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Can Congress help the NCAA find NIL consistency?

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One year from now — one way or another — the rules that determine how college athletes can make money will be different.

NCAA athletes are not currently allowed to accept money from any outside parties in exchange for the use of their name, image or likeness (NIL). An onslaught of political pressure has made that restriction one of the most pressing and divisive issues facing college sports in 2020. California, Colorado and Florida have all passed laws that will soon make it illegal for schools in those states to follow the current NCAA rules. Florida’s law is scheduled to be the first to go into effect on July 1, 2021.

College sports leaders have spent most of the past year trying to find a way to maintain some control over the inevitable NIL changes they see on the horizon. The NCAA’s board of governors announced in late April that it supports a set of proposed rule changes that would open up a variety of opportunities for all of their athletes to make money. Those changes would also include a series of “guard rails,” rules and restrictions designed to prevent schools from getting involved in using NIL payments to recruit or retain their athletes.

The proposal outlines what the NCAA wants to change, but it leaves vague the details of how they would organize and enforce those changes. The group working on the new rules has until January to figure out the specifics before each division of the NCAA votes on whether to adopt them.

One major pillar to the NCAA’s plan for the future is the association’s desire for consistency. College sports leaders want every school in the country to be operating under the same NIL rules. But because state legislators are moving faster and implementing fewer restrictions than the NCAA, college sports leaders are now asking for help from Congress to achieve their goal of consistency.

There are at least a handful of legislative options already in motion that would push toward a uniform nationwide set of changes. Each takes a significantly different approach to arrive there.

The Free Market Option (HR1804)
Proposed by: Rep. Mark Walker (R-North Carolina) on March 14, 2019

A pair of former college athletes, Walker and Rep. Cedric Richmond (D-Louisiana) co-sponsored a bill more than a year ago that would strip the NCAA of its nonprofit tax status if the association didn’t allow its athletes to have the full use of their NIL rights.

Walker’s plan does not include any restrictions on the ways in which athletes could make money.

“Signing an athletic scholarship with a school should not be a moratorium on your rights to your name, image, and self-worth,” Walker said when he introduced the bill. “… We are introducing legislation that won’t cost the NCAA or our schools a single dollar, while empowering college athletes with the same opportunities that every American should have in a free market.”

The bill remains open for consideration, but has not moved forward in the legislative process since its introduction in March 2019.

The Wide Scope Option (HR5528)
Proposed by: Rep. Donna Shalala (D-Florida) on Dec. 19, 2019

Shalala is among a large group in and around college sports who believe the NIL debate is only one symptom of a broken system in need of far-reaching reform. The Congresswoman spent most of her career in higher education, including a 14-year stint as the president of the University of Miami. Her bill would create a commission and give its members two years to study a wide variety of ways to change college sports.

Some of the items she sees as worthy of discussion along with compensating athletes are capping coaches’ salaries, rethinking the admissions process for athletes and providing better healthcare after their college careers are over. Advocates for more NIL options, however, are skeptical that a two-year commission will wind up being anything but another way to delay what they see as an already overdue need to give athletes a way to make money.

The Antitrust Exemption Option (S.4004)
Proposed by: Sen. Marco Rubio (R-Florida) on June 18

Rubio introduced a bill shortly after Florida passed its state law that would set a deadline for the NCAA to come up with new rules. The bill also sets some parameters for what must change, but leaves the details to the NCAA leaders to solve. If the NCAA hasn’t changed its rules by July 2021, this bill would give the Federal Trade Commission power to step in and take over.

Rubio’s bill also makes room for the biggest, most controversial item on the NCAA’s Congressional wish list: an antitrust exemption. The exemption would prevent lawyers from suing the NCAA for violating antitrust laws based on the restrictions they put into place on future NIL opportunities. A federal judge in California ruled last year that the NCAA’s current rules violate antitrust laws. However, the NCAA argued that some caps were necessary to maintain the education-based approach that is central to its business model, and the judge agreed.

A series of lawsuits — all based on the argument that the NCAA is illegally fixing a competitive market by imposing nationwide caps on what schools can give their athletes — have chipped away at amateurism rules for much of the past decade. A new suit was filed last month that asks the courts to take into consideration the ways the NCAA is proposing to change its NIL rules. Rubio’s bill would protect the NCAA from these types of legal challenges in the future.

