SEC commissioner Greg Sankey and Pac-12 commissioner George Kliavkoff traveled to Washington, D.C., in May to push Senators for federal NIL regulation. That push appears to have paid off. Former Auburn football coach turned U.S. Senator Tommy Tuberville announced Wednesday he’s leading the drive to regulate Name, Image and Likeness on a federal level.
Tuberville, now an Alabama senator, told Sports Illustrated’s Ross Dellenger that he intends to draft a bipartisan NIL bill with fellow Senator Joe Manchin of West Virginia.
“I’ve talked to all my [coaching] buddies. They’ve never seen anything like it,” Tuberville told Sports Illustrated. “When you don’t have guidelines and direction, no matter what you are doing, you are lost. They are all lost right now.”
The NCAA v. Alston decision by the Supreme Court delivered a blow to amateurism in June 2020. The Supreme Court ruling stated the organization violated antitrust law by placing limits on the education-related benefits.
The decision made it known NCAA restrictions – including on NIL activity – could face serious legal challenges in the future. And since the NCAA introduced an interim policy on NIL last summer, coaches and administrators say NIL has turned into a murky world with collectives getting involved in pay-for-play deals with recruits. Further complicating the issue is that legal experts say any potential legislation could be met immediately with legal challenges.
Nonetheless, Tuberville and Manchin believe it’s time for Congress to act.
“Student-athletes, college and university administrators, athletic directors, and athletic conferences face uncertainty in a rapidly evolving NIL landscape,” Tuberville and Manchin said in a letter penned to Sankey on Wednesday.
“The arms race of NIL implementation has already far exceeded the original post-Alston intent of ensuring that players are equitably compensated for the use of their name, image, and likeness. A lack of clear, enforceable rules is creating an environment that potentially allows for the exploitation of student-athletes by unregulated entities, prioritizes short-term financial gain over careful investment in one’s career and the lifelong value of education, and diminishes the role of coaches, mentors, and athletic staff while empowering wealthy boosters. In short, we are rapidly accelerating down a path that leads away from the traditional values associated with scholastic athletic competition.”
Peter Schoenthal, CEO of Athliance, is on the frontlines of the NIL space. He believes the move by Tuberville is a good thing.
“Since the moment the decision in Alston was released, it became clear that without Congress or collective bargaining with the student-athletes, there would be legal roadblocks to properly legislating and enforcing uniform Name, Image, and Likeness rules,” Schoenthal said.
“As many predicted, and without proper enforcement, the space has become ‘The Wild West.’ This announcement is a step in the right direction. However, it is still imperative that the bipartisan group drafting this bill listens to all parties involved: administrators, coaches and student-athletes.”
Tuberville says NIL ‘ground rules’ needed
Tommy Tuberville and Joe Manchin also say in the letter to the SEC that “a lack of meaningful leadership and a lack of clarity” means clear ground rules for student-athletes and schools must be set. However, neither Tuberville and Manchin outlined specific NIL solutions in the letter.
“Like you, we have the common goals of protecting student-athletes, ensuring fair competition and compensation, and preserving the time-honored traditions of college sports,” the letter to the SEC commissioner said.
This isn’t the first time that Tuberville has made it clear he’s concerned about NIL. In late June, he told Bloomberg he was not happy about where NIL was going. But he also was concerned about the ramifications of federal legislation.
“You get people up here involved, now, you’re going to take away all your rights,” Tuberville told Bloomberg.
Tuberville also said he doesn’t want to turn college sports into “minor leagues” and he was also concerned about there being enough money to subsidize sports that don’t pay for themselves. Yet, it’s clear Tuberville feels compelled to act now based on his push for the bipartisan bill with Manchin. He told Sports Illustrated that NIL across the country is a “mess” and a “free-for-all.”
NIL legislation could lead to lawsuits
Given the Supreme Court’s ruling against the NCAA last summer in the Alston case – which argued the NCAA’s rules on education-related compensation were unfair and violate federal antitrust law –NIL experts say the legislation could face challenges from collectives and even athletes themselves.
NIL experts say if Tuberville and Manchin push forward with federal legislation, it’s important for them to get it right.
“It’s wise for Tuberville and Manchin to elicit feedback from various conference commissioners around the country in order to craft their legislative language,” said David McGriff, an attorney helping athletes during the NIL process.
“Additionally, the conflicting state laws and NCAA guidance has created a chaotic dynamic in the real world of NIL. That being said, the Senators need to spend even more time conferring with antitrust lawyers and legal minds versed in antitrust law.”
And crafting that legislation is going to be difficult, McGriff said.
“I thought the key language in the Senator’s letter was the goal to ‘establish an Alston-compliant NIL regulatory structure,’” McGriff said. “That is easier said than done. Remember, the Alston decision not only opened the door for NIL, it also laid the foundation for successful legal challenges to any restrictions on compensation unrelated to education, which could potentially pose a threat to the enforcement of any regulations with respect to NIL.
“Lawmakers will have to walk the tightrope between regulation, on the one hand, and the Alston reasoning supported by existing antitrust laws. I’m looking forward to seeing how that walk plays out.”