Athletic leaders ask Congress to play referee on college athletes’ branding

1 of 5 | Trinity Thomas, a gymnast at the University of Florida, speaks during a Senate Judiciary Committee hearing on college sports name, image and likeness rules at the U.S. Capitol in Washington on Tuesday, Photo by Bonnie Cash/UPI | License Photo

WASHINGTON, Oct. 17 (UPI) — As Congress continues to weigh how to regulate how college athletes are being paid, University of Florida gymnast Trinity Thomas was among those who urged lawmakers Tuesday to create national standards that enable college athletes to profit from their personal branding.

“Competing against the best athletes on the biggest stages has provided me with more opportunities than I ever imagined possible when I started gymnastics as a little girl,” Thomas told lawmakers at a Senate Judiciary Committee hearing.

It was the 10th congressional hearing on the issue, and seven witnesses convened on a panel session that ended with no clear consensus on details of a bill still to be written.

“It took me and my fellow athletes time to navigate the waters of the NIL and everyone is still learning as we go.”

Thanks to a recent Supreme Court ruling and changes in state laws, athletes like Thomas are allowed to profit from their fame while continuing to remain as college students. Thomas has signed deals with Honey Stinger, an energy food brand, and Nocap Sports, a sports marketing agency.

It’s all part of the new policy on so-called name, image and likeness, or NIL, policies that give the legal ability to athletes, like Thomas, to earn money by promoting products and services.

NIL rules vary from state to state, prompting college sports administrators to push for a uniform federal standard to help the NCAA regulate student-athletes’ earnings.

Proposed legislation could change the already evolving way student-athletes profit off their fame in collegiate athletics — a $16 billion industry. Even many members of the University of Iowa marching band recently signed a deal with an area store that sells kitchenware.

“There is currently no single standard that applies to all student athletes in all sports, which oftentimes, leaves us confused,” Thomas said.

Supporting college athletes while protecting the nature of college athletics has garnered bipartisan support, but questions remain about whether such policies super-charge big-name colleges while hurting smaller, lesser-known athletic programs.

Such income also has prompted some to ask if these college athletes are employees of the universities they attend. Lawmakers across the aisle described the current situation as the “Wild West” of college sports.

While the Senate Commerce Committee has jurisdiction over much of the proposed legislation, the Senate Judiciary Committee oversees antitrust law and intellectual property rights — issues at contention related to NIL.

“If this committee and the Commerce Committee doesn’t act in about a year, this thing is going to be an absolute mess,” Sen. Lindsey Graham, R-S.C., said during the hearing.

The NCAA has been criticized for decades over whether its rules exploit college athletes. But now, with recent developments in NIL, some say athletes have taken back some control by profiting from their name, image and likeness. California was the first state to lift NIL restrictions in 2019.

Several states followed suit, and a landmark 9-0 Supreme Court ruling in NCAA vs. Alston in June 2021 led to a rapid expansion of such deals. The Supreme Court ruled NCAA’s rules limiting education-related compensation, such as scholarships for graduate schools, violated antitrust laws.

Now, 32 states have passed laws to approve NIL use by student-athletes. The NCAA passed an interim policy, allowing student athletes to profit from personal branding.

Under NCAA policy, athletes must adhere to state NIL laws, making state laws heavily influence recruitment: the looser the restrictions, the more desirable the school. That has led to a call for more uniform rules to also help out smaller colleges that don’t have the same clout.

“We need a national standard for name, image and likeness, mainly to protect the athletes against potential disreputable agents or unscrupulous deals,” Sen. Richard Blumenthal, D-Conn., said at the hearing.

One proposed law distinguishes college athletes from university employees. Senators across party lines, as well as witnesses, agreed that college athletes should not be classified as employees.

“The vast majority of student-athletes are not going on to continue their sport after they leave college,” said Jack Swarbrick, the director of athletics at Notre Dame. “It’s the education, which is the primary value of their experience. We have to protect that.”

If student-athletes are considered employees, they would be subject to employment laws. Students would be at risk of termination, and their scholarships could be taxed, Sen. Ted Cruz, R-Texas, noted.

Cruz, who is also a ranking member on the Senate Commerce Committee, has introduced his version of draft legislation, citing concerns about federal overstep in intercollegiate athletics. Instead, Cruz’s legislation proposes a “self-governance model,” where the NCAA works with conferences and universities to set rules.

“Nobody wants to see Congress and politicians deciding what ‘roughing the passer’ is,” Cruz said.

An unintended consequence of athlete employment would be shutting out smaller athletic programs that cannot afford paying their athletes. That would have the detrimental effect of pushing Division II and Division III schools out of the college athletics business, NCAA president Charlie Baker said.

Cruz said he is worried that a few schools “buy all the top athletes,” destroying the competition. For example, University of Utah football players received leases to new pickup trucks, thanks to the new NIL regulations.

“One of the great things about March Madness is the [68] teams, and any one of them can win,” Cruz said. “That makes it incredible fun to watch.”

Blumenthal urged colleges to provide ongoing medical care to athletes who sustain long-term injuries, guaranteeing that injured athletes’ keep their scholarships and setting base health and safety standards should be included in athlete compensation discussions.

Ultimately, Thomas said, better laws will protect of the future of sports. She said she hopes other student athletes can benefit from NIL like she did.

“College sports took a step forward with NIL during my time as a student athlete,” Thomas said. “More can be done to better the lives of all student athletes.”

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