Late last week, the Associated Press reported that Senators Tommy Tuberville and Joe Manchin have taken an interest in college students’ NIL rights, and have begun contacting key personnel within the industry to solicit opinions on what eventual federal legislation may look like. Currently, no federal legislation directly regulations NIL rights, and as we wrote last week, decisions from the Supreme Court also do not directly authorize students to profit from their names, images, or likenesses.
According to the AP, the senators say that their staffs have already started drafting legislation to address the comments they’ve received. It comes as no surprise that Senators Tuberville and Manchin have taken up the NIL cause; Tuberville, an Alabaman, and Manchin, a West Virginian, have major college sports programs within their constituencies. Tuberville formerly coached at Auburn University (though we do not expect he will try to sneak a provision into the bill that says “Alabama may only play with 10 players every year in the Iron Bowl”).
Federal legislation could have a major impact on students’ NIL rights across the nation, but it does not necessarily have to. Any legislation could just as likely be narrow and unimpactful, especially once other legislators have an opportunity to weigh in, amend, and negotiate the proposed bill. And, it’s no guarantee that the senators’ bill will ever pass. Eight other bills have been proposed over the last four years, and none have progressed to become law.
But, if Senators Manchin and Tuberville are successful in passing legislation, then states, colleges, the NCAA, student athletes, and businesses interested in entering into NIL deals will have to determine the extent to which the federal law trumps their state’s laws. Under the Constitution’s Supremacy Clause, when a federal law covers a specific issue that state law also covers, the federal statute generally controls. But, often times, it is possible for state law to apply alongside federal law, and in some cases, a court may find that the federal and state laws do not actually conflict. This phenomenon–also known as preemption–is often a case-by-case problem.
Duane Morris continually monitors for developments in NIL legislation, and its attorneys and government strategies team aim to help their clients understand how legislation may affect them. If this (or any other NIL) moves forward, you’ll hear about it here.