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Student Athlete Pay for Likeness Weighed by Senate Panel

Feb. 11, 2020, 8:57 PM

A professional football player turned House lawmaker is pushing a bill to allow student athletes to be paid for the use of their names and likenesses.

Rep. Anthony Gonzalez (R-Ohio), a former wide receiver for the Ohio State Buckeyes before a four-year professional stint at the Indianapolis Colts, is working on a bill that would allow student athletes to be compensated, he told the Senate Commerce Subcommittee on Manufacturing, Trade, and Consumer Protection in a Tuesday hearing.

The measure, which Gonzalez said will be unveiled in the coming months, would tie payments to the use of an athlete’s name, image, and likeness (NIL) without labeling student athletes as employees of their schools. The National Collegiate Athletic Association, the governing body of college athletics, currently prohibits students from receiving such compensation. The NCAA also bars athletes from hiring an agent or other representation.

Gonzalez said in a statement that “allowing student athletes to capitalize on” NIL opportunities can help the students, “the majority of whom do not receive full-tuition scholarships, to mitigate the financial pressures of attending college in the 21st century.”

Several members of the subcommittee voiced general support for some form of compensation rights for student athletes. But others said they were concerned about the impact it would have on college sports, which have long been treated as amateur competitions.

“On the one hand, we want to allow opportunities for students to benefit from their NILs,” NCAA President Mark Emmert said at the hearing. “On the other hand, we want to preserve the character and quality of the uniquely American phenomenon of college sports.”

State Action Draws In Senators

California opened the floodgates last year with a new law, set to go into effect in 2023, to ban universities and colleges from preventing athletes from gaining NIL compensation from third parties. Illinois, New York, and Florida have followed with their own legislative proposals, which would also allow the athletes to hire agents and other types of representation.

The NCAA is in the midst of developing its own set of reforms in response to the groundswell of state laws and pressure from ongoing litigation from university athletes. The organization’s amateurism rules have endured a series of legal challenges under federal wage, labor, and antitrust laws that haven’t succeeded in forcing fundamental change to allow student-athletes to be paid for their play as if it were work.

Emmert said the organization hopes to release its own recommendations on compensation policy changes by January 2021 with a preview of early ideas to be released in April—a timeline that some senators found unsatisfactory.

Subcommittee Chairman Jerry Moran (R-Kan.) said he’s willing to wait to see what the NCAA comes up with to see if Congress needs to act, while also expressing reservations over compensating athletes. “Schools in small media markets and particularly athletes that aren’t participants in revenue generating sports” could be disadvantaged, he said.

Emmert said a federal framework may still be necessary. “With ongoing serial litigation and NIL legislation pending in over half the states, we may need your help” to establish a nationwide framework, Emmert told the Senate panel in a statement. He has also met with senators on drafting a federal framework, a Senate staffer told Bloomberg Law.

Sens. Chris Murphy (D-Conn.) and Mitt Romney (R-Utah) in December formed a bipartisan task force to facilitate discussions about student athlete compensation. The lawmakers are also engaged in early discussions to introduce a Senate proposal on the topic, the Senate staffer said.

Sen. Richard Blumenthal (D-Conn.), the ranking Democrat of the subcommittee, called the current state of college athletics “exploitative.” Giving students NIL rights could be a solution, he said.

To contact the reporter on this story: Jaclyn Diaz in Washington at jdiaz@bloomberglaw.com

To contact the editors responsible for this story: Chris Opfer at copfer@bloomberglaw.com; Brandon Lee at blee@bgov.com