Dissecting the “College Athletes Bill of Rights” Senate Bill
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A March to a New Madness - Full Dissection of the “College Athletes Bill of Rights” Senate Bill – Part IV
Executive Summary
Expansive bill not only creates protections for student-athlete NIL rights, it would create revenue sharing with athletes
Bill also expands federal government's involvement in policy making, monitoring, and enforcement in a variety of areas affecting college sports
Bill sponsored by Senator Booker (D-NJ), Senator Blumenthal (D-CT), Senator Gillibrand (D-NY) and Senator Schatz (D-HI)
Bill would establish a Commission on College Athletics
Revenue sharing model funded from NCAA, conference, and university-based NIL revenue
Universities would be tasked with establishing a medical trust fund for current and former college athletes
The bill, if enacted, would dilute the NCAA’s exclusive authority over college sports
Today, we wrap up our multi-part series analyzing the College Athletes Bill of Rights sponsored by Senators Booker, Blumenthal, Gillibrand, and Schatz.
In this final installment, we look at the potential for a power struggle in college sports governance with the creation of a College Athletics Commission. If this bill gets adopted, the NCAA’s authority over college sports would begin to hollow out in deference to the powers the Commission would maintain under this bill.
The bill also begins paving the way for college athletes to be unionized. The College Athletes Bill of Rights was not just about NIL rights. It is clearly an all-encompassing bill with an appetite to overhaul college sports in a multitude of ways.
Let’s take a final lap through this bill that could reconstruct college sports in America.
Would the NCAA still maintain control and authority over college athletics? Does this bill add a new governing body to the authority and oversight to college athletics?
The bill would create the “Commission on College Athletics” for the following purposes:
To act for the benefit of all college athletes, without regard to receipt of grant-in-aid
To protect the economic interests of college athletes
To ensure that agents of college athletes faithfully represent the interests of college athletes
To enforce this bill and the standards established in a manner adequate to deter such violations
To promote the health, wellness, and safety of college athletes.
The Commission would be a federally chartered corporation, governed by a board of directors, and entrusted with the constitutional duty to take care that the laws be faithfully executed.
What would the Commission on College Athletics’ Board structure and composition look like?
The board of directors of the Commission (referred to in this section as the ‘‘Board’’) would be composed of nine members appointed by the President, by and with the advice and consent of the Senate.
Interestingly, the appointment of nine members of the Board would be coordinated to ensure diversity among such members with not more than five members of the Board being appointed from the same political party. The members of the Board shall be individuals from various experiential and professional backgrounds, including former college athletes who have graduated from an institution of higher education and individuals with expertise in sports, contracts, publicity rights law, constitutional law and freedom of speech, communications, a certified public accountant with expertise in corporate financial audits, arbitration, sports economics, civil rights law and compliance with Title IX.
Board member terms would run five years, except that the Chair shall be appointed for a term of two years and the other members first appointed would be on staggered terms to ensure governance continuity on the board year over year.
Will this new Commission mesh with the NCAA’s governance structure? In other words, would a current NCAA member school’s president, chancellor, university board member, athletics director or an NCAA conference commissioner be able to serve on the Commission on College Athletics’ Board?
No. An individual who is employed by an institution of higher education, serves on the governing body of an institution of higher education, or receives compensation from an athletic program of an institution of higher education, an intercollegiate athletic association, or a conference, including a commissioner or an administrator of such an athletic program, an intercollegiate athletic association, or a conference, may not serve as a member of the Board.
There are several individuals with significant college athletics industry knowledge that have recently retired or will soon retire. Could college athletics “emeriti” serve on the Commission Board?
No. The bill also states that a former commissioner or administrator of an athletic program of an institution of higher education, an intercollegiate athletic association, or a conference shall not be eligible to serve on the Board.
What is the Commission’s role with overseeing agents involved with college athletes?
The Commission would be called on to establish standards for the registration and annual certification of college athlete agents; agencies and entities that represent college athletes; the revocation of such certification; and agency fees charged by college athlete agents.
The Commission on College Athletics would be recognized as the certification body for athlete agents and have the authority to establish standards and procedures with respect to the registration and annual certification of athlete agents. Agency regulation has been a mixture of federal and state laws to date so the Commission’s entry into regulating agents provides a clearer “face” to the oversight.
What other agent requirements could the Commission require under this bill?
Interestingly, the bill states that the Commission may not establish a standard requiring college athlete agents to attain a bachelor’s degree, an associate’s degree, or a graduate degree from an institution of higher education. This particular requirement was a sticking point in the evolution of recent NCAA agent registration requirements which required a bachelor’s degree.
In terms of regulating the behavior of agents representing college athletes within the context of this bill, does this bill align with SPARTA (Sports Agent Responsibility and Trust Act) in any way?
