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Name, Image, Likeness Draft Introduced to U.S. Senate This Week With Long Road Ahead

July 21, 2023

There’s some potential movement within the broad Name, Image and Likeness landscape thanks to the NCAA’s lobbying on Capitol Hill. Three Senators, two Democrats and a Republican, released a discussion draft into the chamber. That draft, as it stands, would effectively create a national standard for NIL while providing medical protections.

The College Athletes Protection & Compensation Act would establish a standardized federal NIL policy, create an NIL database for transparency and grant enforcement authority to the NCAA. Among the bullet points in the draft, as reported by Ross Dellenger of Yahoo! Sports on Thursday, are certain rights afforded to the NCAA and school. The act would permit the school to effectively veto an NIL deal with a athlete should it violate the school’s conduct code. It allows schools to stop athletes from NIL deals that run concurrent with other events and prohibits schools from representing athletes or influencing ventures. Also, the act would prohibit compensation as a means to induce recruits or current players. The act also states athletes are not employees of the school.

Athletes would be forced to submit NIL deals to the school within seven days of signing. Recruits would be required to disclose current and former NIL deals before enrollment. Right now the draft states deals would not fall under open-records laws but would require schools to report deals annually.

On the medical side, the draft lays out incremental payouts to athletes based upon school revenues. A school making $20 million in athletic revenue must cover medical expenses for at least two years after an athlete’s eligibility is exhausted. Schools making at least $50 million must cover expenses for four years. The draft states a medical trust, not the school, will cover long-term injuries.

School administrators, coaches and even legal minds have long cried for federal legislation. The NCAA released another memo to member schools this summer clarifying its NIL rules. Schools were told to adhere to the NCAA rules if they’re rebutted by state NIL laws. Since California passed the first NIL state law in 2020, dozens followed. That led the NCAA to logistical nightmares and to cries of cheating from the schools themselves.

“The NCAA is very clear federal legislation is needed,” longtime UNL sports law professor Jo Potuto told Hail Varsity recently. “Because it’s, as most athletics directors would say, a free-for-all out there.”

Current NCAA President Charlie Baker, a politician himself by trade (former Governor of Massachusetts), spent time on Capitol Hill lobbying for such changes. He and many in the college sports landscape lobbied Washington last month. It appears they found someone willing to throw political weight behind the NCAA. Sens. Richard Bluementhel (D-Connecticut), Jerry Moran (R-Kansas) and Cory Booker (D-New Jersey) brought this draft forward. The bipartisan nature of this draft makes it stand out, proving elected officials are willing to reach across the aisle to create legislation. Dellenger also reported additional potential NIL-related drafts are on the way. Sens. Tommy Tuberville (R-Alabama) and Joe Manchin (D-West Virginia) are reportedly co-authoring a draft, as are Sens. Maria Cantwell (D-Washington) and Ted Cruz (R-Texas). Note that each of those are bipartisan discussions.

It’s also worth noting some of the ties those Senators have to college sports. Booker is a former tight end at Stanford, making academic all-conference. Tuberville is an established coach of 40 years following his playing days. He served as head coach of Ole Miss, Auburn, Texas Tech and Cincinnati, compiling a 159-99 record in college. Tuberville won the SEC and multiple Coach of the Year honors in 2004 when Auburn won the Sugar Bowl but finished outside the BCS Championship Game. Tuberville headed a Senate committee looking into NIL legislation last year. Last month he called on his colleagues to pass legislation, calling the current situation “a disaster.”

Draft releases don’t indicate inevitable passages and signatures. Previous NIL-related drafts didn’t make it to a vote. Timing is also difficult as Senators prepare for election season, a time when D.C. goes into gridlock.

Still, there’s enough movement for schools to consider the future. Jonathan Bateman, the assistant athletic director of NIL strategy and governance at Nebraska, told Jessica Coody in a recent conversation that the school is always considering future spaces. National Labor Relations Boards are hearing cases in California and Illinois, which could rule college athletes as employees. Bateman said the school is already brainstorming how its entire model could change with a milestone ruling.

“We’re keeping an eye on that,” Bateman said. “We’re trying to say NIL is now but what is next and whenever what’s next is we want to nimble enough to pivot to that to be successful and there’s not much of a waiting game.”

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