Bipartisan House Bill Introduced on Name, Image and Likeness Rights

Congressmen Anthony Gonzalez (R-Ohio) and Emanuel Cleaver (D-Mo.) have introduced a bipartisan bill in the House of Representatives regarding name, image and likeness for NCAA student athletes.

The bill specifically states that none of the bill’s provisions can serve as the basis for an antitrust lawsuit. It’s not the first time we’ve seen this kind of language. Sen. Marco Rubio’s (R-Fla.) proposal from June, which said “no cause of action shall lie or be maintained in any court” against the NCAA or schools as a result of new rules adopted as a result of legislation.

Here are some key elements of the new bill:

• Student athletes would be allowed to have endorsement contracts
• Student athletes could have representatives to help solicit or negotiate endorsements
• There is no prohibition on endorsements that would conflict with the school or athletic department’s existing sponsorship agreements
• Boosters would be barred from providing “any funds or thing of value as an inducement for a student-athlete to enroll or remain at a specific institution”
• The NCAA or schools could prohibit endorsements or sponsorships with companies involved with tobacco, vaping, alcohol, marijuana, gambling or adult entertainment
• Student athletes could be prohibited from “wearing any item of clothing or gear with the insignia of any entity during any athletic competition or university-sponsored event”
• The bill expressly preempts any state laws on name, image and likeness
• Enforcement would be handled by the Federal Trade Commission

The NCAA issued the following statement:

“We greatly appreciate U.S. Reps. Gonzalez and Cleaver’s collaboration to sponsor bipartisan legislation to strengthen the college athlete experience. We look forward to working together with both representatives, their co-sponsors and other members of Congress to further establish a legal and legislative environment where our schools can continue to support student-athletes within the context of higher education.”

There are both wins and losses for the NCAA and schools. The biggest loss is the inability to prevent endorsements or sponsorships that conflict with existing sponsorship agreements. However, the preemption of state law is a big win since California, Colorado, Florida, Nebraska and New Jersey have already passed laws. With Florida’s law set to go into effect July 1, 2021, the NCAA and schools are already on the clock.

Although agents would be allowed under the bill, it does allow for a process by which it agents would be certified.

The bill also creates a 13-member commission, called the Covered Athletic Organization Commission. This commission would be appointed by specified members of Congress and make recommendations on the implementation of name, image and likeness rules, the process to certify or recognize credentialed athlete agents, the establishment of an independent dispute resolution process for any dispute that arises between a student athlete and the NCAA or a member institution. The committee could also make recommendations for additional categories that would be exempt in addition to the ones named above.

The 13 members appointed would be from the following groups:

• Athletic directors, coaches or others from the school level
• At least two former student athletes
• Individuals from the NCAA, conferences and other covered athletic organizations
• Professionals with expertise in sports marketing, contracting and public relations
• Individuals with expertise in corporate governance and who are not associated with any covered athletic association or school

The commission would exist for three years before submitting a final report and disbanding.

Gonzalez told USA Today it’s unlikely the bill will pass this year because of other matters pending.

“I think in this session it’ll be tough,” he said. “We, as Congress, are rightly focused on … helping our country navigate the COVID pandemic. So, that will likely take up the rest of this Congress. But I do think we’re going to have to tackle this at some point in the first half of next year because” of the effective date of Florida’s law. “We’re going to need to do something at the federal level.”

The NCAA is set to review drafts of legislation from each division in October and vote at its annual convention in January 2021 for changes that would go into effect for the 2021-22 academic year.

Want more on NIL? Check out these two episodes of the Business of College Sports podcast:

Behind Nebraska’s Partnership With Opendorse

NFL Draft Experience Proves Football Student Athlete Value