In the span of about two weeks, senators and representatives announced no fewer than four new bills that, if passed, would result in a national standard for name, image, and likeness practices which, as of now, vary from state to state. These bills join other proposed legislation introduced earlier this year. There are at least seven bills making their way through Congress, though not all of them have been formally introduced. These include:
- The Student Athlete Level Playing Field Act, introduced by Representatives Emanuel Cleaver, II (D-MO) and Anthony Gonzalez (R-OH) (a former college athlete himself). This act would make it illegal for universities, conferences, and organizations like the NCAA to prohibit athletes from competing as a result of entering into an NIL contract. However, athletes could lawfully be restricted from entering into NIL deals with certain industries (e.g., tobacco, alcohol, cannabis, adult entertainment). Boosters would be barred from paying athletes to induce them to enroll or stay at a university. The Federal Trade Commission (“FTC”) would have the authority to enforce the law. In addition, the Department of Education would appear to have indirect enforcement power. This is because the law would require Program Participation Agreements (“PPAs”)–contracts that universities sign with the government to participate in federal student loan programs–to include a commitment by schools to allow athletes to exercise their NIL rights. The Department of Education could claim broad authority to limit a university’s access to student loan programs if it breaches its PPA.
- The Fairness Accountability and Integrity in Representation of College Sports Act, introduced by Congressman Gus Bilirakis (R-FL). Under this act, colleges, conferences, and governing bodies like the NCAA could not prohibit athletes from earning compensation “commensurate with market value” for use of their NIL or from signing contracts with agents. Again, athletes could lawfully be restricted from entering into NIL deals with businesses in certain industries (e.g., tobacco, alcohol, cannabis, adult entertainment). Students who stop participating in athletics could also rescind any NIL deal they’ve signed without giving payments back, so long as the deal had 1+ year remaining. Licensees could not enter into NIL deals until 90 days after an athlete has enrolled at a university, use NIL deals to induce enrollment at a particular school, or base NIL deals on the athlete’s on-field performance. The law would also establish the United States Intercollegiate Athletics Committee (“USIAC”). All athletes, agents, collectives, boosters, and licensees would have to register with the USIAC, and all NIL deals would have to be disclosed to it. The USIAC would present, among other data, disaggregated information about every NIL deal in the country. The FTC would have the authority to prosecute “unregistered” agents, licensees, collectives, and boosters.
- The College Sports NIL Clearinghouse Act of 2023, drafted by Senator Lindsey Graham (R-SC). Reportedly, under this act, institutions may not retaliate against athletes who enter into NIL deals, though NIL deals may still be prohibited if they would violate the school’s code of conduct or a state-wide law. This act would also establish the “NIL Clearinghouse,” an organization exempt from antitrust laws which would police violations of the act and have authority to impose fines or bans from college sports. It appears that the bill would limit NIL compensation to “market value” and would allow bans on NIL payments to induce enrollment or for athletic performance.
- The College Athletes Protection & Compensation Act, introduced by Senators Jerry Moran (R-KS), Richard Blumenthal (D-CT) and Cory Booker (D-NJ). This act, which contains some similarly worded provisions as Senator Graham’s NIL Clearinghouse Act, protects athletes’ rights to sign with registered agents or enter into “endorsement contracts,” except endorsements with industries adverse to an athlete’s college’s code of conduct. Payments to induce initial or continued enrollment would be prohibited, and universities, conferences, and organizations like the NCAA would be barred from representing students or from playing any part in setting their compensation for endorsements. However, universities would be required to provide athletes with “a list of rules that govern endorsement contracts.” It is not clear what “rules” a university would have authority to impose. This act would also allow rescission of NIL deals with more than 1 year remaining under similar terms as Representative Bilirakis’s proposed legislation. Furthermore, athletes could not be punished for entering into a professional draft, so long as the athlete does not obtain payment from the professional league, team, or agent and as long as the student declares their intention to resume collegiate sports within seven days after the draft ends. In addition to these common provisions, the proposed law includes various other protections for athletes, including mandatory medical care payments, non-interference with an athlete’s choice of major, continuation of scholarships in case of career-ending injury, and others. Finally, this act would establish a new non-profit corporation–the College Athletics Corporation–which would among other things) serve as a “clearinghouse” and “establish rules and investigatory procedures” that set standards for endorsement contracts and the authorization of individuals to serve as agents.
- The Protecting Athletes, Schools, and Sports (PASS) Act of 2023, introduced by Senators Joe Manchin (D-WV) and Tommy Tuberville (R-AL). The senators had, for some time, sought to develop a national NIL standard, and they state that their act is the product of input from stakeholders throughout the college sports industry. This act would protect athletes’ NIL rights (as with the others) but would allow exceptions for alcohol, cannabis, casinos, pharmaceuticals, and certain other industries. This act would requires boosters to be formally associated with a university before assisting with recruiting or with providing benefits to an athlete. Payments to induce enrollment would be prohibited. NIL contracts would have to be written in a form provided by the FTC, and athletes could only sign NIL deals after enrolling at their chosen institution. Contracts would have to be disclosed to the FTC. Universities would have to provide health care coverage for sports-related industries and financial literacy training. In terms of enforcement, the statute would direct the NCAA to investigate NIL violations and to report them to the FTC for further action. One of the more interesting provisions, however, would affect the well-known “transfer portal.” The law, if passed, would require “student-athletes to complete their first three years of academic eligibility before allowing them to transfer without penalty, subject to a few exceptions.”
- The College Athlete Economic Freedom Act, introduced by Senator Chris Murphy (D-CT) and Representative Lori Trahan (D-MA). This act grants an unrestricted right to athletes to pursue NIL deals and authorizes athletes to organize groups and appoint a group representative to negotiate an NIL deal on a group-wide basis. Collectives would be required to register with the FTC, track deals they facilitate, and report the disaggregated details to the FTC. Finally, the proposed law contains unique provisions for international student-athletes, purporting to “[a]llow international college athletes to market their NIL in the same ways their non-immigrant peers can without losing their F-1 visa status.”
- Senator Ted Cruz’s draft legislation, which is not yet named. The senator’s draft bill would protect athletes’ rights to obtain representation and enter into NIL deals, except deals which fall into the vaguely worded category of “violat[ing] the code of student conduct, reasonably impact[ing] the [school’s] reputation or public image, or conflict[ing] with the terms of an existing contract or agreement[ ] of the institution at which the student athlete is enrolled.” This legislation would also set forth certain provisions which must appear in any NIL deal (e.g., scope of work, amount of compensation to be paid, length of agreement, etc.). The draft law would allow the NCAA or conferences to publish NIL deal data to allow other athletes to estimate the value of their publicity rights. Interestingly, the draft law would not outright prohibit payments to induce an athlete to enroll, nor would it impose new transfer portal requirements. Instead, it gives the NCAA and conferences the authority to set their own rules on those, and other, issues.
It is important to remember that, to date, no NIL law has ever made it through Congress. It is also important to understand that the proposals above contain many more details than what is discussed here, and that all of those details are subject to change as part of the legislative process. Still, those who are eager to have a federal NIL standard must be encouraged by the recent uptick in congressional activity.