COVID-19 slows name, image and likeness legislation in Congress, but it’s not only hindrance

The coronavirus may be the biggest hindrance to federal oversight of name, image and likeness legislation, Ohio Rep. Anthony Gonzalez said.

Gonzalez, a former Ohio State receiver, said COVID-19 has significantly slowed the legislative process in Washington D.C. However, he said there is enough support on The Hill to pass a bill that would provide oversight the NCAA so desperately needs to implement its version of NIL with rights that would allow some students to earn compensation based off their athletic accomplishments.

“In terms of the interest and political will, I think it’s there,” said Gonzalez, one of the most engaged legislators in Washington. “More of a complicating factor right now is the calendar. With the coronavirus that has changed how everybody has worked across the country.

“It has also changed significantly how we work in Congress.”

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Because of the virus, Gonzalez (R-Ohio) said Congress usually votes on 10-15 bills per week. 

“We’re in a world now where we’re voting on maybe three bills a month,” Gonzalez said. “That is a significant change. That’s probably, from a Congressional standpoint, the biggest barrier.”

Until Gonzalez made those statements Thursday during a virtual meeting of the Knight Commission, there had been doubt Congress as a whole had enough interest in dealing with NIL. The body definitely has more pressing matters in addition to the virus including nationwide protests in a presidential election year. 

Nevertheless, Gonzalez’ remarks may have been the most detailed to date on how Congress views the passage of NIL legislation. 

Gonzalez said he senses bipartisan support for NIL legislation. He is in the process of working on his own bill as are other legislators. The NCAA basically needs some sort of federal oversight before Florida’s state law goes into effect July 1, 2021. 

That would back the NCAA into more of a corner it is in now. More 30 states with either existing laws or pending legislation would follow. Without Congressional help, that would most likely mean a drawn-out legal fight with each of those states. 

“I know the Senate is working on it,” Gonzalez said. “We are doing some in the House. From what I can gather leadership on both sides of the aisle in both chambers knows that this is something that will need to be addressed at some point. 

“I don’t think the will is the problem. The much bigger hurdle in Congress is the calendar. Hopefully we get it to a place where enough people agree that it’s not overly controversial.”

The NCAA is seeking intervention by Congress that would provide “guardrails” allowing a more NCAA-friendly version of NIL. 

Without federal protections, NIL working group co-chair Val Ackerman said the result would be “chaotic for sure for our schools.”

“I think it would frankly create the kind of environment that people who care about college sports would not want to see,” said Ackerman, the commissioner of the Big East Conference.

The NCAA quickly changed course on federal intervention when it became evident NIL rights were inevitable. NCAA President Mark Emmert went from stating NIL changes were an “existential threat” in September to telling legislators in December, “We need your help.”

Because of a string of losses in court regarding antitrust violations, the NCAA can’t be perceived as limiting the new income that NIL reform would bring. That’s where Congress comes in. 

Most often mentioned is a possible antitrust exemption from Congress that would protect the NCAA from lawsuits. The concerns are what else Congress might put in such a bill. 

The biggest problem with NIL rights is how to fix recruiting. No one has concrete answers right now on how to keep unscrupulous boosters from offering endorsements in the recruiting process in an NIL world. Any hint the NCAA is trying to cap compensation would no doubt be swiftly met with lawsuits. Since 2014, the NCAA has been found guilty twice of antitrust violations. 

“We are not granting a blanket antitrust to the NCAA in our legislation,” Gonzalez said. “That is legislatively impossible right now I believe.”

The existing state laws/proposed NIL bills are more permissive than what the NCAA is considering. 

Gonzalez is considered one of the legislative leaders on NIL because he played the game. Rep. Mark Walker (R-N.C.) has also introduced an NIL bill. Senators Mitt Romney (R-Utah), Chris Murphy (D-Conn.) and Marco Rubio (R-Fla.) are also working on a bill.

“What is the appropriate method students should be picking a school?” Gonzalez said. “My concern with the state-by-state model is you have [recruits] looking at state houses and state legislatures … to figure out where they want to go to school, which seems like a very perverse way of choosing an institution.”

Gabe Feldman, director of the Tulane Sports Law Program, proposed during the meeting that Congress intervene to give states more time to develop across-the-board uniformity.

“The fear is that a state wants to get a competitive advantage through their NIL laws,” Feldman said. … 
“To have Congress set forth the general framework, ‘Here are the minimum protections,’ but then have the states act within that framework to give them some flexibility [is good].”

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