The future of name, image and likeness in college sports will take center stage this morning at the U.S. Senate.
At 10 a.m. ET, the Senate Committee on Commerce, Science and Transportation will convene a hearing titled, “NCAA Athlete NIL Rights.” NCAA president Mark Emmert and Gonzaga men’s basketball coach Mark Few are two witnesses, as am I, along with ESPN analyst Rod Gilmore, Howard University president Wayne Frederick and Marquette law professor Matt Mitten.
The hearing will focus on a time-sensitive quandary facing college sports. On July 1, a handful of states—Alabama, Florida, Georgia, Mississippi and New Mexico—will see NIL statutes take effect. That list is expected to expand as NIL bills with July 1 start dates in Texas and Illinois are awaiting signatures by their respective governors. Meanwhile, NIL statutes in two other states, Oklahoma and Nebraska, are worded to indicate they are already available for use.
While these laws vary somewhat, they generally permit college athletes to negotiate endorsement deals with sneaker companies and other businesses. They also forbid colleges and the NCAA from punishing athletes for entering into contracts.
Despite expressing support for NIL in principle, the NCAA has yet to change rules that prohibit athletes from signing endorsement deals, sponsorship agreements or influencer arrangements. The NCAA could act on NIL before July 1—the NCAA’s Division I Council is set to meet on June 23—but doing so might not resolve the controversy.
In January, the NCAA punted on NIL because of concerns about potential exposure under antitrust law. Those same concerns remain for the NCAA, which has been pushing Congress to pass a federal bill that would contain an antitrust exemption and supersede state NIL laws. If the NCAA adopts an NIL standard that conflicts with a state NIL statute—such as in terms of when athletes’ NIL rights begin (July 1 versus a later date) or in substantive rights (for example, athlete autonomy in signing an endorsement deal versus fair market review of a prospective endorsement deal)—athletes in NIL states could conceivably sue their schools or the NCAA for violating state law.
The NCAA could try to buy additional time on NIL by pursuing preliminary restraining orders. If granted by judges, these orders would delay state NIL statutes from going into effect. As previously detailed, the NCAA is armed with plausible arguments under the Contract and Commerce Clauses of the U.S. Constitution that a state NIL statute would interfere with member schools’ contractual duties to the NCAA and impact commerce in other states.
Committee chairwoman Maria Cantwell and ranking member Roger Wicker, who last year proposed an NIL bill, are attempting to swiftly find a bipartisan solution. They seek to craft a bill that, unlike the eight previous NIL attempts introduced in Congress over the last two years, would advance past committee and be put up for vote.
If such a bill isn’t hatched over the next few weeks, and if the NCAA takes no action during that time, college athletes in at least five states would be able to sign endorsement deals on July 1. They would do so with legal assurance that schools, conferences and the NCAA couldn’t punish them. College athletes in states without NIL statutes wouldn’t have those same assurances. For competition purposes, their schools might feel pressured to allow NIL. However, doing so would cause them to breach contractual obligations to the NCAA.
One political challenge for Senators Cantwell and Wicker is that some members of Congress seek legislation that encompasses other transformative concepts. Revenue sharing, medical trust funds, new entities that effectively oversee the NCAA, college athlete employee status and unionization rights are among them. Capitol Hill insiders say those concepts, which are opposed by some in higher education and other constituencies, would make it much less likely that an NIL bill passes.
I look forward to joining this discussion as a witness. In my testimony I’ll raise five basic points.
First, NIL rights for college athletes are long overdue. They have been barred by NCAA rules from taking advantage of a right the rest of us enjoy: The right of publicity, which protects our name, image, likeness, voice, signature and other unique, personal qualities from commercial misappropriation. College athletes should be able to exercise a right they already possess as Americans.
Second, states should be applauded for pathbreaking and speedy work on NIL. They have ably filled a vacuum left by the NCAA and Congress. They have also adopted NIL statutes in remarkably bipartisan ways. Most of their bills have focused on NIL and eschewed other types of reforms.
Third, a federal model would be the most sensible approach to NIL. It would ward off the potential legal challenges discussed above. It would also ensure that college athletes in all 50 states can take advantage of NIL and do so with the same set of rights and obligations. That’s not to say a state-by-state model couldn’t work. In fact, one might lead to interesting scenarios. For instance, if a state watches top recruits sign with schools in other states, it could pursue an NIL statute or make an existing one more athlete-friendly. The free market at work.
Fourth, an NIL bill should focus on NIL. There are other major topics that warrant the attention of lawmakers. Health care, particularly for players who leave school with injuries, is one. Another is college athletes’ feeling powerless in matters that directly affect their lives. Congress should hear from players as well as from subject matter experts, such as medical doctors and civil rights leaders. But those topics involve multiple areas of law and aren’t necessarily connected to NIL, which is most closely tied to the right of publicity. It’s probably not a coincidence that most states that have passed laws have limited their bills to NIL.
Fifth, there is no certain formula for success with NIL legislation. College sports is about to enter a new era, where new rules will bring about unforeseen consequences. I offer 10 suggestions for a federal bill. They include: a commitment that if a school helps its athletes with NIL opportunities, the assistance be equitable for women and men and in compliance with Title IX; enforcement features, including a private right of action; authorization of group licensing, which would facilitate the publication of college sports video games; schools’ ability to deny athlete endorsement opportunities when they’d conflict with a school contract; and independent reviews of endorsements, a process that should be used cautiously, especially since other college students aren’t subject to reviews of their dealings.
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