There has been a strong push for Congress to pass legislation to regulate the NIL space within college athletics. Recently, concern about donors and collectives abusing the current lack of name, image, and likeness rules has been voiced by some of the more important figures that represent the Power 5 conferences. The Power 5 conference commissioners are concerned that boosters are inducing high school and transfer athletes to attend their affiliated universities with “payments inaccurately labeled as NIL,” and they are encouraging Congress to make such actions illegal.
Possible Bi-Partisan Legislation
The conference commissioners outlined how they believe these NIL opportunities are being abused by donors and donor-led collectives across the country, and conveyed their position in a two-page letter sent to Senators, Tommy Tuberville (R-Ala.) and Joe Manchin (D-WV.). In their letter, the commissioners of the SEC, Big Ten, ACC, Pac-12 and Big 12 detail six “pillars” that they say are integral to federal legislation. They include (1) having a national standard allowing all athletes to earn compensation from third parties; (2) prohibiting pay-for-play as well as outlawing booster involvement in recruiting; (3) providing protections for athletes, including assurances that agents “are subject to meaningful regulation”; (4) banning third parties or agents from obtaining “long term rights” of an athlete’s NIL; (5) requiring deals to commensurate with market rates for NIL activity; and (6) requiring athletes to disclose NIL deals to their university.
The Wicker Legislation
The timeline was unclear on when any legislation would be proposed regarding these concerns, but a recent development has been made through legislation introduced by Senator Roger Wicker (R-Miss.). On September 14, 2022, Senator Roger Wicker reintroduced the Collegiate Athlete Compensation Rights Act to combat the effects of booster involvement and provide uniformity in NIL.
The proposed legislation would allow college athletes to commercialize their NIL, while also advancing a standard set of rules and enforcement measures. One of the most important aspects of the act is that it prohibits boosters and third parties from using NIL as a way to induce current or prospective college athletes to attend a particular institution. The legislation also creates an “Office of Sport” within the Federal Trade Commission which will be tasked with enforcing all the Act’s rules and prohibitions.
Furthermore, the legislation would answer other key NIL questions that have been of concern lately. The Wicker bill would effectively establish that: (1) former college athletes would not be able to retroactively sue the NCAA for lost or missed NIL opportunities, and (2) college athletes would not be considered employees for their athletic endeavors, regardless of any other Federal or State laws to the contrary. The act also provides that the U.S. Comptroller General would have to submit a report to Congress detailing the health, safety, and education needs of college athletes, an issue that has been one of the main points of disagreement previously preventing Republicans and Democrats from agreeing on NIL legislation.
These new developments could make a meaningful difference in the ability of donors and boosters to be involved with NIL. Should either of these legislative efforts come to fruition, it would likely allow for more stability within college sports.
