It’s been a busy few weeks for college athletics on Capitol Hill, where multiple drafts of potential federal legislation governing the name, image and likeness industry now sit at various stages within the two chambers of Congress.
Depending on who you talk to, either federal help is necessary to combat the envelope-pushing legislation being passed by multiple state governments, or the call to Congress proves that the NCAA has given up on leading the next iteration of college athletics. But faster-moving governments at the state level have put the pressure on Washington.
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Since July 1, 2021, the NCAA has deferred to NIL policies set by individual states. Some of the ensuing laws adopted, including those in Arkansas and Missouri, have taken an aggressive approach to innovating in the NIL market, allowing for more direct involvement by school officials in the negotiation of athletes’ NIL deals and going so far as to explicitly say that their state laws supersede NCAA rules.
That dynamic has been decried by coaches and administrators as a competitive advantage: The states testing legislative boundaries are increasing their schools’ chances of getting the best players. Maintaining the appearance of a level playing field is one of the (many) challenges that the NCAA and its allies face moving forward. But the competing bills at different stages of the legislative process have obscured how likely it is that the NCAA will get what it has asked for from Congress.
“There’s increasing interest and recognition of the need for Congressional engagement to resolve these issues,” SEC commissioner Greg Sankey said Monday. “What’s happening at the state level is exactly what we warned about. Our states are making a mess of college athletics. Our states are adopting laws that are not helpful to conduct conference competition and national competition. …
“It emphasizes the need for a national standard, so we can protect what’s special about college sports, at that national competition level. And we’ll have a conversation on how we can continue to engage with Congress. Will Congress continue to provide the opportunity for a national solution? It’s not necessarily what any of us would have preferred four or five years ago, but it’s our current reality.”
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The NCAA hired former Massachusetts governor Charlie Baker to be its new president because it believes he can engage and motivate Congress to act to protect the NCAA’s ability to make rules, particularly around NIL activity. The NCAA also seeks a prohibition on revenue sharing with athletes and perhaps even protection against antitrust issues. And although there have been older bills re-introduced and new bills surfacing for the first time, no one is sure how motivated either chamber will be to fast-track anything even with more lobbying muscle behind it.
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Still, no NIL bill has made it out of committee and onto the floor — yet. “We’re working towards that,” Sankey said.
“The volume (of interest) has increased — I just don’t know that it’s a must-do,” said Tom McMillen, a former Congressman and the current president and CEO of Lead1, an organization that lobbies on behalf of FBS athletic directors. “You’ve got states now, like Texas, Missouri, and Arkansas, who have basically declared independence. They like the fact that they can go out and do whatever they want on NIL and they’re not regulated. Would their members of Congress go along with a federal preemptive standard?”
In short, if those states think the schools under their purview have an advantage over their rivals in other states by setting their own boundary-pushing NIL laws, why would they put that aside to support a more restrictive national policy? It’s another wrinkle in a process full of them.
Breaking down the bills
There are no fewer than five NIL-adjacent bill proposals under discussion at various levels of the federal government, with all protecting the ability of athletes to enter into NIL deals. Here’s a quick look at why each of them might matter:
- The Fairness, Accountability, and Integrity in Representation of College Sports Act, or the FAIR College Sports Act: A discussion draft of this bill is circulating among administrators for feedback right now. Rep. Gus Bilirakis (R-Fla.), the chair of a subcommittee of the House Committee on Energy and Commerce that conducted an NIL hearing back in March, included requirements that NIL deals be disclosed to a newly created federal regulatory body. This bill would also essentially replace the NCAA’s enforcement staff and Committee on Infractions with the Federal Trade Commission and state attorneys general. It would also preempt state NIL laws. This bill does not explicitly state that athletes are not employees.
