By Chris Mackey, Staff Writer
Photo Courtesy of Unsplash.com
After visiting Capitol Hill nine times over a four-year span, a contingent of representatives from the National Collegiate Athletic Association (“NCAA”) are still awaiting the legislation for which they are lobbying.[1] On Wednesday, September 20th, 2023, NCAA representatives were back in D.C. hoping that Congress would use their legislative power to enact a federal bill governing the “Name, Image and Likeness” (“NIL”) landscape.[2]
In 2021, the NCAA adopted an NIL policy, allowing college athletes the opportunity to be compensated.[3] Following the landmark Supreme Court decision in NCAA v. Alston,[4] the NCAA retracted their previous stance against allowing collegiate athletes to profit from their name, image, and likeness.[5] The lack of uniformity has left institutions choosing between state law, NCAA guidelines and conference regulations to determine compliance.[6]
“Trust me, I never wanted to come to the federal government to ask for help,” stated Gene Smith as he spoke last week before the House Committee on Small Business.[7]. Smith is the Athletic Director at Ohio State University. As co-chair of the NCAA’s NIL working group, Smith has been tasked with creating a plan of action for the NCAA to navigate the issue.[8] Smith’s proposal is to build on the current scholarship model being utilized in college athletics by adding an amount of NIL money to the scholarship that is dispersed through the universities.[9] Although he is uncertain about the details of the plan, Smith is also proposing licensing agreements between the universities and their respective athletes that would help facilitate NIL deals.[10] Two key points in Smith’s proposal are the mandating of any agents who represent athletes to be registered similar to professional sports, as well as the creation of a national NIL registry that would promote transparency in the marketplace.[11] The current NIL landscape has led to alleged pay-for-play schemes.[12] Smith noted during the hearing, “A practice of asking a school for a fee to simply visit campus has emerged; asking for $5,000 just to visit has become common.”[13] The NCAA is also dealing with the fallout related to Alston and currently undergoing litigation that may force the NCAA to retroactively pay billions to former college athletes.[14] One of the cases, House v. NCAA,[15] underwent a class action certification hearing on September 21st, 2023.[16]
If a federal bill is to be passed by Congress regulating the NIL landscape, it seems collectives may have caught the ire of politicians necessary to push for legislation. Collectives are donor led organizations, that facilitate NIL deals for players at the university they are affiliated with.[17] The ambiguity of how collectives operate became a focal point of the hearing, as they were referred to as “largely fan clubs.”[18] Congresswoman Nydia Velázquez spent five minutes during the hearing inquiring about collectives and whether the way they function is in violation of Title IX.[19]
Will a comprehensive federal bill enacting NIL legislation be passed soon? During Wednesday’s hearing, Republican Senator Ted Cruz stated, “I think the odds are 60-40 we get it done.”[20]Democratic Senator Chris Murphy rebuked, “the chances are not 60-40. They are less than 50-50 that Congress does something comprehensive in the short term.”[21]
[1] https://sports.yahoo.com/while-congress-dithers-on-nil-ohio-state-ad-gene-smith-has-his-own-idea-on-how-to-solve-issues-194539997.html?
[2] Id.
[3] https://www.ncaa.org/news/2021/6/30/ncaa-adopts-interim-name-image-and-likeness-policy.aspx
[4] NCAA v. Alston, 141 S. Ct. 2141 (2021).
[5] https://www.si.com/college/2021/06/29/ncaa-scotus-nil-jeffrey-kessler
[6] https://www.washingtonexaminer.com/news/house/college-athletic-directors-congress-nil-legislation-sports
[7] https://sports.yahoo.com/while-congress-dithers-on-nil-ohio-state-ad-gene-smith-has-his-own-idea-on-how-to-solve-issues-194539997.html?
[8] Id.
[9] Id.
[10] Id.
[11] Id.
[12] https://www.on3.com/news/ncaa-asking-for-help-identifying-nil-pay-for-play-violations/
[13] https://www.dispatch.com/story/sports/college/big-10/2023/09/20/gene-smith-recruits-5k-visit-campuses-ohio-state-nil-era/70910413007/
[14] https://sports.yahoo.com/will-congress-find-middle-ground-and-pass-nil-legislation-ted-cruz-thinks-its-60-40-others-are-less-optimistic-210036462.html
[15] House v. NCAA, 545 F. Supp. 3d 804 (N.D. Cal. 2021).
[16] Id.
[17] https://sports.yahoo.com/will-congress-find-middle-ground-and-pass-nil-legislation-ted-cruz-thinks-its-60-40-others-are-less-optimistic-210036462.html
[18] Id.
[19] I https://www.on3.com/nil/news/live-blog-updates-house-committee-small-business-hearing-nil-gene-smith-ncaa/
[20] https://sports.yahoo.com/will-congress-find-middle-ground-and-pass-nil-legislation-ted-cruz-thinks-its-60-40-others-are-less-optimistic-210036462.html
[21] Id.
