After punting on federal NIL legislation in June 2021, Congress left state governments and the NCAA to govern college athletes’ pursuit of payment in exchange for endorsing, influencing and sponsoring. Since then, neither the NCAA nor any state government has acted against a school or its boosters for disguising pay-for-play as NIL. The NIL market, overseen by a patchwork of divergent state laws and an NCAA fearful of litigation, has become a modern-day Wild West.
Is it time for Congress to step in?
Sen. Roger Wicker (R-Miss.), the ranking member of the Senate Commerce Committee, insists the answer is “yes.” He has a bill to make the case and, as he discusses in an exclusive Sportico video interview, he believes the political climate on Capitol Hill might soon welcome an opportunity it has repeatedly shunned.
Wicker, one of the first members of Congress to prioritize NIL reform, recently reintroduced S. 4855, the College Athlete Compensation Rights Act. If it becomes law, the act would institute a uniform, national NIL set of rules that states, the NCAA, conferences, colleges and athletes must follow. Originally introduced in 2020, the Act envisions the Federal Trade Commission—and not the NCAA—as overseeing NIL and enforcement of rules.
“I would be very skeptical of empowering the NCAA, which to me is a bit non-transparent,” Wicker told Sportico. “I would be reluctant to put them in charge of enforcing” a national NIL standard.
Wicker’s bill also rejects the NCAA’s longstanding request for an antitrust exemption—an exemption that would allow the NCAA to regulate NIL in ways that might be regarded as anti-competitive and intrusive, and that could help the NCAA prevail in House v. NCAA.
Wicker acknowledges the bleak track record for NIL bills in Congress. None of the roughly dozen NIL or NIL-related bills introduced over the last four years has been voted on or advanced out of committee. Meanwhile, overwhelming majorities of Republicans and Democratic state legislators have passed NIL bills and governors from both parties have signed them into law.
Why is NIL so immovable in the halls of Congress?
“There are people more on the left side of the spectrum,” Wicker says, “who would go much further” in NIL legislation. The remark alludes to bills introduced by Democratic senators, including Sens. Cory Booker (N.J.) and Chris Murphy (Conn.), that in addition to a national NIL standard, contemplate employment, unionization and post-college health care rights for college athletes. Wicker, and other Republican senators, object to expanding an NIL bill into more transformative and contentious areas.
“Sen. [Tommy] Tuberville [R-Ala.], Coach [Nick] Saban, and people like me would make it clear that we want to keep the amateur nature of the sport,” Wicker underscores. He adds that he thinks Tuberville, the former Auburn football coach who has explored introducing his own NIL bill, “is running into some of the same complications that I have and others have over time.”
But Wicker is still convinced a federal NIL bill will eventually pass with compromise from Republicans and Democrats.
That passage might happen soon, too.
“Between the [midterm] election and the new year that might be an opportunity,” Wicker says, “depending on who wins the majority.” Many pollsters predict that the Republicans will gain a majority in the House of Representatives, while the outlook for the Senate is hazier. Wicker believes members might want to reach a “consensus before the new majority” is sworn in come January.
Hypothetically, a compromise bill could include a national NIL standard and some elements of college sports reform policies sought by Democrats, such as post-college health care benefits for athletes.
But even if a compromise bill passes both houses, President Biden will need to approve it.
Wicker doesn’t anticipate pushback from the White House.
“I think President Biden will sign whatever we send him,” Wicker says. “As far as I know he hasn’t been involved, and I haven’t heard too much from the administration about [NIL]. I think he’ll let us make the decision there. It’s not one of the pressing issues of the day for the administration.”
Wicker also sees the long road for NIL in Congress as a healthy sign for governance, noting that the founding fathers “meant for things to take time” and to use a “deliberative process.”
“I think John Adams and James Madison would be utterly delighted that it takes time for us to get a consensus here.”
Full interview with Sen. Wicker: