*Arriana Sajjad
I. Introduction
Newly proposed federal legislation could change the landscape of college sports as we know it.[1] Starting as early as next year, athletes around the country may be able to start profiting from their name, image, and likeness (NIL).[2] On September 24, 2020, Congressman Anthony Gonzales (R-Ohio) and Congressman Emanuel Cleaver, II (D-Missouri) introduced a bipartisan bill known as the Student Athlete Level Playing Field Act (the Act).[3] If passed, the Act will give college athletes “the right to capitalize off their own name, image, and likeness” for the first time.[4] Congressman Cleaver is a former collegiate athlete[5] who believes the Act will provide student athletes the right to “control their name, image and likeness . . . [like] every other American in the country . . . .”[6] Congressman Gonzales, “a former Division I football player,”[7] consulted his collegiate athletic network to better understand the challenges presented prior to drafting the Act.[8]
II. Current NIL Laws
Currently, the NCAA prohibits college athletes from capitalizing on their NIL.[9] However, several states are enacting laws that “make it illegal for colleges to enforce the NCAA’s current NIL rules.”[10] Florida, for example, signed an NIL bill in June of 2020 that will go into effect July 1, 2021, which will make Florida the first state to allow college athletes to profit from their NIL.[11] In response, the NCAA was forced to consider NIL legislation that would allow college athletes to receive compensation for such rights.[12] The NCAA has turned to Congress to establish a “uniform NIL policy across the country to avoid potentially different rules in each state.”[13]
III. The Proposal
The Act would provide a number of new advantages to student athletes.[14] Most notably, the Act provides that any athletic organization or institution of higher learning from prohibiting student-athletes’ participation in athletics because they have entered into an endorsement contract.[15] Under the Act, college athletes would be able to hire agents to negotiate endorsement contracts on their behalf.[16] Athletes and agents would have to notify the athletic director of a university of the agency agreement within seventy-two hours of its formation.[17] As expected, however, athletes could not sign with any companies or brands related to tobacco, alcohol, marijuana, or gambling.[18] Moreover, boosters[19] are prohibited from paying athletes directly to keep the recruiting process fair.[20] To assist student athletes with “financial literacy,” universities would be required to develop a “course or program” for athletes to better understand their endorsement contracts.[21] The Act also provides “congressional oversight through the establishment of a commission that would include student-athlete representation.”[22] This commission would be named the Covered Athletic Organization Commission (the Commission), which would “act as an independent resolution body between a player and a school/NCAA.”[23] The Commission would be comprised of athletic directors, coaches, student-athletes, NCAA administrators, as well as professionals in sports marketing, contracting and public relations.[24]
While the Act has some advantages, it also leaves a number of unanswered questions for schools, states, and athletes.[25] The Act would grant schools the discretion to prohibit athletes from wearing endorsed clothing or gear to any athletic competition or university sponsored event.[26] The Act does not provide, however, any clarity regarding athletes endorsing companies that compete directly with brands who sponsor their school, such as Nike or Under Armour.[27] This could potentially lead to sponsors dropping the school and instead signing with an athlete who carries more social media presence.[28] According to Congressman Gonzales, including such a provision “would be unfair to the athletes,” even though most schools would prefer some clear direction.[29] Moreover, if passed, the Act would prevail over state NIL laws and “ensure that all member schools and conferences follow the same rules.”[30] While this could create one federal standard and potentially streamline the NIL process, this would “pre-empt[] any existing” or proposed state law.[31] Furthermore, the Federal Trade Commission (FTC) would enforce all aspects of the new law.[32] However, it is unclear how the FTC would “draw a distinction between payments for an athlete’s value as an endorser versus his or her value as a recruit.”[33] Congressman Gonzales hopes that the fair market value issue would resolve itself over time.[34] If passed, it is clear colleges and universities may be blindly navigating this new law, especially with third-parties and the conflicting NCAA/state legislation.[35]
IV. The Question of “When” and “How?”
While some states are adopting similar legislation,[36] Congressman Gonzales and Congressman Cleaver hope the Act becomes a federal standard for college athletics.[37] As the Act is co-sponsored by both Democratic and Republican representatives,[38] the Congressmen plan to bring the Student Athlete Level Playing Field Act to a vote in early 2021.[39] It is “no longer a question of if college athletes will sign endorsement deals. It’s [now a question of] when and how . . . .”[40]
*Arriana Sajjad is a second-year day student at the University of Baltimore School of Law, where she is a Staff Editor for Law Review. Arriana is also on the National Moot Court Team, a teaching assistant for Introduction to Trial Advocacy, and serves as the Vice President for the Asian Pacific American Law Students Association. This past summer, Arriana was selected as the Association of Corporate Counsel North Capital Region’s Corporate Scholar and interned in-house for Lotame, a data solutions company. This past fall, Arriana interned for the Honorable Douglas R. M. Nazarian in the Maryland Court of Special Appeals and will intern for the Honorable Robert N. McDonald in the Maryland Court of Appeals this spring. Arriana is currently preparing to compete in the National Moot Court Finals competition to be hosted online in February 2021.
[1] See Stephen M. Gavazzi, Congress Could Provide a Way for College Athletes to Get Paid, Forbes (Sept. 25, 2020, 11:11 AM), https://www.forbes.com/sites/stephengavazzi/2020/09/25/congress-could-provide-a-way-for-college-athletes-to-get-paid/#15c3fe417953.
