their scholarship that they were promised.
09:05That's, it's, that kind of basic student enforcement.
09:08And I'll yield to the chairman of the committee.
09:10Well, I-
09:10Gentle lady's time has expired.
09:12I'm going to recognize the chairman of the full committee.
09:14Mr. Gussman.
09:15So my understanding how it works,
09:17and I'm talking to my, my good friend here, Mr. Fryer,
09:18on the judiciary committee, who's worked on the judiciary side of this,
09:21is, uh, so currently, I know that there's been schools that advertise,
09:25we're going to pay this player $9 million.
09:27That's one real example.
09:29And then the money never comes to fruition.
09:31It never happens.
09:32Or a player takes money, and they show up at a school,
09:34and then they transfer before the end of the year.
09:36And that's supposed to try to get a handle on that,
09:38where schools deliver what they promise,
09:40and then players live up to their contract.
09:42So my understanding is, as the, you know,
09:44the NIL contracts are individuals.
09:46So I, if I'm a great athlete, and you got to tie it.
09:49I mean, if you're the, the star player at Kentucky,
09:51you're probably worth more money than if you're a star player at another school,
09:55but, uh, not in, in, again, basketball.
09:58So that, that increases your value.
10:00I get it.
10:01But those are individual contracts with individual groups.
10:03So the, the revenue sharing, my understanding is,
10:05schools are going to have contracts with these students.
10:08And so the students can, so this doesn't,
10:12this doesn't supersede any contract.
10:14So if, if a player chooses to come to University of Kentucky,
10:17and said, here's your $500,000 for playing here,
10:20and then they don't pay, then they still have rights and contracts.
10:23Understand that to my counsel here.
10:25Will the gentleman you?
10:26Sure.
10:27That's my understanding.
10:27That's what we want to have happen.
10:29So we need my understanding as well.
10:30I think that, I think that.
10:30You recognize, you recognize.
10:31I think that the SCORE Act would then need, need to spell that out.
10:36And then they're, they're thinking through all of those situations for the student-athletes,
10:42and the institutions on how they're, how they're going to enforce.
10:45But right now it's, it's, it's, it's silent on that.
10:48Well, it doesn't, I mean, this doesn't, to spell out, I mean, it's like, it doesn't,
10:52contract law still contract law.
10:54So I know you're a attorney.
10:55But not, not when you have a broad preemption, where you're, the language
11:00says you're preempting all state laws, rules, regulations.
11:05So that needs to, obviously needs to be clarified, because that would not be consistent with
11:09my understanding or your understanding.
11:11Okay, I'll yield to my friend from South Carolina.
11:12Thank you, Mr. Chairman, for yielding.
11:14I think the liability shield actually just talks about
11:16antitrust laws or other similar state laws related to antitrust.
11:19I don't think, to the chairman's point earlier, if you have a violation of a, of a contract,
11:25you still have a private right of action to, to enforce the terms of that contract.
11:29And so I think we're getting ahead of our skis here.
11:32This deals with antitrust specifically, or similar rules,
11:37laws and regulations on books for states.
11:39But for a traditional violation of contract, those things would still be in play.
11:43I see my good friend from Massachusetts inching to say something right ahead.
11:47Well, because we're ignoring the combination of the liability shield and preemption.
11:52So I just don't understand, like, what recourse does the athlete
11:56have when you have those two together?
11:57And maybe the general counsel would just
12:00read the liability section seven, because that's where it all becomes very vague,
12:07but yet very clear that there is no enforcement mechanism, and there is no recourse for the athlete.
12:15You're right.
12:15Thank you. Thank you, ma'am.
12:17And so then I would just ask the question, I don't mean to interrupt,
12:32but who determines compliance with?
12:47So I can, in the definition section antitrust laws,
12:51the term antitrust laws has the meaning given to such term in the first section of the Clayton Act,
12:5515 U.S. Code 12, and section five of the Federal Trade Commission Act, 15 U.S. Code 45,
13:02to the extent that such section five applies to unfair methods of competition.
