Congress Weighs In on College Athletes Leveraging Their Brand

Since the NCAA adopted a new policy this summer allowing college athletes to profit from their name, image and likeness (NIL), many players have signed brand deals and contracts, some raking in hundreds of thousands of dollars. A number of states have also passed their own NIL laws, and on Wednesday the National Labor Relations Board issued a memo classifying private college athletes as employees who deserve the same rights and protections as the pros.

Now Congress is taking up the issue. On Thursday, the House Subcommittee on Consumer Protection and Commerce held a hearing on NIL with testimonies from the National Collegiate Athletic Association, the National College Players Association (NCAP), the Central Intercollegiate Athletic Association (CIAA) and others. Subcommittee chair Jan Schakowsky, who introduced the College Athletes Bill of Rights last year, said the subcommittee would serve as forum to discuss the next steps for NIL.

“For years, Congress was told by the NCAA and others to let them govern themselves,” Schakowsky said. “However, in the wake of the proliferation of name, image, likeness laws in states around the country, and not to mention also Supreme Court cases, today they are coming asking us to intervene.”

NCAA president Mark Emmert, in his opening statement, called on Congress to meet the “urgent” need for a “federal framework” around NIL.

“This framework needs to put college athletes first, on that we all agree,” Emmert said. “While it has been exciting for me and others to see college athletes explore new financial options in recent months, we’re also seeing many challenges and concerning trends. These concerns, if not addressed soon, may be very difficult to reverse.”

Emmert said the “patchwork” of state laws fails to provide uniform protections for college athletes nationwide and creates an uneven playing field. The lack of transparency around NIL agreements can negatively impact athletes’ current and future prospects, he said, making it vital that they receive education around contract law and financial counseling.

NCAP executive director Ramogi Huma, a former University of California, Los Angeles, football player, said there’s “not a need” for Congress to act on NIL, since any student nationwide can profit, but that federal legislation should mandate broad-based reforms. They should include creating a national entity responsible for certifying athlete representatives, preventing conflicts of interest by restricting colleges from representing their athletes or arranging NIL deals, and informing college athletes about issues surrounding NIL, he said.

But NIL pay is of little importance compared to other pressing issues in college athletics, Huma said. Congress should also focus on the health and safety of college athletes by working to prevent injuries, fatal accidents and suicide, as well as sexual abuse by team trainers and doctors.

"Yes, college sports is in crisis," Huma said. "But it’s not because athletes have NIL freedoms. If Congress moves federal NIL legislation, the NCAP is asking that it not ignore abused, broken and dead bodies, the discrimination against female athletes, and other important matters."

Baylor University president Linda Livingstone testified that the current patchwork of state NIL laws is confusing. She said any potential federal NIL legislation should be based on three main principles: treating college athletes as students first, ensuring equity in the treatment of men and women as employees, and addressing resource discrepancies among different institutions.

“Now is the time to recommit and reshape college athletics to better serve the future needs of our students and our institutions,” Livingstone said. “Congress has an important role in shaping the future of college athletics and should establish a uniform national standard to address the many challenges becoming evident around NIL legislation.”

Jacqie McWilliams, a commissioner for the CIAA, also stressed the need for Congress to create legislation cognizant of the resource disparities among institutions.

“Any federal bills that attempt to legislate on financial resources outside of NIL will negatively impact Division II, and honestly, any additional financial constraints could potentially eliminate our athletic programs and our conferences,” McWilliams said.

On the topic of the NLRB’s recent memo, Emmert said there needed to be more consideration of “students’ voice and vote.” On Wednesday evening, the organization released a statement saying, “College athletes are students who compete against other students, not employees who compete against other employees.”

“In terms of the student voice and vote … I hope that we can continue to make progress on this,” Emmert said. “It’s something that I’ve been very engaged in, to continue to do that so that student athletes are more involved in every one of the committees and decision-making bodies of the association.”

Additionally, Cameron March, a member of the women’s golf team at Washington State University, said most of the discourse she’s heard revolves around stars of the collegiate sports world -- mostly male football and basketball players -- and that Congress should focus on how NIL might impact less visible players.

“I know this too well as a female athlete of color, currently playing women’s golf, a sport that isn’t the most lucrative or visible,” March said. “This is why I feel as though it’d be wishful thinking to believe that someone like me would ever be on an equal financial playing field as a star quarterback.”

She added that it’s important for institutions to provide athletes with education that enhances business, financial and economic literacy, so they are better prepared to make decisions and advocate on their own behalf. She said WSU has been helpful in providing resources on personal branding and financial literacy and even offers a four-credit entrepreneurship course catered to NIL.

“I share my experience today in the hopes that you will appreciate that the opportunities afforded student athletes with the use of our name, image and likeness impacts all student athletes, whether we are entrepreneurs, creating apps or the starting quarterback,” March said. “Having a standard that will support all student athletes is important.”