Federal NIL Bill Stalls in Congress, Setting Table for July Chaos

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While the NCAA continues to wait for a U.S. Supreme Court ruling in the Alston case, it gained more certainty Thursday as to whether Congress will pass, and President Joe Biden will sign, a federal bill that would provide a national standard for name, image and likeness before July 1.

They won’t.

This development was revealed after the U.S. Senate Commerce Committee held a hearing titled, “NCAA Student Athletes and NIL Rights.” Committee chairwoman Maria Cantwell told reporters she doesn’t expect passage of bill by July 1, the date when at least six state NIL statutes will go into effect. Capitol Hill sources confirmed to Sportico that no legislation will pass by that date.

Congress’ failure to take action on NIL occurs 27 months after two now-former U.S. Congressmen, Mark Walker (R-N.C.) and Cedric Richmond (D-La.), proposed the first federal NIL bill. No federal NIL bill has advanced past committee or received a vote.

The absence of a federal statute raises the possibility of several outcomes.

One is that the NCAA pursues litigation. The NCAA could seek temporary restraining orders to delay state NIL statutes from going into effect. The NCAA and member schools worry about instability if college athletes’ ability to sign endorsement deals and sponsorships is predicated on simple geography. In some states, athletes would be able to sign endorsement deals while athletes in other states would be more restricted.

Another possibility is that the NCAA adopts its own set of NIL rules. The NCAA Division I Council will meet later this month and could pass a national rule. Such a rule would likely prove more restrictive than rules found in some NIL states. Those discrepancies could lead athletes in NIL states to challenge the NCAA in court. They would also put member schools in a legal bind where they must choose to follow a state NIL statute or meet their contractual obligations to the NCAA.

Still another possibility is that the “free market” takes effect. The NCAA could take no action and simply watch. States could compete with one another to attract recruits for their universities and thus adopt or modify NIL statutes to make them as athlete-friendly as possible. States’ sports betting laws vary widely in scope and applicability; in some states, sports betting remains illegal. The same type of patchwork approach could exist with NIL.

The hearing featured testimony by four witnesses: Kaira Brown (Vanderbilt track and field athlete), Christina Chenault (former UCLA track and field athlete), Sari Cureton (former Georgetown basketball player) and Martin McNair (father of the late Maryland football player Jordan McNair, who died of heat stroke complications following a practice in 2018).

All four witnesses raised timely and relevant points for the committee to consider.

Cureton, for example, noted how the inability of college athletes to take advantage of their NIL “disproportionately affects low-income and athletes of color and female athletes.” She also emphasized student health, adding that it is “impossible to divorce monetizing their name, image and likeness from the health and safety concerns…. It is our bodies that built this industry.” Cureton, the daughter of retired NBA player Earl Cureton, further stressed the “untapped potential” of the business for female college athletes, whose earning potential would be enhanced by NIL opportunities.

Chenault, meanwhile, underlined the importance of NIL rights as a means of promoting education. She noted that gymnasts tend to “peak at early ages,” thereby putting them in a bind where if they capitalize “on their peak opportunity for endorsements” they would also, under existing NCAA rules, lose eligibility for an athletic scholarship. Chenault also detailed the lack of trust some college athletes have for their schools to deliver health care. College athletes, she argued, should be able to turn to “a third party or second opinion.”

Brown opined that people are often unwilling to give college athletes credit for their sophistication and savvy. These athletes, she pointed out, “are already pretty well-versed in how their sport works.” She added that schools should avoid what might be viewed as paternalism in how they govern athletes’ NIL rights. “We could be allowed,” Brown underscored, “to learn” the business side of NIL, but should not be compelled to do so. As a point of contrast, Texas’ NIL statute will require athletes to take workshops on debt management, budgeting and other business skills.

McNair’s testimony understandably focused on health and safety. He insisted that an NIL bill should include health-care related provisions. Maryland Gov. Larry Hogan recently signed Senate Bill 439, also known as the Jordan McNair Safe and Fair Play Act. The Act blends NIL with requirements for return-to-play protocols and supervision guidelines, though, unlike the College Athletes’ Bill of Rights proposal in Congress, lacks revenue sharing and medical trust fund features. “Student athletes aren’t dying in games,” McNair remarked. “They are dying during conditioning and practices.”

Sen. Cantwell directed several questions to witnesses about college athletes’ health-care rights, a topic (as noted above) the witnesses also raised. She and other senators seek enforcement mechanisms to ensure that student health is a priority. While the NCAA has issued sports medicine guidelines and best practices to schools, it has fallen short of mandating actions.

Several Republican senators declined to participate. They objected to what they saw as haste in assembling the hearing. The committee held a hearing last week with NCAA president Mark Emmert and five other witnesses (myself included). There is a belief by some in the Senate that the scope of NIL discussion has gone too far beyond NIL into subject areas, such as revenue sharing and Title IX, that necessitate their own legislation or are beyond any one committee’s jurisdiction.

Congress could still address NIL and other topics after July 1 and pass a bill that preempts state NIL statutes. However, once states become accustomed to their own laws, taking their discretion away might prove politically and logistically challenging.

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