[2] See Barrett Sallee & Adam Silverstein, NCAA Takes Big Step Toward Allowing Name, Image and Likeness Compensation for Athletes, CBS Sports (Apr. 29, 2020, 9:52 AM), https://www.cbssports.com/college-football/news/ncaa-takes-big-step-toward-allowing-name-image-and-likeness-compensation-for-athletes/.
[3] See Student Athlete Level Playing Field Act, H.R. 8382, 116th Cong. (2020).
[4] Press Release, Rep. Emmanuel Cleaver, House of Reps. (Sept. 24, 2020), https://cleaver.house.gov/media-center/press-releases/reps-cleaver-gonzalez-unveil-bipartisan-bill-to-grant-name-image-and.
[5] See id.
[6] See id.
[7] Dan Murphy, NCAA, Congress Have Labyrinth of Options, but NIL Clock Is Ticking, ESPN (Dec. 17, 2020), https://www.espn.com/college-sports/story/_/id/30534578/ncaa-congress-labyrinth-options-nil-clock-ticking.
[8] Sabrina Eaton, Former Buckeyes Star Anthony Gonzalez Introduces Bill to Let College Athletes Make Endorsement Deals, Cleveland (Sept. 24, 2020), https://www.cleveland.com/open/2020/09/former-buckeyes-star-anthony-gonzalez-introduces-bill-to-let-college-athletes-make-endorsement-deals.html.
[9] See Dan Murphy, Bipartisan Federal NIL Bill Introduced for College Sports, espn (Sept. 24, 2020), https://www.espn.com/college-sports/story/_/id/29961059/bipartisan-federal-nil-bill-introduced-college-sports.
[10] Id.
[11] See Adam Wells, Florida to Be 1st State with NIL Rights for NCAA Athletes to Profit Off Likeness, Bleacher Rep. (June 12, 2020), https://bleacherreport.com/articles/2895927-florida-to-be-1st-state-with-nil-rights-for-ncaa-athletes-to-profit-off-likeness.
[12] See Sallee & Silverstein, supra note 2.
[13] Wells, supra note 11.
[14] See Gavazzi, supra note 1.
[15] See Student Athlete Level Playing Field Act, H.R. 8382, 116th Cong. (2020).
[16] See Press Release, Rep. Emanuel Cleaver, supra note 4.
[17] See H.R. 8382.
[18] See id.
[19] As defined by the NCAA, boosters “support teams and athletics departments through donations of time and financial resources.” Role of Boosters, ncaa, http://www.ncaa.org/enforcement/role-boosters (last visited Jan. 7, 2020). A booster is defined as follows:
[A]nyone who has: [p]rovided a donation in order to obtain season tickets for any sport at the university; [p]articipated in or has been a member of an organization promoting the university’s athletics programs; [m]ade financial contributions to the athletic department or to a university booster organization; [a]rranged for or provided employment for enrolled student-athletes; [a]ssisted or has been requested by university staff to assist in the recruitment of prospective student-athletes; [a]ssisted in providing benefits to enrolled student athletes or their families; [b]een involved otherwise in promoting university athletics.
Id.
[20] Murphy, supra note 9.
[21] H.R. 8382.
[22] Gavazzi, supra note 1.
[23] Dennis Dodd, Bipartisan Name, Image, Likeness Bill Introduced to U.S. House Would Supersede State Laws for College Athletes, CBS Sports (Sept. 25, 2020, 10:33 AM), https://www.cbssports.com/college-football/news/bipartisan-name-image-likeness-bill-introduced-to-u-s-house-would-supersede-state-laws-for-college-athletes/.
[24] See H.R. 8382.
[25] See Michael McCann, Latest NIL Bill Overrides States but Leaves Tax and Labor Questions Behind, sportico (Sept. 29, 2020, 2:55 AM), https://www.sportico.com/law/analysis/2020/latest-nil-bill-overrides-states-1234613887/.
[26] See H.R. 8382.
[27] See Murphy, supra note 9.
[28] See McCann, supra note 25.
[29] Murphy, supra note 9.
[30] McCann, supra note 25.
[31] Gavazzi, supra note 1.
[32] See Student Athlete Level Playing Field Act, H.R. 8382, 116th Cong. (2020).
[33] Murphy, supra note 9.
[34] See id.
[35] See Martin Edel et al., The New Name, Image and Likeness Playing Field for Colleges and Universities – What You Need to Know, JD Supra (Oct. 15, 2020), https://www.jdsupra.com/legalnews/the-new-name-image-and-likeness-playing-71376/.
[36] See Kristi Dosh, NAIA Becomes First in College Sports to Pass Name, Image and Likeness Legislation, Forbes (Oct. 7, 2020, 1:27 PM), https://www.forbes.com/sites/kristidosh/2020/10/07/naia-becomes-first-in-college-sports-to-pass-name-image-and-likeness-legislation/#1c8e46f611aa.
[37] See Press Release, Rep. Anthony Gonzalez, House of Reps. (Sept. 24, 2020), https://anthonygonzalez.house.gov/news/documentsingle.aspx?DocumentID=288.
[38] See Gregg Clifton & Iciss Rose Tillis, NCAA Takes Additional Steps Toward Ratification of Name, Image, and Likeness Legislation, JD Supra (Oct. 16, 2020), https://www.jdsupra.com/legalnews/ncaa-takes-additional-steps-toward-81002/.
[39] See Murphy, supra note 9.
[40] McCann, supra note 25.
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