13:08It's still not clear on who, who is going to determine
13:14who's going to be compliant with this. I mean, I think that is where
13:19we need to start this conversation. If we're going, we can continue to debate
13:24this amendment, but I would just argue that we need, it's silent on that. There is no enforcement
13:29mechanism in this bill. There is no recourse for athletes. If there's no injunctive relief,
13:36there's nothing. They have no place to go. If all the things that we spell out in this bill,
13:40which are meager at best, are not honored. Okay. Well, again, yeah, thanks.
13:51The chairman wants to address this. Well, so it's still my time. So I,
13:56we're looking at, we want to make sure this is clarified. So the idea is that you have currently
13:59schools promising players money, not delivering. You have players receiving money and then transferring.
14:05That's the current. So we're trying to, even the playing field where
14:10there can be contracts. Now the limit is the 20 million that can be revenue shared by the school
14:15and how that's divided up by contract. And we just need to make sure. So that's for your points
14:22are well taken and we will make sure the law does what we want it. The bill does what we are all
14:26expecting it to do and hoping that it does or want it to do. And we need to make sure the language is
14:31clear. It says compliance. What, what my chairman was talking about is just compliance with the act
14:37and doctrine of agreement. So you have to comply with the act to get the protections. And that would be,
14:42somebody could sue and go to court. They have a right of action to say the school's not complying
14:45with the act. So that, but we need, if we need to clarify, be more clear, then we can do that.
14:51We're going to work on it together. I pledge to you. I'll yield back my time.
14:56We will work on this together. I'll yield back, Chair.
14:59Yeah. Yeah. All right. I'm going to, and again, you know, what Mr. Fry said, this is contract law
15:07and you have a private right of action. We're not taking that away with regard to the
15:12contract. All right. I'll yield five minutes to the chairman or the ranking member of the full
15:17committee. Mr. Pallone. Thank you. Thank you, Mr. Chairman. You know, I want to go back to my
15:23opening statement in light of the debate that we've had here for the last couple of hours,
15:28and then ask the chairman, I guess, to the full committee, you know, an issue here.
15:35You know, what I said in my opening statement was that I believe very strongly that the courts
15:43had basically framed what's been going on now with college athletes and the issues that
15:49the SCORE Act tries to address and that there was, we shouldn't get in the way. In other words,
15:54I don't think we should have a bill at all because I think that the history of college sports and the
16:01NCAA is to simply exploit the athletes. And that exploitation, I'm afraid, would continue with this
16:09bill. We'd be much better off letting the courts and, you know, what we've had now for the last few
16:15years continue to frame, to set the framework. Anything else I worry would simply lead to more exploitation
16:25of athletes. I heard the gentleman from South Carolina, in no disrespect, you know, criticize
16:31the fact that NCAA and the college is spending so much money on lawyers. Well, the only reason that
16:37we've had success and ended the exploitation to some extent of college athletes is because
16:46they've been able to go to the courts and use the lawyers and make their case. You know, that's what the
16:53system's all about. That's what the rule of law is all about and democracy. So to suggest that somehow
16:59that's a bad thing because the colleges or NCAA has to spend money, well, that's too bad. They were
17:04the bad guys. They were the ones that were exploiting the athletes. They should have been spending money
17:09defending themselves. Unfortunately, they failed no matter how much money they spent. Setting this framework
17:15legislatively, I don't believe is going to help. However, I do recognize that many of my colleagues on the
17:21Democratic side do feel that if this bill was amended and it was clarified, and that's what the debate has
17:27been about for the last two hours, that they might be willing to support the bill. The problem that I see,
17:34though, is that my understanding, Mr. Chairman, Chairman Guthrie, is that, you know, you're ready to go to full
17:40committee on this next week because after that we have the August recess. I would ask, you know, you don't have to
17:47say yes now, but I would ask that that not happen. I think it's quite clear, based on the debate,
