At this point, it may be safe to assume that many college athletes and prospective college athletes are at least aware of the debates addressing whether college athletes should be allowed to profit from their name, image, and likeness (NIL). While college athletes and prospective college athletes' main focus is getting better at their sport, they should also pay close attention to the NIL debate. After all, the NIL debate could have a direct effect on college athletes' and prospective college athletes' experience as college athletes. Accordingly, it is imperative that college athletes and prospective college athletes be aware of the developments in the ever evolving landscape of college athletes' rights. Throughout the course of this year, several bills have been proposed to Congress to address if and how college athletes should be allowed to profit from their name, image, and likeness.
In September, two members of the United States House of Representatives introduced the "Student-Athlete Level the Playing Field Act." Earlier this year, the NCAA introduced "The Intercollegiate Amateur Sports Act of 2020." Additionally, the Power 5 Conferences introduced "The Student-Athlete Equity Act of 2020." Similarly, United States Senator Marco Rubio introduced the "Fairness in College Athletics Act." If one of these proposed bills becomes law, it will have a direct effect on the collegiate athletic experience. As such, it is imperative that college athletes and prospective college athletes take a look at how each proposed bill could affect their ability to profit from their NIL.
The Student-Athlete Level the Playing Field Act
The "Student-Athlete Level the Playing Field Act" is a bipartisan bill that was introduced by Congressman Anthony Gonzalez, a Republican representing Ohio, and Emanuel Cleaver, a Democrat representing Missouri. The Act seeks to allow college athletes to profit from their NIL by allowing college athletes to enter into endorsement contracts. This bill does not restrict college athletes' ability to enter endorsement agreements with companies who compete with companies their respective school has an endorsement deal with. However, it does prohibit college athletes from wearing any gear representing any company during team or university sponsored events. Furthermore, under this legislation college athletes would be prohibited from entering into endorsement deals with alcohol companies, dispensaries of a controlled substances, any adult entertainment businesses, and any casinos or entities that sponsor or promote gambling activities.
Additionally, the "Student-Athlete Level the Playing Field Act" seeks to allow college athletes to sign contracts with agents. Once a college athlete agrees orally or in writing to be represented by an agent, the athlete must notify their athletic director or other individual responsible for the athletics program. The notification must take place within 72 hours of entering the contract or before the next athletic event, which ever happens first. The bill also seeks to have the Federal Trade Commission (FTC) enforce the provisions of the bill addressing endorsement contracts.
Furthermore, the bill seeks to create a "Covered Athletic Organization Commission." The purpose of the Commission will be to make recommendations to Congress about further implementation of NIL rules, to recommend a certification process for athlete agents, and to establish an independent dispute resolution process for disputes between the athletes and the NCAA or their respective schools. Lastly, the "Student-Athlete Level the Playing Field Act" seeks to preempt any state laws governing college athlete NIL. This means the laws that states have enacted governing college athlete name, image, and likeness will become null and void.
The Fairness in College Athletics Act
The "Fairness in College Athletics Act" was introduced by Senator Marco Rubio. While the act addresses name, image, and likeness rights for college athletes, the Act is more notable for the advantages it provides to the NCAA. The Act requires that the NCAA establish policies that allow college athletes to "earn compensation from a third party as a result of the use of the name, image, or likeness of such student athlete." This means that under this bill, the NCAA would have the authority to establish their own name, image, and likeness guidelines. However, the bill does not specify what those guidelines should include or how broad or restrictive they can be.
Additionally, the Act purports to allow college athletes to obtain representation when entering deals with third parties. Any college athlete who enters into such deals would be required to report any compensation or an agreement to receive such compensation to their respective college or university in a reasonable period of time. Similar to the "Student-Athlete Level the Playing Field Act," the "Fairness in College Athletics Act" also charges the Federal Trade Commission with enforcing the provisions of the Act.
