College athletes’ name, image and likeness rights debated by U.S. Senate committee

WASHINGTON — College athletic officials testified Tuesday in support of nationally standardized name, image and likeness regulations at a U.S. Senate hearing.

The U.S. Senate Judiciary Committee held a hearing to discuss policies governing name, image and likeness, known as NIL, in college sports. The witnesses in attendance — such as National Collegiate Athletic Association President Charlie Baker and Big Ten Conference Commissioner Tony Petitti — called for a unified NIL law to swiftly address inconsistencies in state laws, as well as protect the health and wellbeing of student athletes.

NIL rules in some states generally allow high school or college athletes to make money based on their own name, image and likeness, or personal branding. Through NIL, student-athletes can profit from autographs, merchandise, affiliations and other means.

The witnesses also said they do not want student athletes to be considered employees, as they said this could create a myriad of problems for athletic programs and the athletes themselves.

“We want to partner with Congress to further curtail inducements and prevent collectives and other third parties from tampering with students,” Baker said.

Baker said the NCAA “is moving bylaws forward to improve outcomes for student athletes because they deserve to profit from NIL.”

“We are concerned that management of college athletics is shifting away from universities to collectives,” Petitti said.

The five other witnesses included decorated University of Florida gymnast Trinity Thomas, University of Notre Dame athletic director Jack Swarbrick, National College Players Association executive director Ramogi Huma, Saint Joseph’s University athletic director Jill Bodensteiner and Grove Collective executive director Walker Jones. The Grove Collective is exclusively a University of Mississippi NIL program.

NCAA policy

The NCAA adopted its interim NIL policy in 2021. This policy provides the following guidelines:

• “Individuals can engage in NIL activities that are consistent with the law of the state where the school is located.”
• “College athletes who attend a school in a state without an NIL law can engage in this type of activity without violating NCAA rules related to their name, image and likeness.”
• “Individuals can use a professional services provider for NIL activities.”
• “Student-athletes should report NIL activities consistent with state law or school and conference requirements to their school.”

“Between the (transfer) portal and NIL, college football is in absolute chaos,” said ranking member Lindsey Graham, a South Carolina Republican.

The NCAA transfer portal is a database where student athletes can declare their intentions to transfer to another school.

Graham referenced how University of Utah football players recently received Dodge Ram pickup trucks through an NIL deal.

“We’re heading down the road here of a bidding war,” Graham said.

Disadvantages and confusion for students

NIL laws currently exist in 32 states, which results in inconsistent rules for student athletes to juggle.

Thomas, who profits from NIL, said this lack of uniformity often leaves students confused.

These laws also place some students at a disadvantage, depending on where they go to school, she said. The best path forward, Thomas said, would be a national policy “that applies to all athletes from every sport at every school.”

“This will create equal opportunity for all student athletes to benefit from NIL,” Thomas said. “It will create a uniform standard to ensure we’re all playing by the same rules and eliminate confusion and unfair advantages.”

Proposed federal NIL legislation

Many members of Congress have already proposed legislation that would create a national NIL standard, including Sen. Richard Blumenthal, a Connecticut Democrat, who chaired the committee in Illinois Democrat Dick Durbin’s absence.

Blumenthal, alongside New Jersey Democrat Cory Booker and Kansas Republican Jerry Moran, introduced a discussion draft of a bill in July that would set national NIL standards. The draft also aimed to create a Medical Trust Fund for student athletes.

Blumenthal said it is important to set a “strong national standard” and to “make sure it is enforceable.”

Blumenthal referenced that in his legislation, he proposed a separate corporation that would serve as a “central oversight entity that would set, administer, and enforce rules and standards to protect athletes who enter into endorsement contracts,” according to a Booker press release.

Sen. Joe Manchin III, a West Virginia Democrat, appeared at the end of the hearing to talk about legislation that he introduced with Sen. Tommy Tuberville, an Alabama Republican, in July. The bill, called the “Protecting Athletes, Schools and Sports (PASS) Act of 2023,” would establish a consistent national NIL standard, as well as further protect the rights of athletes and schools.

“Our legislation with Senator Manchin will set basic rules nationwide, protect our student-athletes, and keep NIL activities from ending college sports as we know it,” Tuberville, a former football coach at Auburn University, said in a Manchin press release.

In the press release, Baker endorsed the PASS Act on behalf of the NCAA.

Sen. Ted Cruz, a Texas Republican, also discussed his own discussion draft of a bill that he introduced in August. His bill would codify NIL rights for student-athletes with a national standard.

Cruz, who said he was “very worried about the state of college athletics,” warned that if Congress “doesn’t act and act quickly,” there could be “enormous damage.”

Sen. John Kennedy, a Louisiana Republican, told Baker that he “may regret asking Congress to intervene here.”

“All of a sudden, you’re going to be micromanaged,” Kennedy said.

Employee status

Many of the witnesses said they were concerned about how employee status could affect college athletic programs or students.

Bodensteiner said international students would also be unable to compete if there was a transition to employee status.

Graham asked Baker what would happen to Division II schools if student athletes were labeled as employees. The NCAA Division II includes schools with smaller, lesser-funded athletic programs than those in Division I.

“I think it’s pretty clear that Division II and Division III schools would get out of the interscholastic collegiate sports business,” Baker said.

Swarbrick said preventing student athletes from being considered employees protects their ability to be admitted and to learn under the same standards as other students.

“If this committee and Commerce Committee doesn’t act in about a year, this thing is going to be an absolute mess, and you’re going to destroy college athletics as we know it,” Graham said.

Sports fall under the jurisdiction of the U.S. Senate Committee on Commerce, Science and Transportation.

Transparency in college sports

Baker repeatedly called for greater transparency in college athletics. For example, Baker said there are no publicly available numbers regarding NIL participation.

“Nobody knows what’s going on,” Baker said.

“So the first thing we really need to have more than anything, is some form of transparency around what people are actually getting,” Baker said.