Following a year featuring an incredible amount of government activity surrounding COVID-19 pandemic response, a presidential election, and more, the topic of college athlete rights has managed to find its way to the Congressional floor. Stirring conversation for the past decade within the collegiate sports sphere, the NCAA, and most recently State offices, have brought the debate of student-athletes’ name, image, and likeness (NIL) rights to center stage.
Six unique federal proposals have been introduced dating back to summer of 2020, three of which were introduced in the current session. Though each proposal is centered around the same common thread, they all bring their own unique flavor.
How we got here
June 18, 2020 – “Fairness in Collegiate Athletics Act” is proposed by Sen. Marco Rubio (R-FL) and becomes the first federally introduced bill of the session to address student-athletes’ NIL.
September 24, 2020 – “Student Athlete Level Playing Field Act” is introduced bipartisanly to the House of Representatives by Rep. Emanuel Cleaver (D-MO) and Rep. Anthony Gonzalez (R-OH), Ex-NFL wide receiver and Ohio State football standout.*
December 10, 2020 – “Collegiate Athlete Compensation Rights Act” is introduced to the Senate by Sen. Roger Wicker (R-MS), former Chairman of the Senate Committee on Commerce, Science & Transportation.
December 17, 2020 – “College Athlete Bill of Rights” is introduced to the Senate by Sen. Cory Booker (D-NJ), former tight end for Stanford, and Sen. Richard Blumenthal (D-CT), former swimmer for Harvard.
February 4, 2021 – “College Athlete Economic Freedom Act” is introduced to Congress by Sen. Chris Murphy (D-CT) and Rep. Lori Trahan (D-MA), former volleyball player for Georgetown.
February 24, 2021 – “Amateur Athletes Protection and Compensation Act of 2021” is introduced to the Senate by Sen. Jerry Moran (R-KS), who chaired a Commerce Subcommittee hearing on student-athlete compensation and questioned witnesses, including NCAA President Mark Emmert.
*April 26, 2021 – “Student Athlete Level Playing Field Act” is reintroduced by Rep. Cleaver and Rep. Gonzalez.
How each bill addresses major topics
Across each of the proposals, there are a handful of select topics by which each bill takes a significant stance, namely the involvement of agents, disclosure requirements, governing entities for NIL transactions, payments, and third party involvement.
In regards to representation, the consensus among each of the bills is that student-athletes deserve the right to an agent, financial advisor, or athlete representative of such nature so long as they are not affiliated with the school. A majority of the legislators agreed the certification of agents would be necessary through the appointed governing entity.
NIL Activity Disclosure
As for disclosure, the same continuity was not found. For instance, both Sen. Wicker and Sen. Moran’s proposals require reporting of NIL activities within five and seven days, respectively, and Sen. Rubio left the exact timeline of reporting to the discretion of the association. In contrast, Sen. Booker and Sen. Blumenthal’s bill alongside Sen. Murphy and Rep. Trahan’s does not specifically outline a disclosure process or timeline for student-athletes and agents alike. However, many of the proposals open the door for certain governing entities to establish a reporting structure.
On the topic of governing entities, we see Sen. Rubio, Rep. Gonzalez and Rep. Cleaver, Sen. Wicker, and Sen. Moran all relied on the Federal Trade Commission (FTC) to establish or enforce their respective acts. Sen. Wicker, though, much like the remaining two bills, has instead drafted a vision for creating an independent “Entity” to regulate and provide education to student-athletes. Tasked with similar governance responsibilities, the “College Athlete Bill of Rights” and “Amateur Athletes Protection and Compensation Act of 2021″ would berth the Commission on College Athletics and the Amateur Intercollegiate Athletics Corporation (AIAC). These governing organizations relieve administrative responsibility from the NCAA and specifically require current or former student-athletes to serve as committee members.
Another area of consensus among the bills lies in payments and their dissociation from tuition, room and board, other academically-tied expenses, and non-athletically conducted hourly work. Despite Sen. Wicker having closely aligned his payment framework with the NCAA’s call to be commensurate with fair market value, the “Collegiate Athlete Compensation Rights Act” matches its peers on the restriction of associations, conferences, and institutions to limit compensation for student-athletes.
