Two years ago, the National Collegiate Athletics Association (NCAA) changed the landscape of college sports by lifting their previous ban to allow student-athletes to profit off of their name, image and likeness and image (NIL).
The ban’s suspension followed a U.S. Supreme Court decision that restricting student-athlete compensation violated the Sherman Act, an antitrust law. Now, Congress is stepping in to place guardrails on college sports.
The NCAA’s interim policy states that individuals can engage in NIL activities as long as they are consistent with state laws and should report their NIL activities to their school. But it leaves a wide berth for interpretation.
“The current environment — both legal and legislative — prevents us from providing a more permanent solution and the level of detail student-athletes deserve,” then NCAA President Mark Emmert said in a June 2021 press release.
The new NCAA president, former Massachussettes Gov. Charlie Baker (R), is now asking for federal intervention, calling the NCAA interim policy’s lack of direction “a big mistake.”
Though the interim policy prohibits schools from recruiting students with the promise of compensation, university boosters have been finding ways around the rule, resulting in what lawmakers have called an uneven playing field.
Though lawmakers in both parties agree that something needs to be done to bring balance and limitations to college sports, there are a range of ideas on how to get there.
Here’s the rundown of four bills that have been put forward this summer.
Student Athlete Level Playing Field Act (H.R.3630)
The Student Athlete Level Playing Field Act was reintroduced by Reps. Mike Carey (R-Ohio) and Greg Landsman (D-Ohio) on May 24 and remains the only bill of the four to be formally introduced in Congress.
Similar to the NCAA interim policy, it prohibits universities from preventing student-athletes from entering into NIL deals. And it specifies that boosters cannot directly or indirectly offer any incentives to encourage students to enroll at a specific educational institution.
Each piece of legislation would establish an oversight body. The Carey-Landsman bill would create the Covered Athletic Organization Commission, which would make recommendations on the implementation of NIL rules and establish a dispute resolution process between student-athletes and their universities.
Differing from the others, however, this act would give enforcement powers to the Federal Trade Commission and require that student-athletes report NIL deals over $500 to the FTC as well as notify their institution within 72 hours of any contracts they enter into.
The act also recommends, but doesn’t require, that institutions of higher education provide students with financial literacy assistance and courses.
Fairness Accountability and Integrity in Representation (FAIR) of College Sports Act
Rep. Gus Bilirakis (R-Fla.) released a discussion draft of his bill on May 24 following two hearings spanning the last two Congresses.
Lawmakers heard testimony from current and former collegiate athletes, university presidents and athletic directors, the NCAA and conference presidents, according to a press release from Bilirakis.
To “level the playing field,” this act would ban students from accepting any incentives to attend or transfer to an institution. And it bars athletes from promotions while competing, such as wearing apparel with sponsor logos.
Like the first bill, it would also protect the right of student athletes to enter into NIL contracts, but with some exceptions.
Institutions, for example, may bar student-athletes from entering into NIL contracts related to gambling, tobacco products, vaping or e-cigarette products, alcohol products, “lewd and lascivious behavior,” and any other promotions that run counter to the institution’s “religious values.” An institution may also impose “reasonable limits” on the time student-athletes can spend on endorsements or promotions to “preserve the integrity” of the institution.
Students must also notify the US Intercollegiate Athletics Commission (USIAC) — an oversight body the act would create — within 30 days of signing an NIL contract or representation agreement.
The USAIC would in turn create an NIL database and provide quarterly transparency reports.
College Athletes Protection and Compensation (CAPC) Act of 2023
Sens. Richard Blumenthal (D-Conn.), Cory Booker (D-N.J.), and Jerry Moran (R-Kan.) released a discussion draft of the CAPC Act of 2023 last week.
On the topic of NIL agreements, the act says institutions can only prohibit contracts for “moral reasons” and requires student-athletes to notify an institution of an NIL contract within seven days. Like the others, it prevents inducements for recruitment.
The bill also establishes an oversight body called College Athletics Corporation (CAC) to regulate and enforce standards of NIL contracts.
CAC would make athletic programs’ revenues and expenditure — as well as statistics like the number of hours athletes spend at athletic events, along with their academic outcomes and majors — available to the public.
Differing from the others, this act touches on healthcare and would establish a Medical Trust Fund for injured athletes to pay for medical expenses and second opinions that are not covered by insurance.
It would also ensure that tuition aid will only be terminated upon graduation, regardless of career-ending injuries or cuts made to the team and would require athletes to incorporate financial literacy and life development curriculum into their class load.
Finally, the bill includes a provision about gender equity, requiring that athletic associations provide the same resources and facilities during tournaments.
Last year, lawmakers slammed the NCAA’s president in a letter after a public outcry about the NCAA’s unequal treatment of the men’s and women’s basketball teams during the Division I championship tournaments.
Protecting Athletes, Schools and Sports (PASS) Act
Sens. Joe Manchin (D-W.Va.) — who played college football — and Tommy Tuberville (R-Ala.) — a formerAuburn University football coach — announced their own bill five days after the CAPC Act was unveiled.
A public statement on the legislation includes endorsements from high profile figures in higher education and athletics, like the presidents of NCAA, West Virginia University, and Auburn University.
Similar to the FAIR College Sports Act, the PASS Act allows an institution or the NCAA to prohibit students from entering contracts involving the promotion of gambling, weapons, alcohol, tobacco, pharmaceuticals, or anything that is prohibited in competition. It would also require athlete collectives and boosters to be affiliated with an educational institution, which differs from previous bills.
Rather than establish an independent oversight body, the NCAA is given further authority in the bill to oversee and investigate NIL activities and report violations to the Federal Trade Commission as well as produce financial literacy programming.
Notably, the PASS act makes major changes to the transfer portal as it requires a student-athlete to remain at a university for three years before they can transfer without penalty.
Currently, if a student is entering the transfer portal for the first time, they can do so without losing eligibility the next year at a different school. After that first transfer, students are required to sit out a season if they transfer again.
The Manchin-Tuberville bill would require student-athletes to sit out a season if they transfer even once in the first three years.
The NCAA reported that 20,911 Division 1 athletes entered the transfer portal in 2022, up from 17,781 in 2021.
Manchin and Tuberville also push for more medical resources for student athletes; their bill stipulates that only athletic departments that generate more than $20 million in revenue must pay for out of pocket expenses. The bill also requires schools to insure athletes for eight years after graduation.
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