figure out how to respond to it. and there's certain information that they possess that is afforded protections under the law. there is a great fear out there, not just about government obtaining their information, but doing it without their knowledge. and i think, you know, when you're talking about a company considering moving to the cloud, there are a lot of them that are concerned that they're going to serve legal process on microsoft or google or somebody else and get that information without them knowing because of a nondisclosure order. our position is basically, you went to the multinational corporation yesterday, you should go to them tomorrow. and we shouldn't be in the middle of that. and to the extent there are nondisclosure obligations they should account for certainly the government's interest in makes sure evidence isn't lost or lives aren't lost. but there's often, almost always a way to do that without compromising the information. if you can talk with company,

general counsel's office, they aren't going to notify the target. they're found by the same disclosure and i think the law should account for that. you know, one of the things that was interesting, i was recently reading the legislative history of ecpa, one of the things that congress stressed, even though it got a fair amount wrong when it drew the 180-day line, one of the things they were trying to do, and they made this very clear, is sort of promote the adoption of new technologies like this. so i think without clarifying this, and you know, without clarifying the law in some of these other respects, you risk undermining the adoption of these new technologies which provide a number of benefits as greg was alluding to. >> we've talked a fair amount of content, we've been using it as e-mails for content generally, obviously, both microsoft and google and many other companies store an enormous amount of content, other than e-mails, you

know, including the backed up concepts of phones. but there is plenty of stuff that may be less sort of obviously content as opposed to metadata. you know, if you create an event on a calendar is the act of creating the calendar event is that the content of the communication? or is it somehow the metadata? even though you might just be hard-pressed to distinguish. we've mentioned location data. both microsoft and google have maps that would allow them to have repositories of location data. in google's case, i know google's had to fight off privacy litigation involving ads in g-mail. i mean, the scam to provide keyboard pads. i don't know if anyone's done this yet. you can imagine, a creative

prosecutor or law enforcement person saying, okay, you want a warrant for the content, we won't ask for the content. we'll look at the ad logs and see if this user's been served ads about searching for tax dodges or marijuana or something like that. you know, we're not asking for content. we're asking for your record of your ads. i'm curious if there are either situations where you've been pressed to draw that line that you found difficult? or you're not sure when you'd be able to hold the line and insist on the warrant? >> so, i mean, i think we talked a little bit about this in our transparency report. i mean, i can say broadly speaking that we take a more expansive view about what constitute content versus what is metadata. i think, julian, as you've alluded to, there's certainly a number of areas that are sort of in that gray area.

and those are issues candidly that, you know, congress may need to attack in the next wave of ecpa reform. given the challenges that we face, codifying those rules, not sure when those issues will be taken up, but when you talk about things that aren't clearly content or metadata. photos, those are things we consider to be content. as greg was alluding to before, you know, there are pieces of data that congress didn't contemplate when it enacted ecpa in 1986. i think you see appeal let courts all disagree for example, location information requires a warrant, whether it requires it prospectively versus retrospecti retrospectively. how long does a collection need

to occur before the restricts of the fourth amendment apply. >> we keep talking about privacy reform. there are a couple of different areas that fit into this broad umbrella. we talk about content. we talk about location. metadata is always one of the favorite gray areas. i think your question about subpoenaing the ad logs, what kind of information that, that's something that we haven't talked about, to, from, who called who, metadata. you can go out and figure out the when it was, if the content doesn't get turned over to you. content is going to get electronically communicated. you have to talk about what this communication is going to mean like you said, outlook calendars. if i invite one other person, is that an e-mail some kind of public communication? i would wage tore guess that

that content when you invite someone to an e-mail, blah, blah, blah. i think most of us would expect it to be the same as when you send a wedding invitation in the mail. when you look at e-mail, cloud storage, photos stored online, anything like that stored online between one or two other parties. now when we get into the third party doctrine which is really where kind of the crux of this is. if i gave my information, katie mcauliffe gives her stuff over to david at google, then david specifically just, google the whole, is google considered the person i just gave that information to? but really what they're doing is sorgt a file cabinet. they're not the person that gave it to you. so they shouldn't be able to be subpoenaed. but if i did send it to david, david could be subpoenaed because he has the other end of that e-mail. very basic, bare bones, when we're talking about communication-type content, content in e-mails, that's what we're talking about.

there's also location. there's pings and date dumps and all of these other things. but the warrant for content is kind of what we're talking about right now. and i think the main question that we're really debating and what congress needs to address and what congressman poe aed through is what is reasonable and unreasonable search and seizure. that's what our debate is here. i think, me, personally, i think it's highly unreasonable to go through my e-mails stored with -- stored with google. and not let me know about it. >> you mentioned an array of things. maybe you can bring some vision on where things stand now in terms of reform. and maybe why we're sort of not already there. i realize congress is in general fairly dysfunctional. but there seems to be a shocking

degree of unanimity, and yet it seems to be stalled. can you give us a sense of what the political landscape and what the sticks points here are? >> sure. i don't necessarily think that congress is dysfunctional. sometimes, the function is dysfunctional, right? >> sure. >> depends which side you're on, right? so looking at this particular issue. and let's just talk about warrant for content on the house side. to start out with. you've got a bill that solves the e-mail problem. yea. also solves cloud documents. no one in here is excited about this at all? i don't know why you're here. so we've got legislation that will do that. and then moving forward, that's something that 220 -- someone correct me if we've got more -- 220 are in favor of this particular legislation that

fixes electronic completions privacy reform act. but it's stuck in the judiciary committee. and i'm not quite sure how something that is supported by 220 members of congress can be stopped. i'm not quite sure how something with the broad support of companies, coalitions, think tanks, individuals, how something that has such broad support can be stopped. and not move at all. wait, wait, wait. civil agencies don't have a probable cause standard. you know what that means? that means that they aren't get to your e-mail anymore once there's a warrant requirement because they can only have subpoena authority. so civil agencies want to keep being able to read your e-mail. so they want to carve out in legislation i'm a civil agency, if that's okay, i have a civil

warrant which is a standard and a warrant of probable cause which you need probable cause but i'm going to be read your e-mail anyway. and because i have digital sharing, i'm going to do that, too. there's a loophole. that's why it's not going anywhere. in the house. that's why it's not going anywhere in the senate. it's not going anywhere because the government wants to read your e-mail without you knowing it. they want a subpoena, that's it. >> the reverse in these hearings is also the sense that it applies on the law enforcement and other purposes less relevant somehow. although the original combricor was costume reserve. >> can i just -- >> yeah. >> it's gotten to the point of absurdity, i have to say.

the government's power should be at its zenith when it's investigating a crime. that's when its power should be at its zenith. that's when it should be able to penetrate and get the most sensitive information. and yet, we're on this situation on a criminal side, there's a consens consensus. even d.o.j. says we think ecpa needs an update and deal with the content rule. and yet, there's this notion on the civil side when the government's power is not at its zenith. it's not investigating the terrorist that's going to blow something up, it's investigating stock fraud or something like that. that in that situation, there ought to be a lower standard. it just seems absurd. >> absurd. >> i didn't realize you're probably thinking in enormous detail here since both companies have been fairly transparent. what is your sense of sort of

the spread of the kinds of information that people come looking for? what is the nature of those investigations? and are you finding, a shift over time as different agencies become more aware of the different capabilities and data that are being stored and what they're asking for? oh, now, you run a location server. that's something information we can ask for. >> yeah. i mean, i think, you know, frankly, law enforcement is sometimes a little bit slow on the uptake. but, the services are public. they do get on and use them. and they eventually figure out sort of how they operate and what data would need to be stored to separate service. and so, i think, you know, they're becoming more and more sophisticated. you know, in terms of the types of investigations, i don't think that's changed much since so much of it is tied to the legal authorities. you know, now that we're in a

warshack, most warshack world that we require a search warrant for content in all cases it becomes a case where you have to get a search warrant to investigate it. so that sort of drives a lot of it but the data types and data fields that are provides are sort of incumbent on, you know, what data there is in existence. and how long it's stored. and what specifically they ask for. you know, we typically require them to be very specific in saying what types of data they're seeking under a arrest. they can't just send us a search warrant and say give us so-and-so's data. they have to specify what fields and things they want. >> both of you -- both companies got quite a lot of request for information tofor transactional data or activity logs or other

information. that's actually the bulk of the class. so i'm wondering what those tend to look like. and whether that's something that usually is fairly focused, or whether the number of accounts on a significantly larger than the number of requests to both companies. and so i wonder if, you know, if that's in general, you know, requests for a couple of accounts. or you occasionally see a fairly -- well, what one might consider egregious attempts to sort of rope in a whole lot of people at once. >> yeah, with the caveat that we can only talk bhab we did on the sort of domestic side of things under ecpa. you mentioned the sort of bulk of requests that we receive send to be transactional information. it's basically information that users provide to us, for example, when they sign up for