17:54that this bill is not ready to go to the full committee, and if you're seeking to have members,
17:59and even possibly myself, you know, support a bill, there have to be some major changes and major
18:06clarification of what is going on here, which is not the case. So I would ask, you don't have to answer
18:13now, that we not go to full committee. This is not ready at this point. I'm sure the rest of the
18:20debate today will even make that more clear. If you'd like to, if I'd yield to the chairman,
18:27if he likes, but you don't have to answer right. And I'm not going to commit to schedule on this,
18:32but you're, it's under, I take your comments under advisement. We want to get this right. We want to make
18:37sure it's correct. We feel like we have a strong bill if we need to clarify what the intent. I do
18:44believe because it says that you have to comply with the act to get these protections. If you go
18:48through the act, you have to provide comprehensive after memory sport, medical benefits, granting aid
18:52provided to student athletes. You have to have, if you go to have 12 varsity sports, as we're only going
18:57to have 12 because we can't afford 16, you're not complying with the act. So I think it's in there,
19:03but we will take the time to make sure we get it right. And I'm not going to commit to a timeline
19:07because we, we need to discuss it, but I appreciate your comments. Thank you, Mr. Chairman. I yield back,
19:15Mr. Chairman. The gentleman yields back. And again, I think we're doing pretty well here today
19:21in these discussions and this markup and making the bill even better. So the import has been very
19:29productive as far as I'm concerned. So we need to move forward. We have the, the ranking member of
19:35the subcommittee, Ms. Schakowsky is recognized for five minutes. Mr. Chairman, I think it's so clear now
19:44through all the discussion and the issues that have been raised on the democratic side,
19:53that this bill is not ready for prime time. And it seems to me that if we want to have a bill
20:01that really addresses the needs of our, the needs that we've been talking about,
20:11that we cannot say that this should be voted on. And I think that we need to agree to that
20:20and not to move ahead until we get these questions all answered. They're all very, very relevant.
20:30And it would be a mistake to move ahead.
20:35Let me remind the lady, if the lady, general lady will yield that this is a bipartisan bill.
20:42And I know there are some, several members on the Democrat side that are interested
20:45in co-sponsoring the bill. And they've told me that they're really happy with the product,
20:53but they want to work further with us. So I think we're making a great deal of progress.
20:58And I really think that the system is broken and it does require legislation. Okay.
21:05Will the general lady yield? She yields back?
21:08Yes.
21:09Yes.
21:09You yield back. Okay. If there's no further discussion, the vote occurs on the amendment.
21:16All those in favor shall signify by saying aye.
21:19Aye.
21:20All those opposed, nay.
21:22Mr. Chairman, we want a roll call.
21:24Okay. The gentleman requests a roll call vote. So the clerk will call the roll.
21:32Mr. Fulcher. Mr. Fulcher votes no. Mr. Dunn.
21:41Mrs. Kamek. Mr. Obernolte. Mr. Obernolte votes no. Mr. James.
21:51Mr. Bentz. Mr. Bentz votes no. Mrs. Houchen.
21:56Mr. Frey. Mr. Frey votes no. Ms. Lee. Ms. Lee votes no. Mr. Kane. Mr. Kane votes no. Mr. Evans.
22:17Mr. Evans votes no. Mr. Goldman. Mr. Goldman votes no. Mr. Guthrie. Mr. Guthrie votes no.
22:24Ms. Schakowsky. Yes. Ms. Schakowsky votes aye. Ms. Castor.
22:29Yes. Ms. Castor votes aye. Mr. Soto. Aye.
22:33Mr. Soto votes aye. Mr. Han. Mr. Han votes aye. Mr. Mullen. Mr. Mullen votes aye.
22:42Ms. Clark. Ms. Clark votes aye. Mrs. Dingle. Mrs. Dingle votes aye. Mr. Vesey.
22:51Ms. Kelly. Ms. Kelly. Ms. Schreier. Aye. Ms. Schreier votes aye. Mr. Pallone. Aye.
23:02Mr. Pallone votes aye. Chairman Bilirakis. No. Chairman Bilirakis votes no.
23:10Ms. Kelly. Mr. Dunn is not recorded. Mr. Dunn votes no.
23:15Mr. Houchen. Ms. Houchen. Mrs. Houchen is not recorded. Ms. Houchen votes no. Mr. James
23:24is not recorded. Mr. James votes no. Mr. James votes no. Mr. James votes no.
23:28Anybody here? We're good. Ms. Kelly. Ms. Kelly, how is she recorded? Ms. Kelly is not recorded.
23:34Ms. Kelly votes aye. All right. The clerk will report the result.
23:41Mr. Chairman, on that vote, there were 10 ayes and 13 nos. The amendment is not agreed to.
24:02Ms. Kelly votes no.
24:05Ms. Kelly votes no.
24:07Ms. Kelly votes no.
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