House Bill Seeks to Protect NCAA From Athlete Rights Drive
The NCAA has found its men in Washington: Reps. Russell Fry (R-S.C.) and Barry Moore (R-Ala.)
On Thursday, the two GOP congressmen introduced legislation that would grant the NCAA an absolute liability shield to establish and enforce its rules. The legal safe harbor would extend to universities and college athletic conferences, as well.
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As worded, the bill would immunize the NCAA, leagues and member institutions from potential claims under “any law or regulation” so long as they’re in compliance with amateurism rules. The bill’s language is nearly a verbatim copy of what appeared in a bill proposed last August by Sen. Ted Cruz (R-Texas), which also sought to declare college athletes as non-employees and to establish a national NIL standard.
Fry, in a press release, said that given the “ever-changing, heavily litigated and essentially unenforceable” nature of the NCAA’s current rules regarding athlete name, image and likeness, his legislation is an “integral component of saving college sports as we know it.”
Titled the Protect the Benefits for Athletes and Limit Liability (Protect the BALL) Act, the new House bill was accompanied by public endorsements Wednesday from University of South Carolina president Michael Amiridis, Gamecocks athletic director Ray Tanner and Clemson AD Graham Neff.
“We are extremely grateful to Congressman Fry and his willingness to introduce legislation that provides institutions with the legal protections we need in the ever-changing name, image and likeness landscape,” Neff said in a statement.
Notably, Neff’s school is currently suing its league, the Atlantic Coast Conference, over the ACC’s $140 million exit fee and the scope of its grant of rights. However, that litigation was filed in South Carolina state court.
As for the Fry-Moore bill, expect some members of Congress to question the logic of exempting the NCAA from litigation regarding athletes’ rights when the association has been repeatedly found to violate the law in the context of those rights.
The U.S. Supreme Court, federal appeals courts and federal district courts have concluded as such in NCAA v. Alston, O’Bannon v. NCAA, Tennessee & Virginia v. NCAA, Ohio v. NCAA and other cases. And, though a settlement in House would likely not include an admission of fault or wrongdoing, the NCAA agreeing to pay billions of dollars to settle could be interpreted as an implicit acknowledgment of problematic conduct.
Any organization that has shown an inability to follow the law when assessed by judges, including those who range from conservative to progressive, might face difficult questions about whether it deserves an exemption from the law.
Another likely source of concern for lawmakers is the compatibility of a federal bill that, if it became law, would implicate states’ rights. As Sportico has explained, a federal law restricting the economic rights of college athletes could collide with protections under states’ rights of publicity and labor laws. Such a bill could also raise Equal Protection Clause concerns if college athletes are denied rights enjoyed by their classmates. To the extent a settlement in House contains restrictions on athletes’ ability to maximize their earnings, those restrictions—since not borne through collective bargaining—could be challenged under antitrust law.
Proposed in May of a presidential election year, the bill’s passage by the House will be a tall order. In March, Cruz generously gave 50-50 odds for Congress to pass some kind of legislation granting the NCAA its long-coveted antitrust exemption by the end of the year.
According to multiple reports, the NCAA and conferences are in settlement talks with the plaintiffs in the In Re College Athlete NIL litigation (aka House v. NCAA), which is scheduled to go to trial early next year. In the event a settlement is reached—even one that might bring to resolution other current antitrust cases—the NCAA and conferences would still need Congressional intervention if they hope to avoid facing new antitrust suits.
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