google accounts. that could be name, gender, information, you know, like that. and that's the information that generally can be obtained under ecpa with a subpoena. you know, there is a significant percentage, somewhere in the neighborhood of 20%, 25%, that we tended to get that does ask for content in which case will ask for a search warrant. but it's not, you know, generally speaking, that the type of information that we get is pretty run-of-the-mill stuff that you tend to provide when you sign up, sign up for our services. if i could actually just build upon what greg and katie were alluding to before. i wanted to be to be clear in terms of civil agency side of things. a warrant for -- there's a perception that a warrant for content believed the civil agencies have a remedy to do the sort of things that civil agencies do. for example, in exchange for the

s.e.c., to investigate and prosecute securities fraud. typically speaking, in civil litigation and i think dave was alluded to this before, when you're investigating someone, or initiating litigation, you're going to serve a, you know, demand or legal process on the target of the investigation. so you won't be going to a third party service provider. that is generally speaking how civil litigation works. so, you know, if there is a person that's being investigated, that they are the target of the investigation and information is within their custody and control, they're going to have a legal obligation to provide that information. to the extent that they're uncooperative or intransent, they have a responsibility to enforce the subpoenas. agencies that don't comply can

be hit with sanctions, they would be prevented from pursuing claims. all sorts of civil remedies that they have to ensure that bad actors could be perpetrating fraud. if we focus on the e-mail from third party service providers and not the end of the investigation to prevent the underlying fraud that may be occurring i think we're missing the boat. i think there are other remedies some of which exist under ecpa some concerned about the destruction of evidence. you don't need to have any of that at all like google to serve a preservation request. that will freeze the account and ensure that any information destroyed isn't permanently destroyed. look, a lot of examples where we've heard where this may actually end up being a problem where civil agencies don't have a warrant requirement tend to be sort of edge cases and they tend

to be framed in hypothetical or theoretical terms. there are actual case where is these things tend to create problems. they tend to come up in, you know, well, you can imagine a situation where, you know, x person is doing y thing. but without sort of real world examples of how this is impacting civil agencies, it's really difficult to craft a solution that would address the problems they've been raising. we think they're adequate remedies under existing law. and i think that's why there should be a bright line warrant for content standard. >> and you're going off that again, the next distinction, right, we're talking criminal versus civil so on the criminal side you have the probable cause warrant side to the third party. that would be referred to as the target. on the civil side there is no warrant authority. remember, this side over here, life, death, limb, children,

women, all the scary words go over here. money and white collar things and, i don't know, other kinds of fraud goes over here. so, there are emergency exceptions for when someone is missing. there are emergency exceptions for which someone is getting hurt. that is taken care of. the law enforcement has agreed that makes sense. but if we want to find out stuff about you, like, i don't know, who's your affiliation as an organization when you file your tax status? just reads e-mails. i mean, if you look at some of these things that this -- having the ability to circumvent the target and subpoena the third party, a civil agency, what kind of door that opens and what kind of authority that gives the executive branch. what kind of authority that

gives an independent not to raise the fcc, maybe your favorite is the epa or the consumer protection bureau, i wouldn't know. but this wouldn't apply to just one of these agencies. it would apply to all of them. not just federal ones either. this would apply to state ones as well. let's talk about local law enforcement that can read your e-mail now. now, with the private act that is in the house right now, the section about warrant -- warrant for content, that congressman poe was talking about. there's another bill, straight up warrant for bill for content. those are good to go. if there are changes, now, we aren't good to go. it becomes worse than what the law is now. >> actually, indicating both, there are kind of a dizzying array of bills throughout. some for content.

some about geo location specifically. what bill or mix of bills do you guys see as moving the ball farthest? or just which of the ones are the best prospects right now? and which are less likely to move? >> so, if i could jump in on that. i think the ones with the best prospects are the ones that are straight up, warrant for content, right now. and the reason i'm saying that is it's a relatively simple conce concept. it's been well debated on both sides the house judiciary committee has had a couple hearings. though they haven't yet moved a bill. the senate has had hearings and has moved a bill. but once, actually, the other piece of data that i'd like most like to protect, vocation information, it's not yet right,

particularly at this point in the calendar to have that come up. too many hypos will come up. so if i had my druthers, it would be that the yoder-pollis bill in the house. 220 sponsors as katie was saying, straight up warrant for content, the bill advances. it's the counterpart bill that went through the senate judiciary committee. just to respond to one of the questions that was asked of representative poe. the question was, you're doing e-mail, what about all of these other ways to communicate, you had asked the question? he covers those other ways to communicate because his bill goes to all content. and content is defined as substance meaning or report of communication. so it doesn't mean kind of the electronic structure, if you will, it's all content. he's covering all of it. it would be a warrant required

for all of it. >> just this weird puzzle of saying a facebook message, and e-mail, sort of function exactly like an e-mail, does it matter if it's called a facebook message? >> no. >> it doesn't travel like the vertical. >> no. >> actually, since greg did bring up location, one of the things that i find particularly troubling is the growing popularity of, i guess, cell phones, but what are called tower dumps. where police don't necessarily want to go and say, we have a suspect, we think he did the crime. we want to confirm that he either was or his cell phone was or wasn't at the scene. but, rather, we have three robberies we think were committed by the same person, give us every phone that was near each of those three locations and we'll look at anyone at all three locations.

obviously gathering information about people's locations that is not particularly sufficient for any of them. is that something that either you are aware of having been attempted with respect to location data retained by google or microsoft? >> you guys don't get that, do? >> i don't mean to give you any idea. >> just kidding. you guys are obviously most concerned about content. there are a lot of ways, like, for example, irs until very recently had in their manual, a section saying, by the way, if you're investigating and you want to read a tax dollars e-mail, you can do so with a subpoena. i think they finally agreed they shouldn't do that anymore. but for a lot of thing, well, what's your affiliation, are tea party patriots having too many

communications with political candidates. maybe we should call the tax dollars into question. a lot of that is information that is revealed by metadata. if you're particularly concerned about how aggressive those regulatory agencies that you see at least in some quantity requiring additional protection. >> so, for me, personally, and just speaks for myself as to liberty, i personally care much more about content and location than i personally do about metadata at this point. because metadata is one of the checks that the government can subpoena to make sure you turned over all the e-mails. they can check the law and say, hey, actually, you deleted this to so-and-so. that kind of thing i think is important, especially if we're

talking about protecting content which, granted, in a sense, it's all content. but we're talking about the actual -- the meat and potatoes of the e-mail, right? i find that to be the most important. and then i also find location information to be very difficult. and look forward to working on that a lot more. as greg was saying, right now, it's become complicated with the riley decision that just came out. you're dealing with gps location and tower location. these are two different types of locations so you need a different law. i click this button here, it goes in my cloud, if i click it here, it goes on my phone. those are the things discussed. the kinds of decisions that are coming down. and moving forward into a location space, that needs to be taken into account before talking what about we have done with location. and also what is the future going to look like.

what is perspective is seven days, no big deal. but it establishes a pattern of where someone's going and what they're doing. talking about that, you move closer and say, well, just a one-time ping. it doesn't really tell you that much. but if we keep going down this route and we keep going, when is one time going to be too much. and we don't know that. it's a decision that is still ongoing and a lot of people are looking at this very seriously. there will be a lot more discussion about privacy and the decisions from the supreme court have been helpful on that. >> you know, i would be surprised actually if congress got to location information before the supremes did. and i say that because there's now a split in the circuits. the 11th circuit ruled that you need a warrant for location,

stored cell location and information. and the 3rd circuit you might need it depending on circumstances. and one other circuit, i think it was the 5th that said you don't need a warrant for it. so there's a split and it's right for the supremes to weigh in when they want to. and somebody fills a case to them. part of the issue with a lot of ecpa is, representative poe was pointing out, if there's a violation of the fourth amendment, you have -- your remedy is that you get the evidence excluded. so what does that mean? it means that a lot of criminal defendants will claim their fourth amendment rights were violated. and you get a body of law that develops about whether those rights were violated. ecpa doesn't have an

exclusionary role. the consequence of that is, you don't get the same development of the law, accept the fourth amendment claim. if you make the statute claim, hey, they violated the statute and i get to get the evidence secluded you get a lot more case coming up through the courts. we don't have that many cases because we're only in fourth amendment plan when it comes to the execution rule. >> it is the perverse against the law. some judges retaining those. fourth amendment law always made exclusively by guilty people trying to overturn convictions which is perhaps not the most healthy, sort of structural condition for the development of protective law that we're

concerned about. particularly in the ecpa content when metadata particularly, which means data is obtained about you, what websites you're visiting, data about what people you're communicating with if you're not invaded because there's no evidence of anything happen. but you may not have an opportunity to bring an action against your federal constitutional rights which are incredibly gray anyway, but even if you wanted to, you would lack the opportunity. part of the issue here, there's obviously an enormous amount of data gathering from the companies here with the report leading the charge here show. but not as much public awareness of how incredibly frequent that kind of digital search was. much more frequent than

traditional wiretaps. before we shift to audience questions, are there any other last remarks or can we jump to the audience? >> i would just make one last comment. i've been in washington a long time and i've never worked on an issue where there was so much consensus. really. i mean, how large do you see google and microsoft sitting shoulder to shoulder advocating the same position. how large do you see americans for tax reform and the aclu on the same letter? it's extraordinary, there's a website, you can read about this extraordinary coalition. it's www.digitaldue.process.org. you'll see how many people have gotten behind this ecpa reform principles. how many companies, how many academics and political groups across the spectrum, it's really amazing. >> and i should say, we're thinking, google and yahoo!

