Newsletter, Image, Likeness Vol. 19: Here Comes Congress Again..

The Weekly Longer NIL Thought.

There will be yet another Congressional hearing on NIL.

The House Energy and Commerce Committee announced, on March 14, its intention to have a hearing on "Protecting NIL Rights for College Athletes," to be held on March 29.

Of course, the hearing has a quirky name because Congress will be Congress. It's titled, "Taking the Buzzer Beater to the Bank: Protecting College Athletes’ NIL Dealmaking Rights."

Representatives Cathy McMorris Rodgers (R-WA) and Gus Bilirakis (R-FL) stated the following about the forthcoming hearing: "Athletes and students should have every opportunity to succeed in life and in the sport they’re passionate about. E&C is working to ensure a clear set of rules for male and female athletes of every sport to benefit from their name, image, and likeness—at both large and small schools in every state—to preserve the future of college athletics. Given that March Madness is upon us, we look forward to holding this timely hearing and reigniting discussions on how we can protect the rights of young athletes across the country."

The first question should be, are more rules needed? The second question is, perhaps, how would additional rules benefit athletes? Republicans, such as those who uttered the above statement, typically believe that free markets breed economic prosperity and they are usually averse to more rules and red tape. But is that ultimately what is to come from new federal efforts when it comes to NIL? We don't yet know, but I always raise my guard when I hear anyone talk about the need to "preserve the future of college athletics." Preservation typically includes protections for the NCAA, such as the antitrust exemption that Mark Emmert was begging Congress for before he was replaced by Charlie Baker.

My friend Marc Edelman seems to agree with me. He tweeted, "I have no idea what the House has planned with its upcoming hearings about college sports labor markets. But, from my perspective, a hearing about the legitimacy of free markets in one industry is a hearing about the legitimacy of free markets in all industries. I’m concerned."

I've lost count of how many Congressional hearings there have been thus far with absolutely no progress on pushing a single piece of NIL legislation to the floor of the House of Representatives or the Senate. Let me highlight a few.

On February 11, 2020, the Senate Commerce Subcommittee on Manufacturing, Trade and Consumer Protection hosted a hearing on NIL where Senator Marsha Blackburn said to then-NCAA president Mark Emmert that many student-athletes/families must be wondering how in the world they are going to be able to trust Emmert to get the NIL issue right. Senator Richard Blumenthal added that states should move forward with speed on NIL laws to put pressure on the NCAA and that 2021 would be too late for change. A federal law didn't seem to be a priority at the time (it still doesn't seem to be a priority for Congress).

There was a hearing on June 9, 2021, hosted by the Senate Committee on Commerce, Science, and Transportation and titled, "NCAA Athlete NIL Rights," to address federal legislative proposals to enable athletes participating in collegiate sports to monetize their NIL; improve athlete health care; and enhance scholarship protections and academic outcomes, among others. Note that this hearing was also held prior to July 1, 2021, when the NCAA removed its general prohibition on athletes earning money off their fame.

As I tweeted during that hearing, "Why is Congress taking so long to debate NIL legislation? Watch the statements from Sens. Wicker and Booker. Wicker wants some reduction of liability for the NCAA. Booker wants more than NIL. He wants a "Bill of Rights" for athletes. A non-partisan issue has become partisan." I particularly liked ESPN College Football Analyst Rod Gilmore's take: (1) The NCAA doesn't need protection; and (2) Only create a national law if it benefits the players and if it provides something the states don't cover (i.e. group licensing, healthcare, a concussion protocol).

There was a hearing on June 17, 2021 (also prior to the NCAA pivoting on its longstanding position concerning NIL), hosted by the same Senate committee, titled, "NCAA Student Athletes and NIL Rights." Senator Maria Cantwell said that the primary sticking points in reaching a compromise in NIL negotiations are antitrust and preemption. Antitrust remains a major issue.

On September 30, 2021, the House Energy and Commerce Committee (the same Committee set to have another hearing on March 29) hosted an NIL hearing titled, "A Level Playing Field: College Athletes’ Rights to Their Name, Image, and Likeness." Former NCAA President Mark Emmert asked Congress to pass NIL legislation that expressly says college athletes are not school employees as well as protections against litigation when the NCAA makes rule changes or policy decisions. On the other end of the spectrum was National College Players Association leader Ramogi Huma, who said Congress does not need to be involved in NIL and that state action has accomplished compensation freedoms.

Why is another Congressional hearing needed? It isn't. And it's concerning that this is what legislators on Capitol Hill seem to wish to consume their time with once again so that they can all brag about their days in college and their respective alma maters' athletics success while delving into issues so far outside the realm of NIL that it should make you wonder why you voted for some of these people to represent you in the first place.

A federal law on NIL is not needed. Leave it up to the states, as Congress has done for roughly a century when it comes to every individual's right of publicity and the ability to enforce same against misappropriation. Instead, the federal government should be focused on clearing up questions about what international athletes can and can't do under the current rules, to avoid potentially devastating consequences of losing eligibility to participate in intercollegiate athletics in the U.S. and to ensure that they have the same NIL rights as those born here.

Congressmen and Congresswomen should avoid falling for NCAA lobbying dollars and refuse the Association's request for an antitrust exemption as well as its push to get Congress to classify college athletes as not being employees.

As I discussed with a law clerk of a U.S. Senate Committee yesterday, if Congress feels compelled to get involved in publicity rights, then it should not make the same mistake the NCAA made for decades, which is to single out college athletes while ignoring everyone else. Instead, it should probably consider a federal law that preempts all state law right of publicity statutes for all people and model it to look somewhat similar to the Lanham Act and the Copyright Act.

It's Not NIL, But I Can't Ignore These Crazy Transfer Portal Numbers.

And One Parent Was Willing To Talk About Portal Money.

SMU basketball player Zhuric Phelps announced his intention to stay at the school. His father said that interest from other schools had become a distraction and that "the money went higher," regarding prospective NIL deals that were being communicated.

Pringles Goes Hard In The Paint With March Madness NIL Deals.

Houston Gets The 1 Seed And Multiple Players Score NIL Deals With The State's Largest Credit Union.

9 players from the men's and women's basketball teams have signed with credit union, TDECU.

Buick Signs 5 Women's Basketball Players Leading Up To The NCAA Tournament.

The players are Aliyah Boston, Cameron Brink, Caitlin Clark, Azzi Fudd, and Kiki Rice.

Delaware NIL Collective Launches.

It's called the Blue Hen Collective, powered by Student-Athlete NIL (SANIL), and it was announced by Delaware Athletics.

Between 85-90% of contributions will go to the athletes.

Boston College Athletic Director Sends Letter On NIL.

Blake James included that fans can support the Friends of the Heights collective, but noted that it is a separate organization and that a contribution to it "does not affect Boston College Lifetime Giving or allow you to receive institutional credit for your gift."

Ohio State Running Back Miyan Williams Signs With The Limitless NIL Agency.

Final Thoughts.

That is it for Vol. 19 of Newsletter, Image, Likeness. Thanks to the more than 5,700 people who subscribed to this newsletter thus far, and please feel free to share this free resource with others on LinkedIn or elsewhere.

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