Yes, the bill specifies that sections of SPARTA governing the regulation of unfair and deceptive acts and practices in connection with the contact between an athlete agent and a student athlete and related enforcement provisions would apply to college athlete agents acting on behalf of college athletes.
How will the Commission’s work supplement the student-athlete health, safety, and wellness guidelines to be developed by the other federal agencies and committees?
The Commission's charter would be to provide backbone to those guidelines by establishing more national standards with respect to the health, wellness, and safety of college athletes consistent with the guidelines established by the Secretary of Health and Human Services and ensure that such standards effectuate the purposes of the Commission.
The Commission will also be positioned to develop and disseminate educational materials relating to endorsement contracts for college athletes, NCAA member schools, conferences, and the NCAA national office.
How else would the Commission monitor and enforce health and safety guidelines on NCAA campuses? How would this undertaking be funded?
The bill tasks the Commission to establish and maintain a dedicated telephone hotline and an online portal by which college athletes may report instances of improper conduct and noncompliance with health, safety, and wellness. There would also be provisions to deter retaliation by schools for college athletes reporting instances of noncompliance. The resolution of such complaints would include an arbitration and hearing opportunity.
The Commission could also assess the NCAA and conferences fees to support the various activities being monitored and regulated by the Commission.
Would the Commission have involvement with monitoring Title IX provisions impacting college sports? Would the Commission be coordinating with the Department of Education and Office of Civil Rights (OCR)?
The bill also tasks the Commission to monitor and provide publicly available information about NCAA member schools’ compliance with Title IX. The Commission would be authorized to investigate any action by any such athletic program that would constitute a violation of Title IX. If, in the course of such an investigation, the Commission becomes aware of a potential violation of Title IX, the Commission would refer to the OCR all proper information in the possession of the Commission relating to the potential violation.
This would create two agencies -- the Commission and OCR -- that could be knocking on a university’s door to examine its compliance with Title IX.
What’s the Commission’s role with the college athlete medical fund to be instated from this bill? Will NCAA member schools’ be covering the costs?
At least annually, the Commission shall determine the necessary funding levels to be maintained in the fund to adequately fulfill the financial obligations of the fund; the amount each NCAA member school shall be required to contribute for the applicable academic year; and on an ongoing basis, the Commission shall maintain in the fund the level of funding determined necessary.
Would the Commission be tasked with other duties?
Yes, many in fact. The Commission would also be tasked with maintaining a national database with data collected from NCAA member schools, conferences, and the NCAA national office, issue reports and conduct audits of athletic programs to ensure compliance with the bill and standards established, carry out investigations relating to violations of the bill or any such standard; carry out enforcement actions, establish and maintain offices to conduct the affairs of the Commission; hire staff to carry out the duties of Commission; enter into contracts; acquire, own, lease, encumber, and transfer property as necessary to carry out such duties; borrow money, issue instruments of indebtedness, and secure its obligations by granting security interests in its property; publish a magazine, newsletter, and other publications consistent with such duties; subpoena an individual the testimony of whom may be relevant to such duties; and carry out any other activity, including the issuance of rules, regulations, and orders, as the Commission considers necessary and proper to carry out such duties or the purposes set forth in subsection.
The subpoena power embedded in this laundry list of roles and responsibilities would be a game-changer as far as college athletics governance goes. For many years, the NCAA Enforcement Department has been limited in its ability to fully investigate alleged infractions without the lever of subpoena power. The Commission’s legislated authority could mitigate that shortcoming.
Do current student-athletes have a role or voice under this bill?
Yes, the Commission would establish an Athlete Advisory Council to provide advice and expertise to the Commission. The members of the Athlete Advisory Council would be comprised of an even split between current college athletes and former college athletes who have graduated from institutions of higher education.
In addition to the Athlete Advisory Council, the Commission would establish for the purpose of providing advice and expertise to the Commission: a Health, Wellness, and Safety Advisory Council; an Educational Opportunity Advisory Council; and a Labor, Gender Equity, and Compensation Advisory Council.
Does this bill set a course that could lead to the unionization of college athletes?
Yes. The bill calls for the Labor, Gender Equity, and Compensation Advisory Council chartered under the Commission to issue, within one year of the enactment of this bill, a public report that describes potential pathways for college athletes to collectively bargain and form a union.
Beyond the Commissioner’s Board, would this bill create an all-encompassing college athletics commissioner, or ‘czar’?
Not necessarily an all-encompassing czar, but the Commission would be required to employ an ombudsman for college athletes. With input from the Athlete Advisory Council, the Board would identify and hire an individual for the ombudsman role.
The ombudsman’s role would be to:
provide independent advice to college athletes at no cost with respect to the provisions of this bill; the constitution and bylaws of the Commission; and the resolution of any dispute relating to the opportunity of a college athlete to enter into an endorsement contract;
assist college athletes in the resolution of any such dispute; and
report to the Board and the Athlete Advisory Council on a regular basis.
