For years, Jon Tester has been involved in congressional hearings with NCAA officials, pressing to allow college athletes to profit off of their name, image and likeness.
The Montana senator joked his state could fit its entire population in the largest FBS stadiums in the country. But NIL avenues, and how they’re regulated, could affect and even disrupt college athletics in the Treasure State all the same.
Beginning Thursday, athletes can earn because of their reputations tied to the sports they play without fear of breaking NCAA rules. But this is only the case in fewer than a dozen states.
On Monday, the NCAA Division I Council recommended the Division I Board of Directors, which is set to meet Wednesday, approve a stopgap policy which would reverse course on NIL.
“I think this is a huge issue for Montana,” Tester told the Chronicle over the phone last week. “We could come out on a level playing field or we could come out on a tipped one. And if it’s tipped, it’s not going to speak well for our schools’ ability to compete.
“Look, I think there’s still going to be some opportunities for schools in Montana. Why? Because we don’t have that pro team. So if you’re the quarterback of the Bobcats or quarterback of the Grizzlies, everybody is going to know you,” he added. “You’re going to be able to profit. It’s not going to be huge money, but it’ll certainly help those athletes.”
In 2020, NCAA President Mark Emmert, a provost and vice president for academic affairs at Montana State in the 1990s, asked for help from legislators in creating a federal bill to circumvent NIL rules which could vary by state.
At the time, Tester thought the NCAA should’ve acted faster and pushed Emmert to do so. Now, he’s on board with Congress creating a uniform bill if it means the patchwork of rules prevents colleges from specific states profiting.
“I would love to tell you that the NCAA would be working, but they wouldn’t be” if not for the duress it faces, Tester said. “The truth is they’re getting a lot of pressure. They understand that if they don’t get in front of this train, it’s going to run over them.”
Tester called college sports “very, very important” in Montana because no major league teams reside in the state. He recognized profiting off of NIL could benefit schools in states that have already approved such laws like Alabama. In April, Montana passed NIL legislation which goes into effect in 2023.
Tester is seeking permanent laws that could benefit athletes, no matter the state.
“I think a national law will, done right, and I think we’re capable of doing it right,” he said, “will give equal opportunity to the universities within the NCAA and the athletes that are being recruited by them.”
College coaches are likely already using the potential of NIL earnings in recruiting. Athletes across the country have begun to think about how they can use their platforms in new ways, including through advertisements and on social media.
Tester believed some lawmakers passed NIL rules knowing the advantages in recruiting it would provide. He believes that would have a trickle-down effect on FCS programs if nothing drastically changes soon.
“(Larger schools are) still going to have that advantage if they pass a national law. I just don’t want that advantage to be compounded because of a patchwork of laws,” Tester said. “That would put us in an even greater disadvantage. The key is we have a national law and that law is equitable across the board. Alabama, MSU, all the schools in between, have to live by the same rules.”
Tester noted neither Congress nor the NCAA has passed regulations because neither entity has coalesced on any bill. For example, he mentioned a proposal in which a federal law would establish a baseline of NIL allowances, but states could “go over and above it.”
Tester doesn’t agree with that.
“Because then I don’t think we’ve accomplished anything,” he said. “There are people who argue vociferously with me on that point. But I just don’t think you can have a patchwork of laws around the country and expect uniform opportunities for the student-athlete.”
The NCAA has long opposed allowing athletes to profit off of NIL because of its amateur model. But Tester said he doesn’t see any reason why athletes should be barred from making their own money.
He does, though, see the possibility of some athletes shopping colleges for the best endorsement offers based on their location. This is why he’s seeking universal rules.
Tester also addressed what he called “the bigger challenge” of NIL laws: what they could mean for sports with less visibility. He knows well athletes who play Division I football or basketball. But when he turned on the U.S. Olympic Trials for track and field, he didn’t recognize anyone.
Tester doesn’t want NIL rules to ultimately hamper smaller or less profitable programs.
“The key is we don’t want to harm the student-athletes,” Tester said. “We tend to focus on basketball or football. We tend to focus on male sports more than female sports. The key is they’re all very, very important. We don’t want to pass a law that requires MSU to restrict opportunities for kids.”
A week ago, Tester hoped a bill could be passed by the Fourth of July, but he admitted “it ain’t going to happen.” He estimated something was more likely to pass by the beginning of 2022. This was before the NCAA resolved to move forward with its own interim rules.
Tester said it will ultimately come down to “negotiations and compromises.”
“I think the optimistic endgame is we get a national law passed that offers equal opportunity for student-athletes across the board at large universities and small universities and allows the coaches to be able to go out there and recruit on sound footing because the NIL is equivalent across the board,” Tester said. “Look, if I was a coach at MSU and (Montana), and trust me I’m not qualified to do that, but if I was, I would be going out there talking to a quarterback at Nevada and saying, ‘Look, if you come to Montana, you’re the only game in town, man. You become our quarterback, you’re going to become like the Joe Namath of Montana.’
“I think the key to good legislation,” Tester added, “is trying to understand both sides and find a common ground and threading that needle, and that’s what we need to do here.”