Months ago, while discussing the looming chaotic scene in college athletics, Tom McMillen, himself a former congressional legislator, reminded NCAA President Mark Emmert that chaos is a mechanism for change.
“It’s fertile legislative ground,” says McMillen, now chairman of Lead1, which represents the athletic directors of the Football Bowl subdivision. “Sometimes it takes chaos to get people to focus on Washington.”
More than a year later, chaos is almost here. And so is, perhaps, a congressional bill governing athlete compensation, more often referred to as a name, likeness, and likeness (NIL).
A group of US senators, led by Senator Maria Cantwell (D-Wash.), Is in deep negotiations over bipartisan legislation that could help college sports avoid a chaotic dilemma: Schools and their athletes operate under different state laws related to NIL.
The discussions have resulted in a bill, circulating among key legislative staff, reflecting several NIL Congressional bills already introduced, taking components from both Democratic and Republican-leaning legislation. This months-long process is described as having made significant progress recently, with high-profile leaders from both parties agreeing to concessions as a bevy of state laws threatens to create an uneven playing field in college athletics.
“We are closer than ever,” said a congressional source. Illustrated Sports. “But as you know, you can be close without crossing the finish line.”
Several legislative officials spoke to SI on condition of anonymity for this story, as they were not authorized to speak on such a sensitive topic.
Despite in-depth negotiations, they cautioned that not all the basic provisions have been agreed. As the two sides seek a compromise on both the bill’s scope (broad vs. narrow) and its specific NIL concepts (permissive vs. restrictive), the legislation is constantly evolving.
Two lawmakers who gave interviews with the SI, Senator Jerry Moran (Republican of Kansas) and Senator Richard Blumenthal (Democrat of Connecticut), recognized the growing consensus between the two parties to reach bipartisan legislation.
Blumenthal says he’s been “buoyed” lately by what some Republican lawmakers have said, and Moran says both Republicans and Democrats have visited him with “a new intensity in the past two weeks.”
All of this comes on the heels of Emmert’s last visit to the Capitol. Last Wednesday, in a meeting with Moran, the NCAA leader expressed his encouragement for Moran’s own NIL legislation, which, for now, does not include co-sponsors, but is seen as one of the most balanced of any NIL bill. compensation presented in Congress. Moran believes that Democratic senators will soon join as co-sponsors of his legislation and believes that both sides of the aisle are approaching the “sweet spot” of getting the 60 votes needed to pass the legislation in the Senate, he says.
“I think the deadline is approaching fast enough that senators of all advancements are interested in working together to find a solution,” Moran says.
Moran and Blumenthal have joined others in compromising talks, including Senators Cory Booker (D-Conn.), Roger Wicker (R-Miss.) And Chris Murphy (D-Conn.), All brought together by Cantwell, the most powerful. on Capitol Hill in regards to NIL legislation.
As chair of the US Senate Commerce Committee, she leads a body that has the most significant influence of all in Washington on the most troubling issue in college sports. Any federal legislation on NIL is expected to begin in the Commerce Committee. That makes Cantwell the most important individual around him, controlling the figurative legislative levers from behind the curtain. It has the power to reject, accept or let any NIL bill die, and it has the leverage to amend or remove details of any legislation.
In one of his first public statements about NIL, Cantwell expressed to SI his willingness to give athletes the opportunity to win compensation from their NIL.
“College athletes deserve to earn income from their images,” he said in a statement. “Having a hodgepodge of different state laws could lead to recruitment inequalities. Hopefully Congress can meet in a federal framework. “
Time is of the essence. States are speeding up their own NIL laws so as not to be at a recruiting disadvantage with their neighbors. Sixteen states have passed NIL legislation, and five of them have an effective date of July 1: Mississippi, Georgia, Florida, Alabama, and New Mexico.
While states are speeding up the NIL, the NCAA is lagging behind in creating its own legislation, advised by its legal team not to pass NIL policies until the Supreme Court rules in NCAA v. Alston, something that is expected in July. The Alston case focuses on whether the NCAA’s eligibility rules violate federal antitrust law. Some believe that the NCAA, by granting athletes the ability to earn NIL compensation, would weaken their amateurism argument before the higher court publishes its decision.
