NCAA Play for Congress’ Help on NIL Faces More Hurdles Than Ever
NCAA president Mark Emmert is once again pleading with Congress to pass federal name, image and likeness legislation.
And, once again, Emmert’s request faces stiff political and legal headwinds.
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“It is unfortunately a circumstance,” Emmert told journalists last Thursday, “where we’ve got now 30-plus different states with different laws.” Emmert hopes that Congress will “find a single legal model by which NIL and other relationships with student-athletes can be regulated.”
Emmert’s request tracks his testimony before the U.S. Senate in June 2021. During a Senate Commerce, Science and Technology Committee hearing, Emmert warned that a state-by-state NIL model would make it impossible for the NCAA to adopt a uniform policy. The warning came as more than a dozen state NIL statutes and executive orders were set to go into effect. Others would soon follow.
NIL statutes vary in meaningful ways. Some require that NIL deals be commensurate with “market value,” a phrase left undefined. Others prohibit contracts with certain industries, including casinos and adult entertainment. Still others condition NIL compensation on completion of coursework, empower a school to redistribute NIL earnings among athletes, limit deals to time in college or omit discussion of enforcement mechanisms.
The NCAA’s interim NIL policy is uncharacteristically permissive. While “pay for play” remains prohibited, schools are only required to follow a state NIL law or, if no such law exists, adopt reasonable NIL restrictions. Alabama, one of the early movers on NIL, recently repealed its NIL statute as a way of removing restrictions.
The line between pay for play and NIL has become increasingly hazy, and schools, coaches, and other NIL beneficiaries have taken advantage. Some colleges, for instance, have assisted athletes in landing NIL contracts, helped to negotiate group deals and seen alumni (boosters) launch NIL nonprofits. Coaches, meanwhile, have casually mentioned NIL deals signed by their players—mentions that, in the past, might have been deemed impermissible recruiting inducements. The NCAA has probed schools for possibly mischaracterizing pay-for-play as NIL but has not yet taken any action.
A relatively free market for NIL is welcome news for college athletes, who have been paid to post content on social media, sponsor camps and partake in other business activities that draw on their celebrity. While NIL compensation is often modest—according to Opendorse, the average NIL compensation for Division I athletes is $561—some athletes have earned much more. College athletes are now able to use rights to earn over-the-table income their classmates have long enjoyed.
One core danger for the NCAA: If NIL is an exception to amateurism restrictions, the exception may be swallowing the rule. Hence the call for Congress to act on NIL. But there are five reasons to be skeptical of Congress assisting.
The NCAA Doesn’t Need Congress to Adopt National NIL Rules
A national NIL policy doesn’t require federal law. With member schools’ blessing, the NCAA could adopt reasonable NIL restrictions that comply with state laws.
The NCAA has declined that strategy partly because it lost NCAA v. Alston. In a 9-0 ruling, the U.S. Supreme Court held that the NCAA and its member schools violate antitrust law when they conspire to limit how much each can compensate athletes for academic-related costs. Alston ended decades of preferential treatment for the NCAA, whose members are now treated like other businesses when they conspire to restrain competition. They could face antitrust litigation if they agree to limit NIL.
But the litigation worry may be misplaced or exaggerated.
The NCAA lost Alston because blunt and inflexible prohibitions unduly restrained compensation. If the NCAA had instead adopted reasonable limitations—such as, to borrow Justice Neil Gorsuch’s language in Alston, a “no Lamborghini rule”—the NCAA would likely have won Alston, if the case was brought at all.
NCAA restrictions are evaluated under “rule of reason,” a fact-specific assessment that focuses on competition. Defendants usually win under rule of reason so long as the restriction is sensible. “The empirical evidence,” University of Tennessee antitrust law professor Maurice Stucke wrote in a law review article, “reflects that most rule-of-reason claims never reach juries; rather, most are decided on motions to dismiss or summary judgment, and most (and in some surveys nearly all) antitrust plaintiffs lose.” This underscores how problematic NCAA amateurism rules have been: It’s hard to lose, and yet the NCAA lost Alston at the district court, appellate court and Supreme Court levels.
One of the great misconceptions on social media is that any sort of NCAA restriction violates antitrust law. The opposite is likely true. As I discussed in my own Congressional testimony, the NCAA could lawfully craft an NIL policy that more clearly distinguishes NIL from pay-for-play while empowering conferences and schools to determine rules that comport with their values.
The Longer States Have NIL Autonomy, the More They’ll Want to Keep It
A state-by-state approach to law isn’t uncommon. States have different laws on marijuana, alcohol, firearms, division of marital property in divorce, gas taxes, child labor laws, felons’ right to vote and numerous other topics. The 10th Amendment to the Constitution preserves autonomy for states on many fronts.
