Bipartisan Name, Image, Likeness Bill Focused on Endorsements Introduced to Congress
Congress’s journey toward creating federal legislation to govern athlete compensation took another step forward Thursday.
Rep. Anthony Gonzalez (R-Ohio), a former Ohio State and NFL receiver, introduced in the House his version of a bill to allow college athletes to benefit financially from their name, image and likeness through endorsements deals. While expected, the news is significant, as Gonzalez’s bill is bipartisan in nature, essential for legislation to potentially pass through a split Congress. Rep. Emanuel Cleaver (D-Mo.) is introducing the bill with Gonzalez, alongside three Republican and three Democrat cosponsors. The Gonzalez-Cleaver NIL bill is the second such legislation introduced in Congress but is the first to have bipartisan agreement.
The bill, obtained by Sports Illustrated, is more player-friendly than the legislation introduced earlier this summer by Sen. Marco Rubio (R-Fla.). However, the Gonzalez legislation satisfies several NCAA requests, the most noteworthy of which are preemption and restriction. The bill preempts all state NIL laws and restricts athletes from entering endorsement deals with several companies, including those associated with alcohol, tobacco or vaping, marijuana or drug dispensaries and sellers, and casinos/gambling facilities.
It does not, however, prevent an athlete from endorsing a product that might conflict with a school’s own endorsement deals—something the NCAA includes in its own drafted legislation. It also does not grant the NCAA antitrust protections from lawsuits arising over NIL—another NCAA request.
Gonzalez and Cleaver sought a “balanced bill,” Gonzalez says, granting some NCAA preferences while also incorporating protections for athletes. He says the endorsement restrictions on athletes are “modest” and mirror those on the professional level.
“I've always been for the players given my position as a former player, but I believe deeply that the college sports experience is a transformative life experience and we need to protect the overall structure of the college system,” Gonzalez says in an interview with SI.
The bill assigns the Federal Trade Commission to oversee and enforce NIL while also creating a commission that will continue studying the issue and report to Congress on an annual basis. The legislation makes clear that universities should not directly compensate athletes for their NIL, and it allows schools to prohibit athletes from wearing marks of companies during athletic activity and at any other university event.
The bill also amends the Sports Agent Responsibility and Trust Act to include a definition of “boosters,” and details actions taken by boosters in the recruiting process that would be penalized through Federal Trade enforcement. “It is unlawful for a booster to directly or indirectly provide or offer to provide any funds or thing of value as an inducement for a student athlete to enroll or remain at a specific institution or group of institutions,” the bill reads.
“I want to be unequivocally clear: This is a civil rights issue,” says Cleaver. “For far too long college athletes across the country—many of whom are people of color—have been denied the basic right to control their name, image and likeness. What we wanted to do from the outset was come to a bipartisan consensus that puts forth a national framework that gives college athletes the same rights every other American in the country is already afforded. That’s exactly what this bill will do, and I’m proud we were able to put it together in a bipartisan way.”
While Gonzalez’s bill is bipartisan, it is likely to meet harsh criticism from athlete advocates and many Democrats who prefer a more open law. In fact, during a recent interview with SI, Sen. Richard Blumenthal (D-Conn.), an outspoken critic of the NCAA, said the “major debate” over NIL is in regards to state preemption. He believes states should be afforded the right to permit athletes from having more protections.
Blumenthal and other Democrats, like Sen. Cory Booker (D-N.J.), are pushing for legislation to expand beyond NIL. Booker recently announced that he’d soon introduce in Congress an athlete bill of rights that provides players long-term healthcare, lifetime educational scholarships and more eligibility freedoms, such as sharing revenue with conferences—what some in college athletics would describe as radical.
The divide on this issue between Democrats and Republicans is a gap unlikely to close anytime soon. Many believe that a federal NIL bill won’t move through Capitol Hill until next year, when a new Congress takes control, one that could look different after the November elections.
“It most likely bleeds into next year,” Gonzalez says. “Right now, Congress is still just learning about this issue. We have a pandemic we’re working through.”
Gonzalez’s bill is only one of what could be a half-dozen versions of federal NIL legislation. Several lawmakers are in various stages of drafting their own law, which is expected to begin the legislative process in the Senate Commerce Committee.
Meanwhile, the NCAA is hurriedly crafting its own legislation that it expects to finalize by the end of October and then pass officially in January. Several documents have provided a window into the NCAA’s own thinking, including drafted NIL frameworks from the Power 5, NCAA Division I and a survey sent to athletic directors about the issue.
There is a sort-of deadline for federal legislation. Florida’s state NIL law takes effect next July. Without a universal rule governing athlete compensation, schools in Florida could quite literally play by different rules starting with the 2021 football season. Congress, already a slow-moving body, is grappling with a pandemic, potentially slowing any progress on this front.
Cosponsors with Gonzalez and Cleaver are Colin Allred (D-Texas), Rodney Davis (R-Ill.), Josh Gottheimer (D-N.J.), Jeff Duncan (R-S.C.), Marcia Fudge (D-Ohio) and Steve Stivers (R-Ohio).
