Good morning. Infrastructure talks were a bit chaotic this week: One set of negotiations failed and another group of senators cobbled together a different plan, but the path forward remains uncertain. Police reform negotiations are proceeding, but a deal isn’t here yet, and stakeholders and members are already airing grievances with potential legislative text. I thought we’d look into a different topic members of Congress are considering these days—one that many Americans haven’t been following as closely but has the potential to redefine college sports as we know it.
Senators Debate Name, Image, and Likeness Laws
At a Senate hearing this week, a panel of witnesses was unanimous on this point: College athletes should be able to profit from third-party uses of their name, image, and likeness. But the experts weren’t in agreement on what key details of federal legislation on the issue should look like—or if it should exist at all.
A slew of states have recently passed laws, six of which are set to go into effect as soon as July of this year, that will empower student athletes to enter into name, image, and likeness (NIL) agreements with third parties without being punished by their schools or the NCAA. These could include lucrative advertising deals for well-known players, opportunities to earn revenue from social media posts, smaller contracts with local businesses, or simply the ability to host athletic camps for kids in their hometowns. It doesn’t mean the colleges and universities will be paying athletes—the laws are limited to third-party deals. But it will change the face of college sports and rectify, at least for some students, what members of both parties view as an unfair system under current NCAA rules.
College athletes are expected to expend a great deal of time and energy in training, games, and meetings, making it difficult to balance their course load. Even more difficult under such a rigorous schedule is earning money at a job while in college. The ability to strike third-party deals would not only greatly benefit the most famous players, but it would also open doors for those who are struggling to stay afloat and need opportunities to make money. Proponents of the changes note that other students don’t face similar barriers to earning a living while in school. Students who are musicians can sign record deals and artists can sell paintings without fear of losing their scholarships or becoming ineligible for other school activities. Only athletes face such a strict set of rules against earning money while playing in college.
The state rules that will soon go into force vary in scope, with some friendlier to student athletes than others. Some states haven’t considered such laws at all. College administrators and athletics officials are alarmed that this patchwork approach could give schools a recruiting advantage in the states that are set to allow NIL deals.
“We are at a critical juncture in college athletics, and it really isn’t an exaggeration to say the future of college sports is in jeopardy,” Mark Few, head coach of the Gonzaga University men’s basketball team, told senators during a Commerce, Science, and Transportation Committee hearing about the topic Wednesday. He made the case for Congress to enact a federal standard on the issue to even the playing field.
There are a host of outstanding questions about what federal legislation should include. Republicans have embraced more targeted bills that would address name, image, and likeness rules in a limited way while also protecting the NCAA from lawsuits from former players.
Democrats, meanwhile, are calling for a more expansive measure to ensure student athletes have a clear “bill of rights” in their dealings with colleges and universities. They emphasize the need to provide strong health care coverage for athletes after they’ve left school—sports-related injuries can cause long-term health problems. They also want colleges and universities to ensure players continue to receive academic scholarships to finish their degrees, even once they’re finished competing.
Democratic Sens. Cory Booker and Richard Blumenthal have introduced a progressive bill with those priorities in mind. The measure would establish a medical trust fund financed by colleges and universities that have athletics departments. The fund would go toward covering athletes’ out-of-pocket expenses related to sports injuries, including for five years after students cease being college athletes.
Most controversially, their legislation goes beyond third-party name, image, and likeness agreements for compensation: It also calls for revenues to be shared with players in profitable sports across each division. For players in the most popular sports, this could translate to a six-figure annual payment.
“We are here because of the real threat to college sports as we know it, with a whole bunch of different cross-cutting standards that will undermine the level playing field, or at least the degrees of a level playing field we have now,” Booker, a former Stanford University football player, said of NIL laws at the hearing Wednesday. “If we don’t fix this problem, sports as we know it will change, and we all should feel that urgency.”
But, Booker added, the debate is an opportunity to pass legislation that protects the interests of student athletes more comprehensively.
“Modern college athletics is a de facto for-profit industry that is just too often exploiting men and women, taking advantage of their genius, of their talent, of their artistry, robbing many of them of earnings in their peak years, leaving them often injured with a lifetime worth of costs, sometimes looking back and their universities are still making profits off of their names,” said Booker.
During the hearing, witnesses said new obligations for schools should be balanced with the financial burdens facing smaller institutions. Howard University President Wayne Frederick testified that he and his peers are concerned lesser-resourced schools “would be unable to cope with changes in collegiate athletics that require the institution to endure a heavier load in supporting student athletes, both in terms of insulating the athletes from extraneous costs as well as assisting them in earning revenue.”
Not only would it strain some schools’ resources to pay for athletes’ medical expenses for a longer period after they’ve left, Frederick said—it would also cost money to hire more compliance staff to make sure students are adhering to new guidelines.
“If new rules and regulations only add to the costs that we assume without providing us with any additional assistance, we will not be able to sustain the athletic programs we currently have,” he wrote in his prepared statement. “This would be a tremendous loss to our institutions as well as to the students whose opportunities for academic and athletic educational experiences will be limited as a result.”
Frederick added he supports a federal bill regarding name, image, and likeness rules, in part to prevent damage to schools. He raised fears that states will be motivated to pass laws that will draw athletic recruits and that may not prioritize the interests of colleges and universities.
