Congress Weighs In on NCAA Name, Image, Likeness Compensation
The battle over the National Collegiate Athletic Association, or NCAA, and student athlete compensation has been brewing since California passed the Fair Pay to Play Act in 2019.
Michigan became the sixth state to pass a similar bill. Meanwhile, the NCAA is headed to the U.S. Supreme Court to argue a case on name, image, and likeness and antitrust violations this spring. Now Congress is getting in on the name, image, and likeness, or NIL, debate.
Their scramble to try and override state law shows where Congress thinks the question of NIL is headed. Here’s a brief look at the competing federal proposals:
- The College Athletes Bill of Rights by Sens. Cory Booker (D-NJ) and Richard Blumenthal (D-Conn.) would provide athletes “fair and equitable compensation” with a 50 percent profit share between school programs and athletes; impose new health, safety, and wellness standards for collegiate athletes; guarantee scholarships until collegiate athletes graduate; and create a new “Commission on College Athletics.”
- The Amateur Athletes Protection and Compensation Act of 2021 by Senator Jerry Moran (R-Kansas) would create the Amateur Intercollegiate Athletics Corporation to enforce NIL rules; prohibit collegiate athletes from becoming university employees; recognize an athlete’s scholarship until graduation; ; and require health care coverage for collegiate athlete injuries or illnesses.
- The College Athlete Economic Freedom Act by Sen. Chris Murphy (D-Conn.) and Rep. Lori Trahan (D-Mass.) would give collegiate athletes “virtually unrestricted access to earning NIL income in individual and group NIL agreements” and “give athletes the right to organize through collective representation…and a private antitrust right…”
- The College Athlete and Compensation Rights Act by Sen. Roger Wicker (R-Miss.) would create a uniform national framework for NIL compensation, empower the Federal Trade Commission as a watchdog for NIL practices, and prohibit collegiate athletes from becoming classified as employees of the university.
- The Fairness in Collegiate Athletics Act by Sen. Marco Rubio (R-FL) would allow collegiate athletes to obtain NIL compensation, require annual disclosure on compensation to the university, preserve amateur status, and also use the Federal Trade Commission as a watchdog for NIL compensation.
- The Student Athlete Level Playing Field Act by Rep. Anthony Gonzalez (R-OH) and Rep. Emanuel Cleaver (D-MO) would establish one federal standard to allow student athletes to receive compensation for their NIL, creates a commission to track and study NIL agreements, prohibits student athletes from becoming university employees and brings in the Federal Trade Commission to monitor NIL compensation.
Congress’ attempt to legislate NIL compensation can be separated into two camps: the “status-quo” and the “breakaway.”
The Wicker, Rubio and Gonzalez-Cleaver bills uphold the NCAA status-quo by allowing student athletes to enter into NIL agreements for compensation but prohibiting any additional changes or addressing collective bargaining. The NCAA supports student athletes receiving compensation under a NIL model.
The Booker, Blumenthal and Murphy-Trahan bills are “breakaway” bills, allowing for collective bargaining, union organizing, and antitrust actions against the NCAA, plus colleges shouldering a bigger financial burden for medical costs. The NCAA opposes these types of proposals as opening the door for more antitrust lawsuits and changing the traditional concept of “student athletes.”
Sen. Moran’s proposal, as noted by Sports Illustrated, includes proposals from both sides to create a national framework to supersede state NIL laws.
Which proposal will make it through? It is impossible to know. ESPN reported that the NCAA is delaying votes on NIL compensation until after the U.S. Supreme Court hears arguments in the National Collegiate Athletic Association v. Alston and American Athletic Conference v. Alston cases this spring. The SCOTUS decision should give Congress and the NCAA direction in framing policies on NIL compensation.
Last fall, I wrote about the NCAA decision to allow NIL compensation. The NCAA has hidden behind the “collegiate model” for more than six decades, as colleges earned billions in TV rights fees and ticket and merchandize sales, while coaches profited from lucrative endorsement deals.
Remember that the terms “student athlete” and collegiate model terms were created by the NCAA in the 1950s to avoid federal worker’s compensation claims.
Collegiate athletes have the chance to change their lives financially by going pro, but only two percent do so. Many athletes fall flat in the pros or suffer early career-ending injuries.
It is a broken system when universities, athletic conferences, and the NCAA make billions off 18- to 22-year-olds without proper compensation.
The free market dictates that collegiate athletes should be able to take their talent, skills, and name, image and likeness to the marketplace and earn whatever compensation the marketplace allows. By reforming the law to let student athletes earn a living like every other student, the endless number of collegiate recruiting violations, championships forfeited, and program suspensions would be a thing of the past.
Congress’ spin on NIL compensation should be fair for everyone involved – especially the collegiate athletes who put fans in the seats, bring success to their team, and build notoriety for their schools. Anything less denies students the opportunity to earn a living and achieve the American dream that everyone else has under the free-market system.
Evan Harris is the media relations and outreach manager for Pacific Research Institute.