At first glance, the "Fairness in College Athletics Act" appears to be somewhat of a win for college athletes as it seeks to expand their ability to profit from their NIL. However, the act also appears to severely limit one of the only forms of recourse available to college athletes. That is the college athletes' ability to sue the NCAA and its member institutions. The college athlete NIL debate largely gained so much traction due to court cases such as O'Bannon v. NCAA and Alston v. NCAA. In these cases, current and former college athletes challenged the NCAA's amateurism my demonstrating that many of the NCAA's rules violate federal antitrust law.
The "Fairness in College Athletics Act" arguably seeks to takeaway college athletes ability to sue the NCAA and its member institutions. Specifically, the Act purports that no cause of action shall lie or be maintained in any court against the NCAA or its members. This language could strip college athletes of their ability to use the court system to shed light on and attempt to change arguably unjust rules promulgated by the NCAA. Furthermore, if enacted, the "Fairness in College Athletics Act" would preempt any state laws addressing college athlete NIL.
The Student Athlete Equity Act of 2020
The "Student-Athlete Equity Act of 2020" was proposed to Congress by the Power 5 Conferences. This act also takes a step in the right direction by seeking to allow college athletes to profit from their name, image, and likeness. The Act would prohibit schools from enforcing rules that restrict college athletes' right to license their name, image, and likeness. However, the Act is unduly restrictive on college athletes' ability to do so. Under the "Student-Athlete Equity Act of 2020" college athletes would not be allowed to enter into agreements to profit from their NIL until they successfully complete a semester of college. This provision would be unduly burdensome on all college athletes. However, it would be especially burdensome on "one-and-done" college basketball players as they will only have one semester to market and monetize their NIL.
Furthermore, this Act is too restrictive as it does not allow college athletes to enter endorsement deals with companies that compete with the companies that their respective schools have sponsorship deals with. For example, if a school has a sponsorship with Nike, their college athletes could not enter a deal with Adidas or Under Armor. Furthermore, the "Student-Athlete Equity Act of 2020" calls for the creation of a publicly accessible website where college athletes will be required to list their sponsorship or endorsement agreement(s). This provision seems a bit intrusive as there are other less intrusive ways to promote transparency in the endorsement deals.
Similar to the "Fairness in College Athletics Act" and the "Student-Athlete Level the Playing Field Act," the "Student- Athlete Equity Act of 2020" seeks to allow college athletes to be represented by agents when entering endorsement deals. This Act also seeks to establish a "Certification Office" within the Federal Trade Commission to regulate agents and advisors.
The Intercollegiate Amateur Sports Act of 2020
"The Intercollegiate Amateur Sports Act of 2020" was proposed to Congress by the NCAA. This proposed legislation is a bit paternalistic and is arguably more concerned with preserving amateurism than with providing college athletes an opportunity to profit from their name, image, and likeness. The "Intercollegiate Amateur Sports Act of 2020" seeks to allow the NCAA and its members to establish rules, guidelines, and procedures for the administration of financial aid, participating benefits, licensing revenues, or other benefits or payments including those regarding college athletes' NIL.
In "The Intercollegiate Amateur Sports Act of 2020," the NCAA put quite a bit of emphasis on maintaining the principal of amateurism. The NCAA was arguably more concerned with getting Congress to grant the organization an antitrust exemption than with revealing the rules and guidelines they intend to establish regarding college athletes' NIL rights. Specifically, in the Act the NCAA emphasized the fact that the organization has been subject to litigation across the country. The NCAA further contended that being subject to so much litigation has impeded the organization's ability to preserve amateurism and ensure a level playing field for all amateur intercollegiate athletes.
Furthermore, if enacted, "The Intercollegiate Amateur Sports Act of 2020" would preempt state laws governing college athletes' NIL rights. Under this act, the President of the NCAA will be required to submit a report evaluating college athletes ability to benefit from their NIL, obtain financial aid, and other benefits to the Federal Trade Commission and to the appropriate congressional committees.