Congress And The Tipping Point For The NCAA, NIL And College Sports

Congress will likely introduce a bill on regulating NIL for college student athletes, giving the NCAA guidelines for enforcement and protections against various legal action. The draft will come from Rep. Gus Bilirakis, R-Fla., who chairs the House Energy and Commerce Subcommittee on Innovation, Data and Commerce.

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In recent years, the issue of Name, Image, and Likeness (NIL) rights for college student-athletes has gained significant attention. As the revenue generated by college sports continues to soar, athletes have increasingly advocated for their fair share of the profits.

This new bill comes at an interesting time when states like California are proposing legislation that would mandate that student athletes participate in the revenue generated by NCAA sports. This goes well beyond the recent Supreme Court decision in the O’Bannon case that ruled the NCAA improperly restricted student athletes from profiting from their NIL. The issue before the court in O’Bannon did not include whether the NCAA’s prohibition against “pay for play” is legally permissible. As this drama unfolds, we must keep our eye on four different forces at work: the NCAA, the State legislatures, Congress, and the Supreme Court.

The Battle Challenging the Status Quo:

College athletes contribute immensely to the success and profitability of the NCAA sports landscape through their athletic ability. They dedicate countless hours to training, competing, and representing their institutions, all while juggling the demands of academics. Yet, until recently, they have been restricted from capitalizing on their NIL and the rules of engagement around NIL are not uniform, varying from state to state. The introduction of NIL legislation would mark a crucial step toward unifying the rules to be applied and then there is the issue of pay for play.

However, scrapping the NCAA prohibition against pay for play is not without challenges. It would require a significant shift in the NCAA’s long-standing approach to amateurism and a restructuring of the college sports landscape, including the way that the NCAA operates and the NCAA would be hard pressed to define its role in that new order. I suggested previously that the NCAA should model themselves after existing professional sports organizations.

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If federal legislation on NIL is passed, it would likely have an impact on states’ ability to pass laws requiring athletes to participate in sharing sports revenues derived in college sports. Here’s an analysis of how federal legislation could influence state laws regarding revenue sharing:

1. Uniform Guidelines: Federal legislation would aim to establish uniform guidelines for NIL across the country. This would provide clarity and consistency for athletes, institutions, and stakeholders. If federal legislation explicitly addresses revenue sharing, it could limit the scope for states to enact their own laws on mandatory revenue sharing.
2. Preemption of State Laws: In some cases, federal legislation can include provisions that preempt state laws on the same subject matter. If the federal legislation contains comprehensive regulations on revenue sharing or covers the broader aspects of athlete compensation, it could supersede state laws and prevent them from imposing mandatory revenue sharing requirements.
3. Balancing Interests: Federal legislation on NIL aims to strike a balance between athlete empowerment and maintaining the integrity of college sports. While athletes’ rights to profit from their NIL are being recognized, preserving the amateurism model and ensuring competitive fairness may be incorporated by the Federal government preempting state laws on this subject.
4. Evolving Landscape: Federal legislation on NIL would likely prompt the NCAA to adapt its governance and business model. As the NCAA adjusts to the changing landscape, it may develop its own framework for revenue sharing or adopt guidelines that provide athletes with a fair share of the revenues they help generate.

It’s important to note that the specific provisions and scope of any federal legislation on NIL, including its impact on revenue sharing, would depend on the language and details of the bill ultimately passed by Congress. Until such legislation is proposed and enacted, the exact implications for state laws on revenue sharing remain uncertain.

The Supreme Court’s Role:

The Supreme Court has the authority to interpret and clarify constitutional issues, including matters related to individual rights. If Congress passes a bill that establishes a framework for student-athletes’ rights under NIL and pay for play, the Supreme Court could potentially play a role in further defining and expanding those rights if it deems the legislation insufficient based upon constitutional considerations.

The Supreme Court has previously ruled on cases involving college athletics, such as the landmark 1984 case of NCAA v. Board of Regents of the University of Oklahoma. In that case, the Court recognized that the NCAA’s restrictions on television broadcasting rights violated antitrust laws, which opened the door for more commercial opportunities for college sports.

If the Supreme Court were to intervene in the context of student-athletes’ rights, it would likely consider constitutional arguments and has the power to expand student-athletes’ rights beyond what the Congress bill provides. For instance, the Court might consider whether the limitations on student-athletes’ ability to profit from their athletic abilities violate their First Amendment rights or if those limitations create an unfair economic imbalance that contravenes the Fourteenth Amendment’s guarantee of equal protection or whether the anti-trust laws were violated.

Whether it be from Congress, the states or the Court there are powerful forces at work gravitating towards a paradigm shift in college athletics. It will be exciting to see how this all plays out and improve the lives of student athletes in so many ways including: financial stability, professional development, and incentivizing athletes to stay in school because they can make earn money from their athletic abilities while pursuing their education. It may also serve to leveling the playing field. The current prohibition against pay for play often disadvantages athletes from underprivileged backgrounds. By allowing them to monetize their skills, we can foster greater inclusivity and offer a fairer chance for all student-athletes to pursue their dreams, regardless of their socioeconomic status.