UPDATE: Sixth Federal NIL Bill Proposed By Kansas Senator Jerry Moran; Senator Booker Comments On Status of College Athlete Bill Of Rights

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Amateur Athletes Protection and Compensation Act.

The Amateur Athletes Protection and Compensation Act of 2021 (Protection Act), the sixth federal proposal governing student-athlete name, image, and likeness (NIL) rights, has been introduced U.S. Senator Jerry Moran (R-KS). Senator Moran’s legislation combines aspects of prior partisan legislation proposed by both Republican and Democratic legislators.

The Protection Act follows portions of Senator Murphy’s (D-CT) recently proposed federal College Athlete Economic Freedom Act, and joins other proposals by Senators Booker (D-NJ) and Blumenthal (D-CT), Senator Wicker (R-MS), Senator Rubio (R-FL), and the bi-partisan bill introduced by Representatives Gonzalez (R-OH) and Cleaver (D-MO.). These federal proposals have followed a wave of state-level NIL legislation, which has already resulted in six states passing NIL laws and twenty nine other states currently considering specific NIL legislation.

Under the terms of Senator Moran’s bill, athletes can sign endorsement deals if the agreements do not violate a school’s code of conduct, and recruits can sign similar endorsement deals if they are not considered recruiting inducements. The bill also grants student-athletes the right to enter a sports draft and retain their eligibility if they do not receive compensation from a professional sports league, team, or agent.

Unlike the more restrictive NIL language contained in Republican Senator Rubio and Senator Wicker’s proposed legislation, Senator Moran’s bill follows more liberal democratic proposals that expand medical coverage, lifetime scholarships for former athletes and grant athletes the ability to transfer at least once without penalty. The bill would require schools to cover student-athlete’s medical expenses upon the expiration of their athletic eligibility for either two years or four years depending upon the school’s athletic department revenue. It also compels schools to honor scholarships indefinitely until the student-athlete can complete their undergraduate degree.

Senator Moran’s bill also preempts varying state NIL laws and protects the NCAA from liability from former athletes retroactively seeking compensation. However, it does not grant the NCAA antitrust protection from legal entanglements tied to NIL. Finally,

“the bill is careful to ensure student athletes are not considered “employees” of their institution, an important point for the NCAA as it seeks to preserve its amateurism model and avoid any potential that student-athletes could unionize.

The bill also establishes the Amateur Intercollegiate Athletics Corporation (AIAC) to create and enforce rules related to NIL, while also creating a formal certification process for agents. AIAC members would include college athletes, athletic administrators, and experts in the college sports field. Five of the fifteen member AIAC board of directors would have to be current or former college athletes.

Senator Moran commented on his proposed legislation, “The Amateur Athletes Protection and Compensation Act would create a national standard of guidelines to make certain student athletes can benefit from the use of their name, image and likeness without hurting their eligibility to compete as a student athlete.”

Senator Booker comments on status of the College Athlete Bill of Rights legislation

Senator Corey Booker (D-NJ) recently commented on the status of federal NIL legislation. He explained that federal NIL bills creating a uniform national framework for student-athlete NIL rights have added “leverage” as the NCAA and its member institutions face the first real threat to their revenue model with Florida’s NIL bill set to take effect on July 1, 2021. Senator Booker commented, “Now we have leverage because (colleges) are facing a threat to their revenue model. It gives me a chance in my position in the Senate, along with a lot of great Senate partners, to say we are not going to settle these issues unless you make a commitment to the health and safety of our athletes.”

Senator Booker also commented,

“Don’t underestimate our ability to take all the time that we have until the final hours of a deadline.”

Senator Booker believes Congress won’t start moving on a bill until the spring or summer given the nation’s focus on vaccinations and the economy. The expectation is, as with many federal bills, that things will heat up as the deadline nears.

Senator Booker also acknowledged that one of the most controversial items in his bill, a revenue sharing provision which provides student athletes with the opportunity to share in university sport generated revenue may be difficult to secure. Instead, Senator Booker believes Congress will be more apt to approve an expansion of scholarship value and provisions focused on student-athlete health and safety. In fact, Senator Booker himself stated that he will not let “money issues” be settled until issues surrounding student-athlete health, safety, and education are addressed.

Jackson Lewis’ Sports Industry Group will continue to monitor the progress of state and federal name, image, and likeness bills, related developments, and the potential impact on college sports.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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