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Background
On September 30, 2021, the House Committee on Energy & Commerce’s Consumer Protection and Commerce subcommittee held a hearing on “A Level Playing Field: College Athletes’ Rights To Their Name, Image, and Likeness.” Over the course of three hours, the bipartisan group of congresspeople questioned five witnesses, including NCAA president Mark Emmert. The purpose of the hearing was to begin deciphering what—if any—action Congress should take related to legislating around NCAA athlete name, image and likeness.
 
Hearing Themes
Across all witnesses' testimony, several themes emerged:
  • Witnesses, particularly the NCAA’s Emmert, argued that federal legislation is needed to uniformly protect college athletes, create a level playing field and ensure transparency of deals.
  • Baylor University president, Dr. Linda Livingstone, and CIAA commissioner, Jacqie McWilliams, argued that congress enacting legislation placing additional financial responsibilities on athletic departments, such as deeming college athletes as employees or requiring athletic departments to provide expanded health care or NIL education-related benefits, could negatively impact or reduce opportunities for individuals to compete in college sports.
  •  College athlete advocate and National College Players Association executive director, Ramogi Huma, asserted that Congress need not legislate around name, image and likeness, but if it should, it must provide broad-based reforms around areas including healthcare, sexual abuse, discrimination and representation. Huma noted that college athletes should be largely free when it comes to engaging in name, image and likeness opportunities.
What’s Next
Upon the conclusion of the hearing, members of the House now have ten business days to submit additional questions to the hearing’s witnesses. The witnesses are expected to promptly respond to all submitted questions.
 
To date, seven federal bills attempting to regulate NCAA athlete name, image and likeness or college athletes’ abilities to earn non-scholarship revenue have been proposed. None have reached the floor of either chamber of Congress. Given the issues of national significance facing the United States, such as the pandemic, economy and voting rights along with the looming midterm election, it is unclear if and when any of the bills will reach either floor of Congress for a vote.
 
Three Questions Congress Must Ask
As Congress submits their questions to the hearing’s witnesses and a possible vote on federal name, image and likeness legislation approaches, here are the top three questions Congress must consider:

1. Why Congress? Throughout the September 30 hearing, numerous congresspeople referred to the “patchwork” of name, image and likeness bills existing across the United States. It is true that after California enacted Senate Bill 206, better known as the “Fair Pay to Play Act,” which restricted intercollegiate athletic governing bodies from preventing college athletes from benefitting from their name, image and likeness, that numerous other states followed suit. However, California enacted Senate Bill 206 in September 2019. In the immediate aftermath, the NCAA and non-California member institutions went on the defensive, threatening to ban championships and cancel games within the state.The NCAA has had over two years to properly amend its bylaws to comply with state name, image and likeness laws. NCAA president Emmert iterated this point during the hearing, claiming that the association “spent about two years trying to draft legislation,” but blamed the July 1, 2021 effective date of some states’ laws from preventing it from actually enacting said legislation.
 
Congress needs to push the NCAA on this point. Is it really the effective date of the bills that has prevented the NCAA from adopting meaningful name, image and likeness legislation? Or, is the NCAA engaging in a legal strategy aimed at attempting to secure an antitrust exemption of some form from Congress?
 
Just ten days before the first state name, image and likeness bills went into effect, the NCAA was dealt an unprecedented blow in the United States Supreme Court when all nine justices unanimously ruled that its restraints on education-related benefits violate federal antitrust law. That ruling foreclosed avenues for the NCAA to file litigation in individual states seeking injunctions stopping name, image and likeness bills from going into effect.
 
The NCAA has had ample time to draft meaningful name, image and likeness legislation. Presently, it has merely guided member institutions in the space with an interim policy spanning mere sentences. At the same time, it has spent tens of millions of dollars during a global pandemic navigating a complex and largely unfruitful legal strategy attempting to avoid providing college athletes or granting them access to greater revenue.

