With the clock ticking on the federal government to avert a looming legal fight over name, image and likeness rights, Sen. Roger Wicker (R-Miss.) has introduced legislation that might thread an unwieldy needle.
Wicker, chairman of the U.S. Senate Committee on Commerce, Science and Transportation, is sponsoring S. 5003, the Collegiate Athlete Compensation Rights Act, the latest legislative proposal to envision a uniform, nationwide NIL framework. The act would ensure that college athletes can hire agents and negotiate endorsement deals with sneaker, apparel, merchandise, video game, summer camp and other businesses.
In short, Wicker’s bill would create a federal NIL right.
While some would argue this right already exists in spite of NCAA rules, federal law’s explicit recognition would be noteworthy. Yet it would come with important strings attached—conditions that traditionalists would favor as ensuring an orderly transition into the NIL era and change advocates would deride as placating the NCAA and colleges.
To that end, the act would explicitly forbid the NCAA, conferences and schools from adopting any contract, rule or requirement that “prevents or unduly restricts” a college athlete from earning NIL compensation. The bill also stresses the need for college athletes to earn “market value” compensation for use of their NIL. The reference to “market value” clearly diverges from NCAA language on imposing NIL “guardrails.”
Wicker’s use of “market value” is also consistent with his remarks at SporticoLive’s Nov. 11 NIL event. The 69-year-old retired U.S. Air Force Reserve lieutenant colonel repeatedly emphasized that NIL is a “matter of fairness.”
“It’s unfair,” Wicker stressed, for universities and TV networks to earn millions off the NIL of college athletes who are denied such opportunities:
Wicker’s bill also addresses an arguably underappreciated issue: educating college athletes on what NIL actually means. The act directs colleges to allocate resources for training college athletes, an order that is also consistent with Wicker’s SporticoLive remarks. “We need to be careful to remember these are folks right out of high school,” he observed, “thrust into a mighty big playing field on a mighty big stage.”
To further address that concern, the bill calls for a delay in how quickly athletes can gain from their NIL rights, prohibiting NIL opportunities until a college athlete has completed at least 12% of credits required for graduation.
While the number of credit hours necessary for graduation varies by school and degree, at Wicker’s alma mater, Ole Miss, and at many other schools, 120 credit hours are needed. Using a 12% requirement, an Ole Miss athlete would need to complete 14.4 credits before becoming NIL-eligible. Although incoming students can sometimes earn college credit before their fall semester begins, such as through Advanced Placement exams, 14 to 15 credits aren’t usually obtainable until after the completion of the first semester.
Wicker’s bill is also mindful of the growing role of influencers in college sports, defining “social media compensation” as a separate term and recognizing “all forms of payment for engagement on social media received by a student athlete as a result of the use of [NIL].”
How the Act Placates the NCAA and Schools—to an Extent
While the bill would create a federal NIL right, it would do so in carefully configured ways that largely preserve the college sports model.
For starters, the act declares that a college athlete isn’t an employee of his or her school, conference or the NCAA. Under the National Labor Relations Act (NLRA), employee status is required for unionization. College presidents who fear the economic ramifications of student athletes collectively bargaining wages, hours, health care and other workplace conditions would likely find this restraint conciliating.
Yet the act acknowledges that non-employee status is “notwithstanding any other provision of federal or state law.” This is an important caveat: While the NLRA governs private universities, state labor laws determine whether college athletes at public universities qualify as employees. Therefore, even if the bill becomes law, college athletes at public universities in labor-friendly states, such as California or Washington, might still gain recognition as employees.
The act also noticeably omits language barring the possibility of college athletes forming a trade association or a 501(c)(4) nonprofit (such as the United Football Players Association). College athletes could still join hands through such an entity, which would neither require employee status nor engage in collective bargaining.
Further, the bill navigates through conflicts—specifically, colleges’ concern that athletes would sign endorsement deals undermining school interests. For instance, a UCLA football player inking with Under Armour would present a quandary for the school, which earlier this week announced a sponsorship deal with Nike and Jordan Brand. The school is also suing Under Armour for breaking their previous sponsorship deal. The act allows colleges to bar conflicting endorsements but does so with a catch: The school is forbidden from “unduly restricting” endorsement deals. What constitutes an undue restriction might require litigation.
Wicker’s effort to craft a nuanced national system for NIL is also apparent in the act’s handling of liability. The bill eschews calls for legal exemptions by proposing a compliance defense: As long as the NCAA, conference or school adheres to the act, it shall not be held liable.
To comply, the NCAA, conferences and schools must refrain from preventing or unduly restricting NIL opportunities. In a sense, the bill provides what is already the state of the law. A defendant who refrains from adopting unreasonable measures to price-fix and inhibit competition is ordinarily found to be in compliance with antitrust law and related areas of law. A defendant would (obviously) prefer to be altogether exempt from the law and its scrutiny. Yet as he stressed during his SporticoLive interview, Wicker opposes such an exemption.
His act might not be well received by leaders in Florida, California and other states that have enacted, or plan to enact, NIL statutes, since the federal bill would preempt states from regulating NIL. However, as noted in other Sportico legal stories, preemption is its own complex topic.
The Collegiate Athlete Compensation Rights Act follows several other legislative proposals in Congress, including H.R. 8382, the Student Athlete Level Playing Field Act recently introduced by Reps. Anthony Gonzalez (R-Ohio) and Emanuel Cleaver (D-Mo.). Both bills contemplate regulation of agents and a crucial role for the Federal Trade Commission.
Next Steps and the Approaching Legal Storm
Wicker’s proposal arrives at the Commerce, Science and Transportation committee as the NCAA is expected to clarify its NIL system by the end of January. The system is expected to conflict with state NIL statutes. It’s conceivable that college athletes in Florida and California could—for a time being—have greater opportunities to earn off-field income than those at schools in Alabama or North Carolina.
This patchwork arrangement would almost certainly spark legal challenges. The NCAA, for instance, would be poised to sue states for (allegedly) interfering with interstate commerce, depicting them as having adopted NIL statutes that impact other states’ economies and prevent national rules. Colleges, meanwhile, could find themselves in an awkward spot: By complying with state law, they would simultaneously violate NCAA membership rules and risk NCAA sanction. Then there are college athletes and recruits. They could sue the NCAA, conferences and schools on antitrust grounds. The basic theory: the defendants are competing businesses that have joined hands to unreasonably restrict NIL opportunities, thereby suppressing potential earnings.
The politics of federal NIL legislation remain unsettled. Sens. Chris Murphy (D-Conn.) and Cory Booker (D-N.J.), along with Vice President-Elect Kamala Harris, call for more transformative change. They’d likely regard Wicker’s bill as insufficient. Yet the calculus doesn’t have to be “all or nothing.” If a conservative Republican from Mississippi supports NIL rights, there’s probably room in Congress to find a solution that works well enough for all.
Whether they find that solution before the legal fallout arrives remains to be seen.