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Support for national NIL standard for athletes cuts across party lines

Students must navigate a patchwork of state laws

Rep. Gus Bilirakis, R-Fla., chairman of Energy and Commerce's Innovation, Data and Commerce Subcommittee.
Rep. Gus Bilirakis, R-Fla., chairman of Energy and Commerce's Innovation, Data and Commerce Subcommittee. (Tom Williams/CQ Roll Call file photo)

As much as politics can divide, sports can unite. That much was evident at a House Energy and Commerce subcommittee hearing on college athletes’ ability to make endorsement deals.

Republicans and Democrats alike agreed that there needs to be a national standard governing college athletes’ ability to make money off their name, image and likeness. But coming up with a set of standards to replace the patchwork of state laws that has cropped up in the last few years will be difficult — it would have to cover situations as disparate as an NFL-bound quarterback at the University of Alabama with a rugger at Bryn Mawr College.

While most issues in Congress fall under predictable party lines, members were more interested in touting where they went to school than establishing a place on the ideological spectrum at Wednesday’s Innovation, Data, and Commerce hearing. 

Subcommittee Chairman Gus Bilirakis opened the hearing by making his loyalties known. “Go Gators!” the Florida Republican and University of Florida alumnus said as he introduced fellow Florida grad, and former NFL tight end, Trey Burton. Rep. Kat Cammack, R-Fla., questioned the panel of student athletes and school administrators with a signed Florida football helmet in front of her. Not to be outdone, an aide for Rep. Earl L. “Buddy” Carter, R-Ga., unfurled a University of Georgia banner for Carter, who also had a signed football and a Bulldogs figurine. 

The name, image and likeness (NIL) debate took off when former UCLA standout Ed O’Bannon sued the NCAA after his face graced the cover of EA Sports’ NCAA Basketball 09 video game. In 2019, California passed a law allowing student athletes in the state to make NIL deals, and since then most states have enacted their own legislation.

In 2021, the Supreme Court held that the NCAA’s ban on letting student athletes ink NIL deals violated antitrust law, leading the NCAA to implement a new NIL policy. While college athletics have long been a massive industry that generates about $16 billion a year, the rise of NIL has redirected some of those funds to the players themselves, reflecting the reality that, at many schools, students have long been treated more like semi-professional athletes than scholars.

The focus on NIL has intensified as more student athletes playing in the big money-making sports — primarily football and men’s basketball — have taken advantage of the NCAA’s new transfer rules, which removed a requirement that transferring players sit out a year before being allowed to play for their new schools. That’s led to wealthy boosters offering some stars pro-level endorsement deals to transfer to their school. When Kansas State University star Nijel Pack transferred to Miami, he signed a $800,000 deal to flog LifeWallet, a company owned by a Miami alumnus.

“Let me make clear a true NIL is extraordinarily positive for our student athletes. That needs to continue. It’s what’s going on with recruiting, inducements, with some of these collectives [that] are ultimately being fraudulent with NIL,” Washington State University’s athletic director, Patrick Chun, testified at the hearing. “We have rules today that don’t allow tampering, don’t allow inducements, but because of the disparate state laws the NCAA is at a point now where it is incapable of enforcing those rules.”

The patchwork of state laws has caused headaches for sports conference administrators, athletic directors, coaches and athletes alike.

Some state laws require athletes to disclose their NIL deals, but not all, making it unclear how many have been paid and how much.

Some teams have inked group deals, like Florida State University’s softball team, as junior Kaley Mudge testified. Mudge, an outfielder on FSU’s softball team, squeezed in a trip to Washington between classes and games to urge Congress to pass uniform NIL regulations without threatening the redistribution of athletics revenues from the money-making sports to other teams. A partial scholarship recipient, Mudge testified that the team’s NIL would help cover her tuition.

Burton also urged Congress to act. While he would go on to win a Super Bowl with the Philadelphia Eagles — throwing the legendary “Philly Special” touchdown pass to quarterback Nick Foles — Burton began his career as an undrafted free agent. Burton would have probably taken advantage of NIL at Gainesville, where he set records as the team’s QB. “I got married and had a kid in my junior year,” he said. “That would have been really beneficial for us. We had to do our best budgeting based off what we got from our scholarships and Pell grants.”

Congress will have its hands full trying to strike a balance on an NIL law that would empower star athletes to maximize their sponsorship dollars without draining money out of sports that don’t generate revenues, while ensuring that 17-year-old kids aren’t taken advantage of by unscrupulous schools or boosters. Most of the NIL money has gone to college football — an estimated 80 percent according to Opendorse, a company that helps broker endorsement deals.

A potential deal on NIL legislation would be further complicated by concerns that female athletes are more likely to get sponsorship offers based off their looks than prowess on the field.

Overlapping with the NIL debate has been an effort by college football student athletes to essentially unionize. College Football Players Association Executive Director Jason Stahl argued that college athletes should be allowed to collectively bargain for better health care and a percentage of schools’ revenues from selling media rights. Some have proposed treating college athletes like employees; lawmakers in California are debating the idea of requiring schools to pay some students wages. 

Those revenue-sharing proposals worry supporters of less lucrative sports, especially women athletes. Mudge called the California bill “scary.”

While Stahl argued that Congress should not act on NIL — saying that letting students negotiate with athletic conferences and schools directly would better address the issues — he appeared to have few allies at the hearing on Wednesday.

There may also be a temptation to use any NIL bill to address other issues in college sports. Congress’ only former Division I female athlete, Rep. Lori Trahan, D-Mass., asked Chun about reports that Washington State had skirted Title IX rules requiring schools provide the same number of scholarships to women athletes as men. Trahan in the last Congress co-sponsored a bill to close Title IX loopholes.

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