In opposite, the NCAA's defeat at the Supreme Court may be motivating its inaction in legislating around name, image and likeness in a different way. The NCAA's rules around amateurism have faced a number of legal challenges since 2009. The NCAA has successfully defended some of those challenges, and in others--like the NCAA v. Alston Supreme Court decision in June--been defeated. In expending significant association revenue defending said lawsuits, it is possible that the NCAA is opting not to meaningfully legislate over name, image and likeness over fear that any restriction it places on college athletes in the space will result in more antitrust lawsuits being filed against it. So, perhaps it is not that the NCAA is seeking antitrust immunity, but rather, guidance from Congress on how and in what ways it can legally legislate college athletes' involvement in the space.

2. With what resources? Along with asking Congress to legislate around college athlete name, image and likeness, Emmert argued in favor of creating a national database tracking college athletes’ deals. Congress must push back on this request for several factors. First, Emmert did not make clear which federal administrative agency should be responsible for tracking name, image and likeness deals. Given the turnover of federal administrative agencies with presidential administrations, Baylor president Livingstone explained that sometimes universities have difficulty approaching how to comply with various federal laws, like Title IX, as different administrations differently interpret the law. One could argue that similar issues would exist with a federal name, image and likeness database.
 
Similarly, it appears that beyond the creation of transparency, the development of a national name, image and likeness database would allow for the enforcement of various restrictions and regulations on college athlete name, image and likeness rights. Here again, one must consider whether the federal government is the appropriate or most effective entity to oversee such enforcement. Take for instance the Federal Trade Commission’s enforcement of the Sport Agent and Responsibility Trust Act (SPARTA). Enacted in 1998, SPARTA is a federal bill regulating sport agents, which prohibits them from providing college athletes inducements to sign with them. A quick scan of sports news and review of the U.S. v. Gatto case demonstrates that numerous agents have violated SPARTA since 1998. However, not one has been prosecuted under the law. How can we ensure that the same would not happen in this space?
 
Finally, requiring college athletes to report their name, image and likeness deals to the federal government would be an example of paternalistic overreach. In the influencer age, college athletes frequently sit in classrooms with individuals who are parties to endorsement deals. These students—who are also actively engaged in federally funded educational settings—are not federally mandated to disclose their deals to the federal government. Neither are their professors, many of whom have their own various deals, save for in limited grant and research settings. Why then should college athletes?

3. Don’t competitive advantages already exist? CIAA commissioner McWilliams’ testimony largely centered around the competitive imbalance that could emerge if Congress legislated around name, image and likeness in a way that required schools to expend greater resources. The CIAA’s membership is largely historically black colleges and universities, which McWilliams noted do not have the same financial resources as other universities, especially in the Power Five conferences. She argued that the universities in the conference she represents are unable to provide the same benefits, offerings and education around name, image and likeness that other universities can and are.This is a critical point and one that should be taken seriously. It is important that students at historically black colleges and universities, as well as women—groups who traditionally have not had the same access to education as Caucasian men—are able to fairly and effectively engage with name, image and likeness opportunities.
 
However, it is shortsighted to not highlight the vast disparities in resources and competitive imbalances that presently plague intercollegiate athletics. Schools like Clemson University and Auburn University have spent tens of millions of dollars on football-only facilities featuring things like bowling alleys, napping pods and even full-sized putt-putt golf courses. Why? To gain an advantage over their competitors in recruiting amidst a system that fixes what a college athlete can earn to a scholarship.
 
Vast competitive advantages exist across the NCAA landscape, as demonstrated by the storied programs that consistently rise up to the championship level year after year. It is not Congress’ place to legislate around this nor legislate it away. This is made clear by the Sherman Antitrust Act.
 
Instead, where the power here lies, is with the NCAA. Congress must put the onus on the NCAA to creatively reimagine its bylaws, membership fees and revenue distribution model in a manner providing greater chances for equity and educational opportunities for all members.
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