WASHINGTON (CN) — Members of the Senate Judiciary Committee questioned the head of the country’s university sports association and a panel of collegiate athletics officials Tuesday, as lawmakers eye an effort to set national standards for college athletes looking to benefit from their newly-acquired name, image and likeness rights.
Until recently, the National Collegiate Athletic Association blocked the hundreds of thousands of student-athletes under their purview from earning compensation from commercial agreements, such as marketing contracts, social media sponsorships or brand endorsements. Collegiate athletes have argued that the NCAA was unfairly restricting them from using their name and image to pursue business opportunities.
In 2021, amid a push from several state governments to expand collegiate name, image and likeness rights, the NCAA walked back its restrictions on sponsorship deals and other outside compensation. The decision, which also allowed student-athletes to enter into agreements with talent agents, came weeks after the Supreme Court unanimously upheld a lower court decision striking down the NCAA’s ban on “non-cash education-related benefits” for athletes.
The move among states to expand marketing rights for student-athletes has emboldened lawmakers on Capitol Hill to push for federal standards governing such freedoms, with some arguing that inconsistent rules could damage the institution of college sports.
“I believe strongly that we need a national standard for name, image and likeness,” said Connecticut Senator Richard Blumenthal during a hearing Tuesday in the Senate Judiciary Committee, “mainly to protect athletes against potentially disreputable agents or unscrupulous deals in a race to the bottom among a patchwork of state laws.”
Blumenthal, a Democrat, alongside a bipartisan group of lawmakers including New Jersey Democrat Cory Booker and Kansas Republican Jerry Moran, unveiled legislation in July which, if made law, would establish such a national framework. The measure would also set up a medical trust fund for injured student-athletes and would guarantee that athletes who suffer a career-ending injury or are cut from a sports team retain their scholarships.
“We’ve talked about these reforms for more than a decade,” Blumenthal said. “The time for action is now.”
South Carolina Republican Lindsey Graham, the judiciary committee’s ranking member, agreed with his colleague that there should be a federal standard for name, image and likeness rights, arguing that the current landscape of state laws is “absolute chaos, and we need to fix it.”
Graham, however, said Congress should be careful not to price smaller universities out of collegiate sports in an effort to protect student-athletes — pointing to a recent push from the National Labor Relations Board to classify athletes as university employees. An employment model for college sports would give student-athletes the legal rights of employees, such as workers’ compensation for injuries and restrictions on work hours.
Graham argued that an employment model would effectively end athletic programs at smaller schools.
“I think if you make college athletes employees, you’re going to knock out sports programs for Division Two and a lot of non-revenue-generating sports, particularly in women’s sports,” he said. “We don’t want to create an environment where Division Two or smaller Division One schools will be knocked out of the game because they can’t afford it.”
Booker isn’t the only lawmaker with legislation on the floor aimed at establishing federal protections for student-athletes. Texas Republican Ted Cruz is sponsoring a similar bill that, along with establishing standards for name, image and likeness rights, would ensure that athletes are not classified as university employees.
Cruz argued Tuesday that giving student-athletes employee status “would be a very serious mistake.”
“It would subject scholarships to taxation and would subject student-athletes to all sorts of wage and hour regulations,” the senator said. “All of that seems really bad for college athletics, not to mention the cost it would impose on smaller programs, which I think would lead to eliminating those programs.”
Meanwhile, university sports officials invited to testify Tuesday, including NCAA President Charlie Baker, agreed with lawmakers that student-athletes should be allowed to take advantage of their name, image and likeness rights, using the shorthand NIL.
“The NCAA is moving NIL bylaws forward to improve outcomes for student-athletes,” Baker said. “We share your concern there, because they deserve to profit from NIL free from manipulation.”
Several witnesses expressed concern about the “Wild, Wild West” of existing name, image and likeness rules that vary from state to state and create a confusing landscape for both athletes and institutions.
“The current NIL situation is untenable,” said Jill Bodensteiner, vice president and athletics director at St. Joseph’s University in Philadelphia.
Bodensteiner detailed several areas where she said the current framework is lacking, including what she framed as “bidding wars” between athletic departments to retain student-athletes. Male athletes are also disproportionately benefiting from name and likeness agreements, she added, since Title IX anti-discrimination laws do not apply. The lack of consistent standards poses a further problem, Bodensteiner said, arguing that they “create a profoundly unequal playing field.”
Jack Swarbrick, president and athletics director at the University of Notre Dame, said that universities need congressional help in “preempting the myriad of state laws which set different standards for college athletics.”
Many of the witnesses were also concerned about the possibility that student-athletes could be treated as employees. Baker, who until this year served as governor of Massachusetts, testified that he had yet to speak to a collegiate athlete who wanted to be considered a university employee.
Bodensteiner argued that student-athletes participate in collegiate sports to secure access to education — not to be compensated as employees.
“They don’t want to go through the state workers' compensation system for their injuries,” she said. “They don’t want to punch a time clock, worried about what might be compensable time under" federal law.
Swarbrick concurred, saying that it is “central to our model that our student-athletes be students and not employees.”
Bodensteiner and other witnesses said they would support legislation that, while protecting student-athletes’ marketing rights, affirmed that they are not university employees.
As Congress weighs federal standards for name, image and likeness rights, a coalition of student-athletes in California are waiting to move forward with a class action over the NCAA’s policy against outside compensation. The move to initiate a class action against the organization began in October 2022.
Follow @BenjaminSWeiss
Subscribe to Closing Arguments
Sign up for new weekly newsletter Closing Arguments to get the latest about ongoing trials, major litigation and hot cases and rulings in courthouses around the U.S. and the world.
