Drake Group: College Athletes Should Give U.S. Senate NIL Bill a Failing Grade

The Drake Group has been critical of different Name, Image, and Likeness (NIL) bills currently being considered by state legislatures across the country, calling for a strong federal bill to protect college athletes’ outside employment rights. However, the Fairness in Collegiate Athletics Act, proposed by U.S. Senator Marco Rubio of Florida on June 18, should receive a failing grade.

The Drake Group shares four observations critical of the Fairness in Collegiate Athletics Act:

• The Act does not protect the employment rights of all college athletes in that it is limited to those participating in National Collegiate Athletic Association (NCAA) programs.
• While the Act permits college athletes to earn compensation from third parties for the use of their names, images, or likenesses (NILs), it gives the NCAA administrative control of such outside employment and allows it to restrict such employment for questionable purposes such as preserving “amateur status.” “Amateur status” is not defined and historically, the NCAA has used its changing definition to impose unfair employment restrictions on college athletes.
• The Act specifies that the Federal Trade Commission enforce the Act, treating violations as unfair or deceptive acts or practices, a role wholly unsuited for a federal agency without the necessary resources or experience.
• The Act fully exempts the NCAA and its member institutions from antitrust or other lawsuits brought by college athletes who believe NCAA NIL rules are unfair. This allows the NCAA and member schools to continue to exploit college athletes so they can earn billions in gate receipts, sponsorships, and television revenues from the college athletic events.

The Drake Group “does believe that a federal NIL bill is needed to prevent the chaos of 30 or 40 state bills, all with different NIL provisions. However, the federal bill needs to carefully separate and balance institutional and athletes’ individual rights to use athletes’ NILs.”