June 22, 2021

Volume XI, Number 173


June 21, 2021

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Bipartisan Name, Image, Likeness Bill Introduced In Congress

Legislation that would protect the rights of student-athletes to receive financial benefits from the commercial use of their name, image, and likeness (NIL), while prohibiting athletic associations, like the NCAA and colleges and universities, from preventing student-athletes from participating in intercollegiate athletics as a result of entering into endorsement contracts has been introduced in the House of Representatives.

The “Student Athlete Level Playing Field Act,” co-introduced by Representative Anthony Gonzalez (R-Ohio), a former Ohio State University and NFL player, and Representative Emanuel Cleaver (D-Mo.), has received initial bipartisan support from three Republican and three Democratic representatives co-sponsoring the bill.

The Gonzalez-Cleaver bill follows Republican Senator Marco Rubio’s proposed “The Fairness In Collegiate Athletics Act,” which was introduced earlier this summer. Senator Rubio’s bill would require the National Collegiate Athletic Association (NCAA) to implement rules that would allow student-athletes to be compensated for their NIL by June 30, 2021, one day before the effective date of the Florida NIL law, which has the earliest formal effective date of any current NIL state laws. In exchange for the mandate to the NCAA, the Rubio bill would provide a protective legal shield to prevent the NCAA from being legally challenged as a result of any rule changes they implement to allow student-athletes to earn money for endorsement deals and personal appearances.

In addition to the Rubio legislation, the Gonzalez-Cleaver bill is expected to be joined by another piece of partisan legislation from Senators Cory Booker and Richard Blumenthal. The highly anticipated “College Athletes Bill of Rights” is ex

pected to propose similar NIL rights, as well as additional healthcare coverage and educational benefits for college athletes.

The key components of the Gonzalez-Cleaver legislation would authorize student-athlete use of representatives to solicit or negotiate endorsement opportunities.

The potential endorsements would be able to include money-making opportunities that could conflict with existing school sponsorship agreements.

The student status of any student-athlete who enters into an endorsement agreement will remain the same and would not make them a school employee.

However, specific restrictions in the bill would prevent “boosters” (defined as individuals not related to an athlete or sponsors of school athletic programs who provide substantial financial assistance or services to schools) from providing any funds or things of value as an inducement for a student-athlete to enroll or remain at a school.

The bill also would eliminate student-athlete endorsements of companies associated with alcohol, tobacco, or vaping, marijuana, or drug dispensaries or sellers, casinos and gambling facilities, and adult entertainment.

Student-athletes would also be prohibited from “wearing any item of clothing or gear with the insignia of any entity during athletic competition or a university sponsored event.”

In addition to protecting student-athlete NIL rights, the Gonzalez-Cleaver bill attempts to appease certain concerns raised by NCAA. The bill contains language that would expressly preempt the impact of the laws of states that have already passed NIL legislation (California, Colorado, Florida, Nebraska and New Jersey) and attempt to dissuade other states from proceeding with impending votes on similar NIL laws.

The Federal Trade Commission would be tasked with oversight and enforcement of the NIL bill. Congress will establish and appoint a 13-person Covered Athletic Organization Commission made up of a combination of athletic directors, coaches, former student-athletes, athletic administrators, sports marketing professionals, and individuals with corporate governance experience. The Commission would be responsible during a three-year period to monitor the bill and make recommendations by reporting to Congress on an annual basis.

Jackson Lewis P.C. © 2021National Law Review, Volume X, Number 269



About this Author

Gregg E. Clifton, Collegiate Sports Attorney, Jackson Lewis, disciplinary hearings Lawyer
Office Managing Principal

Gregg E. Clifton is Office Managing Principal of the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as one of the editors of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major...

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