microsoft, companies that increasingly -- i never thought it would happen, telecommunications carriers, that in the last couple of years have begun voluntarily disclosing information about the quantity of government requests for information. so, you know, it's a positive trend that i hope we see continuing. i'm glad it is something that these companies have been taking the lead on. let's let the audience judge in with questions. i'll be less tolerant than representative poe. i will enforce a three-sentence rule, somewhere around the end of your third sentence but not before, i will hope that your voice rises in such a way to suggest by that inflexion that an interroggative is being posed

let's start there. >> why does metadata get a pass. if i had an e-mail to julian it doesn't say much to the content. but if i had five e-mails addressed to five of you that is indicative or what the content of that e-mail is about. so why the pass? >> i think it's partly an historic artifact, that when courts were coming up with rules from what was going to be protected by the requirement, there's a case smith v. maryland how about the issues that dial on the phone, is that going to be protected when that information is stored with the telephone company. and the court said, well, it's not as revealing as the content

is. it doesn't tell when the call was completed. it doesn't even say who you talked to. it just says you dialed these numbers. so maybe it should be warrant protected. what's changed is that there's so much more metadata out there about us. and it can paint a much fuller picture of what our activities are. and i think there's a growing consensus that metadata ought to be protected at a higher level than it is. one of the digit recommendations goes to metadata collected in realtime. i think we're moving in that direction, and in particular, the noncontent i think to be most likely first protected by warrant requirement is going to be location information, just because it's so reis veal iis r

particularly when collected over a period of time. >> i would jump on that and say metadata isn't gets a pass, it's ranking, right? this is in my mind, the content in my e-mail is more revealing than perhaps my gps location, and that is more revealing than perhaps my communications, so this is my personal perspective. and i'm looking at what can be done and what can't be done. if i walked down the street and say metadata to the next ten people, most would think i'm babbling. >> or at a convention. >> yeah. >> that sort of thing, you've got to look at education. you've got to look at what people are ready for and where we are and what can be done. and then there's this great universe where everything is perfect. but it's politics, baby. we will leave this discussion to go to a live discussion of the senate panel looking at college athletes. among the panel is ncaa mark

emmert and taylor branch. you can use the #cspanchat. this hearing will come to order. and i want to thank all of you very much for coming here. you're a bit squeezed in there. but, water is on the house so -- be comfortable and be glad. college sports has an absolutely extraordinary position in the culture of our country. not only college sports inspired incredible fan passion all across the country, but they've provided a very important way

for young men and women to, as is written, both through athletics, as navigation and get an education. we're going talk about that today. many young people, however, athletics has provided an avenue to college that otherwise would not have existed. and it's important to understand that. college athletes and athletics are rooted in the notion of amateurism. and the history of that is very interesting and important, going back to the founding of ncaa, 1996, and going back, actually, to the greeks' concept of amateurism. playing college sports is supposed to be an add vocation. students play for the love of the game, not the love of money. many people believe this notion of college sports is being undermined by the power and the

influence of money. i remember a meeting i had in my office with the three top executives of espn. and it was one of those meetings in which i didn't say a word, because they just went around in circles. each talking about what a great business model they had, how they had control and the power that no other broadcast system, whatever, have. how thrilled they were with it. and how they were going to make it even stronger. there's a growing perception that college athletics, particularly division i football and basketball are notwoke indications at all. critics of big-time athletics say the goal is not to provide young people with a college education, but to produce a

winning program that reached financial readers for the athletic departments and their schools. it is not, however, about the students. they're part of what generates the money. it's about capturing the billions of dollars of television and marketing revenues that college sports do generate. and will generate even more. colleges and universities say that these refuses benefit college athletes and their student bodies at large. but i think we have to consider whether the lure of such riches could corrupt the basic mission of athletic programs. winning teams get higher payouts than losing teams which creates a strong incentive to win. an incentive which land grant public universities and others are more than happy to follow and win at any cost.

much of the money is often funneled right back into the sports programs in the form of multimillion-dollar coaching facilities and state of the art facilities many of it paid for by the taxpayerses to perpetuate the cycle of winning. i think somewhere in my reading here, about $48 million of all the $900 million that ncaa gets from, you know, their broadcasting, march madness and all the rest of it, a very small portion goes specifically to academics. but even that's hard to figure. because nobody has the figures. mr. emmert works for them. they make the decisions. he carries out what they want. and, yet, the subject of discussion is how does he carry out what they want.

what powers do-z -- do you have, mr. emmert, for actually carrying out what you think is a good idea. you're the president of three major university, different places, then i would think your passion for education would need to show itself. athletics, to me, are meant to serve schools and their public duty to educate students. not the other way around. that's the way it's always put forward. and that's the way it should always be. dr. mark emmert is here to present the perspective of the colleges and universities that belong to the ncaa. i would thank you for testifying. you could have declined to do so, some do, but you didn't, and i'm grateful for that. i believe you were put at the helm of the ncaa because you have an impressive academic credentials and a sterling reputation. and i think that we all appreciate that you're extremely well compensated. your individual qualities are

not what trouble me. i think i'm just very skeptical that the ncaa can never lift up to the lofty mission that you constantly talk about and which is written and printed in speeches and statements response to penn state this or that. nothing comes before education, he's always there, but the actions don't appear to be. i don't see how the ncaa will ever be capable of making a safe, good, education experience for students their number one priority. i want you to tell me that i'm wrong. that i am wrong and that i'm particularly wrong about the future. but i'll be a tough sale. i think we believe that the ncaa has largely been left to its own, to determine what forms are appropriate. and how to accomplish our mission, as we continue to learn

more about what goes on at some major universities and colleges, we want to know if the ncaa is seriously considering how college athletes are faring under this system. not just living, as they do, but injured as they often become. racked by poverty. if they don't do well, maybe they're stipends are cut off. and is there an advantage in a mandated four-year scholarship. all of these things are put at play. how are young men who strap on their helmets on a football field in front of 100,000 passionate paying customers, how are they doing? how are young men who lace up their shoes and play basketball for march madness that consumes the nation, and deliberately spread out over a long period of

time so no kid, 12 years or 10 years or older could ever hope to do any homework because there's always basketball on. are colleges and universities living up to their end of the bargain in providing them with a good education? are these young athletes entitled to any of the billions of dollars that are reaped from their athletic service. and when young men and women put their bodies at work, whether women's lacrosse or men's soccer, do they have adequate health insurance? i don't know. i don't know. and i never go into a restaurant or barber shop or anything without asking sometimes to their discomfort, do you have health care? and i know what the answer is going to be. dot schools and athletic leagues sufficiently minimize the risk

of concussion? and what happens to a student injured before graduation, can he or she finish out their studies. or does the scholarship run dry? well, a couple of months ago, we all heard the deeply troubling comments shabazz napier the talented university of connecticut guard who was very valuable in the basketball tournament in the midst of a tournament that generated hundreds of millions of dollars for the ncaa and its members. mr. napier talking about how sometimes he did not have enough to eat during college. how did college sports benefit mr. napier on nights he went to bed hungry. you can look at it two ways. oh, there he is trying to pick out a famous athlete and turn it into some problem. i'm not trying to do that. i think it is a problem. and the whole sense of giving students a safety net, and a sense of confidence, if they're

not, they don't turn out to be as good, and they don't make the team. the third year, are they dropped, do they get scholarships or what happens? i don't know. the title of today's hearing is promoting the well-being and success of college athletes. i want to have an open-minded and frank discussion on this subject. the ncaa has the same goal as i do. dr. emmert is going to tell us that the ncaa's commission is to protect college athletes from abusive practices and exploitation. and promote college sports as a means towards achieving academy excellence. today, i want to explore whether the ncaa is fulfilling its mission. we still hear too many reports of fraudulent academics. we still hear stories for

athletes who have nothing to show even though they provided millions and millions of dollars. i'm here to tell you, and if perchance, the clem cats should control the congress next time. and nobody is quite sure about that, john thune has one idea. bill nelson has another idea and -- you, yeah, okay. and that i think that we want to continue this. we want to make this a continuing surge of this oversight committee. we have jurisdiction over sports. all sports. and we have the ability to subpoena. we have the ability to -- we've created a special investigations unit. we're very into this subject. i personally am. i think our members are. and so, this is the part of the process here.