Before Rubio introduced his bill, several members of Congress balked at the possibility of providing the NCAA with a blanket exemption. Rubio’s bill did not have any other co-sponsors, and multiple Congressional aides told ESPN last month that it was a “non-starter” in part due to the antitrust exemption it would create.

The Guard Rails Option
To be proposed by: Rep. Anthony Gonzalez (R-Ohio)

Gonzalez announced months ago that he was working on a federal bill that would open up more opportunities for athletes while also putting in restrictions that are similar to what the NCAA has proposed. (Gonzalez said in June he isn’t certain about where he stands personally on an antitrust exemption, but doesn’t think it would be possible to pass a bill that includes one.)

The first-term representative was an All-Big Ten receiver at Ohio State and played in the NFL before becoming a politician, which provides him with some instant credibility on this issue among his new peers. He said last month that he was looking into the option of writing a law that would establish a neutral third-party oversight board to determine and enforce any restrictions on NIL payments. Gonzalez also said he’s hoping to write a bill that is flexible enough to adapt as the myriad ways college athletes might make money becomes clearer or changes in the future. He said in June that he plans to introduce his bill at some point in the coming month.

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Draymond Green and Sen. Chris Murphy join Jeremy Schaap to talk about what the NCAA can do to help student-athletes and their families not only now, during a worldwide pandemic, but also down the line.

The Senate Group Option

In December, five senators announced the start of a bipartisan effort to study college athlete compensation. The group includes former presidential candidates Rubio, Mitt Romney (R-Utah) and Cory Booker (D-New Jersey) along with David Perdue (R-Georgia) and Chris Murphy (D-Conn.).

Murphy has released a series of reports in the past year that outline the many policies of college sports that he says are unfair to athletes. He told ESPN last week that he did not support Rubio’s proposal. The group hasn’t yet declared any plans to introduce its own bills, but has said in the past that it plans to take action to force the NCAA to change its current rules.

The ULC Option

If Congress is unable to pass a law for college sports in the coming year, the NCAA plans to turn to the Uniform Law Commission as its next option for help. The ULC is a nonprofit organization made up of roughly 300 attorneys that has been around for more than a century with a mission to create consistent laws among states.

The ULC first started looking into the issues facing college sports early this year and will decide in mid-July whether it wants to draft legislation and work to convince as many states as possible to adopt its version of the law. Gabe Feldman, the director of the Tulane Sports Law Program, has been working with the ULC on this issue and says there are reasons to be optimistic that a large number of states would adopt a uniform law. Of the 30-some states that have started exploring laws that govern college athletes’ NIL rights, most of them are very similar.

Feldman said the ULC could also help states work together with Congress in a group effort to create a solution. In that model, Congress would pass a law that creates a framework and a base level of protection for the rights of college athletes. States would then be able to pass their own laws that add more detail to fit their needs.

The ULC process typically takes up to two years after it decides to draft legislation, but Feldman said the commission is aware that its deadline would be tighter for this law.

“Committee members recognize the need for speed in this area,” he said. “This will be useful only if it can be done quickly, otherwise the train will have long left the station.”

The Status Quo Option

There is, of course, a possibility that nothing changes in the next 365 days. Gonzalez said last month that the biggest obstacle to solving the NIL issue in Congress is the “reality of the calendar.” This push for change comes at a time when federal lawmakers will have to remain focused on finding ways to protect citizens from a global pandemic, deal with the economic downturn caused by the pandemic and wade through what is likely to be a contentious election in the fall.

If Congress is unable to act, NCAA voters could decide in January that they are unwilling to accept the proposed changes to the association’s rules. So in that scenario, where does that leave college athletes in the state of Florida on July 1, 2021?

The state law would allow an athlete to start signing endorsement deals or monetizing their social media feeds next July. Universities who wish to remain eligible to play for NCAA championships would have to break the law by punishing any athlete that accepts money. That would likely result in a legal showdown that could take years to sort out and cost the athlete the rest of his or her collegiate career.

“There is no shortage of interest in this issue and no shortage of possible solutions,” Feldman said. “The question is: Can there be a compromise that enough parties see as a better alternative than a patchwork of state laws?”


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