Name, image and likeness has been a hot-button issue, but its future will be shaped by the outcome of 2020's Senate races.
WASHINGTON, D.C. — Mark Walker is a big sports fan. As an Alabama native, he still roots for the Crimson Tide, and as a U.S. Congressman representing North Carolina, he’s enamored with March Madness.
So any time he can create sports analogies for legislative issues, Walker doesn’t miss the opportunity. When the legislative issue being discussed is connected to sports itself, such as the emerging Congressional debate over athlete compensation, he is in his sweet spot.
“We moved the ball down the field and right when we got into the red zone,” Walker says, “the coronavirus defense recovered a fumble.”
As the one-year anniversary approaches of Congress's involvement in college athletics—the NCAA first approached lawmakers for help last December—the topic of name, image and likeness (NIL) remains somewhat shelved. Once thought of as a bipartisan issue that could be expedited through a slow-moving body, NIL finds itself stuck in a bureaucratic waiting line, buried behind more significant issues like COVID-19.
And what of its bipartisan nature? While it generates more broad support than most issues, NIL bipartisanship is quickly eroding, the gap between Democrats and Republicans growing from a stream to a gulf.
With NIL floating in a quasi-Congressional purgatory, Tuesday’s general election will dramatically shape its future path, from its timeline of passage to its legislative framework. While a contentious presidential election encapsulates the nation, the fight for control of the U.S. Senate looms large for the future of college athletics.
“I can’t think of another election that could have more profound implications for college sports,” says Tom McMillen, himself a former Congressional lawmaker who now presides over Lead1, which represents the athletic directors of the Football Bowl Subdivision. “If the Democrats win control of the Senate, then you have a much more expansive agenda than just name, image and likeness.”
Meanwhile, lurching over the debate is an unofficial but very important deadline for federal legislation. On July 1,
Florida’s state NIL law takes effect, granting schools in the Sunshine state the freedom to offer players more expansive compensation opportunities than others. College athletic leaders describe this as a chaotic scenario and the reason the NCAA originally requested Congressional assistance last winter.What’s more, many believe that without a Congressional law, more states will use the springtime to hurriedly pass their own NIL legislation so as not to be at a competitive disadvantage.
In the meantime, Walker, a Republican, is on his way out of Congress. The author of a 2019 athlete compensation bill that helped spark this conversation, Walker’s term expires this year and he’s not seeking reelection, though a Senate campaign may be in his future.
As the time ticks down on his term, as the election nears and the July deadline grows closer, he’s fittingly prepared another sports analogy.
“The national anthem has been sung,” Walker says. “It’s time to play ball or go back to the clubhouse.”
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In the span of a few minutes at a recent Senate hearing, the three schools of thought over athlete compensation emerged.
There were those who expressed interest in a limited Congressional bill to govern name, image and likeness. There were others who outlined a more expansive bill that would include healthcare protections and even conference revenue sharing.
And then there was Sen. Rand Paul (R-Ky.), who scolded committee members for even holding a hearing over a topic that Congress should not dabble in.
“It’s a terrible, rotten, no-good idea to federalize college sports,” he blasted from his pulpit.
Though Paul may be in the minority, his thoughts highlight a divide among lawmakers, even within the same party, over their involvement in college athletics. Walker, in fact, finds liberals agreeing with him on this issue while members of his own party disagree. “Some have relationships with the NCAA,” he says, “and so they are hesitant to get involved.”
On Capitol Hill, the question is being asked. Should we be involved and if so, how much?
Most lawmakers are answering ‘yes’ to the first question. The second question, meanwhile, has created a deep divide between Republicans and Democrats over both the scope of the legislation and the bill’s concepts.
Democrats are caucusing around a more expansive bill that completely reforms the NCAA, does not include antitrust and may not even include preemption of state laws, handing an open market of endorsements to athletes with little to no restrictions. Republicans are behind a bill limited, at least for now, to NIL and offering protections to the NCAA, such as preemption and potentially antitrust.
“There is a growing consensus in the Democratic party that if we’re going to debate legislation on college sports, we shouldn’t stop at the limited issue of NIL,” says Sen. Chris Murphy (D-Conn.), one of the leading figures in Congress on the issue. “If we’re going to spend time on a college sports bill, it should be broad-based.”
For now, Murphy and his Democrat colleagues are in a somewhat powerless minority. They don’t control the Senate or the White House. That could soon change.
Most polls show Republicans losing the presidency and some even have them losing control of the Senate, a sweeping result that will promote Democrat leaders to key chairmanship roles and potentially have a lasting impact on any college athletics legislation—both in timeline and in concepts.
“The outcome of this election on the Congressional level could have a significant impact on the scope and breadth of athlete rights,” says Gabe Feldman, a Tulane law professor and expert on NIL matters. “If the Democrats control the Senate, we're more likely to get legislation that looks closer to what we’ve seen from Sens. [Cory] Booker, [Richard] Blumenthal and Murphy.”
Blumenthal (D-CT) and Booker (D-NJ), like Murphy pushing for more expansive legislation, recently announced an athlete bill of rights that provides players long-term healthcare, lifetime educational scholarships and more eligibility freedoms, such as athletes getting a cut of conference revenue.
This is a contentious issue. Many in college athletics describe such a plan as radical and crippling to the college model. Among Republicans, the plan also draws harsh criticism.
“Some of the Democratic senators want to take over college sports,” says Rep. Anthony Gonzalez (R-Ohio), who introduced an NIL bill in September. Walker, meanwhile, says he doesn’t like the idea of government “monitoring the entire process of this.”
