Regulating the Game: Congressional Approaches to NIL Reform Under the SAFE Acts

Photo by Ben Hershey on Unsplash

The landscape of college sports and the NCAA has changed a lot over the last decade, mostly due to student-athlete initiative. One of the most monumental changes for student athletes has been the introduction of NIL.

NIL consists of three elements of the right of publicity: name, image, and likeness. The new NIL standards allow student athletes to capitalize on their name, image, and likeness, and they prevent others from using these qualities for unauthorized commercial purposes. Student athletes are able to make their own deals and sponsorships that are not related to their University without losing eligibility to play college sports. Originally, the NCAA did not permit student athletes to receive compensation for their athletic abilities; instead, the only compensation available to student athletes was scholarships. Starting in 2021, “the NCAA allowed individual schools and conferences, rather than the association itself, to dictate what name, image, and likeness (NIL) deals their athletes may enter.” While this change was monumental for student athletes, the lack of uniform rules created a need for universal standards, a need that has yet to be adequately met. 

The SCORE Act was introduced this year by the House of Representatives to help address some of the current problems with NIL. The main goal of the SCORE Act is to standardize NIL for student athletes to create better protections for both the educational institutions and the student athletes. Some highlights from the SCORE Act include stabilizing college sports and proposing a national standard for NIL regulations. One of the main reasons the SCORE Act is getting so much pushback, especially from college athletes and organizations that represent college athletes, is due to the NCAA being immune from antitrust claims in the new provision. 

In response to the antitrust immunity in the SCORE Act, the SAFE Act was created by a trio of US Senators with the purpose of being more student athlete focused. It is the first bill of its kind, providing national rights and protections for student athletes. 

The SAFE Act is similar to the SCORE Act, but there are some key differences. Both bills want to create a standardized set of rules for student athletes to follow, but the SAFE Act is more athlete-friendly than the SCORE Act. Student athletes favor the SAFE Act over the SCORE Act because the NCAA does not have antitrust immunity under the SAFE Act. It is important for the NCAA to be held accountable for its decisions, and the lack of antitrust immunity is a good way to achieve that. Student athletes want to be advocates for themselves because they believe the NCAA is failing to protect their “health, safety, and education.” 

Implementing antitrust protections for college sports will be vital for the success of student athletes in college sports. The goal of antitrust laws is to prevent the unreasonable exercise of market power. Since the NCAA is the powerhouse institution in college sports, it makes sense to have certain enforcement policies and standardizations in place. One method of judicial protection against this powerhouse institution is the Sherman Act. Creation of the Sherman Act provides plaintiffs the chance to challenge unreasonable exercises of market power. The Sherman Act, enacted in 1890, prohibits “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several states, or with foreign nations, and section two prohibits monopolies.” Enforcement of the Sherman Act has not been uniform across NCAA and NIL matters due to the Courts having a lot of power in creating the new rules. 

This lack of standardization has made it hard to maintain fairness among all the divisions and conferences as each has their own individualized rules and both acts set to fix this problem. Standardization of NIL rules is important because college athletics varies throughout the county. There are schools that bring in significant revenue from top earning sports and that could in turn devalue sports that do not bring in as much revenue, such as Olympic sports. 

Both the SCORE Act and SAFE Act are set to establish a more nationalized standard of NIL rights, but the acts diverge on how they deal with certain student-athlete and antitrust issues. The SCORE Act is prioritizing regulatory stability and NCAA protection, while the SAFE Act is focusing on protecting student-athlete rights.

One of the key provisions in the SAFE Act is the rights and protections for student athletes. This includes valuable protections such as a scholarship guarantee, safety standards that will be enforced by independent officers, and endorsement rights that cannot be restricted by schools. Another monumental decision in the SAFE Act is to allow the schools to negotiate media rights as a group instead of individually, without any violation of antitrust laws. This will create fair media rights across the board and assist with the media revenue sharing. Other provisions include changes to transfer portal rules and penalties for “bad actors.” These changes encompass a more student-athlete-friendly approach, which is why the SAFE Act is being favored by student-athletes. 

The SAFE Act may be a better option than the SCORE Act due to the SCORE Act’s ability to be challenged by the law. The SCORE Act could challenge states’ rights by creating nationalized standards. It is up to the states to determine labor and employment laws, but the SCORE Act can interfere with this power by classifying student athletes as employees and determining whether those employees can form unions. That being said, the SAFE Act still has its own issues. For example, the SAFE Act does not address the issue of whether student-athletes are employees. The SAFE Act will have to address the issue of student athlete employment to counter objections to the bill. 

The stark differences between the two acts makes it unlikely that Congress will be able to come to an agreement in passing a single bill that reflects the goals of each side. It is more likely that one bill will succeed over the other and many important issues will be left unaddressed.

*The views expressed in this article do not represent the views of Santa Clara University.