Rights of Publicity for College Athletes: Will Congress Get Involved?

Zachary Gross 

On Tuesday, the United States Senate Commerce Committee’s Subcommittee on Manufacturing, Trade, and Consumer Protection held a hearing about whether college athletes should be allowed to gain compensation from the use of their names, images, and likenesses (“NIL”).

The Senate hearing took place against the backdrop of a groundswell of state-level legislative efforts to allow college athletes to benefit from NIL rights. Most notably, California enacted its Fair Pay to Play Act in September 2019, and one witness at Tuesday’s hearing estimated that “twenty-eight states . . . are pursuing similar legislation.” Likewise, NCAA President Mark Emmert told the hearing that the NCAA is itself currently “in the process of identifying appropriate ways” to allow student athletes “to benefit from their name, image, and likeness.” Emmert said that the NCAA’s three divisions have been considering rule changes since October 2019, with the goal enacting those changes “no later than January of 2021.”

The senators present were broadly receptive to allowing college athletes to gain compensation from NIL rights, but many expressed reservations and uncertainty about how to move forward. Subcommittee Ranking Member Richard Blumenthal (D-Conn.) was perhaps most strident in his support for NIL rights. Senator Blumenthal frequently directed biting criticism at the current college athletics system, which he characterized as “exploitative,” “deeply unfair,” and “repugnant to the very ideals that the colleges so actively espouse . . . .” Subcommittee Chairman Jerry Moran (R-Kan.) was more cautious in his remarks, emphasizing that Congress must be mindful of “the complexities surrounding this issue” so that the “actions taken by Congress do not harm the education, health and well-being of student athletes.” Full Committee Chairman Roger Wicker (R-Miss.) was likewise restrained, saying “I don’t know how I feel about this issue” and “I don’t know where this is going to lead . . . .” Chairman Wicker nevertheless acknowledged that “there’s been a disparity . . . that ought to be addressed” and that “perhaps name, image, and likeness is the answer.” Congressman Anthony Gonzalez (R-Ohio), a former college football player, spoke in favor of NIL rights, which he said “would empower . . . athletes to make a few extra dollars to alleviate some financial pressure.” Congressman Gonzalez said he has “begun to draft federal legislation in the House to allow student athletes to profit from their NIL and create one uniform national standard.”

The prospect of a uniform national standard to displace the burgeoning patchwork of state laws was the most frequently discussed topic at Tuesday’s hearing. Subcommittee Chairman Moran said that state legislation is “raising concerns [about] the ability of nationwide organizations to function within a system of differing state law provisions.” Full Committee Chairman Wicker said that “states are moving forward and we need to address this issue. . . . I wonder if we can come up with something as a nation.” Congressman Gonzalez warned that a patchwork “would throw the collegiate athletic system into chaos.” By contrast, Senator Blumenthal was less worried about the state patchwork, saying, “the states are going to fill this gap, and, frankly, I’m going to encourage them to fill it because it will provide an additional incentive for the NCAA to move more quickly.” All of the witnesses expressed concern about a patchwork of state laws, with the exception of National College Players Association (NCPA) Executive Director Ramogi Huma, who said that “federal legislation is not necessary for positive reform in this area . . . .” Huma said the various state proposals “look[] very similar,” and expressed concern that federal legislation might “roll[] back what the states are doing.” In the end, however, Huma allowed that federal legislation “could be positive if there was a good bill.”

While the hearing was preliminary in nature, and did not involve extensive discussion of policy minutiae, the senators and witnesses identified a number of areas for further exploration. Subcommittee Chairman Moran mentioned “the use of third-party agents, the possible elimination of athletic programs, [the] current definition of amateurism, and allowable incentives made available to today’s college athletes.” Other topics discussed include “guardrails” to prevent corruption of the recruiting process; protection of athletes’ NIL rights from misappropriation on social media; Title IX implications; anti-trust concerns about the NCAA; potential caps on NIL compensation; and potential NIL disparities — for example, between high and low revenue sports, between different players on the same team (e.g. quarterback and center), and between different types of universities (e.g. located in large versus small markets).