so, i'm going to have some tough questions for our panel. the ncaa and its member schools, is it simple a little legal cartel, have college sports become a multibillion dollar commercial enterprise which is no different than other corporate witnesses who have appeared before this information? and is the ncaa in fact have the best interests of college athletes. large questions and important to be answered. i turn now to my very distinguished ranking member, senator john thune from the state of minnesota. >> thank you, mr. chairman, for holding the hearing today. i want to thank our panelists for the opportunity to examine the current state of collegiate athletics. like you look forward to hearing from our witnesses including how the ncaa and its member

commissions are fulfilling that. i'm an avid sports fan. i know others are as well. as a former basketball player high school and college and the proud father of a daughter who competed at the division i level, i certainly recognize that the participation in sports requires not only physical strength but teaches team work and other skills that serve you throughout life. however, the college and student athlete is and should be a student first. colleges must prioritize their academy obligation to student athletes. as the popularity of sports has grown in men's and women's basketball so, too, has the profitability of many collegiate programs. in the current environment, the stakes have been raised for the athlete who wants to succeed and a university that has a financial interest in winning games. increasing revenues to some schools due in large part to the broadcast rights of football and

basketball games have become more common. revenues for ticket sales are also significant. and of course, alumni n krrcaa s to promote athletics and higher education so the academics of the student athlete is paramount, however, college sports, some institutions appear unable to balance the core academic mission of the university and the commercial considerations that often accompany athletics, plarlg in high-profile sports. many feel the commitment to the student athlete is falling short. another point of contention involved athletic scholarships and whether the practice of offering annual instead of multi-year contracts result in the student possibly losing their scholarship. they may disadvantage smaller

schools that can't match the resources of larger institutions. clearly, collegiate athletics in america are not without controversy, and we'll hear from some of the most vocal critics today. i hope we will not lose sight of the positive impact that amateur athletics has made on the lives of countless student athlets. it's not just about basketball and football. they shared the results of a student athlete exit interviews he conducts annually to conduct the school's program from the vantage point of the athletes themselves. he underscored two things that stood out. the athletic director at usd reiterated how a sophomore diver recovered from open-heart surgery to qualify to dive at the ncaa championships, the feat that would not be available

without the support of the coaches, team, and family. he also animated the story of a sophomore swimmer who leaned on other athletes to support her in the loss of her father. she was able to return to the pool and she went to the summer championships. as a usd athletic director puts it, these two are just a sample of what college athletics should mean. if you strip away the money, fancy locker rooms, chartered flights and large budgets, you're left with student athletes who often have to overcome personal, social, economic, academic, and athletic adversity, all just to compete. but they frequently do it with passion and determination that makes us all proud, end quote. that's from the athletic director at the university of south dakota. recognizing the challenges exist, it's my hope the ncaa, its member institutions, the student athletes themselves and other stakeholders will seek solutions that promote the

education, health, and well being of student athletes and seek to preserve amateurism in student athletics. this is an area where congress can provide a forum, but the solutions are most likely to come from those involved in the development of the student athletes. thank you again for holding the hearing. i look forward to hearing and having an opportunity to question the witnesses. >> thank you, sir. what we're going to do now is we're going to hear the testimony. and then both senator mccaskill and senator booker, both of whom are sterling and wonderful people, are going to get very, very angry at me. because i'm going to charge into the regular order and i'm going to allow senator koets to ask the first question, which violates all the rules of the committee. >> i'm mad. >> that will make you a better questioner. >> as the most junior member on

the committee, the senate rules do not allow me to be mad at you, chairman. >> and for what it's worth, i was of the impression also that we were on the first to arrive and ask questions in order. so i arrived add 2:10 just so i could be first. because i didn't want to put you in a bad spot or breach the rules. >> you never do, and you're wonderful, so you'll ask the first questions after the two of us. >> and thank you for being here. and don't be nervous. >> okay. >> i mean it. it's a wonderful opportunity to say what's in your heart and on your mind. >> yes, sir. first, i want to thank you you and the committee for inviting me here today. to share some of my experience and knowledge on this very important subject. very complicated subject as well. i have had many conversations with fellow student athletes on this issue. about the current role of

student athletes today. in this giant scheme of collegiate athletics, and we often walk away from those conversations with more questions than answers, so i'm hoping today is a first step towards answering some of those questions and providing some context and clarity to this discussion so that we can see our student athletes receive maximum edification in all aspects of their person, be it a student, an athlete, a leader, and a man and a woman. that's very important to me. i wanted to start my remarks by beginning at the genesis of my story. my parents are from the island of the bahamas. my brothers are as well. i was born here in the states and raised in new jersey. i went to high school in princeton, new jersey, and after my school days in princeton, i would go to the university, and i saw this big statue, poster of this guy who became my hero, bill bradley. he was a rock star in my opinion. the epitome of what a student

athlete should be. nba hall of famer, u.s. senator, and a rhodes scholar. the first time i heard those two words, rhodes scholar used in the same sentence. once i fijsed high school in princeton, i had 83 scholarship offers to go anywhere i wanted to, and i was rated the number one high school prospect in the country. i decided to go to florida state. the first thing i did was going to the office of national fellowships and told them i wanted to be a rhodes scholar like my hero, bill bradley. if he did it, i wanted to do it as well. three years later, i was fortunate to earn that scholarship. then i want to see my teachers and mentors and told you i want to increase my capital so one day i can be a pediatric nurse lie ben carson. now hopefully i'll be able to do that in the future. lastly, i went to my strength coaches and my trainers, and i told them i wanted them to equip my body and get me ready for a

career as a national football player. fortunately, i was able to be drafted by the titans and play for the steelers as well. it makes not only my story is pristine and ideal and maybe used as a poster child for what you want a collegiate student athlete to have experienced, but i will say that my story is quite rare and unique, and some people even call it an anomaly because outside of senator cory booker, the last major division i player to earn the scholarship was a rams quarterback. there are very few student athlete who had the same infrastructure, the family support, the foresight not come from a broken school system in high school, not come from a broken family, were able to engage in their college experience and maximize their time. many more of my teammates and friends and student athletes struggled in the college environment, struggled mightily,

struggled economically because they became believe it or not, the main bread winners for their families and with vd to send some of their scholarship money to take care of their immediate and extended family. they also struggled academically as well. a lot would go through this academic machinery in their cleeb colleges and be spit out at the end left, torn, worn, and asking questions. with really no direction, no guidance on where to go, no purpose, no idea of their trajectory and sometimes left with a degree in hand that didn't behoove any of their future interests. today, i hope today we can shed light on this aspect. as you said, chairman, we're really pouring energy and life and money and exposure and highlighting on tv the life of the athlete. but i believe we're still falling a bit short of edifying and improving, augmenting the aspect of the students, the person, the man, the woman, and even the philanthropist and leader. i believe if we can do that, if

we can not only see our student athletes go on to become productive athletes in the preflsh rinks, but more importantly, be productive leaders and citizens who go on to be leaders of industry, of man, of woman, and have an indelible impact as they go on with their future. thank you for having me here. i'm looking forward to having this discussion. >> thank you very much. now, welcome. devon, right? >> good afternoon, chairman. yes. good afternoon, chairman rockefeller and members of the committee. it's an honor and a pleasure to have this opportunity to be in your presence and share my story and thoughts on the current state of college athletics. let me first thank you and your staff for your invitation. i was born to sharon and darren on december 8th, 1988. in new jersey. my mother always valued a strong education and sent me to a blue ribbon winner school that

covered kindergarten through eighth grade. i excelled in the classroom and participated in athletics. by the time it was time for me to leave, i had the opportunity to go to a school right down the road in princeton that played against myron. i decided this would be the best academic and athletic environment for me. i will go on to a successful academic and athletic career, graduating in 2007 and i decided to sign my letter of intent to go to the university of north carolina at chapel hill. what drew me to that school was not only its esteemed reputation as a top academic institution but also as a nigh hire of the new head coach butch davis. it showed the university had an all-around commitment to excellence. my career at the university of north carolina has been one filled with adversity. i have undergone five surgeries, been through three head coaches, and been asked if i wanted to transfer or if i wanted to take

a medical red shirt. however, despite all this, i managed to succeed being named an offensive starter four out of the six years and my nfl draft analyst, mel kiper, named me top three in my position. but most importantly, i got my degree in public policy with a concentrate in business. as a graduate, i moved back to red bank, where i would pursue my hopes of making an nfl team. however, i didn't make the team at tampa bay. now, in the summer of 2010, twof my teammates have violated ncaa rules and attended a party throw my sports agents. the university of north carolina then launched their own investigation into the matter, and discovered several potential counts of academic fraud. after a final practice of the week before we played clemson, i was told to report to one of the conference rooms and brought in for questioning by university officials. before the questioning began, i was told this conversation would