Would the Commission have to report up to any governmental body?
Yes. The Commission would be required to submit to the Senate Committee on Commerce, Transportation, and Science, the House of Representatives Committee on Energy and Commerce, and the President a report that includes:
the number of disputes resolved by the Commission and if applicable, a description of such dispute resolutions;
the number of such disputes filed in the preceding year;
with respect to a violation of this bill or a standard or rule established under the bill, a summary of the violation and a description of the enforcement action taken by the Commission; and
recommendations for legislative or administrative action, as the Commission considers appropriate.
The College Athlete Bill of Rights covers a lot of territory. How will these proposed standards and guidelines be enforced?
The Commission has the responsibility for enforcement. This includes levying fines; imposing penalties, including suspension of an individual or entity from participation in college athletics competition for a period determined by the Commission; and commencing civil actions and seeking all appropriate legal, equitable, or other relief, including damages and injunctions.
An enforcement action carried out by the Commission shall be construed as an enforcement action carried out by the federal government, and the federal government shall be considered to be exercising political responsibility for such action, regardless of any claim of a state to sovereign immunity.
In addition to various due process components such as conducting hearings of alleged violators, the Commission may act in its own name and through its own attorneys in enforcing any provision of the bill. A civil action under this bill could be brought by the Commission in a federal district court of competent jurisdiction.
NCAA member schools would be required to comply and ensure the compliance of all business partners of the institution. Also, universities could not participate in any athletic conference or athletic association that fails to comply with such requirements.
Would college athletes have standing to bring civil action under this bill? Could States bring civil action under this bill?
A college athlete aggrieved by a violation of this bill, or a standard or rule established under the bill, may bring a civil action for all appropriate remedies in a federal district court of competent jurisdiction.
For state actions, in any case in which the attorney general of a state, or their designee, has reason to believe that an interest of the residents of such state has been or is threatened or adversely affected by an act or practice in violation of the bill, the state may bring a civil action on behalf of the residents of the state in an appropriate state court or a district court of the United States and for all appropriate remedies.
Can states claim sovereign immunity from the application, enforcement, and penalties prescribed in this bill?
If a state, on behalf of its institutions of higher education, accepts federal financial assistance for work study programs, the bill states that such acceptance of funds shall constitute a waiver of sovereign immunity, under the 11th Amendment to the Constitution of the United States or any other law, to any suit brought by any college athlete aggrieved by a violation of the bill or by any enforcement action brought by the Commission, for legal, equitable, or other relief (including damages and injunctions) under the bill.
Federal preemption of individual state laws affecting college athletes’ NIL and other college athletics governance topics has been a lightning rod issue. Does this bill speak to preemption?
Generally speaking, this bill does not offer federal preemption of state laws. The bill states that nothing in the proposal would preempt, modify, limit, or supersede any state law or regulation relating to sports agents, attorneys, or other athlete representatives. The proposal will not modify or limit, however, the enforcement authority of the Occupational Safety and Health Administration, the Department of Labor, the Department of Education, or any other Federal agency.
Conclusion
This bill, if adopted, is massive in its potential impact, cost, and reach over college sports. While many “peer” congressional bills have focused primarily on college athlete NIL rights, this Bill of Rights is aggressive, expansive, and touches almost every corner of the student-athlete experience: health, safety, academics, competition opportunities, and more.
There are certain provisions in the bill related to advancing and protecting college athletes’ NIL as well as the monitoring and enforcement of agents and health and safety protocols that could receive broader support. Some of those provisions’ efficacy, though, will be measured on the feasibility to fund, staff, and administer the wide range of policy areas like college athletics has never before. The devil is in the details of course -- building out a budget forecast for these undertakings is essential and, at least via this bill, not sorted.
There are other provisions in this bill that are more controversial. The bill’s intent to split revenues with athletes in revenue-producing sports based on a nebulous revenue-sharing formula could face headwinds in terms of general support and exacerbate another area of concern to the sponsors -- Title IX. The core concern foreseen from installing revenue-sharing is that NCAA schools could potentially be compelled to drop varsity sports due to the erosion of funding available to non-revenue, mostly Olympic sports, including many women’s sports. The proposed pathway toward unionizing college athletes will also face marked opposition and legal contention regarding whether student-athletes could be defined as employees.
The College Bill of Rights, like other legislative bills and congressional hearings in recent months, show us that our congressional representatives are paying attention to the college sports landscape -- and many are not liking what they see.
In the end, the fate of some issues identified in the College Athletes Bill of Rights could learn their destiny directly, if not by inference, from what the U.S. Supreme Court articulates in its opinion when it decides the highly anticipated Alston case.
Athletics Veritas is presented for information purposes only and should not be considered advice or counsel on NCAA compliance matters. For guidance on NCAA rules and processes, always consult your university’s athletics compliance office, conference office, and/or the NCAA.
