U.S. Senator Ted Cruz (R-Texas) on Wednesday released a draft of a far-reaching college sports bill that would establish a national standard for name, image and likeness (NIL); declare that college athletes are not employees; and provide colleges, conferences and the NCAA a safe harbor from legal liability.
Cruz, the ranking member of the Senate Commerce Committee, is entering a crowded space. U.S. Senators Richard Blumenthal (D-Conn.), Cory Booker (D-N.J.), Joe Manchin (D-W. Va), Jerry Moran (R-Kan.), Chris Murphy (D-Conn.) and Tommy Tuberville (R-Ala.) have recently proposed bills that tackle NIL and other college sports topics.
Each of these bills, like those before and like those that will follow, faces a challenging political landscape.
More than a dozen NIL-related bills have been introduced in Congress over the last few years, but none has made it out of committee. Meanwhile, states have adopted their own NIL laws and developed their own practices and customs for those laws. Some members of Congress believe the NCAA should more meaningfully enforce existing NIL rules before seeking help from the government. Congress is also about to enter an election season where legislation will become harder to pass.
But Cruz says his draft is “the product of diligent conversations with the NCAA, conferences and universities” concerning how NIL deals have “spurred a jumble of new state laws that tug at college sports’ history and competitive balance.”
Cruz’s remarks reflect what has become a reality in college sports: Some contracts ostensibly called NIL deals, including those tied to collectives that operate at the behest of athletic programs, are not really about name, image and likeness but are instead recruiting inducements, also known as “pay-for-play.” Last week, Maryland quarterback Taulia Tagovailoa told The Athletic he turned down a $1.5 million NIL deal that was offered in exchange for him transferring to an unnamed SEC team.
Cruz’s draft has lined up support from influential voices.
NCAA president Charlie Baker says the draft would help the NCAA “protect student-athletes from exploitative behavior” and offer a uniform set of rules “at a time when states are engaging in a race to the bottom to gain a competitive edge.” Echoing a similar theme, Notre Dame president Rev. John Jenkins opines that “college athletics is in a crisis” and that the adoption of “national NIL guardrails” and policies that “ensure student-athletes are students first” would prove “essential.”
Cruz’s proposed changes to federal law, while also preempting established state laws, will surely attract resistance.
Of all groups to gain protection from the law in the context of college athletes’ rights, the NCAA and its members are arguably not the most deserving.
It was only two years ago when the U.S. Supreme Court held, 9-0, in Alston that the NCAA violated antitrust law by denying college athletes a chance for payment for academic-related costs. In O’Bannon a handful of years earlier, several judges held the NCAA and its members illegally denied college athletes a chance at payment for video games that, without consent and without payment, used their likenesses. The NCAA has arguably shown it needs more, not less, scrutiny under the law.
Whether college athletes ought to be considered employees is under consideration by the U.S. Court of Appeals for the Third Circuit (Johnson v. NCAA, which concerns the Fair Labor Standards Act) and the National Labor Relations Board (petition involving USC athletes and the National Labor Relations Act). The topic is complicated, particularly since the relationship between college athletes and their college varies widely by sport and by university; it’s possible that some, but not most, college athletes should be classified as employees. It might be premature or ill-suited for a bill focused on NIL to attempt to resolve employment.
Cruz’s draft also proposes amending the Sports Agent Responsibility and Trust Act of 2005 (SPARTA) so that agents are obligated to reveal if they have registered with the NCAA or a conference, and if not, the athlete must provide written consent they are okay with the arrangement. It’s not clear how effective this change would be, particularly because, as Sportico revealed, the Federal Trade Commission has not enforced SPARTA, and one former FTC deputy admitted he had “never heard” of it.
While Cruz advocates for an NCAA-backed federal solution to NIL, his home state appears to be going in the opposite direction.
Texas Gov. Greg Abbott recently signed into law HB 2804, which forbids the NCAA from enforcing any rule limiting a Texas university’s rights with respect to NIL activities as authorized by state law. The NCAA could challenge HB 2804 in court, arguing it violates the Commerce Clause and the Contract Clause of the U.S. Constitution.