As the college sports industry awaits clarity on when and how college athletes will monetize their name, image and likeness, another new NIL bill has emerged in Congress. Whether it accelerates reform or further muddies the waters remains to be seen.
Sen. Jerry Moran (R-Kan.) this week introduced the Amateur Athletes Protection and Compensation Act (S.414). The Act is similar to other NIL bills—including Senate legislation from Roger Wicker (R-Miss.) and a House bill from Reps. Anthony Gonzalez (R-Ohio) and Emanuel Cleaver (D-Mo.)—in that it would create an NIL right for college athletes who, in turn, could hire agents, sign endorsement deals and sponsor camps.
Moran’s proposal eyes a national standard for NIL and preemption of state NIL laws. Preemption would mean that college athletes would neither gain NIL advantage nor suffer disadvantage by virtue of the laws of the state where their university resides. This is significant from a sports perspective. A handful of states, including California and Florida, have already passed NIL statutes that provide varying rights to athletes and therefore impact how schools will recruit high school players. The Act would also allow college athletes to transfer and, if certain conditions are met, resume sports at their new school without delay. Further, it would compel colleges to pay for out-of-pocket medical costs incurred by athletes.
At the same time, the Act would reserve discretion to the NCAA and its member schools. For instance, it would permit institutions to reject endorsements deal that violate student conduct codes. Player attempts to engage in promotional activities shortly before, during or shortly after games could also be blocked.
Moran’s bill also attempts to extinguish the possibility of college athletes gaining classification as employees or forming a union. “An amateur intercollegiate athlete,” the Act commands, “shall not be considered an employee” of their school, conference or the NCAA. The Act also warns that the NCAA could withhold “revenue distributions” from colleges that violate national NIL standards.
Further, Moran’s Act would establish a “clearinghouse” to clarify and regulate the NIL rights and duties of players, schools and other industry participants. The so-called “Amateur Intercollegiate Athletics Corporation” (AIAC) would consist of athletics professionals and current and former players. The AIAC would coordinate with the Federal Trade Commission to oversee agents who represent college athletes. It would also provide an out-of-court dispute resolution process for athletes in regards to contracts and endorsement deals.
The Act is silent on several divisive topics tackled by other NIL bills. It makes no mention of immunity from antitrust scrutiny, a concern for the NCAA. Member schools, which are competing businesses, are vulnerable to lawsuits should they join hands to limit potential earnings of college players. This bill does not address that particular concern.
The Act also eschews mention of group licensing. Other proposed NIL legislation would pave the way for college athletes to form a trade association or a 501(c)(4) nonprofit that would, in turn, bargain on athletes’ collective behalf. Another bill, recently introduced by Sen. Chris Murphy (D-Conn.) and Rep. Lori Trahan (D-Mass.), contains such a feature. Group licensing is considered all but necessary for college sports video games that want to include players’ real names and likenesses. Given that EA intends to restart its college sports video game series and some schools, including Notre Dame, likely won’t participate unless their players are included, Moran’s proposal doesn’t address what might be called the “video game concern.”
Further, the Act wouldn’t order colleges to share athletics-related revenue with their athletes. Revenue sharing is one of the more transformative or disruptive concepts of the college-athlete bill proposed by Sens. Cory Booker (D-N.J.), Richard Blumenthal (D-Conn.), Kirsten Gillibrand (D-N.Y.) and Brian Schatz (D-Hawaii).
Should it become law, Moran’s bill, like the other NIL bills, could face legal challenges stemming from the interplay of federal and state laws. For instance, the legal consideration of whether a college athlete is classifiable as an employee has traditionally hinged on whether the athlete is enrolled at a private or public university. The federal National Labor Relations Act governs the possibility of employee status for athletes at private universities, including football players at Northwestern who unsuccessfully sought employee recognition in 2014, whereas state labor laws govern employee recognition at public universities. Likewise, a federal NIL bill that attempts to preempt prospective state NIL laws and nullify existing ones could face litigation over whether Congress, states or both occupy NIL’s legal terrain.
Lastly, like all of the NIL bills, the politics of Moran’s are hazy. None of the federal NIL bills has advanced beyond committees. Meanwhile, the NCAA effectively punted on NIL last month and appears to be waiting for a U.S. Supreme Court ruling in NCAA v. Alston. This dynamic has spawned a vacuum for states and potentially Congress to attempt to unravel the NIL riddle: how to marry fans’ support for NIL rights with a politically feasible and industry-accepted system to implement those rights.
“We’re closer to the end,” longtime college athlete advocate Sonny Vaccaro told Sportico in a phone interview. “But the problem is we now have many good ideas from well-meaning people, and that clutter works to the NCAA’s advantage.”
Vaccaro stresses that too many options—even good ones—can impede efforts to translate consensus for change into actual action.
“We saw this,” the 81-year-old former marketing executive recalls, “with the fight over whether college athletes should unionize and how that would work. The public can’t handle multiple choices. They want yes or no. The NCAA only has one defense and its simple: delay, delay, delay. We need [reformers] to come together and not try to split the baby.”