Third Party Association
Lastly, there is a common expectation for third-parties not to coordinate with institutions or athletic departments in regards to a student-athlete’s endorsement opportunity. However, in the case of Sen. Booker and Sen. Blumenthal’s bill there is a specification that a third-party can enter into a separate agreement with an institution concerned with logos, uniforms, and intellectual property rights if the student-athlete receives payment and the institution did not initiate the agreement.
What this means for schools
Over the next year, schools of all levels around the country will begin navigating the new world of NIL with their student-athletes. Ranging from booster involvement and conflicts of interest, to the use of institutional marks and rule interpretations, compliance staff and athletic departments will have a variety of topics to monitor. Based on the current language of the proposed bills, here is how each shakes out for schools:
What we see on the concept of booster involvement is fairly open-ended. Sen. Gonzalez and Rep. Cleaver made it very clear in their proposal that it is unlawful for boosters to be involved in NIL activity, but conversely Sen. Wicker leaves the choice to prohibit boosters up to the association, conference or institution. Though it is a relatively gray area, the other proposals have also made reference to boosters but in a less restrictive manner.
During the drafting process, a major area of controversy centered around the potential for conflicting sponsorships between a school and a student-athlete. The classic example reverts back to a student-athlete playing under a major gear and apparel company but serving as a brand ambassador for a rival company when off the court. Though certain bills have opted to let their governing entity make the final say, both the “Student Athlete Level Playing Field Act” and “College Athlete Bill of Rights” make it clear that a student-athlete must wear team apparel in a team-sponsored event, competition, or practice. However, one nuance of Sen. Booker and Sen. Blumenthal’s “College Athlete Bill of Rights” is that a school cannot prohibit a student-athlete from wearing footwear of their choice during a mandatory team event. Though this is an area of every proposal that is likely to expand, one overarching safeguard included in the “Collegiate Athlete Compensation Rights Act” is that a third party licensee shall not offer or enter into an endorsement deal with a student-athlete which conflicts an existing agreement.
On the topic of institutional marks and logos, unlike the NCAA’s initial proposals, surprisingly little detail was provided in each proposal. In fact, Sen. Booker and Sen. Blumenthal’s bill is the only one which distinctly addressed the idea and their stance erred on the side of institution’s making the decision to license their intellectual property if they so choose.
Though the federal bills will likely have more interpretation to come, each proposal except for Sen. Rubio’s and Sen. Wicker and Sen. Moran’s explicitly prohibit associations, conferences, or schools from creating any additional rules or limitations on student-athletes’ NIL rights.
What this means for student-athletes
As for student-athletes, the potential and growing reality of capitalizing on NIL rights is looking bright. With so many stakeholders from coaches, athletic directors, state officials and now the most prominent politicians in the country devoting attention to an issue, the outlook for change is impossible to ignore. For both prospective and current student-athletes, the most important details that will be settled are eligibility, scholarship implications, group licensing, and when they will be able to monetize their NIL.
Scholarships & Eligibility
Scholarships and athletic eligibility alike are unanimously proposed to be unaffected by NIL participation. Sen. Moran even went to the extent to address scholarship revocation in a broader sense, noting they cannot be taken away unless the student-athlete transfers or does not meet the standards set forth by either the institution or the AIAC regulations.
Although not all of the proposals bring attention to it, the concept of group licensing was made clear and supported by Sen. Wicker, Sen. Booker and Sen. Blumenthal, as well as Sen. Murphy and Rep. Trahan. College Athlete Bill of Rights”, which went into the most detail of the bills, outlined that associations, conferences, and schools cannot restrict group licensing activity, but a state government can on the grounds of their existing laws which may prohibit institutions of higher education from participating in an industry altogether. Nevertheless, the three bills agree that in all of these cases if a group license is obtained for a direct purpose it can be used.
Finally, a timeline for these bills is largely uncharted. With a new President and Congress in session, there are more pressing agenda items to address which leaves the current proposals up in the air. Although historically only 1% of introduced bills are enacted into law and roughly 10% of enacted bills are passed in the first six months of the year, the outside implications from the NCAA v. Alston Supreme Court Case and the July 1 effective date of Florida’s NIL law places a strong pressure on the Federal government to take action before student-athletes are faced with standards that vary by state. Most recently, as reported by Sports Illustrated, Sen. Maria Cantwell (D-WA) is expected to introduce a bill with bipartisan support prior to July 1.