be recorded and it was asked if i needed a lawyer. i thought i had been called in there to see if they could find any more leads for their investigation. then they asked -- they began to ask me about my definition of academic fraud, academic dishonesty and plagiarism. that's when they brought up a 2-year-old e-mail correspondence between myself and a tutor. in the said e-mail, i asked the university's tutor for help with grammar and overall quality in the paper. she replied by adding four to five sentences to a two and a half page paper. they asked me if this paper, if it was the exact same paper i turned in. however, i couldn't remember since it was two years ago. in the follower four weeks, i was held out of competition, they sent me to the university's honor court and the attorney general of the honor court said there was no case here, there wasn't enough evidence, they had no final version of the paper,

it wasn't submitted electronically, and most people don't keep papers from two years ago. as i was being held out by unc, an official from the compliance office proposed if i were to be believed guilty after being held out for so many games, that the ncaa would in fact allow me to play. at this tiement, i believed the unc's compliance was well versed in ncaa policy. however, it was a shocking blow when they then ruled me guilty of academic fraud which stripped away my remaining eligibility and tarnished my reputation. after coming to the realization that unc was more concerned with penalties and lawsuits than scholarships than protecting one of its own, my mother and i set out to find lawyers who would hopefully have my best interests at heart. however, none wanted to stand against the ncaa nor its membership. fortunately for me, a state supreme court judge reached out to my mother after reading an article she had been involved

with in news observer. without the judge's legal knowledge and tenacity, i would have no one it turn to. as we went to the appeals process, which was possible with the endorsement of the university of north carolina, the leadership at unc once again wanted me to take a plea for a sentence, however, the judge, my mother, and i needed to have my name unsullied. by going back and looking at the original interview, reviewing a lack of evidence and disregarding the guided testimony, the ncaa overturned its ruling and reinstated my eligibility. unfortunately, the first game of the next season, i tore three ligaments in my knee. i wasn't able to return to the final game of the season. now, one of the things that was, looking back at my career, that i wish i could have par taken in, was intermships. a few of my friends from

laurenville went on to play at the ivy league, and with the their -- it's not as demanding as, you know, high level division i football, they were allowed to go and pursue other things in the summer. and upon graduation, some of my friends got great job offers. an internship gives you direction, teaches you valuable life lessons and prepares for you professionalism. a competitive football school, competing an internship is almost impossible. one must be enrolled in a number of credit offers. i have seen fellow athletes get hours, most ended up quitting their internship because of the sheer level of exhaustion on any given day. only one was able to compete his internship because he wasn't required to go to any classes. at the university of north

carolina, football players were one of the only teams not allowed to participate in university camps that would create another source of income. in fact, during a panel discussion about the documentary school, the price of college sports, head coach of the george mason men's basketball team, paul hewitt, stated his team has to do an internship before they graduate, a mandatory one. i think this is a great practice. if the ncaa truly wants to develop student athletes and prepare them for success in the field, they should mandate that all athletes complete an internship. the reason is it needs to be mandated is because of the existing culture that demonizes any activity that won't directly help a program. players that go home for a semester, and i have friends who have done this, are labeled as selfish and lazy and almost a cancer to the team. but in fact, he's just going home, he's still working out, just trying to improve his own

value for the likelihood he's not going to make the nfl. i have come to realize there's a void in college athletics. the incaa as an institution no longer protects the athlete. they're more interested in signage and profits. i wasn't aware that i needed to defend myself against my university and the ncaa, and as a student, i lacked the resources and knowledge to defend myself. against an 80-year-old institution. my family lacked the resources to hire a lawyer, and if i refused to be interviewed i would have been held out until i testified. in the ncaa, college football players have a very small window of opportunity to prove our worth to the nfl. therefore, every game you miss is a lost opportunity, and a means to devalue worth. there needs to exist an entity that quickly works to help the student. it terrifies me how many students might have had their

eligibility unjustly taken and the reputation damaged. the student athlete has a short career and is an amazing renewable resource, and because of that, the ncaa is able to take advantage of naive young men and women. there needs to be an organization that will in fact protect that college athlete that has no ties to the financial being of the universities or the ncaa. allowing the ncaa to continue to intimidate schools and athletes is dangerous and unfair. to quote a famous poet, who will watch the watchmen. thank you for the opportunity to be before you today. >> thank you very much. i appreciate it a lot. mr. taylor branch is from baltimore. he's an author and historian and has written one of what i call five best books ever written in terms of my own reading preferences. about the civil rights movement and the development of it. and he's also an expert on this subject and has written

extensively. we welcome you, sir. >> thank you. thank you, senator rockefeller, thank you, senator thune. thank you, members of the committee. guests, sports fans, educators. i'm honored to be here. a subject for your hearing today, college sports and the wellbeing of college athletes, is full of minefields and myths. i hope to offer some summary comments for a possible discussion under three headings, amateurism, balance, and equity. amateurism has become a distinguishing feature of ncaa governance. it is identified an official pronouncement as the bedrock principal of college athletics. the ncaa bylaws define and mandate amateur conduct as follows. student athletes shall be amateurs in an intercollegiate sport and their participation should be motivated primarily by education and by the physical,

mental, and social benefits to be derived. student participation in intercollegiate athletics is an avocation, and student athletes should be protected from exploitation by professional and commercial enterprises, close quote. that's ncaa bylaw 2.9. the word amateur reflects conflicted attitudes about money, youth, and the purposes of recreation. its broad ambivalence has opened a muddled flexibility in public habits, allowing the united states to become the only nation to create commercialized sports at institutions of higher learning. even the major universities involved which were founded to uphold intellectual rigor routinely ignore or excuse the contradictions of a multibillion side industry build on their students. confusion and mythology begin

with themselves. dictionary definitions for amateurs go from a devoety to a bumbling rambler. the people running the company are a bunch of amateurs. accordingly, the same word expresses praise and scorn without distinction. this ambig uty gains re-enforcement in our uniquely designed world of sport where fans are encouraged to cheer and boo without thinking objectively. the ideal of ancient greek amateurism has always been misleading because the athletes of olympus actually competed for huge prizes. aristotle researched well rewarded champions back to the earliest festivals and modern scholars have shown high stakes victory and loss. ancient amateurism is a myth, noted a scholar. purists who refuse to mix money with sport did not exist in the

ancient world, and victers of success as much as victory in the sacred contest. golf legend bobby jones is enshrined in modern sports history as a model amateur and gentleman who declined every championship prize he earned. his reputation fits the true definition of amateur, which is derived from the latin amateur or lover, specifying one who chooses to pursue a skill out of subjective devotion rather than the hope of financial gain. some non-college sports still allow athletes to declare and renounce amateur status. significantly, students themselves call themselves amateurs when they invented intercollegiate sports after the civil war. until 1905, students retained general control of the new phenomenon in everything from

scheduling and equipment to ticket sales. they recruited alumni to construct harvard stadium in 1903 with zero funds from the college. neither the faculties nor the other critics assisted in building the structure of college athletics, declared walter camp, yale class of 1980, who became the father of college football in his spare time. the ncaa created in 1906, slowly transformed the amateur tradition inherited from college athletes. its board declared a goal of total faculty control as late as 1922, and the weak ncaa organization could not hire its first full-time staff member until 1951. after that, however, burgeoning revenue from television contracts allowed ncaa officials to enforce amateur rules as an objective requirement rather than a subjective choice. this is problematic because attempts to regulate personal

motivation and belief commonly run afoul of the constitution. even if internal standards were allowed and could somehow be measured, ncaa rules contradict the key requirement that college sports must be an advocation or calling which comes to call and vox, voice, by denying athletes an essential voice. ncaa rules govern the players by fiat, excluding them from membership and consent. balance. checks and balances are required for sound governance, and the ncaa structure is unbalanced in at least four basic respects. first, ncaa enforcement suffers an inherent conflict of interest between alleged violations in football as opposed to basketball. because the organization lost its television revenue from college football and is almost wholly dependent on a sole source broadcasting contract for the march madness basketball

tournament. second, the structure creates a false impression of common practice between the very few schools that aggressively commercialize college athletics roughly 100 to 150 of some 1200 ncaa members, and the vast majority of schools with small crowds and negligible sports revenue, an elastic ncaa amateurism stretches all the way from a division iii cross country race to notre dame football on espn. third, ncaa officials resolutely obscure differences between commercialized sports and the academic mission on campus. in the classroom, colleges transfer highly values expertise to students, but this traditional role is reversed in big-time sports. there, athletes deliver highly valued expertise to the colleges. this distinction is basic and fundamental to your committee's stated purpose of promoting educational integrity. college athletes are or should

be students in the classroom and competitor players in the athletic department. they face multiple roles and careers like many americans, but their conflicting demands cannot be managed or balanced unless they're squarely recognized. the ncaa undermines this logical definition by saying they're a supplement for this creation called the student athlete. universities implicitly concur by off-loaded some of their academic responsibility to the ncaa. fourth, the ncaa and its member schools strip rights from athletes uniquely as a class. no college tries to ban remunative work for all students, and no legislature could or would write laws to confiscate earnings from one targeted group of producers in a legitimate enterprise. on the contrary, universities sponsor extensive work study

programs and student citizens everywhere exercise freedom to market skills everywhere from book store jobs and pizza delivery to the entrepreneurial launch of facebook. unless they're athletes. for college athletes alone, the ncaa brands such industry unethical. equity. basic fairness requires attention to the rights and freedom of participants above the convenience of observers. applied to college sports, this principle would mean that no freedom should be abridged because of athletic status. while i am neither a lawyer or professional economist, i find ample historical evidence that experts object to collusion in the ncaa's regulatory structure. in microeconomics, a prominent text book, two professors make the ncaa a featured example of an economic cartel.

