Bills, Past Due
Competing visions in Congress for fixing college sports
If you’ve been following the NIL maelstrom of the last few years, then you’re probably familiar with the following buzzphrases, but I’ll go ahead and set out some definitions just in case.
Patchwork
(whimsical noun)
1. one of two NCAA-sanctioned terms to describe the disparate state laws currently governing Name, Image, and Likeness deals in college sports.
2. the craft of sewing in which small pieces of cloth in different designs, colors, or textures are sewn together.
Wild Wild West
(old-timey noun)
1. the second of two NCAA-sanctioned terms to describe the chaotic landscape ushered in by the rollout of NIL.
2. the western U.S. in its frontier period characterized by roughness and lawlessness.
3. a seminal 1999 film starring Will Smith and Kevin Kline, wherein “The two best special agents in the Wild West must save President Grant from the clutches of a diabolical, wheelchair-bound, steampunk-savvy, Confederate scientist bent on revenge for losing the Civil War.”
Consumer Protections
(jargon-y noun)
1. according to new NCAA president (and former Governor of Massachusetts) Charlie Baker, the desired endpoint for a bill from Congress governing NIL.
2. the practice of safeguarding buyers of goods and services, and the public, against unfair practices in the marketplace.
And if you’ve followed college sports at really any point in history, then you’re probably familiar with these as well.
Pay-for-Play
(derogatory noun)
1. the much-derided notion of college athletes being paid, above and beyond their scholarship, to play their sport.
see also: amateurism, demise thereof
Level Playing Field
(mythical noun)
1. the much-celebrated notion of competitive parity in college sports, the assurance of which is a guiding principle of NCAA rules and standards.
see also: wishful thinking
All of this terminology sees a lot of action in the ever-present debate around the financial/ethical state of college sports, which has only intensified in the last few years with groundbreaking rule changes around NIL and the transfer portal.
And it’s getting even more play this very week, as three separate groups of congressional lawmakers have each put forward their own bill to “fix” college sports.
As I mentioned a couple weeks ago, we’ve got a whole documentary series coming out on this mess in a few months, but I don’t see how we could bypass this opportunity to wonk out for a few minutes.
Bipartisan coalitions! Discussion drafts! Consensus building! Yeah!
While I promise not to bore you like this again for a while, here we go.
Who Goes There?
The three bills, as with all works, are more than a little autobiographical. They each reflect their cosigners’ respective sensibilities, though you see a few of the same through lines too.
#1:
First to the plate was the tristate triumvirate of Cory Booker (D-NJ), Richard Blumenthal (D-CT), and Jerry Moran (R-KS), because Kansas isn’t the third state we wanted, but it’s the one we deserve.
Moran’s newer to the party, but Booker and Blumenthal have been working together on this for a few years now.
This latest bill has some holdovers from earlier efforts, like a trust fund to pay for college athletes’ current and near-future medical costs, requiring schools to continue providing scholarships to injured athletes, and demanding new levels of financial transparency from schools and athletic programs.
New in this version, though, is a big swing at regulating NIL: establishing a new entity to handle college athletes’ endorsements called the College Athletics Corporation, which sounds… super cool.
Anytime you’re talking about forming a whole new regulatory body is bound to raise some eyebrows, but maybe it’s not the worst idea if you don’t trust the NCAA to handle that themselves. And maybe we shouldn’t?
My read: There’s some good stuff in here, and it’s more similar to the next bill than either group would care to admit, but it’s hard to see eight more Republicans signing up for what is still a progressive-tinged overhaul. Sorry guys.
#2:
Second came the dynamic duo of head ball coach Tommy Tuberville (R-AL) and proud houseboater Joe Manchin (D-WV).
You’d expect them to have the most-NCAA friendly proposal, and they do.
