College Athletes' Rights Take Another Step Forward in Congress and in Court

Written by Kassandra Ramsey

Photo Credit Justin Tafoya/NCAA Photos via Getty Images

· NCAA,College Athlete NIL,College basketball,College Football,Sports Law

While the 2020-2021 college football season remains largely uncertain due to COVID-19, the college athletes' rights movement has never been stronger. In the last month, college sports fans have witnessed a United States Senate hearing addressing college athletes' ability to profit from their name, image, and likeness. College sports fans have witnessed college athletes take a stand for themselves via #WeAreUnited, #BigTenUnited, and #WeWantToPlay. The NCAA has suffered yet another blow in court in their quest to protect their "revered tradition of amateurism" in college sports. Today, the college athletes' rights movement took another step forward in Congress as United States Senators Cory Booker, Richard Blumenthal, and several others announced their plan to introduce a College Athletes' Bill of Rights.

Recently Proposed College Athletes' Rights Legislation

Last month, at the conclusion of the "Protecting the Integrity of College Athletics" Senate hearing Senator Lindsey Graham suggested that Congress may have a bill addressing college athletes' rights ready by September 15, 2020. During the hearing, the panelist addressed the proposed college athletes' rights bill that was submitted by the Power 5 conferences. While the bill allowed college athletes to profit from their name, image, and likeness, the bill put undue requirements on college athletes' ability to do so. For example, the bill requires college athletes to complete a semester of college before being allowed to monetize their name, image, and likeness (NIL) rights. The bill also prohibits college athletes from seeking endorsement deals with companies who compete with their respective universities' sponsors. Therefore, if a school has a sponsorship deal with Nike none of their players can make a deal with Adidas.

A few weeks later, the NCAA submitted a version of a college athletes' right bill that they would like enacted. The NCAA's bill failed to address exactly how the NCAA plans to expand college athletes' rights. Instead their bill was focused more on strengthening the NCAA's ability to control college athletics. For example, the bill focused on granting the NCAA a federal antitrust law exemption and federal preemption of state laws governing college athletes' rights. Again, the NCAA has proved their primary objective is protecting their money than protecting college athletes.

Perhaps the College Athletes Bill of Rights can Create Meaningful Changes the Other Bills Fail to Provide

The aforementioned bills have put the college athletes' rights debate at the center of the Congress floor. However, neither bill truly seeks to expand the rights of college athletes. Both bills give college athletes very little while attempting to retain the current financial structure of college athletics. Perhaps the College Athletes' Bill of Rights proposed by Senator Cory Booker and others can actually give college athletes the rights they deserve.

The College Athletes' Bill of Rights Provisions

As it currently stands, the proposed College Athlete's Bill of Rights will include the following provisions:

  • A provision allowing college athletes to enter group licensing deals,
  • A provision banning all restrictions and penalties attached to college athletes seeking to transfer to a different college,
  • A provision establishing an "oversight panel" to give college athletes representation,
  • A provision requiring "lifetime scholarships" for college athletes to return to campus post-eligibility to complete their degree, and
  •  A provision requiring schools to provide detailed accounting of their revenue. 

These are a few of the things that the Senators would like to accomplish with their proposed bill. The bill is scheduled to be proposed in the coming months. At that time, college sports fans will get to see if the College Athletes' Bill of Rights will actually expand college athletes' rights or fall short like the NCAA's and Power 5 conferences' bills.

The NCAA has to Allow College Athletes to Receive Unlimited Education-Related Benefit - At Least for Now

The NCAA once again failed in court. Last week, the NCAA petitioned the United States Supreme Court to the stay the injunction in the Alston v. NCAA (Alston) case. In Alston, former and current college athletes sued the NCAA claiming that their amateurism rules violated federal antitrust law. The District Court ruled and United States Court of Appeals for the Ninth Circuit affirmed that the NCAA's restrictions limiting education-related benefits did in fact violate federal antitrust law. Accordingly, the District Court issued an injunction prohibiting the NCAA from restricting the education-related benefits schools can offer to their athletes.

Last month, the NCAA made a motion to have the appeals court stay the injunction. The appeals court denied the NCAA's motion. The NCAA subsequently petitioned the United States Supreme Court to stay the injunction. The Supreme Court denied the NCAA's request to stay the injunction. As such, the NCAA adopted emergency legislation allowing college athletes participating in men's and women's Division I basketball and football players participating in Football Bowl Subdivision football to receive the following benefits:

  • Computers, science equipment, musical instruments, and other tangible items not included in cost-of-attendance scholarships but related to education,
  • Post-eligibility scholarships to complete undergraduate or graduate degrees at any school,
  • Scholarships to attend vocational school,
  • Tutoring,
  • Expenses related to studying abroad that are not included in cost-of-attendance scholarships, and
  • Paid, post-eligibility internships. 

This is a major development for college athletes' rights. However, it stands to be short lived as the NCAA plans to take this case to the United State Supreme Court. That is right. The NCAA wants to go to the Supreme Court to argue that college athletes should not be able to receive education-related benefits outside of a cost-of-attendance scholarship because they are "amateur" athletes. How much sense does that make? The answer is that it makes no sense and it certainly is not fair. The college athletes' rights movement has made much progress, but it still has a long way to go.

For more on college athletes' name, image, and likeness rights follow me on Twitter @esquire_coach and on Instagram @the_esquirecoach. To receive updates from The Esquire Coach Blog directly to your email please subscribe below.