Yet another bill that would provide college athletes with rights to commercially exploit their names, images, and likenesses has been drafted by a member of Congress. Meanwhile, despite no lack of legislation on the subject, none of the sponsored pieces of legislation have progressed further than being announced and publicized.
The latest proposal comes from Sen. Jerry Moran (R-Kan.), who has unveiled the Amateur Athletes Protection and Compensation Act of 2021. Much like the other pending proposed bills, Moran’s legislation would prohibit the NCAA, athletic conferences, and universities from taking punitive action against a college athlete as retaliation for entering into a marketing contract with a third party. However, there are some elements within the bill that distinguish it from prior proposals.
One such distinction that may be met with curiosity is that Moran explicitly included a provision to clarify that college athletes shall not be considered employees of their schools, conferences, or the NCAA based on their participation in athletic events and competitions. While the regional director of the National Labor Relations Board (NLRB) in Chicago once ruled that college football players at Northwestern University who received scholarships should be considered employees, the NLRB later exercised its discretion to not assert jurisdiction and dismissed the Northwestern players’ petition to unionize, identifying that it does not have jurisdiction over state-run colleges and universities. Moran, and others such as the NCAA, may be concerned by the NLRB adding that its decision was to be narrowly focused on the players in that case and that it did not preclude reconsideration of that issue in the future. Moran’s bill would alleviate questions surrounding whether the matter may come up again.
Setting that issue of employee status aside, Moran did build in some worthwhile protections for college athletes that go beyond the basic name, image, and likeness rights that they so deserve. For instance, the bill contemplates that schools will be required to cover out-of-pocket medical expenses and secondary medical opinions for injuries and communicable diseases sustained or acquired while an athlete was engaged in competition. Additionally, institutions that enjoy athletic department revenues of at least $50 million will be required to provide healthcare coverage for such injuries or communicable diseases.
Furthermore, Moran’s bill would provide enhanced rights for athletes who wish to test the waters in a professional draft. Under the terms of the legislation, an athlete would be able to declare for a professional sport’s draft and still return to school as long as the athlete does not receive any compensation from the sports league, a professional sports team, a sports agent, another type of athlete representative, or any individual or entity affiliated with the aforesaid types of entities and individuals.
Moran also envisions creating a new Amateur Intercollegiate Athletics Corporation (AIAC), which would have subpoena power and serve as a clearinghouse for best practices with respect to the rights and protections of athletes who enter into contracts with sports agents and marketing deals. The AIAC would be available to provide guidance to athletes surrounding those types of contracts and coordinate with the Federal Trade Commission to enforce standards for reviewing and certifying athlete endorsement contracts such as ethical standards that would likely limit the industries and corporate entities available for athlete endorsements. It would also be tasked with establishing a formal certification process for sports agents, separate and apart from the existing state-by-state licensure of agents that currently exists. Governance of the AIAC would be by a board of directors, at least one-third of those directors to be current or former college athletes.
Overall, Moran’s proposal contains some pro-athlete elements and some features that may be of concern for athletes, such as the immense power that will seemingly be provided to this new AIAC entity. The best solution is likely one that looks at the myriad bills currently pending at the national level and extracts the policies that make most sense for a pure name, image, and likeness piece of legislation.
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.