College athletics insiders anticipate that the NCAA Division I Council, one of the highest regulatory bodies in college sports, will hold an emergency meeting to pass NIL legislation following Supreme Court rules. . Meanwhile, states are taking over and their NIL bills are expected to grant more freedoms to athletes than any NCAA proposal. Emmert has already said that athletes who obtain compensation by following state law will not be punished by the organization.
Meanwhile, the NCAA’s delay in passing the NIL legislation (some leaders say the rules should have been amended years ago) prompts the organization to seek help from Congress for a universal law that takes precedence over state laws and grants other protections of the NCAA.
On Emmert’s last visit to the Capitol, he implored Moran to move as quickly as possible.
“I agree with that and we are working hard to achieve it,” says Moran. “It was not about the details of the bill, it was about the need to pass a bill that was acceptable to a wide range of senators. It’s easy around here to come up with legislation that you and a handful of people will applaud, but the hardest thing is finding common ground that allows a bill to pass by 60 votes. “
While some believe the July 1 deadline is a long shot, others say the latest negotiations on the issue have opened the door to a possible solution by that date. Moran believes it will be difficult “but certainly not impossible.”
Moran and legislative aides believe that a bipartisan NIL deal could be added as an amendment to a more substantive piece of legislation already moving through the Senate, a way to quickly push the proposal forward without litigation.
“It would take good luck,” says Moran, “but it is possible.”
For that to happen, more agreement is needed. Over the past year, a rift has formed between Republicans and Democrats over the NIL, initially seen as bipartisan legislation. While Democrats want a broad bill that expands beyond the NIL and gives athletes the greatest freedom to strike endorsement deals, Republicans are leaning toward narrow legislation limited to the NIL and more NCAA-friendly. After the 2020 election, Democrats took control of the Senate, giving them the upper hand over any NIL bill.
Two noteworthy athlete compensation bills introduced in Congress each represent a school of thought along the spectrum of this raging debate. The Booker and Blumenthal College Athletes’ Bill of Rights, which has yet to be resubmitted in the new Congress, is on the far left of the scale, broad legislation that includes revenue sharing, lifetime scholarships and sponsorships without restrictions. Wicker’s bill is on the far right, a narrow bill focused only on NIL and featuring NCAA protections and restrictions for athletes.
The latest Cantwell-led negotiations seek to find a middle ground: a bill broader than Wicker’s but not as broad as Booker and Blumenthal’s, while giving athletes enough freedom.
There are a handful of hotly debated sticking points between the two sides. For example, does the congressional bill have to completely precede state laws or does it allow state laws to give athletes more freedoms? The NCAA’s request for antitrust protection, something that is not a principle among many Democrats, is also a topic of conversation. One option is to grant the organization protections, as Moran’s bill does, from lawsuits retroactively filed by former college athletes by NIL.
“I have a general inclination against it,” says Blumenthal of such a provision, “but I would be willing to consider a strictly defined one. It cannot be a free card to get out of jail. “
Another big problem: whether a school can control an athlete’s endorsement or business opportunities. For example, the NCAA’s own NIL proposal and some state laws give schools the right to prohibit their athletes from signing agreements that conflict with their own endorsement agreements. Other issues include the role of drivers; how and by whom determines the fair market value in commercial agreements, to avoid inflated contracts; and which entity enforces NIL (for now, many believe it will be the Federal Trade Commission).
The new bill is expected to go beyond the NIL, granting athletes lifelong scholarships and long-term medical care, a couple of athlete rights not listed in Wicker’s own legislation, and a potential roadblock in the negotiations. Revenue sharing with athletes, a Democratic-leaning provision, is not expected to be part of any new legislation.
“We are prepared to be flexible on a number of provisions and that may be one of them,” suggested Blumenthal.
As negotiations heat up on Capitol Hill, pressure is skyrocketing in states across the country. Chaos, as they say, is coming. And just maybe, that brings a compromise.
“Here’s the bottom line: Legislation allowing college athletes to sign endorsement deals is already becoming law at the state level, whether the NCAA wants it or not,” Murphy said in a statement this week to SI. “The NCAA says the sky will fall if these laws go into effect, let’s see if that’s true.”
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Eddie is an Australian news reporter with over 9 years in the industry and has published on Forbes and tech crunch.