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Two congressmen introduce a bill compromising on NCAA athlete name image and likeness rights

BY DOMENIC ALLEGRA SPORTS EDITOR

On Thursday, Sept. 24, two members of the U.S. House of Representatives introduced a bill to further the conversation over NCAA athletes’ ability to profit from their own names, images and likenesses (NIL). 

Although the NCAA created a committee to explore NIL rule changes, the organization is incredibly hesitant with the idea of NIL contracts. The NCAA has repeatedly stated in the past that NIL contracts must have the proper precautions to avoid turning the college arena into a professional system. 

“I want to be unequivocally clear: This is a civil rights issue,” said Congressman Emanuel Cleaver. “For far too long college athletes across the country — many of whom are people of color — have been denied the basic right to control their name, image and likeness.” 

Rep. Anthony Gonzalez (R-Ohio) and Rep. Emanuel Cleaver (D-Mo.) have recently introduced the “Student Athlete Level Playing Field Act” which would prohibit the NCAA, conference and universities from preventing their athletes entering into NIL contracts. 

“I am proud to introduce bipartisan legislation with Rep. Cleaver today that delivers meaningful reforms and will make a difference in the lives of student athletes of all levels of competition across the country,” said Congressman Gonzalez.

This bill was introduced as a compromise between the wishes of the NCAA and college athletes. The bill prevents schools from compensating their athletes for their NIL, thereby continuing the amateur status of the athletes. This also does not change the athletes’ legal status as a part of the university or college. The bill explicitly states that athletes cannot be considered employees and that their scholarships will remain nontaxable. 

There are some restrictions to the NIL rules if an athlete decides to pursue a deal. The bill states that the NCAA or the university can prohibit contracts with enterprises involving tobacco, vaping, alcohol, marijuana, gambling or adult entertainment. Furthermore, the NCAA and universities can prohibit athletes from “wearing any item of clothing or gear with the insignia of any entity during any athletic competition or university-sponsored event.”

Interestingly, the bill does not offer the NCAA or the universities the ability to prohibit athlete endorsement contracts that conflict with the universities’ own endorsement contract. However, although the athlete may sign conflicting endorsement contracts, the university has the power to ban athletes from wearing anything with the conflicting endorsement at any game or school event.

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The current legislation would also create a federal standard for NIL contracts. If passed, the bill would expressly preempt any state laws concerning the NIL of college athletes. Six states have passed such laws — California, Colorado, Florida, Nebraska and New Jersey — with many more are considering similar legislation.

Although the NCAA would like a say in how this legislation is carried out, this bill calls for the creation of a 13-member commission whose members would be made up of stakeholders, including current or former athletes, who would be appointed by Congress. 

This commission would run for a period of three years and would provide recommendations concerning NIL issues while providing a report to the House Committee on Energy and Commerce and the Senate Commerce, Science and Transportation Committee within six months and annually thereafter.

Furthermore, while the bill provides NIL contract oversight by the Federal Trade Commission, it does not preclude the NCAA from any antitrust lawsuits pursuant to the Sherman Act — denying one of the NCAA’s requests to Congress. 

The bill also seeks to amend the Sport Agency Responsibility and Trust Act of 2004 by introducing an explicit definition of “boosters” and prohibiting certain actions of boosters that would be penalized under the FTC. The congressmen define a booster as any individual who is not related to the athlete or sponsors of schools’ athletics programs that provide “substantial financial assistance or services” to said programs.

The legislation also states, “It is unlawful for a booster to directly or indirectly provide or offer to provide any funds or thing of value as an inducement for a student-athlete to enroll or remain at a specific institution or group of institutions.” 

The NCAA responded to the legislation in a statement saying, “We greatly appreciate U.S. Reps. Gonzalez and Cleaver’s collaboration to sponsor bipartisan legislation to strengthen the college athlete experience. We look forward to working together with both representatives, their co-sponsors and other members of Congress to further establish a legal and legislative environment where our schools can continue to support student-athletes within the context of higher education.”

While the legislation will most likely be pushed until the next year, Congressman Gonzalez stated that he will continue to fight for the rights of college athletes — “I look forward to working with my colleagues to keep the momentum going and continuing our bipartisan work to provide NIL rights to student-athletes and improve the college athletics system that Americans across the country know and love.”