As the National Collegiate Athletic Association (NCAA) continues to fight legal battles to limit the ability of student-athlete plaintiffs to bring antitrust suits challenging NCAA compensation rules, it is fighting to keep control of player compensation rules on other fronts as well. The NCAA has been lobbying Congress to step in and create a federal framework addressing name, image and likeness (NIL) payments in the wake of state legislation passed in multiple states allowing for NIL payments. Some states, with California leading the way, have passed legislation requiring the NCAA and its member institutions to allow student-athletes to earn compensation for commercial use of their NIL.[1] While California’s law does not go into effect until 2023, in June Florida accelerated the debate when it enacted its own NIL compensation law, set to take effect in July 2021.[2] The NCAA is seeking consistency across all colleges by lobbying Congress to enact a federal law addressing NIL issues. Many members of Congress have voiced their support for such legislation.
The NCAA has also been pushing Congress to exempt it from federal antitrust laws, wiping out a legal avenue many student-athletes have been somewhat successfully pursuing to limit NCAA compensation rules. On June 18, 2020, Senator Marco Rubio introduced a bill that would exempt the NCAA from being sued for violating antitrust laws; however, the bill has no co-sponsors. Many members of Congress are skeptical of such an exemption and have said so publicly. Senator Richard Blumenthal recently stated that already existing antitrust exemptions for sports leagues in relation to labor are highly exceptional and should be revisited. In June, Representative Anthony Gonzalez said an exemption would be legislatively impossible at the moment. Additionally, in an interview with The Wall Street Journal, Department of Justice (DOJ) antitrust chief Makan Delrahim stated that the DOJ was concerned that NCAA actions could limit competition and benefits for student-athletes.[3]
In the NCAA’s most recent attempts to persuade Congress to take federal action, Dr. Mark Emmert, President, testified before the Senate Judiciary Committee on July 22, 2020. In his testimony, Dr. Emmert stated, “[t]he [NCAA] has taken historic steps to expand NIL opportunities for student-athletes. However, its ability to make meaningful reforms is significantly undermined by impending state legislative action and outside legal factors, and underscores a compelling need for federal partnership on this issue.”[4] Dr. Emmert also said that it is “untenable for NCAA rules to be judged as unlawful and subject to repetitive antitrust lawsuits.”[5] Although Dr. Emmert clarified that the NCAA is not seeking a broad-based antitrust exemption, Senator Lindsey Graham stated that the Senate Judiciary Committee wants to have a bipartisan plan in place to regulate NIL rights by September 15, but that he was not sure legislation could be passed by the end of the Congressional term. However...
