The Protect College Sports Act: Does the Senate Have the Framework To Tame the NIL Wild West?
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The bipartisan team of Senator Ted Cruz, (R-TX) and Senator Maria Cantwell (D-Wa) continue to march their offense down field with their bill to provide a framework to save college sports.
There remain, however, serious tacklers hoping to block a score, as they did with the now defunct SCORE Act.
The stakes are high. NIL is currently a free market for players, who are raking in millions at Division 1 schools, with little transparency, or regulation. Loyalty to programs, a core component of the successful college sports model, especially for alums, has quickly evaporated/ Despite the direct payments of up to $20 million authorized by the House settlement, even the most successful and affluent College athletics departments are facing millions in deficits. The current bill attempts to stop the bleeding. A center piece is the amendment of the Sports Broadcasting Act of 1961. Schools and Conferences would be allowed to pool voluntarily and jointly negotiate media deals, which could provide billions in additional revenue and limited antitrust protection. . Under amendments to the bill, women’s sports and Olympic sports, important in the college experience but lacking in big revenue generation, would have built in protections to preclude their elimination. There is strong support from 20 athletic conferences and the NCAA.
Who are the downfield tacklers? Two giant revenue producers: the SEC and the Big Ten. Both oppose. Both are not enticed by media deals, in large part because they have their own. They don’t want to pool. They also are concerned the limitations on athletes and revenue could result in more litigation, not less. There also could be an issue of eligibility for playing in the College Football Playoffs in they do not participate in pooling media programs.
There are other voices, from the Congressional Black Caucus to groups representing athletes. Under the proposed legislation, the rampant transfers would be restricted, along with agent commissions, which are currently unregulated.
Senator Cruz has indicated it’s now or never. The legislation needs to be enacted prior to the August recess and the mid -term elections.
Passage at this moment may require a Hail Mary completion. While there is significant support and the President wants this done, the House members have been taking a wait and see position until the final bill. And Senate passage is not assured.
The NCAA is trying to enact changes that it can. It approved a new age-based eligibility framework that gives athletes five years to compete across five seasons. The clock starts the earlier of first enrollment in college or the beginning of the year of the athlete’s 19 birthdate. Not surprisingly , litigation ensued within 24 hours after this announcement challenging this model.
So far, the only certainly seems to be that lawyers will continue to be busy, regardless of the outcome of the legislations.
The AFL-CIO has also weighed in against the act, claiming athlete’s rights a re being restricted. They also believe the legislation would undermine potential collective bargaining rights, and restrict states from enhancing athlete protections.
Whatever the outcome, NIL is here to stay. College sports has been fundamentally changed. The debates will continue, and the next 60 days will reveal the next playing field, at least some of which will be in the courtrooms.
Keep watching!
Michael Marino is a NYC-based management labor, employment and entertainment lawyer who for decades has represented corporations, executives, celebrities, sports figures, and influencers. A member of the College of Labor and Employment Lawyers, he has tried federal court cases across the country and negotiated hundreds of collective bargaining and marketing agreements. Before entering private practice, he served proudly as an officer in the United States Marine Corps, and as Special Counsel to the Secretary of the Navy. He is a graduate of Georgetown University Law Center, Syracuse University College of Law, and Cornell University’s School of Industrial and Labor Relations.
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