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NCAA Returns to Swamped Congress Seeking NIL, Antitrust Help

emily caron and michael mccann
·6 min read

WASHINGTON—A House subcommittee on consumer protection and commerce Thursday held the first Congressional hearing on name, image and likeness since June. Much has changed since, from state laws going into effect in July, to the U.S. Supreme Court’s unanimous ruling against the NCAA in the Alston case, to college sports’ governing body implementing an interim NIL policy and pondering much broader changes to its structure and role.

But what hasn’t come is federal NIL legislation. And as NCAA president Mark Emmert made clear during the hearing, his organization is still waiting on that framework to come from Congress.

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“We need a federal solution that sets the baseline protections for college athletes,” Emmert, one of only two witnesses to testify in person, said in his opening statement. “The patchwork of state laws has left college athletes subject to different sets of standards than their peers in neighboring states.”

Witnesses including Ramogi Huma, executive director of the National College Players Association, and CIAA commissioner Jacqie McWilliams addressed the subcommittee’s questions, as did Washington State golfer Cameron March, who spoke to her own experience applying for waivers from the NCAA to develop an app, which threatened her eligibility before NIL rules changed.

Per the NCAA’s interim mandate, schools in the 20 states without NIL laws were allowed to develop their own policies as long as they do not violate the NCAA’s prohibitions. The subcommittee pressed the witnesses on the last three months, while college athletes were permitted to earn endorsement money, with Massachusetts Rep. Lori Trahan bluntly asking Emmert if NIL has started to bring about the “extinction” of college athletics, as predicted by the NCAA in its argument against athlete compensation. (Emmert deferred blame for the “resistance” and “concern” about NIL to the NCAA’s member schools, going on to say that with proper guardrails in place, he believes NIL can be “quite the opposite” of the end of college sports).

Witnesses were also asked what they want—and, in Emmert’s case, specifically do not want—in a national law.

The NCAA articulated a desire for federal legislation that would expressly preempt the current multiplicity of state NIL laws, described by Emmert and several lawmakers as a “patchwork.” The NCAA, a national organization, lacks authority over state laws and has been unwilling to challenge the legality of state NIL statutes in court. Emmert further voiced a longstanding NCAA position that rules governing college athletes must protect against a pay-for-play system and recommended a “transparent clearinghouse mechanism, not the NCAA, to disclose NIL transactions while ensuring student privacy as well as the integrity of the college sports model.”

As noted by the committee briefing, the NCAA is also seeking an antitrust exemption, which would enable the organization and its member schools and conferences to collaborate—critics would argue “collude”—in adopting rules that curtail athlete freedom in NIL activities.

Further motivating the NCAA’s desire for an antitrust exemption are lawsuits being brought by current and former players (House v. NCAA). These lawsuits contend that the NCAA and its members violated Section I of the Sherman Act by agreeing to prohibit NIL opportunities for college athletes in recent years. The players also charge they should have been paid for their appearances in TV game broadcasts. Should these lawsuits succeed, the potential monetary damages for the NCAA and its members could be massive. An exemption contained in a federal NIL statute could be worded to aid the NCAA in defeating the litigation.

Just as important to the NCAA is ensuring college athletes retain their non-employee status, which stands in the face of the NLRB general counsel’s statement this week saying college athletes should be recognized as employees under the National Labor Relations Act. While Congressional authority over the workplace classification of college athletes at public universities is uncertain—public universities are governed by state labor laws—a federal statute that declares college athletes are not employees would help the NCAA maintain the current system.

When asked by Trahan, a former Division I volleyball player and a vocal critic of NCAA practices, if he supports legislation that is “as pro-athlete as possible,” Emmert said he did—though the pair’s definitions of the phrase likely diverge greatly. Trahan applauded the NLRB’s “long overdue” stance that some college athletes are university employees, which the NCAA has long opposed.

“The scales of college athletics have been so dramatically tilted in the direction of everyone who isn’t an athlete for so long, one of the reasons we’ve proposed the path we do is that we’re less concerned with going too far in the direction of giving athletes power than not giving them enough,” Trahan said at the hearing, pushing back against Emmert’s plea for “appropriate” guardrails.

Trahan said she shared many of the sentiments laid out in Justice Brett Kavanaugh’s concurring opinion in Alston earlier this summer, in which he broadly, and strongly, rebuked the NCAA’s idea of amateurism and questioned its entire business model.

Ranking member Gus Bilirakis (R-Fla.) repeatedly urged Congress to act swiftly, expressing concern that ongoing “stalling” would continue to negatively impact college athletes. It has been more than two years since the first federal bill on NIL was proposed by now-former Reps. Mark Walker and Cedric Richmond. Several additional bills have been put forth since, many addressing additional rights and protections beyond the scope of athlete compensation, but Congress has yet to intervene, and not one NIL bill has been voted on.

Despite the massive budget items on Washington’s plate this week, Congress is still mulling possible legislation, with four bills introduced in this session.

–A bill put forth by Trahan and Connecticut Sen. Chris Murphy proposes virtually unrestricted rights for athletes to profit from NIL, but also recognizes athletes as employees, guaranteeing their ability to organize through collective representation like a trade association, and prohibiting athletic associations and schools from regulating athletic representation. (Murphy and Trahan were also among a group of Democratic senators and representatives who introduced a separate college athletics reform bill, which would recognize college athletes as employees and thus grant them a federal right to engage in collective bargaining).

–Reps. Anthony Gonzalez and Emanuel Cleaver reintroduced their bipartisan bill this term, which would also establish national NIL rights for college athletes and provide oversight through a Congressionally appointed commission that operates independently of schools and their governing athletics’ associations. Gonzalez, a former Ohio State football player and one of the most vocal advocates for college athlete rights on the Hill, recently announced he will not run for reelection in 2022.

–Kansas Sen. Jerry Moran’s bill would, in addition to guaranteeing a national standard for NIL rights, address issues including transfers, college draft eligibility policies and out-of-pocket medical costs. While attempting to prevent college athletes gaining classification as employees, it would establish a corporation, or “clearinghouse,” to execute and regulate NIL.

–Ohio Rep. Steve Chabot, who played college football at William and Mary, introduced an act to set up a government corporation that operates under the FTC to regulate NIL by overseeing agents and third-party licensees of athlete publicity rights, creating a universal online database and prohibiting inducements, an area of concern that has surfaced in most, if not all, Congressional NIL hearings.

All of the bills would establish federal parameters for NIL, but it’s unclear whether states with NIL statutes wish to cede their newfound authority to the federal government.