Senate Hearings on Student-Athlete Name, Image and Likeness Rights Show Broad Support for Federal NIL Legislation, But Much Disagreement Over Scope of Legislation Remains | Saul Ewing Arnstein & Lehr LLP
The Senate Committee on Commerce, Science and Transportation held two hearings in June to consider federal legislative proposals that would allow varsity athletes to monetize their name, image and likeness (“NONE”). Written testimony submitted prior to the hearings, as well as live testimony, also touched on related topics, such as efforts to improve health and safety standards for student-athletes, improving scholarship protection. and academic outcomes, increasing equity in the experiences of student-athletes. , and how NIL legislation may affect smaller institutions compared to those with larger revenue streams. The hearings were held against the backdrop of a rapidly changing NIL landscape, largely spurred on by a wave of states that have passed or are considering legislation that would grant NIL rights to student-athletes. The authors follow the legislative developments NIL here.
With legislation in six states expected to come into force on July 1, 2021, the growing patchwork of NIL laws has sparked general consensus among Congress, NCAA, educational institutions, student-athletes, and other stakeholders. that federal law is needed to establish uniform standards that would allow varsity athletes to earn compensation for the use of their NIL while maintaining a level playing field between institutions across state lines. Opinions differ, however, on the appropriate scope of such a law. Republicans generally support narrowly tailored NIL rules, often coupled with increased NCAA protection (e.g. antitrust protection), while Democrats tend to favor broader legislation that would address related issues such as health and safety for student-athletes.
On June 9, 2021, the Senate committee heard from Dr.Mark Emmert, President of the NCAA, as well as coaches, administrators and sports law experts, who expressed concern that the current state approach could create an imbalance in recruitment. opportunities between states that have clear NIL rules and those that don’t. Dr. Wayne AI Frederick, President of Howard University, discussed the need for a uniform system to protect small institutions with fewer resources, while Mark Few, head coach of men’s basketball at Gonzaga University Highlighted the challenges schools face in navigating a recruitment process with different rules across state lines. Finally, Michael McCann, professor of law and director of the Sports and Entertainment Law Institute at the Franklin Pierce School of Law at the University of New Hampshire, urged the Committee, for the time being, to focus on NIL rather than related issues, such as health care.
The second hearing on June 17, 2021 focused on the student-athlete perspective. The Committee heard from Kaira Brown, a track athlete at Vanderbilt University, Christina Chenault, a former UCLA track athlete, Sari Cureton, a former Georgetown University basketball player, and Martin McNair, the father of Maryland football player Jordan McNair who died in 2018 after suffering heatstroke during summer training. In their written submissions and live testimony, these witnesses highlighted the importance of NIL rights, discussed disparities between men’s and women’s sports, and urged Senators to adopt basic health and safety standards, including increased mental health resources for student-athletes. Like Mme Chenault wrote, “[t]his problem not only disproportionately affects athletes from low-income households, but affects all athletes on a psychological level.
Despite a bipartisan consensus that federal legislation is needed, it has become increasingly clear that disagreement over the scope of potential NIL legislation persists. Notably, several Republican senators were absent from the June 17 hearing, dashing hopes that a federal bill would be passed before July 1, 2021. The United States Supreme Court’s decision of June 21, 2021 in NCAA v. Alston et al., which upheld the Ninth Circuit ruling that NCAA rules limiting the amount of educational benefits a school may suggest that student-athletes violate antitrust law. Finally, let’s hope the NCAA itself takes action on the new NIL rules before the end of July 1. As the authors previously discussed, the NCAA halted voting on NIL laws in January of this year and recently moved the vote to Monday, June 28 – just two days before several state laws came into effect. .
It is increasingly likely that the NCAA will take a hands-off approach, as pressed by some conference commissioners. Under this approach, the NCAA would drop the 30-page NIL proposal that has been under consideration for nearly a year and rely on institutions to comply with applicable state law or establish their own. standards consistent with a rather skeletal NCAA NIL bylaw. . Under this new approach, state institutions without NIL laws would be required to develop and publish an NIL policy themselves. While the NCAA By-Laws proposed by the Commissioners do not provide much guidance on what these institutionally-developed policies should look like (other than to say that the retention of attorneys, agents and advisers in NIL purposes must be addressed), it makes it clear that institutions cannot authorize: (1) payments / granting of benefits to any natural person by the institution or any recall or any person or entity acting on behalf of the institution; or (2) payments / provision of benefits to any person in return for an incentive to perform in sports or to attend the member institution. In other words: no pay for gambling and no incentives to recruit. The proposed rule also clarifies that any institutional policy would become inapplicable if it conflicted with or was not permitted by a later NIL law passed in its jurisdiction.
As the NCAA deals with the ripple effects of Alston’s decision and federal lawmakers battle student-athlete rights policy, institutions should follow developments in the state and outline what a policy might look like. NIL appropriate on their campus.