Draft NIL Legislation Aims to ‘Save College Sports as We Know It’

A House subcommittee is moving forward on a bill that would create national rules of the road to rein in the growing name, image and likeness “Wild West” in college sports.

The House Innovation, Data and Commerce Subcommittee heard testimony and feedback on a draft version of the legislation Thursday. The hearing was the 11th Congress has held about the NIL rights of student athletes, but the first one focused on a specific piece of legislation—showing some forward progress on an issue that’s the top legislative priority for the National Collegiate Athletic Association.

“This is the first hearing, at least in my view, that hasn’t been kind of more broader platitudes,” Sam Ehrlich, an assistant professor at Boise State University and an expert in sports law, said in an interview. “I think that’s pretty noteworthy.”

Since 2021, college athletes have been able to sign deals with businesses and other entities to make money off their names, images and likenesses. This has led to a patchwork of state laws outlining NIL rights for students, which the NCAA says creates an uneven playing field. Meanwhile, leading athletes have cashed in, some earning more than $1 million a year. However, the windfall hasn’t been evenly felt across sports and institutions, fueling concerns that NIL could jeopardize non-revenue-generating sports.

Florida representative Gus Bilirakis, the Republican chairman of the House subcommittee, said at Thursday’s hearing that while NIL is great for players, it has “enabled a Wild West environment where pay for play is rampant.”

Bilirakis argued that his national legislation would provide “common-sense rules of the road.” He’s released a discussion draft of a bill in the works for the last eight months that would codify students’ NIL rights, ban boosters and other third parties from offering inducements to students to play for a particular university, and add disclosure requirements for NIL deals. It would also create a new independent nongovernmental organization led by 21 congressional appointees that would oversee the NIL process. In addition, the legislation would prevent institutions from entering into NIL deals directly with students.

“We need to save college sports as we know it,” he said.

Bilirakis is working with Michigan representative Debbie Dingell, a Democrat, and New Mexico senator Ben Ray Lujan, also a Democrat, on the legislation. Several other lawmakers are also working on their own versions of an NIL bill.

Dingell said at the hearing that the discussion draft is a start, but she’s concerned that the bill says student athletes aren’t employees of an institution—a sticking point in discussions over NIL legislation. Other Democrats on the panel said they wanted to see language that gives NIL rights to international student athletes, outlines health and safety measures for all athletes, and closes loopholes in the gender equity law Title IX, which is designed to ensure equal access to educational opportunities.

“Athletes have more power today than ever before,” said Representative Lori Trahan, a Massachusetts Democrat. “The last thing that this committee should be considering is legislation that limits those opportunities.”

Trahan has co-sponsored legislation that would establish unrestricted NIL rights for student athletes; prevent colleges and third-party groups from discriminating on the basis of gender, race or participating sports when brokering NIL deals; and ensure compliance with Title IX.

Bilirakis’s bill gives the NCAA most of what it has wanted to see from federal legislation. That includes creating national rules that pre-empt state laws and add new restrictions on third parties, such as agents and collectives that work with athletes on the NIL deals. However, the legislation doesn’t grant the NCAA antitrust exemption, which the association has sought to protect itself from litigation and give it more legal authority to regulate college sports.

The NCAA also wants Congress to affirm that student athletes are not employees of an institution, which the association says is critical. Some student athletes have sought to unionize in recent years, arguing that they are employees with collective bargaining rights, while the NCAA says they are amateurs and not able to form a union. A federal lawsuit, Johnson v. NCAA, filed in 2019 also argues that student athletes are employees. A decision in favor of the plaintiffs could spell the end of the amateur model.

“It’s the No. 1 priority for the NCAA; they are deathly afraid of employee status for college athletes,” said Ehrlich of Boise State. “It really feels to me like they’re reaching out to the federal government to make their lives easier.”

NCAA president Charlie Baker, a former Republican governor of Massachusetts, said at Thursday’s hearing that if all student athletes became employees, a majority of college programs would disappear, particularly those at small colleges and in Olympic sports that don’t generate revenue.

“Because the money is just not there,” he said.

Meredith Page, a junior volleyball player at Radford University, and Kaitlin Tholl, a senior softball player at the University of Michigan, were among three student athletes who testified Thursday. They said they didn’t want to become employees of their colleges, citing uncertainty about how it would impact sports like theirs and their role on the team if they aren’t performing well.

“I would not want to be an employee of my university,” Tholl said. “What if I’m not performing well enough on the field—can my coaches fire me? So much that goes into it that I think people should be careful what they wish for.”

Page implored Congress to focus on those who probably wouldn’t benefit from employee status.

“For 95 percent of student athletes, it would be detrimental,” Page said.

Both women, who generally supported the legislation, also said they worried about how NIL will affect women’s sports and universities’ compliance with Title IX. Baker said male athletes currently receive about 90 percent of the NIL spending from donor collectives—coalitions of boosters and alumni that support individual colleges and universities and raise money to facilitate NIL deals for athletes.

“Women’s sports have come so far, and I fear NIL can push us backwards,” Tholl said.

But Chase Griffin, a senior quarterback at the University of California, Los Angeles, disagreed on the question of whether student athletes should be considered employees.

“Based on the number of time, effort and hours, we operate as employees currently,” he said.

Griffin, who has inked more than 40 NIL deals, said the draft legislation creates unnecessary obstacles and regulations that would discourage companies from making such deals.

“This bill simply codifies an outdated NCAA business model that Supreme Court justice Kavanaugh wrote ‘would be flatly illegal in almost any other industry in America,’” he said. “If enacted, this bill would deprive another generation of college athletes a proven and growing pathway to the American dream.”

Griffin said he would prefer that Congress allow the free market to regulate itself and weed out bad actors. “Don’t create more rules,” he said. “Momentum is in the favor of the athlete and in favor of athlete compensation.”

Instead, he said, Congress should conduct more research into the NIL landscape, which he acknowledged has gotten a bad rap among federal lawmakers.

“A lot of the thought leadership in this room has been contained in the echo chamber between Congress, NCAA and the media that’s reporting on all the horror stories of collectives,” he said, adding that 80 percent of deals are between athletes and brands.

The nearly four-hour hearing also briefly veered into other issues facing college sports, including policies for transgender student athletes and conference realignment.

“How is realignment good for students unless it’s football related?” asked Texas representative Marc Veasey, a Democrat. “That’s my concern.”

Veasey pointed out that the two sports drawing the most NIL concerns—football and basketball—are ones in which Black men do well.

“We’re trying to be very quick to regulate those, but there are many issues that need to be addressed that no one is talking about,” he said. “But all of the sudden, when they start making a little bit of money, we need to swoop in and regulate this.”