- Gregg E. Clifton, Principal, Jackson Lewis PC (Moderator)
- Justin Sievert, Senior Counsel, Vela Wood
- John Long, Of Counsel, Jackson Lewis PC
- Tom McMillen, President & CEO, LEAD1 Association
With increasing pressure from states with respect to college sports name, image, and likeness (NIL) legislation, and several congressional college sports bills that go well beyond NIL, states have now become these laboratories for change on the collegiate model. That is why LEAD1 and Vela Wood embarked on comprehensive state legislative research to fully understand the scope of provisions being proposed.
As you likely already know, six states have already passed NIL legislation (Florida, Colorado, Nebraska, New Jersey, California, and Michigan), with Florida set to go into effect on July 1. There are also several other states including Maryland, Iowa, and New Mexico that could pass NIL legislation very soon. Approximately 30 other states have introduced NIL legislation. While the general structure of the passed and introduced bills are similar, some of the provisions, such as some of the conflict provisions, seem to be rather ill-defined and could create confusion for athletic departments.
The scope of some proposed legislation also goes well beyond NIL. California, for example, has introduced a revenue sharing proposal, similar to the proposal introduced by U.S. Senators Booker and Blumenthal. Last year, New York introduced a proposal that would establish a sports injury health savings account to be funded with 15 percent of revenue earned from college athletic programs. In 2019, Maryland introduced a bill that would establish a collective bargaining process for student-athletes.
In Congress, there are six bills that have been introduced that vary in scope but have evolved over time, from Senator Rubio’s bill last fall, to Senator Booker and Blumenthal’s very expansive bill in December, to the more recently introduced bill by Senator Moran, which seems like the best current attempt at a workable compromise. The Moran bill proposes individual and group licensing, limited NIL guardrails, state preemption, student-athletes not considered employees, more transparency in terms of grant-in-aid and medical coverage, a Commission to enforce NIL rules (with subpoena power), and several other notable provisions. On the panel, McMillen stated that “chaos [at the state level] is a fertile arena,” which could compel Congress to act sooner than later.
The NCAA tabled its scheduled vote on NIL rule changes in January and will wait to see what happens in next week’s NCAA v. Alston Supreme Court oral argument. In Alston, the Ninth Circuit affirmed the district court’s decision concluding that the NCAA’s practices limiting education-related benefits violate antitrust law.
The Supreme Court’s decision, expected later this spring or early summer, could significantly affect the college sports legislative landscape. The NCAA will argue that it is in the best position to know what is best for college athletics and therefore it should be in charge of regulating itself. Alston, on the other hand, could argue that Congress is in the best position to regulate college athletics (rather than the NCAA).
All will be watching next week. College sports is in for a bumpy summer.