- Tom McMillen, President & CEO, LEAD1 Association
- Gregg E. Clifton, Attorney at Law, Jackson Lewis P.C.
- Michael McCann,Sports and Entertainment Law Institute Director and Professor of Law, UNH Franklin Pierce Law & Legal Analyst & Writer, Sportico
As you are likely aware, in late December 2020, U.S. Senators Booker and Blumenthal (and several other Senators as cosponsors) introduced the College Athletes Bill of Rights (“Bill”), which proposes sweeping changes for college sports.
“The Bill should be analogized to a full collective bargaining proceeding against the NCAA and as a starting position for the most aggressive student-athlete empowerment wishes,” said LEAD1 Association (“LEAD1”) President and CEO, Tom McMillen, who, on Tuesday, hosted a virtual forum for his members discussing details and ramifications of the Bill.
Michael McCann, one of the preeminent sports writers on legal issues in college sports, and Gregg Clifton, a prominent college sports law attorney, joined McMillen on the panel.
LEAD1, in its mission to educate college sports stakeholders on the most important issues in the industry, did just that, as the panel discussed and analyzed many of the relevant provisions within the Bill.
First, the panel focused on what is, perhaps, the “least intimidating” component of the Bill – college athlete name, image, and likeness (NIL) rights. The Bill proposes seemingly unregulated NIL rights, as there are very limited guardrails, individual and group licensing agreements allowed, and institutions cannot prohibit footwear during practices and games, regardless of preexisting footwear contracts. The group licensing discussion was especially timely, given Tuesday’s news that EA Sports will be, once again, producing a college football video game. It also appears as if institutions and student-athletes could have separate agreements with the same third party.
Second, the panel discussed some of the other nuanced provisions regarding college athletes’ rights including a provision that would allow college athletes to receive payment in conjunction with supporting a family member or friend. The panel agreed, however, that the provision’s broad language could lead to unintended illicit booster activity. There could also be enforcement issues and possible expansion of the compliance officer’s role, which could lead to open-ended Title IX and tax issues.
The panel next discussed concerns regarding the unregulated transfer provision, which could lead to a “pandora’s box” of litigation and potential ramifications with respect to professional sports leagues if college sports were prohibited from preventing athletic participation due to a college athlete having entered into a professional sports draft. Additional provisions, such as prohibitions on eliminating athletic programs unless other options, such as reducing coaches’ salaries are “not feasible,” would also be very restrictive for institutions and could lead to further Title IX and antitrust issues.
Third, revenue sharing, the “heart of the bill,” and probably most-controversial element, would essentially split sports revenue between athletic departments and college athletes, after subtracting scholarship costs. Other than the impact on non-revenue sports and the Olympic effort in America, the Bill is vague regarding the definition of “revenue,” and there are other fundamental questions, such as the already large disparities among institutional revenues, and whether revenue sharing could lead to unionization and workers compensation.
Fourth, a “Commission on College Athletics,” would be created, which would take significant responsibility away from the NCAA in regulating endorsement contracts, certifying athlete agents, monitoring Title IX compliance, and establishing health, wellness, and safety standards for college athletes. The Commission would also have rights that the NCAA does not have including subpoena power, auditing authority, and the right to impose substantial penalties, including banning coaches, athletic directors, or other university employees from working in college sports, and possible fines as steep as the higher of $250,000 or 20 percent of total athletic revenue (which could be in the tens of millions of dollars). The Bill would also bestow college athletes with a private right of action to sue, grievance rights, and empower states’ attorneys to bring claims.
Fifth, the Bill would establish a “Medical Trust Fund,” which would cover college athlete out-of-pocket sports-related injury expenses including for five years after being a college athlete and provide for educational outcomes. The Medical Trust Fund presents a “causation” issue, in other words, whether a former college athlete’s injury from participation in college sports, even five years after playing, could be shown to be the substantial cause of a present injury. In addition, guaranteed scholarships would be an additional potential cost for institutions, and the Bill would also squash any academic advising or tutoring services provided to college athletes from athletic departments.
All in all, for Congress to pass this Bill, it will need to be paired down, so it is important for college sports to educate policymakers about its ramifications. Ironically, compared to the expansiveness of this Bill, NIL rights seem like a much more modest change. Only time will tell, as 2021 is shaping into one of the most important years in college sports history.