By Tres York
A group of 10 U.S. Senators Thursday released principles for upcoming federal legislation—the “College Athlete Bill of Rights”—that would affect compensation, health care, scholarships and eligibility, changes the senators said were necessary for any federal legislation.
Thursday's action traces to September 2019, when California passed legislation allowing college athletes to receive compensation for the use of their names, images and likenesses (NIL) beginning in 2023.
This launched a debate about what rights student-athletes have and the rules the NCAA has had in place for decades. Colorado and Florida followed California by passing similar NIL legislation, while 33 other states have introduced NIL bills.
This flurry of state activity gained the attention of Congress, with the Senate Commerce, Science and Transportation Committee holding multiple hearings on the topic. The issue was put on the back burner due to the COVID-19 pandemic but has received renewed attention on Capitol Hill in the last few weeks.
The Senate Commerce Committee held a second hearing on student-athlete compensation in early July that touched on NIL issues but expanded into a broader conversation about the safety and welfare of college athletes, especially during the COVID-19 pandemic.
Senator Marco Rubio (R-Fla.) introduced a bill requiring the NCAA to make changes to its NIL rules and also gives the association legal protection from challenges to the new regulations. It is unclear at this point how much support NCAA antitrust protections have from members of the committee.
Senators Richard Blumenthal (D-Conn.) and Cory Booker (D-N.J.) also introduced legislation that would block schools from requiring athletes to sign waivers accepting responsibility if they get sick while playing sports, and other members have pushed the NCAA to create a national testing strategy for returning to sports during a pandemic.
The Senate Judiciary Committee got into the action on July 22 when it held a similarly wide-ranging hearing on student-athlete compensation and safety measures. Chairman Lindsey Graham (R-S.C.) announced the committee is creating a working group to craft a plan, which a tentative deadline of Sept. 15, that would regulate how student-athletes can receive compensation for their NIL.
The NCAA has stated that some regulation is necessary to prevent payments from being used as a recruiting incentive The working group will also examine the possibility that colleges could require COVID-19 waivers from their athletes, which NCAA President Mark Emmert characterized as “inappropriate.”
Both Senate committees have challenged the NCAA on its NIL policy and long-term health care benefits for student-athletes. The NCAA has taken steps to address the concerns raised by both congressional committees, with the NCAA Board of Governors approving significant changes to its current NIL framework based on a Federal and State Legislation Working Group report.
The board also created a COVID-19 advisory panel, conducted a well-being study, and released guidelines on safe operation of college athletics. However, some senators on both committees argue the NCAA has not gone far enough.
A federal bill regulating NIL issues would likely preempt state legislation and negate the work states continue to do on this issue. It is also unclear how student-athlete protections in a federal bill would compare to state proposals.
The NCAA presented congressional members with its version of NIL legislation after the hearings that asks for protection from state NIL laws, antitrust protection and the authority to establish all regulations on athlete compensation. Booker argued at the Senate Judiciary Committee hearing that the ideas laid out by the NCAA are far too restrictive on athletes and would prevent them from earning unless a prior relationship with their organization existed. He also criticized the proposal for sunsetting after 10 years.
Senate Commerce Chairman Roger Wicker (R-Miss.) recently stated that he expects a bipartisan federal NIL bill to start moving through his committee soon and that the bill could end up on the floor of the Senate sometime this winter—although he doesn’t anticipate it being heard before the election in November.
NCSL resource: Student-Athlete Legislation Database. Filter by “Athletics.”
Tres York is a policy specialist in NCSL's State-Federal Relations Program.