If you are a college-football fan, you probably know that the three letters that comprise the word NIL (meaning name, image, and likeness) are among the developments reshaping the tradition-bound sport you love in hitherto unimaginable ways. You might be encouraged, or alarmed, by the news that U.S. senators Tommy Tuberville and Joe Manchin are offering themselves as leaders of a congressional effort to provide some national uniformity in a legal landscape that has often been compared to the Wild West.
To make a very long story short, after battling for decades to maintain college athletics as a low-cost enterprise generating ever-vaster revenues, last year the National Collegiate Athletic Association (representing college presidents, athletic directors, and conferences) lost a landmark case (NCAA v. Alston) in which the U.S. Supreme Court unanimously held that college-sports “amateurism” restrictions on education-related benefits violated federal antitrust laws. More ominous still was a concurring opinion by Justice Brett Kavanaugh that warned the NCAA that it would not win future legal battles:
The NCAA couches its arguments for not paying student athletes in innocuous labels. But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America.
Seeing the handwriting on the wall, the NCAA backed away from prohibiting any kind of player compensation. States rushed in with a hodgepodge of laws allowing and (to some extent) regulating NIL compensation as a way to permit players to benefit from the billions they produce without involving the schools themselves in the payments, the one thing the NCAA still professed to oppose. Quickly, local businesses in or near college towns began signing up football (and, in some cases, basketball) players, sometimes simply asking for promotion of their wares on players’ popular social-media sites. But eventually, team-adjacent “NIL collectives” emerged to pool fan-base donor contributions to distribute NIL funds more broadly to players. An estimated 450,000 college athletes have benefited in some way from NIL deals, though most not in very lucrative ways.
Though everyone involved pretended (and maybe hoped) NIL inducements would not become part of college football and basketball recruiting, it’s now very clear that high school kids can enter college and do much better financially at some schools rather than others. We’re talking thousands and probably tens of thousands of dollars for any old major-college football players, and hundreds of thousands or even millions for the real stars. Such deals are affecting the economics of college athletics far beyond the big-time revenue sports though the ripple effect on athletic department budgets and donor patterns. And there is a growing terror NIL will upset the competitive balance of the big-money sports and/or create bidding wars enabled by eager college coaches and boosters and their allies in state legislatures.
It truly is the kind of situation that begs for federal intervention to standardize the rules of the road since a paralyzed NCAA isn’t about to take on the task itself; Kavanaugh’s warning had its intended effect. One remedy that was offered back in 2020, by Senator Cory Booker (himself a former major-college football player at Stanford), was entitled the College Athletes Bill of Rights. Probably because it provides benefits beyond NIL compensation (notably medical coverage) and restricts the prerogatives of coaches, the legislation has attracted the support of Democrats only. And that’s probably why the very day Booker and his colleagues reintroduced a new version of his bill, Tuberville and Manchin offered their bipartisan efforts to get a consensus bill, as ESPN first reported:
Sens. Tommy Tuberville and Joe Manchin asked the Southeastern Conference on Wednesday for feedback and ideas on how to regulate the way college athletes are compensated for their names, images and likenesses …
“The lack of meaningful leadership and a lack of clarity in this area resulting from Alston (Supreme Court decision) means that the U.S. Congress must act to set clear ground rules for student-athletes and institutions alike,” the senators wrote in a letter to SEC Commissioner Greg Sankey. “Like you, we have the common goals of protecting student-athletes, ensuring fair competition and compensation, and preserving the time-honored traditions of college sports.”
The SEC and the Big Ten are the big power brokers in college football right now, so involvement by one or both of these conferences is natural. But it will not go unnoticed that Tuberville coached football at SEC school Auburn University for a decade or that Manchin is friends with the perennial challenger for national and SEC championships, University of Alabama coach Nick Saban (a native of West Virginia). Without question, the duo will be presumed to place high value on the interests of the college-coaching profession, whose wildly escalating levels of pay in recent years helped touch off the NIL crisis to begin with.
Beyond that, there are specific questions about Tuberville’s motivations and skill at resolving the issue. His public comment on his legislative efforts was that he had “talked to all my [coaching] buddies. It’s a mess. It’s a free-for-all.” Commented one astute college-football blogger acidly:
You’ve got to admit a man who famously jumped ship from a school during a lunch with recruits ought to be an expert on free-for-alls. Yeah, this is going to end well.
Coach Tubs (as he is commonly known), whatever his prowess at designing plays and boosting his own income, is also not known to be the most skilled politician, as evidenced by his bumbling (yet successful) campaign for the Senate in 2020 and his conduct as a senator. Perhaps Manchin, sometimes called the “king of the Senate” for his self-positioning as the key swing vote in the evenly divided Senate, will do the heavy lifting on the NIL legislation. It would be better yet if they were joined by lawmakers known to be interested in the welfare of players and not just the coaches who have exploited them for so long.