The Texas House Committee on Higher Education heard testimony Monday from Texas A&M athletics director Ross Bjork in regards to a modified name, image and likeness (NIL) bill for college athletes in the state.
House Bill 2804, filed on Feb. 24 by Rep. John Kuempel (R-District 44), changes some of the language of Senate Bill 1385, which initially made NIL compensation legal for college athletes in the state of Texas on July 1, 2021. Notably, the new bill gives university employees the ability to “identify or otherwise assist” student athletes in making NIL deals, as long as the university employee does not serve as the athlete’s agent or receive compensation for the introduction, among other minor restrictions. University employees still cannot enter into NIL deals with student athletes and NIL compensation cannot be an incentive to prospective students to enroll into a school.
The new bill also gives companies and players the ability to license university trademarks to use in NIL deals at market rate, with the approval of the university.
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“At the highest level, the expectation that our student-athletes have is that we are more involved,” Bjork told the committee. “The universities are more involved. Until we have that national standard, maybe that will come from the federal government, maybe that will come from our governing body, the NCAA. But until then, we believe that the Texas state law should keep us as competitive as possible in these changes.”
Bjork was one of two witnesses called to testify for the bill, alongside Baylor general counsel Chris Holmes. Kate Kuhlmann of the Texas High School Coaches Association registered as a witness for the bill, but did not testify.
Bjork told The Eagle that A&M, through both the athletic department and the government affairs department, have offered input on the bill since last fall.
According to the NIL technology company Opendorse, 30 states have differing active NIL laws that govern the athletes in that state. States without legislation on the books follow NCAA guidelines issued in the summer of 2021, and then amended last fall, which made NIL compensation legal with the governing body. Since the roll out of NIL in 2021, Alabama and South Carolina have repealed their laws to lean on the less-restrictive guidelines adopted by the NCAA.
Of those 30 states, 12 have either amended their initial law or, as is the case in Texas, have made proposals to change NIL laws.
“Since we passed our law two years ago, the college sports landscape continues to evolve and, as a result, Texas must assure its own NIL law remains competitive with other states,” Kuempel, the bill’s author, said during the committee meeting.
An identical bill was filed in the state senate by Sen. Lois Kolkhorst (R-District 18).
Among the other changes the bill proposes is for universities to determine what official team activities are, during which athletes are prohibited from engaging in NIL responsibilities. It also makes all NIL records held by the university protected from open records requests without the need of an opinion from the state attorney general. Previously, total numbers of NIL compensation earned by groups of athletes were released as open records, as universities are mandated to keep copies of all NIL contracts athletes enter into. In the first year of legalized NIL compensation, A&M athletes made more than $4 million, according to an open records request made by The Eagle last summer.
SB 1385 mandated all universities provide financial literacy and life skills programs to all athletes during their first and third year at the school. The new proposal makes those classes optional, which raised the attention of other representatives serving on the committee.
Some of the input A&M gave regarded the practicality of mandating classes, Bjork told The Eagle, as A&M has and will go over and beyond the mandated five hours in an athlete’s first and third years on campus. Challenges in the timing of when students transfer in and out of the school make the execution of the original mandate challenging, he said.
“Sometimes it just doesn’t work out,” Bjork said. “You might have a transfer that leaves and your education session was pending and you didn’t do it yet. I think just the practicality of two things: requiring it across the board and [that] we’re already doing this in a broad way with so many education sessions.”
Both Bjork and Holmes stressed the importance of language in the bill that restricts any national governing body, such as the NCAA, from levying sanctions to any perceived violations of the state law.
In October 2022, the NCAA released new guidelines on NIL which included an enforcement policy that stated enforcement staff and the committee on infractions “will presume a violation occurred unless the school clearly demonstrates that the behaviors in question were in line with existing NCAA rules and the interim policy.”
Both Bjork and Holmes said universities should be given due process and the presumption of innocence in cases where the NCAA believes a violation might have occurred, which should be codified in law.
“You can have the best compliance program, the best general counsel, the best bet and suspenders program educating your donors, educating your student-athletes and the NCAA could still come in and charge you with a violation without any proof whatsoever,” Bjork told the committee. “So, if there’s language that needs to be cleaned up in this bill, we’re happy to participate in that. But we believe that the overburdened approach that the NCAA has taken regarding presumed responsibility should be part of this bill. It should protect the universities in Texas who are trying to do it the right way and who have every program in place possible, but still can be held responsible for something that they had nothing to do with.”
A&M head football coach Jimbo Fisher said the ability for university officials to guide athletes away from predatory contracts is a key next step.
“I do think the schools being able to have a conversation with the kids about it is good, because a lot of guys don’t always have the background or have been through the scenarios of what their rights are or what their right is contractually,” Fishers said Thursday. “Sometimes you talk about getting into an NIL situation where they can get these kid’s rights for a lifetime, not just while they’re in here, [but] when they hit pro ball and things like that.”
The bill was left pending in the committee, awaiting further action. Should the bill progress through the legislative process and receive necessary votes, it should go into effect before the 2023-23 academic season.
“We believe in it,” Bjork told The Eagle. “We believe in the changes. We’re supportive of it and we hope that things evolve.”