NIL bill expected in House would provide legal help sought by NCAA, letter says

The U.S. House of Representatives this week will see a “discussion draft” of a college-sports bill that would cover athletes’ name-image-and-likeness (NIL) activities and provide schools legal protection being sought by the NCAA, according to a letter from Rep. August Pfluger, R-Texas, that has been circulated among college sports officials and other member of Congress.

The letter, a copy of which was obtained by USA TODAY Sports on Monday evening, says the draft will come from Rep. Gus Bilirakis, R-Fla., who chairs the House Energy and Commerce Subcommittee on Innovation, Data and Commerce. The panel held a hearing on NIL and other college-sports issues in March.

This would be the first NIL-related bill introduced since Republicans gained control of the House in the 2022 election.

Pfluger says in the letter, which was dated Friday, that while the House does not yet have the bill’s text, he is “prepared to offer a synopsis of what the bill will entail.”

That includes:

• Safeguards “from retaliation by an institution of higher education for student-athletes who have signed a NIL deal.”
• The creation of a “new regulatory body tasked with establishing and enforcing rules pertaining to collectives, boosters, and student-athlete endorsement contracts. Student-athletes who enter into a contract will be required to report their agreement to this new body and their university within a specified period.” Collectives are booster- and business-driven groups that have formed to pool resources and provide NIL opportunities for athletes at schools since the NCAA has made rule changes substantially enhancing athletes’ ability to make money not only from endorsements, but also from personal appearances, autograph signings and other activities.
• A provision “clarifying that student-athletes are not eligible for employee status.”
• Language “providing liability protection to protect institutions from frivolous litigation.”

Legal protection has been a major lobbying point for the NCAA. It has ended up on the losing end of two major antitrust cases in recent years, including one decided unanimously by the Supreme Court, and it is facing two more.

The association also is involved in a lawsuit that seeks to provide at least minimum-wage compensation under the Fair Labor Standards Act. And last week, the National Labor Relations Board’s Los Angeles office issued a complaint against the NCAA, the Pac-12 Conference and the University of Southern California, alleging they have unlawfully misclassified college athletes as “student-athletes” rather than employees.

Meanwhile, on Monday, the California state Assembly took the last procedural step needed to set up a floor vote on a bill that would create the possibility of revenue sharing for college athletes in the state, as well as an array of other benefits and protections that would be overseen by a new state oversight/regulatory panel.

Pfluger addressed the California bill in his letter about the presumptive federal measure, saying: “Unfortunately, this discussion draft lacks language blocking states from establishing a revenue-­sharing model. . . . I have begun working on language to ensure that any federal NIL standard has protections to preserve the viability” of sports that generate little to no revenue and that Pfluger argued would be threatened if a portion of the money from revenue-generating sports has to be paid primarily to the athletes in those sports.

As outlined by the letter, Bilirakis’ bill would be opposed by Democrats who have said that any type of college-sports bill covering NIL activities would need to provide new health and educational benefits for athletes, as well as language aimed at tightening Title IX’s provisions connected to gender equity in sports. Democrats also have expressed reluctance to provide the NCAA with what would amount to antitrust protection.

Pfluger’s letter mentioned other features of the draft, including that “there will be certain industries student-athletes will be prohibited from entering into a partnership with. While an exact list is still being developed, states with NIL laws currently prohibit 'traditional vice industries' which typically include tobacco, alcohol, adult entertainment, gambling and related entities, and drug and drug paraphernalia. While some have called on industries such as abortion to be prohibited, I would be careful to legislate moral issues as it could become a slippery slope.”

Pfluger also that while he has “reservations about creating a new regulatory body, I believe it is a better option than delegating such a responsibility to the Federal Trade Commission (FTC) under Chair Lina Kahn. The only instance in which the FTC will intervene is in cases of deceptive practices.”