The countdown to significant changes in the business of college sports can now be measured in months and days. The details of what new rules will exist at the start of the next academic year and who will be in charge of implementing them remain up for debate amid a growing labyrinth of options that are likely to play out in the first half of 2021.
In mid-January, the NCAA’s board of governors is scheduled to vote on a proposal that would allow college athletes to accept endorsement money in a variety of ways starting this summer. NCAA President Mark Emmert said last week that the association’s confidence in moving forward with those changes is contingent upon receiving some help from Congress.
Emmert and other college sports leaders are hoping for a federal law that will pair with the NCAA’s desire to regulate the types of endorsements athletes can accept. Several states have already passed laws that would make it illegal for schools in those states to be as restrictive as the NCAA hopes they can be. The first of those state laws goes into effect in Florida this July, with the potential for California and Nebraska to follow soon after.
That gives NCAA leaders and federal lawmakers a relatively short time frame to find a nationwide solution. The menu of options is extensive and still growing. Below is a brief rundown of what options are on the table heading into a crucial year of change for college sports.
The College Athlete Bill of Rights
Authors: Sen. Cory Booker, D-N.J., and Sen. Richard Blumenthal, D-Conn.
The most recent Congressional bill on the subject, proposed Thursday, aims to have the federal government provide a much broader overhaul of how schools share their revenue with college athletes. The bill would create a United States president-appointed commission to enforce a wide variety of new rules, including more clearly defined health and safety standards; athlete-friendly transfer rules; a name, image and likeness (NIL) market with minimal restrictions; and even revenue sharing for sports that rake in large sums of money.
“The NCAA had a chance,” Blumenthal told ESPN. “We can no longer depend on the NCAA to effectively protect the health and safety or the financial well-being of athletes. The fact is college athletes have fueled a $14 billion industry with blood, sweat and tears.”
While the list of politicians who have shown support for this broad scope concept in the past contains some powerful names (Kamala Harris and Bernie Sanders, among others), there are no Republican co-sponsors at this point.
The College Athlete and Compensation Rights Act
Author: Sen. Roger Wicker, R-Miss.
Wicker is the chair of the Senate Commerce Committee that has held a series of recent hearings on the future of college athlete compensation. His bill, introduced in early December, would give college athletes the ability to be compensated for their NIL. However, any individual defined as a booster for the school’s athletic department wouldn’t be able to pay to use an athletes’ NIL, which would be a significant restriction on the market. Wicker’s bill assigns the Federal Trade Commission to select a private, nonprofit group to shape and oversee future NIL rules.
Wicker’s current position as chairman of the Senate Commerce Committee gives him a good deal of control over which bills can move to a full Senate vote. His seat there might be in jeopardy, though, depending on which party controls the Senate.
Student Athlete Level Playing Field Act
Authors: Rep. Anthony Gonzalez, R-Ohio, and Rep. Emanuel Cleaver, D-Mo.
Gonzalez, like Booker, is a former Division I football player. Gonzalez told ESPN when his bill was introduced in September that he wanted to craft legislation that was strictly related to NIL rules, because Congress could potentially create a bigger mess than it is attempting to clean up if it got too involved in governing in college sports. This proposal creates some restrictions on the types of endorsements athletes can sign, but not quite as many as the NCAA wants to impose. Gonzalez and Cleaver remained neutral on another of the NCAA’s big requests: a limited antitrust exemption to help it avoid litigation as a result of new NIL rules.
This bill also would create a 13-member panel to study the nascent marketplace in the next few years and suggest adjustments to the law, creating room for some flexibility in future rules. The bill, which would travel through the House before it reaches the Senate, so far has more bipartisan backing than any other option proposed.
Fairness In College Athletics Act
Author: Sen. Marco Rubio, R-Fla.
Rubio was initially part of a group of senators engaged in the college sports discussion that included Booker, Blumenthal, Mitt Romney, R-Utah, and Chris Murphy, D-Conn., who has long been pushing for college sports reform. Rubio split from that group when introducing his bill in June. His proposal was to require the NCAA to change its own NIL rules rather than having Congress write the rules for them. He also allowed for a broad antitrust exemption to protect the NCAA against future litigation. That kind of an extension was widely viewed as a deal breaker for many of the members of Congress who have been engaged in the NCAA discussion during the past year.
Other Options
Two other early bills are technically still possibilities, although they are unlikely to proceed any further when their principal authors leave Congress in January. Rep. Mark Walker, R-S.C., was the first federal lawmaker to introduce NIL legislation when he proposed to create a wide-open marketplace for college athlete endorsement deals last year. Walker didn’t run for reelection this year. Rep. Donna Shalala, D-Fla., wanted to create a commission to study the larger issues in college sports before recommending broad changes to the NCAA structure. Shalala lost her reelection bid in November.
If Congress is unable to agree on a way forward in the coming months — a result that most politicians listed above have acknowledged is a very real possibility — there remains another option to avoid litigation and state-by-state inequity.
The Uniform Law Commission is a nonprofit organization composed of roughly 300 attorneys that has been around for more than a century with a mission to create consistent laws among states. The group has completed a first draft of legislation that would lobby to get all states to adopt as either a complement to or in lieu of a federal law. Gabe Feldman, a sports law professor at Tulane who has been spearheading the group’s efforts, said it is attempting to craft a bill that bridges the gaps between all the different proposals put forth by the NCAA, members of Congress and dozens of state legislatures. The ULC is working toward having a completed draft to share with different states at some point in the first few months of 2021.
Supreme Court
Lastly, the U.S. Supreme Court also has recently entered the fray as a heavyweight option that has the power to reshape college sports economics in a potentially even more substantial way over the next several months. The court made what several experts say is a surprising decision on Wednesday to hear the NCAA’s appeal of a recent antitrust lawsuit decision. Its ruling on the case could strengthen the NCAA’s ability to place limits on college athlete compensation in the name of amateurism, on one end of the spectrum; and on the other end, it could reach a conclusion that would make it illegal for any NCAA limits on compensating athletes, including current restrictions that prevent schools from paying their athletes directly.
California federal Judge Claudia Wilken ruled last year that the NCAA was violating antitrust rules by putting a cap on the benefits schools were allowed to provide to their athletes. Wilken said that moving forward, schools could provide unlimited benefits to athletes as long as the benefits are related to education. That includes everything from buying laptops to study-abroad programs to paying limited cash rewards for getting good grades. The NCAA appealed the judge’s decision, saying it goes too far in blurring the lines between amateurism and professional sports. It asked the Supreme Court to walk it back, and the justices agreed to hear the case. However, the justices also could review the judge’s decision and decide she didn’t go far enough to rectify antitrust violations.
Oral arguments are expected to be made some time in the spring, making it likely that a decision will follow in May or June, kicking off the start of a summer that is shaping up to be as transformative for college sports as any stretch in a generation.