In a far-reaching Congressional proposal to modernize college athletes’ rights and the economic relationship between athletes, coaches and their schools, Sens. Cory Booker (D-N.J.), Richard Blumenthal (D-Conn.) and Kirsten Gillibrand (D-N.Y.) and Brian Schatz (D-Hawaii) are co-sponsoring S.5062, the College Athletes Bill of Rights. If it becomes law, the bill would obligate colleges to share sports-related profits with their athletes and ensure those athletes can earn from the commercial use of their name, image and likeness by third parties. The bill would also create pathways for group licensing, a key condition for the return of college sports video games.
In snubbing the NCAA’s preferred moniker “student athlete,” the 63-page bill reimagines the meaning of the phrase “college athlete.”
With respect to revenue sharing, the bill would mandate that revenue-generating sports share 50% of profits (after deducting the cost of scholarships) with athletes. To promote compliance, schools would be obligated to provide annual public reports containing data on salaries and perks for coaches and staff. Transparency measures would also compel detailed accountings of booster donations and other contributions.
In terms of NIL, while the bill would permit colleges to demand their athletes wear sponsors’ apparel during games and practices, colleges could not forbid athletes from wearing the footwear of their choice—including during games and practices—nor bar them from hiring agents or signing endorsement deals related to their life “outside of mandatory team activities.” The bill also envisions the possibility of group licenses, whereby college athletes, either through a trade association or a 501(c)(4) nonprofit, could collectively negotiate with EA or other video game publishers.
The bill would also direct the U.S. Department of Health and Human Services to promulgate “evidence-based” health and safety standards for college athletes. Those standards would address such health and safety risks as traumatic brain injury and sexual assault. In that same light, the bill would compel athletic departments to contribute to a medical trust fund that reimburses athletes for out-of-pocket health expenses. Athletic departments would be obliged to contribute to the fund at levels determined by a federal commission consisting of representatives of former college athletes, professional fields and members of the public..
Other unique features of the bill concern its enforcement and punishment mechanisms. The bill would bestow college athletes with a private right of action (more colloquially stated, a right to sue) and would empower states’ attorneys general to bring claims. Potential sanctions would be deterring; they include that any coach, athletic director or other university employee found in violation could be suspended for one to five years, or even permanently banned from working at any college. Individual colleges could also face fines as steep as the higher of $250,000 or 20% of their total athletic revenue.
The bill arrives in the wake of the U.S. Supreme Court granting cert in NCAA v. Alston, a case that centers on the legality of the NCAA and its member institutions joining hands to limit college athlete compensation. It also comes on the heels of several NIL bills, including the Collegiate Athlete Compensation Rights Act (S.5003) introduced by Sen. Roger Wicker (R-Miss.) and the Student Athlete Level Playing Field Act (H.R. 8382) proposed by Reps. Anthony Gonzalez (R-Ohio) and Emanuel Cleaver (D-Mo.). While those initiatives focus on enacting a uniform, nationwide NIL framework, the College Athletes Bill of Rights contemplate changes far beyond NIL.
The disruptive qualities of Booker’s bill will likely attract substantial resistance from constituencies that might be more amenable to the narrow confines of NIL.
Revenue-sharing and forced medical fund contributions, for example, would directly take away monies from schools. While there may be logical and persuasive justifications for such measures, many schools rely on those monies for budgeting. This is particularly true at a time when colleges have lost dormitory and meal plan revenue on account of the coronavirus pandemic and as demographic data suggests colleges will face serious enrollment challenges in the 2020s and 2030s. It stands to reason that university presidents and their lobbying firms will reach out to members of Congress with grave warnings about the bill’s industry-shaping implications.
The bill could also invite legal challenges. Banning people from working at any possible employing college—including public universities, which must adhere to constitutional requirements in hiring—could be challenged in court on due process and other grounds.
Still, the bill advances the conversation on serious issues facing college athletes today. Likewise, it applies pressure on the NCAA and its members to consider reforms that go well beyond NIL.
(This story has been updated to add the bill’s number and Sen. Brian Schatz as a co-sponsor in the first paragraph, correct the length to 63 pages in the second paragraph and to remove details of required contributions to a proposed medical trust fund in the fifth paragraph.)
