by Michael McCann
The latest federal bill to propose a Name, Image and Likeness right is being introduced by two prominent figures in the NIL space. U.S. Sen. Chris Murphy, author of Madness, Inc.: How College Sports Can Leave Athletes Broken and Abandoned, and U.S. Rep. Lori Trahan, a former Division I volleyball player at Georgetown University, on Thursday announced their plan to introduce the College Athlete Economic Freedom Act.
The Act generally tracks other NIL proposals—which call for the recognition of sports agents for college athletes and would allow those athletes to sign endorsement deals and sponsor camps—but it is distinguishable in several important ways.
First, the Act supports the concept of group licensing, meaning the ability of college athletes to join hands in negotiating the use of their NIL—and athletic reputation—with video-game publishers, apparel companies and other businesses that wish to pay for the use of their identities. To that end, the Act would explicitly establish a federal right for individual or group negotiation while prohibiting the NCAA, conferences and colleges from interfering with that right.
Second, it would authorize the right for college athletes to organize through a collective representative. This idea is not synonymous with unionizing, a more divisive and complicated topic that implicates state laws (whether college athletes at public universities can unionize hinges on whether they are classifiable as employees under applicable state law and whether public university employees can unionize under state law). The Act eschews those hurdles by authorizing a trade association and presumably similar vehicles, such as a 501(c)(4) nonprofit. Neither would require employee or union recognition of college athletes but would allow for trained experts and attorneys to represent the athletes in group negotiations.
Third, the Act would supply college athletes with a private right of action—meaning the right to sue—under antitrust law and would call for “per se antitrust penalties.” Under “per se”’ antitrust analysis, a restriction is presumed illegal even if it has pro-competitive qualities. For instance, if the NCAA and its member schools were to adopt a rule limiting opportunities for college athletes to appear in video games, that rule likely wouldn’t stand up under per se analysis. The NCAA would probably prefer “rule of reason” antitrust analysis, which balances pro- and anti-competitive qualities and is far more deferential to the defendant in a lawsuit. Put bluntly, the Act would give “teeth” to college athletes.
Fourth, the act would preempt any state laws that attempt to limit what would become a new federal right. To that point, there would be a national standard on athletes’ rights that neither states nor the NCAA could curtail. Preemption, to be clear, is a topic that can trigger its own litigation—it implicates differing interpretations of state versus federal authority—but suffice to say the Act would go a long way in protecting the rights it accords to college athletes.
“It’s time,” Murphy, the Democrat from Connecticut, expressed in a statement shared with Sportico, “to admit that something is very rotten when the industry makes $15 billion a year and many athletes can’t afford to put food on the table or pay for a plane ticket for their parents to see them perform.” He adds, “Big time college athletics look no different than professional leagues, and it’s time for us to stop denying the right of college athletes to make money off their talents. If predominantly white coaches and NCAA executives can have unfettered endorsement deals, why shouldn’t predominantly black athletes be afforded the same opportunity?”
Striking a similar chord, Trahan, a Democrat from Massachusetts who is one of the leaders of the Save Minor League Baseball Task Force in Congress, notes in a statement: “As a former Division I athlete, I’m all too familiar with the NCAA’s business model that for decades has utilized the guise of amateurism to justify obscene profitability while student athletes have struggled to get by.”
Adding support to the Act is Golden State Warriors forward Draymond Green, who in statement charges: “College sports generates $15 billion every year for everyone except the athletes actually playing the game. It’s slave labor in a downright dictatorship.” He says the Act would “be game-changing for the players.”
Murphy and Trahan’s Act will vie with other NIL proposals, including Senator Roger Wicker’s (R-Miss.) Collegiate Athletes Compensation Rights Act and the more far-reaching College Athletes Bill of Rights, introduced by Sens. Cory Booker (D-N.J.), Richard Blumenthal (D-Conn.), Kirsten Gillibrand (D-N.Y.) and Brian Schatz (D-Hawaii). With the Democrats in control of both the House and Senate, as well as the White House, there’s a chance a federal law will be passed. The clock is ticking, however, as Florida’s NIL statute is set to go into effect in July. Meanwhile, the NCAA has indefinitely punted on NIL for the time being, with the U.S. Supreme Court set to hear NCAA v. Alston (which concerns the related, but different issue, of grants-in-aid). Without a national NIL standard, expect to see litigation.