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Sports Illustrated: Next Steps for a Federal Name, Image and Likeness Bill Coming Into Focus
Jul 07 2020
Next Steps for a Federal Name, Image and Likeness Bill Coming Into Focus: Congress's involvement with the NCAA has never been greater—and the biggest thing on the agenda is athlete compensation
Sports Illustrated | Ross Dellenger
WASHINGTON, D.C. — Roger Wicker fumbled with the band that secures his surgical mask. The dang thing wouldn't stay properly fixed on his face, always slipping down to expose his nostrils—a no-no in these pandemic times.
Even U.S. senators aren't exempt from the difficulties of wearing a faceguard. Finally, Wicker (R-Miss.) had enough. He re-tied one of the bands, fastened it behind his ear and, voila, was appropriately shielded. "O.K.," he tells a reporter after a recent Senate hearing, "I'm ready for the interview."
If only everything could be so easy. Wicker will soon have much bigger matters to solve, issues needing a deeper solution than a 10-second knot. As the chairman of the U.S. Senate Commerce Committee, he leads a powerful body that holds the most significant influence of any on Capitol Hill for college sports' most troubling issue: athlete compensation, often referred to as name, image and likeness (NIL). Any federal legislation on NIL must pass through the Commerce Committee.
That makes Wicker the most important individual around the issue, controlling the figurative legislative levers from behind the curtain. He has the power to reject, accept or let die any NIL bill, and he's got the influence to amend or strike details of any legislation. In short, an NIL bill will have Wicker's fingerprints all over it. In fact, he's expected to draft his own bill, which, because of his chairmanship, takes precedence over any other. "Wicker's bill," says one legislative aide, "would be the one that would really move because it's up on his authority."
What Wicker says provides meaningful clues to the future of a federal NIL bill. That's why his comments last week in an exclusive interview with Sports Illustrated are significant. Minutes after the Senate Commerce Committee's two-hour hearing Wednesday on NIL, Wicker hoisted up that mask of his and gave his thoughts: he believes, as the NCAA does, that a federal NIL bill is imperative to avoid varying compensation laws from dozens of states; he expects a bipartisan bill will begin moving through his committee somewhat soon; and he thinks a NIL bill could arrive on the floor of the U.S. Senate this winter—but in all likelihood, not before the presidential election.
"I wonder if in the highly charged atmosphere we have between now and the election, with as many convention breaks and the appropriation bills that have to pass, if we could get to it—I just don't think we could," he tells SI. "After the election, I think we'll see some urgency to go ahead and get something done on a bipartisan basis. It shouldn't be a right vs. left issue. With the 2021 effective date approaching in some states, we'll need to act fast."
Last week's NIL hearing, while somewhat uneventful, was an essential step forward in Congress's creation of a bill governing athlete compensation. It also pulled the curtain back on the beliefs of powerful lawmakers on an issue that's gripped the NCAA like no other—their concerns and thoughts revealed publicly in front of a panel that included SEC commissioner Greg Sankey, Ole Miss athletic director Keith Carter and NCAA Board of Governors chairman Michael Drake.
Many lawmakers detest the NCAA, have little confidence in the body and believe it has been slow to act on the topic. "This is an issue that has gotten away from you," Sen. Marsha Blackburn (R-Tenn.) told the panel.
The hearing included a vigorous debate on a number of NIL topics, exposing senators' curiosities as it relates to this issue. Most notably, they wanted to know how many college athletes would significantly benefit from NIL; if the NCAA was the right body to enforce NIL rules; how NIL would impact an athletic department's budget; and the ways in which NIL could muddy the already soiled waters of recruiting. Lawmakers fired off questions to a five-person panel that, for the most part, took contrasting sides: one arguing for more NCAA-leaning, restrictive legislation (Carter, Drake and Sankey) and the other (former Miami tackle Eric Winston and Baltimore law professor Dianne Koller) backing a more open, athlete-friendly approach.
The hearing had some tense and interesting moments, and though many of them were in regards to college leaders' handling of the coronavirus, NIL was the main topic. "The NCAA model is breaking under the weight of its own injustice," Koller, at one point, told lawmakers as she sat between two of the most powerful men in college sports, Sankey and Drake.
Congress's involvement with the NCAA has never been greater. While the coronavirus pandemic has slowed progress, it is clear that lawmakers are set on passing federal legislation governing NIL. Several lawmakers are in the process of drafting or have already drafted Congressional NIL bills. Sen. Marco Rubio (R-Florida) announced his bill a few weeks ago, but it's not devoid of problems. Many fear it leans too heavily toward the NCAA and lacks bipartisan agreement. Rep. Anthony Gonzalez (R-Ohio), a former Ohio State receiver, is finalizing his bill in the opposite chamber.
Meanwhile, members of the Commerce Committee could produce two separate bills of their own, and both are expected to be bipartisan in nature, which is essential to any legislation. Sen. Jerry Moran (R-Kansas), the chair of the Senate Commerce subcommittee specifically overseeing NIL, is drafting legislation with Sen. Richard Blumenthal (D-Conn.), both of them also working with Gonzalez and Rep. Emanuel Cleaver (D-Mo). Wicker is working on legislation, too.
