Sen. Ted Cruz joins NIL fray with bill draft; is any of the proposed legislation actually viable?

The flurry of college sports legislation from the U.S. Senate continues to roll out. And the author of this one sits in a place of power to drive such a bill.

Sen. Ted Cruz (R-Texas) is introducing a draft discussion of a bill that would empower the NCAA to regulate name, image and likeness (NIL) and grant it liability protection, while also pre-empting state NIL laws, deeming college athletes as students, not employees, and creating a national database for NIL contracts.

Cruz is the ranking member — the lead Republican lawmaker — on the Senate Commerce Committee, the group most likely to control the initial steps of any college athlete legislation in its long journey to potential passage. Commerce staff members shared the most updated draft with Yahoo Sports, as well as comments from those within college sports who support the impending legislation.

Said NCAA president Charlie Baker: “With the provisions contained in this bill, the Association will be well positioned to go further in our efforts to protect student-athletes from exploitive behavior and provide consistent, national rules at a time when states are engaging in a race to the bottom to gain a competitive edge.”

Cruz’s bill is noteworthy for several reasons, most importantly his standing on the Senate Commerce Committee as the lead minority lawmaker. More than any other Congressional group, the Senate Commerce Committee has been most involved in the issue of NIL since the NCAA began four years ago petitioning Congress to act on the topic. The Commerce Committee has jurisdiction, it is believed, over any NIL legislation.

In fact, roughly two years ago before NIL was legalized through various state laws, members of the Senate Commerce Committee — including then-ranking member Sen. Roger Wicker (R-Miss.) — grew close to settling on bipartisan legislation on the subject. However, negotiations collapsed, mostly over the subsidizing of healthcare for college athletes.

Any Senate NIL legislation is likely to start in the Commerce Committee, where chair Maria Cantwell (D-Wash.) holds authority in setting the committee agenda items. As ranking member, Cruz has a unique perch to persuade and influence colleagues on agenda items.

Cruz’s draft is likely to be refined based on feedback from stakeholders as well as other lawmakers. The hope is to invite partners onto the legislation and then schedule a Senate hearing.

Oftentimes, one piece of legislation is married with others to form a more compromising bill with a better chance to advance through a split Congress. Cruz’s draft joins a list of recent Senate legislation on the topic, including two bipartisan efforts — one from Sens. Jerry Moran (R-Kan.), Richard Blumenthal (D-Conn.) and Cory Booker (D-NJ); and another from Sens. Tommy Tuberville (R-Ala.) and Joe Manchin (D-WV).

The NCAA logo is shown at center court before NCAA tournament games. (AP Photo/Keith Srakocic)
The NCAA logo is shown at center court before NCAA tournament games. (AP Photo/Keith Srakocic)

Time is not on anyone’s side. College leaders were hoping to push through legislation this fall before the presidential election season, when congressional action normally comes to a crawl. Lawmakers broke last week for their annual month-long summer break. They aren’t expected to return until Labor Day week.

There are plenty of failures to point to in the past in any bill’s potential passage. Over the last four years, more than a dozen pieces of college athlete legislation have been introduced, and there have been eight hearings on the matter. No bill has even taken the initial step to passage.

Cruz’s bill features more right-leaning, NCAA-friendly language that most notably permits the NCAA to oversee and create new rules over a variety of subjects, including NIL, transfer policies and eligibility — all with federal protections against legal challenges.

In a distinguishing feature of Cruz’s draft, the legislation does not create a third-party government entity as a primary regulator like many other pieces of legislation. It instead allows the NCAA free reign to manage NIL, as long as the association abides by the bill’s language.

The Big 12 and the SEC both released statements to Cruz in support of the legislation.

“For millions of fans who love and want to preserve college athletics, this is a critical moment,” Cruz said in a statement to Yahoo Sports. “Name, image, and likeness deals present new opportunities for athletes, but they’ve also spurred a jumble of new state laws that tug at college sports’ history and competitive balance.”

An interesting note about Cruz’s bill: Despite his own state having passed an advantageous NIL law to give schools more freedoms, his legislation would preempt the state law. The state of Texas has been at the center of a new wave of state laws that grant schools more of a role in arranging NIL deals while prohibiting NCAA or conference enforcement.

Unlike other bills, the Cruz draft stays silent on athlete medical care, such as a medical trust or requirements around long-term healthcare that other legislation includes.

The draft grants two other requests that the NCAA wanted in federal legislation:

— mandating transparency in NIL contracts to be pooled for a database.

— clarifying that athletes shall not be considered employees of their universities, a key component in light of the NCAA’s court battles over the topic.

Cruz’s bill also …

— gives schools the authority to restrict athlete eligibility if NIL deals conflict with the university code of conduct.

— creates a standard contract for NIL agreements with requirements such as contract terms.

— modifies the Sports Agent Responsibility Act requiring agents and third parties to register with the NCAA.

— includes a provision specifically allowing NCAA authority to remove members from the organization and restrict schools and athletes from competition.

“I'm confident that this legislative draft represents the best path forward to codifying NIL rights for student-athletes, providing national uniformity for college sports with as little government interference as possible, and preserving college sports as we know it,” Cruz said. “I welcome constructive feedback on this legislation and hope Congress will soon move forward on legislation that protects student athletes’ rights and preserves the college experience so that fans can continue to root for their favorite schools for generations to come.”

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