which reaps anti-competitive profits. the courts have agreed in two landmark cases, in ncaav. board of regents of oklahoma in 1984, the u.s. supreme court struck down the ncaa's exclusive control of college football broadcasts as an illegal restraint of trade. overnight, the major football schools won the freedom to fill every broadcast their markets would bear without having to share proceeds with the smaller schools through the ncaa. we eat what we kill, bragged one official at the university of texas. in law, the ncaa 1998, assistant coaches won a $54 million settlement along with an order vacating the ncaa's $16,000 limit on starting salaries. the compensation of assistant football coaches has cracked the $1 million barrier since then, with salaries skyrocketing even in nonrevenue sports.

by 2010, the university of florida paid its volleyball coach $365,000. but, the supervisors of college sports have one economic freedom. and they enjoy enormous largess by the most vital talent, the players. to reduce bargaining power by student athletes, the ncaa creates and enforces rules regarding eligibility and the terms of compensation. ncaa officials, of course, steadfastly assert that their whole system is devoted to the educational welfare and benefit of the college athlete. football will never again be placed ahead of educating, nurturing, and protecting young people. ncaa president mark emerick, sitting near me, vowed when he announced ncaa sanctions for the recent scandal at penn state. such professionals must be

reconciled somehow with ncaa ruled that systematically deny college athletes a full range of rights. these rules can turn words on their heads like alice in wonderland. the ncaa's bed rock pledge to avoid commercialization of athletes aims to prevent them from getting paid too much or at all, rather than too little. exploit, to use selfishly for one's ends, as employers who exploit their workers. in closing, i would suggest one hopeful precedent from the past work of your commerce committee. this is not the first time that the governance of amateur sports together with the education of college athletes has presented a daunting tangle of passions and vested interests. 50 years ago, an early bonanza

in sports revenue fueled a bitter feud. aau leaders accused and quote unpatriotic ncaa of sabotaging u.s. chances to win medals. they claim that college athletes already were paid and therefore not amateurs at all since the ncaa approved athletic scholarships in 1956. ncaa officials retorted that aau coaches were parasites on college training facilities. these two sides nit-picked, boycotted, sabotaged, and disqualified each other until president kennedy, no less a mediator than douglas macarthur, to foster hopes for the tokyo olympics. the exhausted macarthur who recommended blue ribbon commissions that brought proposals eventually to this committee. your predecessors shaped the

olympic and amateurs sports act of 1988. one key provision of that law secured for active athletes a 20% share of the voting seats on each of the new olympic committees. though small, this representation soon transformed amateur sports, granted a voice, athletes tipped the balance on governing committees in the united states and inexorably around the globe. marathon races, then tennis tournaments, recognized the proith for players to accept prize money and keep their olympic eligibility. new leagues sprang up to popularize volleyball and other games with corporate sponsors. olympic officials came to welcome professionals in every sport except for boxing. by 1986, when the nrtd national olympic commit expunged the word amateur from the bylaws, they modified every definition of disaster. most people scarcely recognize the change. some of you helped recognize the

success in the ted stevens amateur sports act of 1988. this example suggests a good place to start. wherever possible, make athletes true citizens rather than glorified vassals in college sports. where markets extend into college sports, make them fair and competitive. recognize the rights, uphold the rights of college athletes. give them a voice and challenge university in turn to make wise, straightforward decisions about the compatibility of commercialized sports with education. thank you. >> thank you very much, mr. branch. and i want to be very critical of myself. because what, the general rule around here is witnesses speak for five or six minutes, but i failed to make that clear. and so we just got -- >> it says five minutes here, but i wasn't watching, sorry.

>> so just keep it to five or six minutes, that would be the best, and i thank you for my testimony. and it was my fault. mr. bradshaw, who is a former director of athletics at temple university, we welcome you, sir. >> chairman rockefeller, ranking member thune, ladies and gentlemen of the committee, good afternoon. your invitation to testify today about promoting the wellbeing and academic success of our student athletes is much appreciated. it's an honor for me to represent the 1600 plus institutions and 11,000 plus individual members of nafta and its athletics administrators who are the practitioners of our enterprise and represent in excess of 500,000 student athletes across the ncaa divisions as well as the naia and junior community colleges. they serve as the professional association for those in the field of the athletic

administrations. it serves for networking the exchange of information and advocacy on behalf of the association. my career in higher education include positions as an assistant baseball coach, head baseball coach, director of alumni, and 36 years as a division i athletic director at three universities. my athletic career includes three years as a student athlete, one as a walk-on, followed by three years in the washington senators baseball organization where two broken ankle ankles kro s created a professi change. these experiences proved valuable to my 36 years as a director at la salle, depaul, and other university. during the five decades of my career, i have seen significant improvements in the commitment by universities to the kaementdic, athletic, and

personal experiences of athletes. from state of the art support services, elite coaching and training, athletic equipment and emerging permissive benefits, our student athletes have never had it better. and yet we know we can do better. we have as educators are charged with helping our athletes. it's important to exam our university's performances and trends in the areas of academics, financial security, health, safety, and life skills. academics. over the past 20 years, graduation rates by any metric have drastically improved for student athletes. in 2013, the graduation success rate measure for all student athletes in division i was 82%. including 71% for division i fbs

football participants and 73% for men's basketball student athletes. among the reasons for this dramatic improvement in graduation rates are, increased ncaa requirements for initial eligibility and continued eligibility, and universities' proactive response to the academic progress rate metric instituted by the ncaa to monitor teams and individual performance each semester. >> health and safety. while universities strive to use best practices, we can never do too much to insure the health and safety of our stuth athletes. the prevention and detection of concussions remain one of the highest priorities for every athletic director at every level. best practices that have become common place include hiring strength and conditioning coaches, dieticians and nutritionists. required seminars for all student athletes to discuss drugs and alcohol, assault, date

rape, and gambling as well as comprehensive regular drug testing and follow-up. financial security. as we all know, the real cost to attend college have risen above inflation for years, causing many student to have massive debt upon graduation and proving too costly for others to even attend the college of their choice. currently, division i student athletes receive $2.1 billion in athletic scholarships, and this total will continue to escalate with anticipated ncaa legislation covering real costs of education combined with the annual increases in tuition, room and board, books and fees. in addition to the value of a real scholarship, a college graduate on average earned $1 million more over a lifetime than a nongraduate. other financial benefits for student athletes include universities health insurance, ncaa catastrophic insurance, multi-year athletic grants and

student assistance funds available through conference offices. the vastly improved conditions afforded student athletes have resulted in their unprecedented performances in the classroom, on the playing fields, and in preparation for life. few other campus activities or clubs produce such natural viversity as intercollegiate athlettic, bringing together young men and women from various religions, athnisties and beliefs. less than 1% of division i student athletes will ever participate in professional sports, and that professional career on average lasts only a few years. this reality underscores the value of a college education, an education many young men and women could not afford without an athletic scholarship. in our professional of intercollegiate athletics, the student athletes under our care are the center of our university and had nothe most important peo

consider. if we always asked ourselves before allocating resources, building buildings or hiring coaches, is this decision in the best interest of our student athletes, then i believe that answer has helped us arrive at the best answer. thanks again for inviting me to be with you this afternoon. >> thank you very much, mr. bradshaw. now dr. richard southpaw, a director at the university of south carolina. welcome, sir. >> thank you. chairman rockefeller, ranking member thune and distinguished committee members, thank you for the opportunity to speak before you today. my initial draft of my comments was only 35 minutes, so thank you for giving me the advice. as director of the college sport research institute at the university of south carolina, my comments today are not off the cuff remarks but informed by soclogical, educational studies and empirical study drawn from

ncaa documents, they reflect not only my work but also that of numerous colleagues and scholars. while i'm well aware there are distinct differences within ncaa divisions as well as between ncaa revenue and olympic sport, my testimony today will focus on how within big-time college sports, ncaa members have sought to protect their business interests at the expense of the well being and academic success of ncaa profit athletes. for several decades, the ncaa was aware that as the scale of revenue generation and spending continued to grow, there is a general sense that big-time athletics is in conflict with the principle of amateurism and increased governmental and public scrutiny is likely if graduation rates do not improve in underperforming sports. consequently, in 2003, the ncaa embarked in a two-phase organizational rebranding strategy that was part of a

