U.S. Sens. Joe Manchin, Tommy Tuberville release bipartisan NIL bill

After nearly a year of speculation and discussions surrounding NIL legislation from U.S. Sens. Joe Manchin (D-West Virginia) and Tommy Tuberville (R-Alabama), the duo released a bipartisan NIL bill Tuesday afternoon.

Announced days before the start of Congress’s August recess, the legislation comes after the Senators spent much of the last year meeting with stakeholders from across the college athletics spectrum.

Athletic directors, administrators, associations, NIL collectives and athlete groups provided feedback in October. A close friend to Manchin and Tuberville, Alabama football coach Nick Saban was consulted during the process. NCAA president Charlie Baker has also spent considerable time in Washington, D.C., since taking the job in March.

Those efforts have now resulted in the “Protecting Athletes, Schools and Sports Act of 2023,” nicknamed the “Pass Act.” A former head coach at Ole Miss and Auburn, Tuberville announced plans for the bill last August. The bill was on track to be released this spring but now comes out in late July. Read the full piece of legislation here.

Described as a way to create, “common-sense guidelines for the NIL system across the country,” the legislation would not allow athletes to enter the transfer portal during their first three years of eligibility. Athletes would have to conform to a uniform standard contract, too.

According to the release, the legislation would ensure, “nothing in the bill would impact the employment status of a student-athlete.”

The NCAA would be allowed to revoke school licenses to participate in NIL or send violations to the Federal Trade Commission (FTC) or other federal agencies. The FTC could commence investigations if the NCAA violates the act, along with the power to revoke the governing body’s tax-exempt status.

Here are the main points:

• The Pass Act would force boosters and collectives to be affiliated with a school. It would also prohibit NIL from being used as an inducement in recruiting and the transfer portal.
• Provide coverage for sports-related injuries for uninsured athletes for eight years following graduation from a four-year university. Larger schools – Power 5 programs – would be required to pay for expenses even after athletes leaves the school.
• Collectives can promote their program, assist in recruiting and assist in providing benefits to recruits, athletes or parents of athletes, but only if the organization is formally associated with the school through an official contract.
• Require athletes to participate in financial literacy training.
• Contracts would be required to be made public for any non-athlete parties involved in NIL. This would make it ideal for the FTC to launch investigations.
• Uniform contracts would be required.
• NIL deals involving athletes or institutions would be prohibited in specific industries, including drug paraphernalia, dangerous weapons and gambling.
• If enacted, athletes would be prohibited from entering the transfer portal in the first three years of eligibility, with some exceptions.

“Student-athletes should be able to take advantage of NIL promotional activities without impacting their ability to play collegiate sports,” Tuberville said in a statement. “But we need to ensure the integrity of our higher education system, remain focused on education, and keep the playing field level. My legislation with Senator Manchin will set basic rules nationwide, protect our student-athletes, and keep NIL activities from ending college sports as we know it.”

The Pass Act comes amidst a rush of NIL activity on Capitol Hill. A bipartisan discussion bill draft was released last Thursday by three senators. The “College Athletes Protection and Compensation Act of 2023” included a state preemption and would establish a federal agency to oversee college athletics.

On Friday, On3 obtained a draft of Sen. Ted Cruz‘s NIL bill, which stated athletes are not employees and includes a state law preemption. The proposed bill ensures states are barred from enacting laws on compensation, employment status, athlete eligibility or NIL.

Tuberville and Manchin received a positive response to their bill from the SEC.

“The Southeastern Conference appreciates the efforts of Senator Tommy Tuberville and Senator Joe Manchin in their work to craft a bill that addresses the opportunity for college athletes to benefit from their name, image and likeness, and other issues important to the future of college sports,” the Southeastern Conference said in a statement. “Senators Tuberville and Manchin have a keen understanding of the need for national standards to preserve the integrity of fair competition at all levels of intercollegiate athletics. We look forward to continuing to engage with members of the House and Senate to refine and work toward effective national legislation that creates and preserves opportunities for all college athletes.”

Examining the NCAA’s aggressive push for federal NIL laws

What does new bipartisan bill mean for NIL battle?

Some could argue the recent flurry of movement is progress. The NCAA and Baker have been pushing for their Congressional NIL mandate since he took the job this spring, making multiple trips to Capitol Hill. The NCAA’s wishlist includes a state preemption and agency directory.

Yet, some do not have such a positive spin on the movement.

Congress is about to take the next month off. Plus, an NIL bill has never even been voted on in either the Senate or House, nevertheless passing through. Democrats and Republicans continue to remain far apart on much of the language being introduced in these bills. One of the main arguments between the two parties has been over classifying athletes as employees.

This bill does not get into the employment issue, but some Democrats could push back against the uniform NIL contracts.

An election cycle is creeping closer, too, which only means less attention will be spent on pushing legislation through. The NCAA is starting to put together that puzzle. In Indianapolis this week, stakeholders are meeting to begin discussing a possible Plan B if Congress cannot deliver. The NCAA asked several schools – including Alabama, Colorado, Florida, Notre Dame and Ohio State – to recommend an athlete to attend the meeting, according to On3’s Andy Wittry.

With a patchwork of state NIL laws now in play in Texas, Missouri, New York and Oklahoma that bars the NCAA from policing NIL activity, the state preemption has become paramount to the NCAA.