- The College Sports NIL Clearinghouse Act of 2023: The draft of the bill sponsored by Sen. Lindsey Graham (R-S.C.) would establish a clearinghouse to monitor compliance and establish and enforce penalties, according to On3. Schools would also be allowed to tell athletes which entities they cannot do business with. Civil suits brought against athletes or third parties could be brought in any district court of the United States. This bill does not explicitly state that athletes are not employees.
- The Student Athlete Level Playing Field Act: Introduced by Representatives Mike Carey (R-Ohio) and Greg Landsman (D-Ohio) last week with the endorsement of Ohio State athletic director Gene Smith, this bill would establish a Federal Trade Commission clearinghouse for all NIL deals of more than $500. It would also ensure that student-athletes aren’t considered employees of universities.
- An untitled Tuberville-Manchin bill: The former head football coach and the Democratic senator from West Virginia came together in 2022 to work toward bipartisan NIL legislation and expect to release a bill draft this spring. Tuberville told Sportico in December he did not expect Congress to include an antitrust exemption for the NCAA in any legislation it passed this session. The two senators put forth some of the feedback they’ve received from stakeholders last fall, and most of the comments had to do with prohibiting recruitment inducements, reining in collectives and seeking the disclosure of deals.
- The College Athletes Bill of Rights: A 2020 bill reintroduced by five Democratic senators last fall, this would give athletes the ability to unionize and share revenue with their leagues and schools. This bill also includes broader topics such as long-term medical and healthcare. It is not expected to draw widespread Republican support but may be used as an opening negotiating stance toward bipartisan resolution.
If — and that’s a big if — any legislation eventually makes it to both chambers for a vote, it will need bipartisan support, which necessitates compromise. It will also require a sense of urgency.
Many of the Republican-backed efforts include provisions that the NCAA has specifically sought, specifically the preemption of state NIL laws and registries regarding the disclosure of deals. McMillen believes that the NCAA’s ideal path forward involves the eventual proposed bill from Bilirakis because of the committee from which it would have originated. The key, he said, is to get the bill through subcommittee and committee and then get it to the floor. Soon enough, it’ll be a new election cycle, and these issues could move to the backburner.
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“The clock is ticking, and they know they’ve got to get a bill over to the Senate so they can start to negotiate,” McMillen said.
What the NCAA wants
It can be difficult to sift through all that proposed legislation and get a sense for how likely it is that NCAA will get the change it is seeking.
“If (Congress) become(s) involved, we’ve lost,” University of Nebraska systems president Ted Carter told the Omaha World-Herald recently. “I feel for those who serve at that level. They are thankless jobs. College athletics should not be part of their portfolio.”
Baker has pushed publicly for months for regulations he’s labeled as “consumer protections.” It’s been an effective strategy in his effort to attract lawmakers; of course, everyone who can would want to crack down on bad actors taking advantage of college athletes, whether they be boosters or agents.
“There’s a respect for protecting the breadth of opportunity and allowing young people to have continuing economic opportunity, but also have some level of consumer protection for them and set a national standard for this activity that supports championships, interconference play and conference play,” Sankey said.
Above all, the NCAA and its leaders want help setting a national standard because they want federal legislation to preempt state NIL laws. The NCAA also seeks a prohibition on revenue sharing with athletes and perhaps even protection against antitrust issues. They want these bills to guarantee that athletes can’t be deemed employees, even as the National Labor Relations Board and multiple lawsuits working their way through the court system are challenging that assertion.
The mainstream Democratic stance falls at the other end of the spectrum. Senators like Booker and Blumenthal want to support a bill that protects athletes’ ability to be classified as employees and the right for them to collectively bargain and receive significant post-graduate medical support. Those protections would be far from the “narrow” NIL bill characterization assigned to most Republican-backed legislation. If there’s progress in the federal legislative space, it’ll likely be something in between the two sides of the debate — or something that incorporates specific ideas from multiple bills into one.
As McMillen put it, “There’s a long way to go.”
— The Athletic’s Seth Emerson contributed reporting from Miramar Beach, Fla.
(Photo: Mitchell Layton / Getty Images)
