Florida is set to make effective, in July 2021, a law that will allow college athletes to earn money based on the commercial exploitation of their names, images, and likenesses. Now, Congress is eyeing federal involvement.
Senators Cory Booker and Richard Blumenthal have spearheaded an effort to create a national “College Athletes Bill of Rights,” which includes the creation of a federal right for all college athletes, irrespective of the state in which they perform their services, to market their publicity rights in individual and group licensing deals. However, the College Athletes Bill of Rights goes much further than Florida’s name, image, and likeness law.
Booker and Blumenthal, along with senators Kamala Harris, Bernie Sanders, Chris Murphy, and a few others (none of whom are Republican) also envision a ban on restrictions, with athletes transferring from one school to another, comprehensive health care coverage for sport-related injuries and, the biggest ask, revenue-sharing agreements with the NCAA, conferences, and universities that result in what the senators are referring to as “fair and equitable compensation.”
Whereas allowing college athletes the ability to market their names, images, and likenesses would come at no cost to the universities, conferences and the NCAA, providing those same athletes with a share of revenue and other benefits will likely require major adjustments to the college sports ecosystem. In Florida, a focused proposal concerning name, image, and likeness rights received bipartisan support. It is unlikely that the College Athletes Bill of Rights will be able to accomplish the same on the federal level.
While there are few details regarding the specifics of the College Athletes Bill of Rights, it is fair to assume that the revenue-sharing concept will be applied for athletes in every sport, not just the revenue-generating sport of football and sometimes basketball.
Interestingly, there is somewhat of a revenue-sharing system currently in place; however, the sharing occurs by and among the various sports programs as opposed to the players being a party to the economic relationship. Take Louisiana State University as an example. In 2018, LSU’s football program generated more than $100 million of the $145 million in revenue earned by the athletic department. The basketball and baseball programs added less than $1 million in profit, and literally every other sports program lost money for the university. The athletic department, as a whole, profited to the tune of $8 million, and the athletic programs that lost money were funded by the gains received primarily from the football program.
There is an argument to be made that too much money is being spent on expensive coaching contracts and athletics facilities. However, if athletes across the board were to receive a share of revenue, even in those sports that are economically in the red, then athletic programs are in for a lot of financial trouble irrespective as to whether a couple million dollars are trimmed from coaching contracts, particularly in a world where a virus like COVID-19 has proven to have the capacity to postpone entire football seasons in certain conferences. Furthermore, where will the money come from to pay for the comprehensive health care coverage, which will likely be required for every athlete in every sport, as well as the “commensurate lifetime scholarships” referenced by Booker and Blumenthal, but not yet fleshed out?
The result of turning a bill like the College Athletes Bill of Rights into a law could be the unintended consequence of eradicating the vast majority of college sports and primarily leaving football, basketball and maybe baseball as sanctioned teams. The rest of the current sport programs could turn into club sports, which would unfortunately diminish their standing on campus and be an overall negative consequences for the vast number of college athletes.
Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.