Good chance Congress will pass NCAA-supported NIL bill? Depends on which senator you ask

WASHINGTON – A small ballroom’s worth of major-college athletics directors on Tuesday got a close-up view of the political landscape in Washington without having to go to Capitol Hill.

At a hotel about two miles from their offices, they all but cheered when Sen. Ted Cruz, R-Tex., said he believed there was a “60-40” chance that Congress will pass a college-sports bill that the AD’s and NCAA officials have been hoping will bring some national order at least to athletes’ activities in making money from their names, images and likenesses (NIL).

Cruz is the ranking member of the Senate Commerce Committee, which has jurisdiction over this issue, and he told the LEAD1 Association’s annual fall meeting that during a recent regular lunch with committee chair Maria Cantwell, D-Wash., they spent almost half of the time discussing the NIL issue. But he added “that 40 is real.”

Soon thereafter, Sen. Chris Murphy, D-Conn., told the AD’s: “I totally disagree (with Cruz’s 60-40 assessment). I think there is very little chance” of a bill’s passage, adding that "it’s not a priority issue for Congress."

Rep. Lori Trahan, D-Conn., noted dryly that, on the House side, “we literally cannot get the government funded” right now due to wide range of political turmoil. She then added that while Republicans may be use their House majority push through a college-sports bill from Rep. Gus Bilirakis, R-Fla., it “won’t have life in the Senate.”

Murphy and Trahan have introduced their own bill called the "College Athlete Economic Freedom Act".

Trahan's comment was not long after Sen. Joe Manchin, D-W. Va., left the AD’s pondering what could be another problem for them – an idea that he has to change Pell Grant funding rules so that athletes receiving full scholarships would no longer be allowed to receive those dollars.

At present, students from low-income families – including scholarship athletes -- can receive federal money through the Education Department based on financial need, as demonstrated on the Free Application for Federal Student Aid (FAFSA). The maximum award for the 2023-24 school year is nearly $7,400, according to an Education Department website.

"You might not like this one,” Manchin told the AD’s, “but the Pell Grants --most student-athletes today come from challenged areas and they qualify for Pell, right? All the athletic departments use it. Well, we need that money to help kids who have very little chance of getting an education. … I think that if there's so much money in the athletic departments and there's so much money coming in, you should at least pay for the kid's education. You shouldn't have the federal government with the Pell Grants paying for it.”

Manchin and Tommy Tuberville, R-Ala., have introduced a bill that would address the existing state-to-state disparities in NIL laws. Their bill also would attempt to address what has become a massive shift in athlete movement among schools by generally requiring athletes to complete three years of athletic eligibility before they could transfer without having to sit out of competition for a year. There would be some exceptions, including for coaching changes.

Under current NCAA rules, undergraduate athletes in any sport at a Division I school can transfer once at any time and be eligible to play immediately. While there are restrictions on athletes’ ability to transfer more than once, the NCAA has waiver processes that generally have allowed them to make multiple moves.

Manchin addressed this Tuesday, partially in an educational context and partially in the context of the role that booster-backed collectives are playing in athlete recruitment and movement – another activity his and Tuberville’s bill seeks to address by requiring collectives to be affiliated with a school.

“These kids have to understand: It's called student-athletes. It's not called athlete-students,” Manchin said. At present “Option B is getting an education. That should be Option A. … First of all, I'm probably never going to graduate because I'm flip-flopping back and forth. And next of all, no one's going to be able to develop my skills.”

He said that if an athlete can make $1 million from NIL activities, he or she should “get yourself an agent … go out there and sell your goods, but you're not going to use that as a bargaining tool back and forth to universities.”

He also criticized boosters who are funding collectives, saying: “I've got to be honest with you: I just think they're frustrated athletes that didn't play much or didn't get a scholarship and they made a lot of money and now they want to be in the game.”

While the Manchin-Tuberville bill does not address the employment status of athletes, Manchin made clear that he does not think athletes should be school employees.

“Should student- athletes be employees? Jesus Criminy, are you crazy?” Manchin said. “You want to make a kid an employee of a school because of their athletic scholarship?”

Cruz has offered a discussion draft of a bill that includes a provision that says college athletes shall not be considered an employee of an institution, conference or collegiate athletic association.

He said the concept of athletes as employees raises the prospect of “all sorts of problematic consequences,” including the question of whether it would result in athletes being subject to getting fired for poor performance.

While he said he believes Democratic members of the Senate are partially motivated by the alignment with labor unions, but that while “there are some issues where we just disagree, (NIL and college sports) is an issue that I don’t think falls into that bucket” and the Commerce Committee has a “long history” of being able to find ways to compromise.

Murphy, who is not a member of the Commerce Committee, allowed that: “I think Ted is right. … This is an issue that falls outside the traditional axes.”

But one athlete-labor lawsuit is pending before the 3^rd U.S. Circuit Court of Appeals. And the National Labor Relations Board’s Los Angeles office is pursuing a complaint against the NCAA, the Pac-12 Conference and the University of Southern California.

Against this backdrop, Murphy told the AD’s:

“I would argue for the NCAA to be convening a conversation right now about what a revenue-sharing system would look like. To be thinking about, if not collective bargaining, a model where students actually have power and, instead of just being reactionary -- which is where the industry and where the NCAA has been for decades -- sort of understand that the courts are coming for the existing paradigm. And I don't think you can count on Congress to save you.

 “I think you’ve got to be thinking now about how to deal with what I think ultimately will be a requirement to start treating student-athletes in a different way.”