In the end, there could be as many as four NIL bills introduced this year. While Wicker and Moran’s legislation is most likely to move to the front of the line, they may eventually incorporate language from other bills through the amendment process. All those who introduced bills will be at the discussion table, a Senate Commerce source told SI. "They'd merge some of the languages into one committee bill," says the source, who was granted anonymity.
There is, however, a snag. The legislative council of attorneys that helps write the legal text of bills has been inundated with justice and virus-related legislation, potentially delaying timelines, another Congressional aide told SI. This is a problem, as a crucial deadline exists for a federal NIL law. Next July, Florida's NIL bill goes into effect, allowing programs like Florida State, UF and Miami to quite literally play by a different set of rules as others. The NCAA is expected to pass its own NIL policy in January that is likely to be more restrictive than Florida's law. The NCAA's rules will not supersede state law without the federal government's help.
The timeline is on everyone's mind, including Sankey, who revealed in the hearing that the other 10 state legislatures in the SEC's footprint would likely rush to pass their own, different NIL laws. "Knowing the competition within my 11 states, I can foresee quickly the other 10 one-upping each other. That's a problem with fair and equitable competition," he told the committee. "The effective date of the Florida law next summer is of great significance in needing to move this along in a timely manner."
While the NCAA appears to be getting what it wants—a Congressional NIL law—it's unclear how restrictive the universal legislation will be and if Congress will grant the NCAA's ultimate wish: antitrust protection. Nine minutes into last week's hearing, Maria Cantwell (D-Wash.), the Commerce Committee's ranking member of the minority party, joined many other lawmakers in denouncing such a move. "I'm not a fan of an NCAA antitrust exemption," she said. "I think that quashing all momentum for change with this blunt legal instrument is unnecessary and ill-advised."
Another topic has emerged from Committee members. They hope NIL legislation is the first step in full-scale NCAA reform. At least three senators mentioned or questioned the post-eligibility medical care that the NCAA provides its former athletes. The 65 Power 5 schools extend such care two years after an athlete's eligibility expires. Lawmakers took issue. Is that really enough? Why just two years?
Some college leaders remain unsold on NIL. In fact, in response to a 20-question survey that Wicker sent to 50 conferences and schools, less than 50% say they support athletes receiving NIL rights. Blackburn, the senator from Tennessee, asked each panelist that same question. "Do you believe student athletes should be able to profit from their name, image and likeness?" Each of the first four panelists replied quickly and succinctly: Yes. The fifth, however, did not. "I'm working on moving to a 'Yes,'" Sankey said.
As for Wicker, the senator says he enters this endeavor with an "abundance of caution and reluctance." He fears the regulation and enforcement of a law that could be used as recruiting inducements. Athletes could potentially receive what he calls "little sweet deals" from their hometown businesses to play for, say, an in-state program. "If I had the money as a local businessman, I'd want to pay $100 to every member of the Ole Miss football team to tweet something out on my behalf," said Wicker, himself an Ole Miss graduate. "I wonder if that's where we're headed."
Many of Wicker's exchanges last week came with Carter, the athletic director at the senator's alma mater. In response to the senator's question about the worth of an Ole Miss scholarship, Carter revealed that a full ride for a football or basketball player is annually worth about $70,000, including tuition, board, food and medical care. Carter also described a scenario in which NIL could impact Olympic and female sports in his department. In his example, a local radio station chooses to strike a sponsorship deal with a football player rather than the school itself. The loss of revenue could create a "trickle-down effect" in the department, Carter said.
Sankey, meanwhile, told senators that he worries about the time restraints on young athletes, already encumbered with class schedules and team functions, having to now fill busy schedules with NIL events. He also fears the disadvantage that NIL may create between colleges in major metropolitans (for instance, Ohio State in Columbus) compared to programs in tiny towns (Ole Miss in Oxford). One has vastly more NIL opportunities than the other.
Koller shot down these alleged unintended consequences in a terse response. "We do a lot in the name of sports perspectively worrying about unintended consequences and we're overly restrictive on restraints when we do," she said. "What I would say is that every student on campus currently that is not an athlete enjoys these rights."
There were questions, too, about enforcement. Is the NCAA the right body to regulate NIL? Most athletic administrators believe a third party should oversee regulation, something Sankey noted to lawmakers. "As currently structured," Sankey said, "I'm not convinced the NCAA enforcement model is designed to have this issue in real-time."
And how many athletes would really benefit from NIL? To that question from Wicker, Drake suggested that only "three to four" of Ohio State's football players could see a real benefit from NIL, something with which athlete advocates vehemently disagree. Wicker too. "I think it's going to be almost anybody by the time it's over with," he told Drake.
So what's the next step in this process? Ask the most powerful man around the issue. "I wouldn't be surprised," Wicker says, "if a bipartisan bill is introduced for the Senate, and the subcommittee, led by Sen. Moran, gets to work on it."