public relations agenda that addressed critics and provided an alternative to what the ncaa described as the cynics. first, the ncaa created a term of art, the collegiate model of athletics, as a better understood definition of amateurism that isolates the principal to the way in which college athletes are viewed without imposing its avocational nature on revenue producing opportunities. notably, division i revenues have more than doubled since 2003. tellingly, internal ncaa documents reveal protecting the collegiate model is nearly by definition the primary focus of the office of the ncaa president. concurrently in an effort to maintain the perception of a clear line of demarcation between college and professional sport, and offer support for the effectiveness of its new academic progress program, the ncaa developed the academic progress rate or apr, and

graduation success rate, or gsr. since 2003, the ncaa has consistently sought to utilize these rates as proof that big-time college sport has one clear focus -- education. however, several items are noteworthy. one, neither the federal graduation rate, fgr, mandated by congress, nor the ncaa's gfr, is perfect or inherently a more accurate metric. they utilize different sampling and statistical analysis to exam different cohort. in short, they're different graduation rates. two, the gsr consistently returned to rate 12% to 25% higher than the fgr. as far back as 1991, they knew removing drop-outs, transfers or athletes who leave school in good academic standing from the gfr cohort, would result in a

remarkably higher success rate. three, since there's no comparable national level gfr for the general student body, to report gfr and fgr data simultaneously in press releases or data set tables invites inappropriate comparisons and fosters confusion among the general public. while the national office has sought to protect its collegiate model, academic support staffs label in a system that too often depends on an amorms process, and results in athletes often clustering or being steered to majors conducive of their practice or competition, or in other words, work schedule. tellingly, several authorities in the ncaa and the university governance structures recognize clustering and scheduling of easy courses as a problem. in addition, contrary to the ncaa's public posturing that

they're just normal students, profit athletes tend in important respects to be physically, culturally, and socially isolated from the campus community. they live in a tightly controlled parallel university indicative of total institution. through the steady drum beat of sophisticated and subtle institutional propaganda, the ncaa has sought spontaneous consent to a mythology that big-time college sport enhances the educational experience of quote/unquote student athletes. propaganda is effective because it exploits people's reluctance to intellectually engage with any oppositional or alternative view. since 2003, while the ncaa has successfully embedded its model of college athletics including the graduation success rate into the public's consciousness, there has been little progress in insuring profit athletes have

equal access to educational opportunities afforded other students. in conclusion, there is clear evidence the ncaa's collegiate model of athletics naument only systematically inhibited access to a world class education but also exploits profit athletes by denying them basic bargaining rights, due process, and standard forms of compensation. i want to thank the committee members for the opportunity to visit with you today. >> thank you for your excellent testimony, and finally, dr. mark emerick. who -- well, you all know who he is. >> thank you, senator. good afternoon to you and to senator thune -- >> is your microphone on? >> thank you. i appreciate that. is it working now? >> no, no difference. >> as a recovering university president, i learn to project, so thank you very much. good afternoon to all of you on the panel.

i'm mark emerick. i serve now as the president of the ncaa since october of 2010. following 30 years as a profess professor, a university administrator and a university president. i certainly appreciate the opportunity to appear before all of you today and discuss what i agree are very important issues, and i particularly want to thank you, mr. chairman, for working with us on the timing of this hearing. it's good that we're able to be here. the ncaa' core purpose as has already been pointed out is to promote the well being and success of more than 460,000 student athletes as they enjoy both world-class athletic experiences and receive access to top-notch educations. that's why i have been working diligently with the division i board of directors, our member universities, and all of the stakeholders to drive policy changes that support student athletes success and indeed, address many of the issues that have already been raised here today. during my tenure, we have

enacted more than a dozen key reforms, two notable examples are raising academic standards and adding the opportunity for multiple-year scholarships. as we discuss how to improve college sports today, it's important to understand that the ncaa is a democratically governed membership led association of nearly 1100 colleges and universities. as such, neither i nor any member of my staff have a vote on association policy or infractions decisions. it's important to note that appropriately in my opinion, university presidents themselves are the ultimate decision makers within the association. members make rules through a representative process much as you do in congress. it is challenging, obviously, to bring together coaches, athletic administrators, faculty members and presidents to achieve consensus on much of anything, let alone college sports. and while a change of pace is not what i or members would like, division i schools are working diligently, even as we

speak, to create a new decision making structure that will yield practical and i hope timely results on all of these issues. before we discuss the challenges at hand, let me be clear. college sports in my opinion work extremely well for the vast majority of our 460,000 student athletes. and while it can and should be modified, the collegiate model should in fact be preserved because of all of the good it provides for so many. nonetheless, i agree there are very important changes that need to be made, and many university presidents happen to agree with me. let me describe the most important ones. first, student athletes in my opinion should be given a scholarship for life. so they may complete a bachelor's degree, even if their education is delayed for any reason unrelated to a lack of academic progress or serious misconduct. second, scholarships should cover the full and actual cost of attendance, not simply tuition, room, and board, books

and supplies. third, ncaa schools must always lead in the area of health and safety. for example, the ncaa along with a variety of medical experts released recently new guidelines that address the diagnosis, the management, and the prevention of sports-related concussions. fourth, the ncaa must work assertively with all of our universities on sexual assault prevention and support for victims. this is a national crisis, and we could all do better. fifth, while all student athletes today are covered by insurance for injuries and the ncaa covers catastrophic injuries, any gaps in coverage must be closed. sixth, the academic success of student athletes must remain our ultimate priority. this means providing them with the time as well as the resources they need to take advantage of the opportunities at college campuses as our two former athletes here have

testified. finally, all changes that are made, these and others, must maintain a support for title ix and cannot come at the cost of student athletes in women's and non-revenue generating sports. the ncaa provides countless opportunities to men and women, including many from low-income families. in fact, some 82,000 current student athletes are first-generation college students. and at the risk of correcting mr. bradshaw, it is now $2.7 billion in athletic scholarships that are provided to students who make that a reality. further, ncaa revenues are reinvested in our mission. specifically, last year's revenue allowed us to conduct 89 national championships in 23 different sports with nearly 50,000 student athletes participating in those championships from across the entire country. those revenues allowed us to

provide $700 million directly to colleges and universities in all three divisions. $100 million of which was used to cover extra expenses and emergency expenses for division i student athletes. further, those revenues allowed us to cover the $14 million insurance premium for catastrophic insurance policies for our student athletes. college sports are serving student athletes very, very well for the most part. yes, there are changes to both policy and a culture that are needed, and they require frank conversations like the one we're having here and serious action. i'm committed to working with you and our member schools to insure that student athletes have all of the opportunities for success they deserve, and i want to thank you for the invitation, mr. chairman, to appear today. i look forward to taking your questions and working with you in the future. >> thank you very much, mr mr. emerick. i will start. senator thune will follow, and

then senator koets and we'll proceed from there. according to your website, and i'm just going back to some basic stuff, student athlete health, safety, and wellbeing remain our top priorities. yet, in court papers filed for a lawsuit in which a family sued the ncaa after their son died from a brain injury suffered in a preseason football practice, the ncaa asserted that, quote, the ncaa denies it has a legal dp duty to protect student athletes, close quote. i find that extraordinary. now, i know what your answer is going to be, and that's going to upset me. but the question is, how do you reconcile your website's publicly stated priority promoting health and safety with your private legal arguments which you have declared somehow are different? that the ncaa doesn't have a legal duty to protect student

athletes? you either do or you don't? >> i will not quibble about the language. i think that was at the very least a terrible choice of words created by legal counsel to make a legal argument. i'm not a lawyer. i'm not going to defend or deny what a lawyer wrote in a lawsuit. i will unequivocally state we have a clear moral obligation to make sure that we do everything we can to support and protect student athletes. >> see, what i perceive is a web of convenient protection from -- to all parties. you suggested that there are a number of universities. see, what i really want to see is have a panels of subpoenas university presidents from land grant publicly funded universities. up here, and i think it will come to that, because i think it's going to have to. i don't know how we're going to

work anything out without it. but you say that was bad language by a lawyer who got confused or was late or didn't have a good night's rest or whatever it was. so you sort of slosh over that. earlier, you said that there are a number of universities that want to make a certainly number of changes, which you then enumerated three or four of them, but then you have also said frequently in answer to questions at otherfora that you don't have the authority to do anythi anything. you don't have a vote, which you said here. everything is in the hands of the universities. my cynical self says that universities like things exactly the way they are because they're making a ton of money. in fact, they're making so much money, more than they ever have before, not all, but some, that there's about 120 that make most of it. 120 universities.