Another witness—ESPN football analyst Rod Gilmore—took a hardline position in favor of the athletes during the hearing. He said he sees the upside of a race to the top among states competing to provide the best benefits to student athletes. Such a situation is akin to the free market at work, he argued. He emphasized that there is no “level playing field” to begin with in recruiting, as powerful schools in dominant conferences have resources to bring in students that other states can’t. He suggested state-by-state NIL laws could counteract that trend to some degree, making states with generous rules more appealing to athletes.
Gilmore added that he doesn’t think there is a need for a federal bill because recently enacted state NIL laws are serving the interests of players. He testified that Congress should not “override those benefits for the convenience of the NCAA and compromising the free market.” Any federal legislation, if Congress passes it, should go beyond state bills in empowering players, he said.
Gilmore was alone on the panel in rejecting the urgency of federal standards.
The NCAA could approve new rules granting nationwide NIL rights to student athletes at a meeting later this month. But those rules would still be superseded by various state laws, some of which are more permissive about what kinds of third-party deals athletes will be able to make than the NCAA is expected to allow. Schools would like to preserve the ability to block deals related to alcohol, tobacco, and other industries that don’t align with their codes of conduct. Officials have also raised concerns about deals that conflict with contracts schools already have with various companies. Schools may not want a player signing a deal with Nike if the institution has a contract with Under Armour, for example. Player advocates argue there should be as few limits on what student athletes can do as possible, especially considering that non-athlete students don’t face the same kind of restrictions.
NCAA President Mark Emmert also appeared before the panel Wednesday, asking Congress to pass legislation to override the state bills and to protect the NCAA from liability.
Republicans were more friendly than Democrats to Emmert’s position—although some, including Sen. Marsha Blackburn of Tennessee, hit the NCAA for its failure so far to decide how to proceed with its internal rules ahead of the July 1 deadline. The organization has spent the past year asking Congress to fix the mess. (Because we all know Congress is a well-oiled machine.)
Lawmakers are generally in agreement that federal legislation is needed.
“The only way to ensure that all student athletes across the country have the same NIL rights and protections is for Congress to act,” said Sen. Roger Wicker, a Mississippi Republican.
Wicker has proposed a bill focused narrowly on the issue of NIL compensation. It would give student athletes the ability to earn money from their name, image, and likeness and to retain a certified agent. It also explicitly states that student athletes shall not be considered employees of any college, conference, or association. It includes liability protections for the NCAA and prohibits states from establishing and enforcing their own NIL laws.
Democrats aren’t sold on Wicker’s plan, partly because they want a more ambitious bill addressing health care and educational opportunities like Booker’s and Blumenthal’s. Wicker said the committee should look into those questions, but he argued for a tailored approach given the short timeframe before several state NIL laws are set to go into effect.
“Unlike NIL, these issues are not subject to a July 1 deadline,” Wicker said of broader concerns about athletes’ wellbeing. “Based on our discussions, I believe we can reach consensus on a focused bill addressing NIL on a much faster timetable.”
There are a few other options for a legislative approach. Sen. Jerry Moran of Kansas introduced his own plan earlier this year that strikes more of a middle ground.
Moran’s legislation would also allow student athletes to profit from their name, image, and likeness. Like Wicker’s bill, Moran’s explicitly states that athletes are not considered employees, protects the NCAA from liability from former athletes, and preempts state NIL laws. But it also requires colleges and universities to cover out-of-pocket health care costs related to athletic injuries for either two or four years after athletes have left, depending on how much money the institution in question makes in athletics revenue per year. Moran’s bill would also compel schools to honor scholarships for however long it takes an athlete to finish their undergraduate degree.
Rep. Anthony Gonzalez, a Republican who formerly played college football at Ohio State, has also brought forward a bill alongside Rep. Emmanuel Cleaver, a Missouri Democrat, to address the issue.
Their bill allows student athletes to enter into third-party NIL agreements, but it also makes room for colleges and organizations to ban them from striking deals with tobacco companies, alcohol brands, sellers of controlled substances such as marijuana, pornography companies, and casinos. Under the legislation, if a school or athletic organization bans students from entering into deals with any of the listed categories of business, it would itself be banned from having its own agreements with the same kind of companies. The measure also allows institutions to prohibit students from wearing items of clothing or gear with insignia of any entity during athletic competitions or university events.
The legislation has NCAA backing and a bipartisan roster of cosponsors.
Divisions among the senators about how to proceed were still fairly clear on Wednesday, despite dwindling time before July 1. It’s not likely at this point that Congress will be able to pass a compromise deal in advance of several state laws taking effect. Still, senators said they’re committed to taking action soon.
“I really believe that this is the time to make progress on this issue,” Democratic Sen. Maria Cantwell, chair of the committee, said during the hearing. “We’re determined to get this done,” she later added.
Let Us Know
We’re taking a page from TMD’s book this week to ask what you think about this topic. Do you agree with most members of Congress that federal legislation is needed? Or do you find Rod Gilmore’s argument about competition among states compelling? Should the NCAA just adopt rules that align with the most generous state law? Let us know in the comments.
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