States also vary on sports laws. Take sports betting. Since the U.S. Supreme Court held that the federal ban on states’ licensing sports betting was unconstitutional, more than two dozen states (and counting) have legalized sports betting and have done so in different ways. Laws vary on whether, and where, bets can be made online, which type of businesses can offer bets, and what sorts of bets are allowable.
Once states adopt their own systems and accompanying regulations and customs—and hire staff into positions—it can become politically difficult for the federal government to “take away” that discretion. The optimal time for Congress to address NIL was before states seized the issue.
A Federal NIL Bill Could Conflict With States’ Rights of Publicity
Although NIL is a relatively new phrase, its underlying concept is well established. NIL is a subset of the right of publicity, which forbids the commercial use of another person’s identity without their consent. There is no federal right of publicity. It is a function of state laws, be they statutes or judicial decisions. States vary on what the right covers, such as a person’s voice or signature, and whether it is “post-mortem,” meaning extending beyond the natural life of a person—an important factor for estates of deceased actors, musicians and artists.
A federal NIL statute would likely interact with states’ rights of publicity, and potentially lead to duplication or conflict. For example, if a federal NIL statute allows schools to restrict types of deals athletes can sign, but the applicable state right of publicity does not, a court might be asked to resolve that discrepancy.
Some Members of Congress Want NIL as Part of Broader Reforms
At the state level, NIL bills have been overwhelmingly supported by both Republicans and Democrats. Politicians value different points of emphasis—from advocacy of free markets to promotion of social justice—but they land on the same conclusion: NIL is a good thing.
The same spirit is apparent in Congress, where NIL has enthusiastic advocates from both parties.
U.S. Sen. Roger Wicker (R-Miss.), for example, continues to push for NIL reform. He recently wrote a letter to Emmert expressing support for NIL but also concern about “the current lack of structured rules and accountability measures could lead to pay-for-play or other improper inducements.” Wicker cited the appearance of NIL deals “being used as inducements for college transfer and high school athlete recruitment.” Wicker wants Emmert to reveal how many NCAA athletes have NIL deals, what steps has the NCAA taken, if any, to educate athletes on NIL and impact on financial aid, what sanctions are appropriate for NIL non-compliance and what dispute resolution procedures are available. In short, Wicker demands facts on a topic where the NCAA has been reluctant to provide them.
Some members of Congress regard NIL as one element of needed reforms. Over the last few years, NIL bills have also contemplated revenue sharing, health care guarantees, employee recognition and other concepts where less agreement exists. There are persuasive arguments for these changes, some of which were raised in a recent virtual summit, “Madness Inc.,” hosted by Sen. Chris Murphy (D-Conn.), Sen. Cory Booker (D-N.J.), Sen. Richard Blumenthal (D-Conn.), and U.S. Reps. Lori Trahan (D-Mass.) and Jamaal Bowman (D-N.Y.). But there isn’t consensus. To the extent NIL is connected to other reforms, the prospects for NIL legislation seem diminished. To date, no NIL bill has made it out of committee.
National politics are also relevant. The Democrats’ control of Congress is expected to end after the midterm elections in November. Political experts anticipate that the Republicans will gain a majority in the House of Representatives. The Senate, which is currently 50-50, could tip towards the GOP, too.
Conventional logic dictates that divided government leads to fewer laws. Data tells a different story. According to Pew Research, during the last 16 congressional sessions, “four of the five most productive sessions occurred during periods of divided government.”
The NCAA Could Go to Court to Stop NIL
There’s a “Hail Mary” legal option for the NCAA. It could sue the governors of all the states where NIL statutes have been enacted, argue those statutes violate the contract clause and commerce clause of the U.S. Constitution, demand injunctions that sideline those statutes and, lastly, unilaterally implement its own national NIL policy.
The gist of litigation, which Sportico explained in more detail last April, would be that state NIL statutes (1) interfere with the contractual relationship between the NCAA and its member schools by containing different standards, and (2) prevent the NCAA from adopting a national NIL policy and thereby impact the commerce of other states.
The NCAA successfully adopted this argument in NCAA v. Miller, a case from the early 1990s that centered on Nevada guaranteeing due process protections for college athletes not provided by NCAA rules. The NCAA maintained Nevada had interfered with its contractual relations with Nevada schools and prevented the NCAA from adopting a national policy.
The NCAA could try the same with NIL. But don’t expect that to happen. The NCAA would need to run the table and defeat more than two dozen state NIL statutes or executive orders in court; a loss in one case would collapse the strategy.
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