Three U.S Senators unveil discussion draft of bill addressing NIL issues for NCAA athletes

A bipartisan trio of U.S. senators on Thursday unveiled a discussion draft of a college sports bill that aims to provide a national solution to issues with athletes’ money-making activities related to their name, image and likeness, and to establish a set of rules for athletes’ short- and long-term health care, their safety and their educational choice. 

Under the 50-page draft from Sens. Richard Blumenthal, D-Conn., Jerry Moran, R-Kan., and Cory Booker, D-N.J., those standards would be created, in part, and enforced by a new entity that would be called the “College Athletics Corporation.” It would not be a government agency but would be granted investigative and subpoena powers.

The corporation would be charged with creating a formal certification process for people seeking to represent athletes in name, image and likeness (NIL) dealings. It also would maintain a publicly available database showing a variety of data that schools would have to provide annually, including the number, average and total value of athlete endorsement contracts, all broken down by sport, race and ethnicity, and gender.

In addition, the new entity would establish a medical trust fund that athletes could access during and after their playing careers. Money for the fund would come from annual contributions by the NCAA and by schools and conferences that have at least $50 million in yearly revenue.

Under a provision that takes on particular significance amid the recent hazing allegations within the Northwestern University football program, the draft says that within one year of its effective date, the Secretary of Health and Human Services, in consultation with the new corporation, would be required to “establish health, wellness and safety standards to protect college athletes from serious injury and conditions, mistreatment and abuse, and death.”

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The new corporation would be able to conduct audits, site visits and investigations to verify compliance, and individuals would be subject to a lifetime ban from college sports due to noncompliance.

Moran said during a conference call Thursday afternoon: "What is transpiring, or at least what I read in the press is transpiring, at Northwestern is not something that was contemplated as we drafted this legislation. And so I know of no specific consequence to that investigation."

But how this would work in the future remains to be seen, as does the prospective bill's overall future amid seemingly intractable partisan division, and with Congress facing many other pressing national issues. But Booker, a former Stanford football player; Moran and Blumenthal (along with Sen. Chris Murphy, D-Conn.) have been among the U.S. senators most persistent about college sports.

And during Thursday's call, the three expressed optimism about how their joining together could make a difference.

Said Moran: "Our goal has been a product that could get 60 votes in the United States Senate, and we believe we are close to reaching that goal." He added that another Republican has "joined this effort just within the last week," although he did not identify that legislator.

Blumenthal, Moran and Booker all were involved with college-sports bills during the 2021-22 Congressional session. Blumenthal and Booker combined on what they called the “College Athletes Bill of Rights,” a revised version of legislation they also introduced in December 2020.

Asked why he and Booker have dropped some pro-athlete provisions from earlier versions of their bills, Blumenthal said: "We are aiming at bipartisan consensus here and what we regard as the most necessary and pressing needs and challenges. And we believe that this consensus will gain the bipartisan majority that we need to pass this legislation and do it soon. …

"We feel a sense of urgency on the issues where we agree wholeheartedly. We can deal with other issues going forward and amend this bill. One of the reasons why we made it a discussion draft is to see whether other issues need to be addressed. So, I don't think we've foreclosed anything, but I don't expect we will necessarily open it in a major way. Legislating is the art of the possible and that's where we're going."

The NCAA and its member conferences and schools have continued to lobby for a measure that would supersede what is now an array of varying state laws connected to NIL enterprises. They also have sought antitrust protection and a legal declaration that athletes are not school employees.

The draft announced Thursday does not appear to give the NCAA either of those latter two items on its wish list, nor does it directly address the NCAA’s desire for the creation of a standardized NIL contract for athletes.

But it does expressly preempt state NIL laws and states that the new corporation’s purposes include serving “as a clearinghouse for best practices with respect to rights and protections of college athletes who enter into agency contracts and endorsement contracts.”

Two members of the House of Representatives from Ohio – Reps. Mike Carey, R, and Greg Landsman, D – introduced a bill in May concerning college athletes’ NIL activities that proposes to work partially within the framework of the Federal Trade Commission.

Rep. Gus Bilirakis, R-Fla., who chairs the House Energy and Commerce Subcommittee on Innovation, Data and Commerce, also released a discussion draft in May. That version also calls for a new oversight entity. In addition, Sens. Tommy Tuberville, R-Ala., and Joe Manchin, D-W. Va., have been working on yet another draft.

The NCAA said in statement Thursday: "… we are working with Congress to implement nationwide protections to improve outcomes for all 500,000 college athletes. There is clearly bipartisan support for these measures, and the Association looks forward to cooperating with stakeholders to advance student-athletes’ interests. We are pleased to see the legislative outline includes many of the elevated membership standards put in place by NCAA members earlier this year."

The draft version announced Thursday proposes far-reaching changes that go well beyond NIL and — in several aspects, farther than the NCAA has in its recent changes — continuing concepts that Blumenthal, Moran and Booker, in varying forms, have proposed previously:

▶The medical trust fund would cover athletes’ out-of-pocket expenses for injuries suffered while playing and for four years after they stop playing college sports. It also would cover athletes “diagnosed with significant long-term conditions related to their participation in college athletics.”

▶Schools’ employment of athletic trainers and team physicians would be required to be “independent from the athletic department” and they would be required to have “the autonomous, unchallengeable authority” to make return-to-play decisions.

▶Third parties would be allowed to give athletes “reasonable food, rent, medical expenses or insurance” and “reasonable transportation” for themselves, friends or family members any time they are experiencing “a physical or mental health concern,” or when they are participating in game.

▶Athletes would be able to return to college sports after going through a pro draft if they don’t take money from a league, team or agent and declare their intent to resume their college careers no later than seven days after the draft.

▶Athletics department employees would be prohibited from attempting to “discourage” an athlete from “selecting a course or an academic major” of the athlete’s choice.

▶Schools would be required to annually make public “academic outcomes and majors” for athletes by sport, race and ethnicity, and gender.