We're just over two months into the new year, and a lot is happening in college sports. The Supreme Court will be reviewing NCAA v. Alston soon, literally dozens of state-level NIL bills are in circulation, plus six federal bills, and the current congressional layout makes it at least fairly likely that college athletes will receive some kinds of NIL rights in the (hopefully near) future. This year alone, we've seen the introduction of two new federal-level NIL bills, with more likely on the way. For the sake of simplicity, here are the five W's of the newest federal legislation to keep you informed.
The College Athlete Economic Freedom Act
Who wrote it? Connecticut Senator Chris Murphy (D) and Massachusetts Representative Lori Trahan (D)
When was it introduced? February 4, 2021
What are the key provisions for athletes? Murphy's and Trahan's bill prohibits universities and athletic associations from restricting college athletes' NIL activities, thus granting athletes access to the same free market their non-athlete peers are free to navigate.
Why/how is it different from other NIL bills? Its lack of guardrails. Most other NIL bills restrict athletes' free market activity to some extent (for example, prohibiting conflicting sponsorships or products that violate a university's values), but this bill advocates for a total free market approach. It also discusses group licensing in a way that benefits athletes and mandates that institutional support related to NIL be equal across gender, race, and sport. The text itself is (refreshingly) short and simple, too. The Murphy/Trahan bill clocks in at 12 pages, while most other NIL bills hover around 30 pages or more in length.
Where does it rank? This is a top-tier bill that gives decision-making power and market freedom to college athletes. Rather than “protect” athletes with restrictions, this bill grants them the agency to brand themselves, become entrepreneurs, and learn about business. This bill's greatest asset is its simplicity—universities and the NCAA just have to let the free market work in order to comply with it. Plus, Lori Trahan is a former college athlete, which is always a plus!
The Amateur Athletics Protection Act
Who wrote it? Kansas Senator Jerry Moran (R)
When was it introduced? February 24, 2021
What are the key provisions for athletes? The bill allows college athletes to profit from their NILs by prohibiting athletic associations from punishing athletes (including high school athletes) for entering endorsement contracts with one key limitation—athletes aren't allowed to enter into contracts with brands that violate their university's code of conduct, which could give a lot of interpretive power to universities. The bill also prohibits universities and athletic associations from prohibiting college athletes from signing up for a professional draft, and universities must maintain the athlete's eligibility if the athlete decides against going pro. Finally, the bill discusses the formation of the Amateur Intercollegiate Athletics Corporation, which will be a clearinghouse for athletes, and will work with the FTC in screening endorsement deals and athlete representatives (if the bill passes).
Why/how is it different from other NIL bills? The bill has some good, unique provisions. It's pretty holistic and takes into account professional draft status of college athletes, plus it has a section that prohibits universities from stripping scholarships from athletes for injuries and poor performance. It also provides a one-time transfer waiver for athletes, which most other bills do not take into account. Finally, the bill requires universities to provide medical coverage for athletes based on how much revenue those universities produce, and has several requirements for transparency with athletes, which is similarly unique in a good way. The formation of the AIAC is also an interesting idea, and has promise to benefit athletes, especially because the bill isn't trying to grant the NCAA a federal-level antitrust exemption like some others do.
Where does it rank? Moran's bill is better than Marco Rubio's bill, which gives the NCAA too much power in determining NIL laws, and Roger Wicker's bill, which allows NIL activity, but with much more stringent guardrails. However, Moran's bill still seems to give universities a lot of interpretive power to determine which kind of products athletes can endorse. Other than that, the bill advocates for a fairly open free market, which will benefit athletes. Although the bill specifically states that college athletes are not employees, which is always arguable for me, it has some really good provisions—I'd rank it in the upper 75th percentile of NIL bills.
The NIL landscape is constantly changing, and things will likely heat up closer to summer when Florida's state-level NIL law is set to kick in. As usual, keep up with 2aDays for more updates.
Katie Lever isn't a lawyer, so her articles do not constitute legal advice. However, she is a former D1 athlete who currently studies NCAA discourse at the University of Texas at Austin and she is passionate about reforming college sports and keeping people informed. Follow her on Twitter for more updates: @leverfever.
* Originally published on March 4, 2021, by Katie Lever, Ph. D