But Sen. Marsha Blackburn (R-Tenn.) is in support of a broad-based bill. She believes such legislation could be coming in the “next couple years.” For now, her focus is on quickly passing an NIL bill, potentially during what’s referred to as the lame-duck session of Congress, starting after the election and running to January's inauguration.
That timeline is optimistic. Most lawmakers, even Republicans, do not expect significant movement until next year, when a new Congress arrives.
That presents more issues.
“It’s about how does this issue continue to gain steam with a bunch of new people,” says Steve Stivers, a Republican from Ohio who co-authored Gonzalez’s bill. “There will be a bunch of people who don’t know anything about this.”
Even more important, there will potentially be new people in power.
“If the Democrats get control in the Senate, there’s going to be a very significant milestone for college sports, because there’s going to be a lot of effort to change the underlying structure of college sports,” McMillen says.
For now, the Republican-controlled Senate is leading the way on the NIL endeavor, more specifically the Senate Commerce Committee. Within the committee, two powerful senators hold the cards, for now: committee chair Roger Wicker (R-Miss.) and NIL subcommittee chair Jerry Moran (R-Kan.). They are each in the process of drafting NIL legislation, coordinating their bills with one another while walking a tightrope on the three most divisive issues.
Does it preempt state law? Does it offer the NCAA antitrust protection? And does it include healthcare protections for players?
“The more we load onto it, the harder it is going to be to advance,” a Commerce Committee aid told Sports Illustrated last week. “Those three things will be the most challenging to work through.”
Both Wicker and Moran are seeking a Democratic co-sponsor—an all-important bipartisan measure. It’s not been easy. Democrat leaders invested in this topic stand against giving the NCAA their primary request: that any federal bill preempt state law, which is the entire purpose of the bill, Republicans and NCAA leaders contend.
Will the NCAA get that?
“Not if I have anything to do with it,” says Blumenthal, an out-spoken critic of the NCAA who’s heavily involved in the debate on Capitol Hill. Blumenthal believes states should be afforded the right to grant extra protections to athletes beyond any federal legislation.
While a bill’s concepts will be shaped by Tuesday’s election, so will its timeline. A change in power in either or both the Senate and White House may result in a delay.
If Democrat Joe Biden wins the presidency, the focus in the spring will be the COVID-19 pandemic, Murphy says. That goes for the Senate as well. A Democrat-controlled Senate will be attempting to pass a second virus-related stimulus package. And when they do turn their attention to college athletics, they will be arguing for expansive, broad-based legislation—a time-consuming measure. Murphy calls the July 1 deadline “tight.”
“In my opinion, Congress is not in a position to quickly pass uniform legislation to enact before July 1,” says Ramogi Huma, the president of the National College Players Association and one of the most outspoken critics of the NCAA. “I think there’s growing support for broad-based reform. I think that’s a good thing, but I think it’s going to take longer.”
Huma has spent the last several months assisting state legislatures in crafting uniform state laws governing athlete compensation to avoid potential NCAA lawsuits. Before the pandemic, more than 30 states were on their way to passing similar NIL laws to those in California, Florida, Nebraska, New Jersey and Colorado.
Huma believes NIL can be governed locally and without a federal, uniform law. Many in college athletics disagree, predicting that a bevy of differing state laws will clash with the NCAA’s own NIL legislation (expected to pass in January) and create a chaotic scene across the college sports landscape.
But maybe that’s not such a bad thing?
“[NCAA president] Mark Emmert and I talked about this recently,” says McMillen. “Sometimes chaos is a fertile legislating ground. Sometimes you need that to get people focused in Washington. If Florida can use NIL to recruit, you’re going to have a huge outcry.”
However, there are ways to prevent chaos if a federal bill doesn’t arrive by July, says Feldman, the Tulane law professor. Congress could agree on a phased approach to broad-based reform, passing an initial phase that kicks in next summer to govern NIL. In another option, lawmakers could either pass temporary legislation that pauses state laws or strike a deal with states to put their local laws on hold.
“There’s also the possibility that none of that happens,” Feldman says, “and Florida’s law goes into effect and the NCAA sues it.”
There are other issues, too, on a deeper, logistical level. There is a fight between three committees on jurisdiction of the NIL issue: Commerce, Judiciary and HELP (Health, Education, Labor and Pensions). Whatever entity the bill designates to enforce NIL policies could determine its committee.
There is a problem: no one wants to be the entity charged with enforcing it. On a school level, college athletic directors have passed on enforcement to the NCAA, which has in turn passed the buck to Congress.
Several NIL bills introduced in Congress designate the Federal Trade Commission for enforcement. Guess what? They don’t want it either.
In a hearing before the Commerce Committee in August, FTC chairman Joe Simons told lawmakers that the organization doesn’t have the “expertise” to handle such an endeavor, suggesting that the Department of Justice is better suited. FTC commissioner Rohit Chopra told the Committee that the best course might be private right of action.
“It’s very hard to police these markets,” Chopra said. “In some cases, the players themselves may be well situated to vindicate their own rights. I don’t think we seem best suited.”
All of this of course—committee jurisdiction, enforcement entity, NIL concepts and preemption—will be shaped by what happens Tuesday at the polls.
Will we get a more expansive, broad-based and player-friendly bill that may or may not be delayed? Or a bill limited to NIL with NCAA protections that potentially is implemented by next summer?
Sure, those two things are drastically different, Blumenthal says, but there is an overwhelming feeling in Congress of support for compensating college athletes.
“There are differences, but there is a growing consensus that athletes should benefit from fueling a multi billion-dollar industry with their blood, sweat and tears,” he says. “There is a real movement afoot here that is only growing in favor of NIL reform.”
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