Their package is also more palatable for Republicans by virtue of being more sympathetic to the schools, with measures including:
A requirement that NIL collectives — effectively, booster banks meet super PACs — agree to written contracts with the school they represent
The ability for the NCAA or a school to prohibit NIL deals that conflict with their values (think “adult entertainment,” booze, gambling, etc. but it’s concerningly vague beyond those obvious examples)
Turning back the clock on transfers, requiring that players stay put for three years before moving elsewhere (with some sensible carveouts, like family health issues or a coach’s departure, but still a big difference from the one-year rule in place today)
It also features what seems to be a less powerful version of the tristaters’ vision for a new regulatory body, as well as a standardized NIL contract, which is sort of implied in the first bill but not quite as explicitly.
There’s a lot here, but the thing most worth mentioning in the Tuberville-Manchin bill is the part that would prohibit schools from revenue-sharing with athletes down the line, as well as an apparent attempt to Trojan Horse in the NCAA’s top wishlist item: “an antitrust exemption in disguise.”
That might lose you the rest of the Democratic caucus right there.
My read: Even if the last two items were to be cut out of the final version, this is the bill that the powers that be in college sports would most like to see pass. At least partly for that reason, it has the longest odds, despite having the best name.
PASS! Pass the PASS Act! Get it?
Good luck finding the ~50 Dems to the left of Manchin on this. Sorry guys.
#3:
And third but not least, Blumenthal’s brother in nutmeg, Chris Murphy, has reintroduced a bill first brought in 2021 alongside Rep. Lori Trahan (D-MA-03).
Theirs is the most narrowly focused on NIL, and it takes some especially strong language to the fight, including:
Ironclad federal protections for athletes’ future NIL rights, notably including a nod to future players' associations at the college level
Mandating group licensing compensation — meaning a slice of the revenue — in the massive media rights deals that schools and conferences sign with networks
A specific provision for international college athletes attending school on an F-1 student visa, opening NIL opportunities to those who’ve feared running afoul of U.S. immigration law
In the course of dozens of interviews now, I’ve found Murphy to be the lawmaker most frequently name-dropped among the most reform-minded.
Earlier versions of the Booker-Blumenthal partnership were more popular with athletes, but as they’ve stripped some of those measures away to get Republicans like Moran on board, it’s the Murphy bill that’s taken pole position with athletes.
We spoke to UCLA’s Chase Griffin for the podcast, and note his support here as indicative of where a lot of athletes stand on the choice between the three:
“🗣 PSA: You may have been reading about a flurry of draft NIL bills being introduced into Congress. Here is the one I support and the only one that consulted with, and actually included, current college athletes in its draft process and press release.
‘For the past two years NIL has enabled college athletes, like me, to become small business owners, taxpayers, support the families that raised us, contribute to charities, and re-invest in the communities that we represent. My lived experience with NIL is why I wholeheartedly support Senator Murphy, Congresswoman Trahan, and the College Athlete Economic Freedom Act. This legislation codifies our NIL rights, preserves the economic progress that we have already made, and aligns the United States Congress with college athletes on the right side of history,’ said Chase Griffin, QB, UCLA Football and two-time National NIL Athlete of the Year.”
My read: I’m generally in support of trying to stay on topic, and much as I agree with the premise behind the first two bills — there is way more than NIL that needs fixing — federal legislation is a lot like the trees on which it’s printed.
Big ones tend to fall harder.
I don’t think the Murphy bill gets over the line either, and it’s immediately hampered by not having a Republican co-sponsor, but I bet it has a slightly better shot on the basis of its focus.
Do The Math
Slightly better, to be clear, does not mean good.
I’m still not convinced that this can get done. I’ll be surprised if any of these bills make it out of committee, but if they do, I’ll be well and truly shocked if any of them manage to clear the 60-vote bar that kills everything else.
I don’t relish being a buzzkill, but in the interest of keeping it real, let’s not get our hopes up.
If there’s cause for optimism, it’s the fact that these have all been released before the 2024 primaries begin in earnest. They got these in before the August recess, so there might be time before everyone’s focus shifts to a big election.
For now, the NCAA must be encouraged to see things moving along. Above all, Baker was hired to get this done, and so far, so good.
Now comes the hard part.
‘Til then, the West stays Wild.