that i don't know how change is possible. how do you make the case for saying that you can be a participant in this process of bringing about change when you say that they don't have to listen to anything you have to say? >> well, i can tell you, senator, what is going on right now in less than a month now, the division i board will vote on a completely changed decision making structure that will put all of a subjects that we're describing and discussing here today in the hands of the 65 universities that have the largest revenue. the schools that are within the five -- >> i'm sorry, i have to interrupt. why would you pick the 65 schools that make the most money? to me, they would be the ones least likely to make any changes at all. >> quite the contrary, they're the ones who precisely want to make changes.

often changes that have price tags associated with them, and they want to make those changes and are often blocked from doing so by institutions that have less revenue. so if, for example, you want to move toward a scholarship model that covers full cost of attendance, something that the division i board in my first year on the board twice passed, and it was overridden by the membership of the 350 schools in division i, predominantly with the support of the 65 major schools saying this is something we really need, and they were blocked from doing so by the other institutions. so those schools are indeed those schools that i just -- whose interests are the points that i just enumerated. indeed, i was practically quoting from a letter signed by all the presidents of the pac-12 and all the presidents of the big 10, whom have said these are the changes we need to make and we need the authority to make those kinds of changes. >> is this the 65 largest

universities, or are these also the smaller ones who you say block progress because it's expensive? >> yes, sir, these are the 65 schools that are members of the five largest revenue conferences, the s.e.c., the big 12, the big 10, the pac-12, and the a.c.c. >> would you agree with me in my final first round question? that college sports has long forgotten the word amateurism? i'm talking particularly about the 120 major -- but you know, there's a lot more than that, that it's just a business? and the more money you can make, i mean, west virginia university signed on to the big 12, which guarantees one thing and one thing only. that means that most of the people of west virginia who are not high income or even moderate

income cannot go to any games out in the southwest, but west virginia university sure makes a ton of money from it. how do you respond to that? is that right, is that fair, is that progressive? >> if i may, senator, there's two questions that are being asked there. the first is, do i believe that the 120 or so dominant schools, fbs schools, perhaps to whom you're referring, have abandoned the concept of amateurism? i would say, no, they have not. i certainly agree with you that the top-line revenue, the expenditures that are going on right now in college athletics have unequivocally moved up very sharply in the past two decades. the fact that schools are investing those dollars back into their athletic program makes it quite clear that the universities themselves are not doing this to, quote, turn a profit. indeed, last year, out of the 1,100 schools, about 23 in all

of america had positive cash flow. in other words, invested all of the money that they had in college sports and had some left over. everyone else in the country put resources into into college spo instead of taking them out. in terms of the changes that occurred in the construction of is the conferences over the past handful of years, i probably agree with you. i was very disappointed in the changes that the conferences sought to make -- to make progress in. they created some significant travel challenges, i believe not just for the fans, but also for the student athletes. when you have to go across country for a football game is one thing, because that only occurs occasionally. when it's your volley balance, basketball or soccer team, it means student athletes senior traveling a great deal at great expense in both time, energy and commitment.

i was disappointed in for the all, but many of those changes that occurred i get i thank you and turn to ranking member thune. >> mr. emert, under your presidency, you've indicated that you've taken the initiative to form some of these committees to address needed changes. >> thank you, senator, first of all, within a month i hope we'll see the board pass a completely new decision-making structure because of the challenges of the past 24 months of making decisions around a very aggressive reform agenda. the leadership of the 65 leading universities have said we simply have to find a better way to make progress. they have identified as their agenda many of the items that i just addressed, and a handful of others. so there's a very keen interest in finding first of all, ways to provide greater support for student athletes.

we passed twice over the past 36 months a proposal to allow universities to give student athletes at a bare minimum, an additional $2,000 in their scholarships to cover the miscellaneous experiences. i believer the universities will approve a proposal to do something just like that yet again and i hope an even more robust model to cover the real legitimate costs of being a student athlete. we were able to pass changes for student athletes. prior to three years ago, the universities were literally forbidden by ncaa rules to provide multiyear scholarships. we were able to get a change in the rules to allow them, and i think we're well on our way toward mandating they in fact be multiple year commitments, so student athletes don't have to worry about whether or not they'll finish their degree on time. i think that is extremely likely to happen. as you mentioned also, there's a

very strong interest in the same group of leading universities to cover the costs -- fully the costs of insurance programs. the vast majority of the universities cover all of those costs today, but it shouldn't be a question. it should be quite clear that no stay tuned athlete will ever have to cover insurance or injuries that are inflicted on them when they're a student athlete. finally i think we have to address this issue of time. the demanse that are placed on student athletes are in my eyes and in the eyes of many, including i suspect mr. bradshaw, the demands on judge men and women, in terms of what's required for coaching, what's river for informal coaching, what's required to be simply competitive these days is far too great a time demand. we need to find ways -- i completely agree with mr. ramsey, for example, we need to

find ways to take advantage of internships, study abroad opportunities, all the things we know that help prepare them for life, because a very, very tiny fraction of them will ever play professional sports. for virtual all college players, their last game is in college. their professional life and life in general will be changed by having a meaningful degree and meaningful experiences that go along with that. that means we have to create opportunities for them to do the many things that are available on campuses. >> mr. bradshaw, you bring unique perspective as a former a.d. and as member institution. i'm told it was your practice to conduct interviews, and at times that led to substan thif changes in policy, but you have some examples from those interviews that you can share with us that led to direct improvements? >> we gathered our best

information from our student athletes about how they were being treated. as many of you might now, student athletes are not the most shy. they actually let you know when they're hungry, when they need things. the exit interviews were invaluable, because seniors were leaving the institution. we also followed up, had questionnaires we sent the seniors a month before we left, then we went over those questionnaires with the student athletes to talk about every facet of their experience he university. that was helpful. we also have a captains council, which was an aggregate of the captains from every team that got together without the coaches, just myself and some administrators to hear everything they had to say about their experience, so that we could use that in recruiting and help to do a lot better job. we also have team meeting to

welcome the freshmen, and we were able to gather very valuable things. we had one team whose practice facility was maybe about 25 minutes from campus. when they got back in the evening, they weren't able to get the kind of quality dinner, because a lot of the students had already been in there, and things were picked over. we were able to extend that time for their meals for an hour so that those student athletes could eat. we also have football players who were practices in the afternoon, some of them in premed, and some of the courses they were taking were right up against their practice. we were able to get that football coach to take those practices in the morning when 97% of the classes that the kids were taking were there. so those were very valuable -- that was very valuable input. right from the center of our university, the student athletes. my time has expired, but from the athletic director's standpoint, what role do you see the universities and a.d.s playing? some of these you can go beyond

what is required, there's a lot of flexibility for the member institutions to make decisions in the best interests of their student athletes. >> and we should. we have the responsibility. it's not only the chairman of the board of trustees, but the president and athletic director should all be on board and have similar philosophies and missions and principles about how that works. and in concert with all those people, because sometimes you need funds to do the things that you need to do, and you need the support from the board and the president. so it's very important that all of us work together to do that. we're out recruiting other student athletes. that's a brand, we call athletics the front porch of the university. it might not be the most important thing you see when you drive by, but it's the most visible messenger of the brand of the university. >> thank you, mr. chairman, thank you. senator coats? >> mr. chairman, thank you, dr. emert thank you for being willing to testify.

i think it's been constructive to hear of reforms that you have initiated and those that you hope to initiate, and it sounds like there's some real positive things that are happening relative to the issues that are, as you have acknowledged, are challenges for the ncaa, and challenges for the universities, and challenges for our committee. mr. chairman, i want to thank you for following through on your commit me to me and to others that we're going to have a good solid nontheatrical investigation and committee process here. because i think we're all on the same page in terms of how can we best preserve the student athlete and best provide for them, how do we address some of the challenges that we're facing today with the revenues, and so forth. and i think this is a very constructive effort that we're undertaking here, and i thank

you for it. for pulling all that together. here's what i'm hearing, and i'm leading to a question here. i'm hearing from our witnesses there are many positive things happening and many posit results coming from being a student athlete. opportunities that are available to athletes that would otherwise not be able to get the college experience in the education process. the list of reforming that dr. emert has bakley said these are his proposals, and i think it goes right to what we're, the full and actual cost, taking the lead in areas of health and safety, addressing the sexual assault issue which goes across

all aspects of athletics, but also college experience. it's not limited to just one. medical insurance, dealing with those questions, academic priorities. we've talked about the time issue, support for title ix. it's been regardable what's happening under title ix in terms of the women able to participate in athletics, gain scholarships. many of those may not have had a chance for scholarship help and support. the vast majority of schools, whether division ii or division iii, not in the top 65, that offer all these opportunities, it's something we want to preserve. it's something we want to improve. i think we have a president of the ncaa who is a reformer, known as that. that's why he was hired. he's taken steps already, and willing to take significant steps forward. o