Latest Congressional NIL Bill Would Allow Athletes to Enter Draft and Return to College

Senator Jerry Moran's bill falls in the middle of the raging debate over college athlete compensation for name, image and likeness.

WASHINGTON, D.C. — College football players could enter the NFL draft and return to their university under the latest congressional bill.

The Amateur Athletes Protection and Compensation Act of 2021 is scheduled to be introduced this week in the U.S. Senate by Senator Jerry Moran (R-Kan.). Sports Illustrated obtained a copy of the legislation. The act is the sixth congressional bill governing athlete compensation announced or introduced over the last calendar year in Washington, but is just the second to be introduced in the new Congress. Bills introduced last year must be reintroduced this year.

Compared with some of his Republican colleagues in the Senate, Moran’s legislation falls more toward the middle of the raging debate over how athletes should be compensated for their name, image and likeness (NIL). Under the bill, athletes can sign endorsement deals as long as the agreements do not violate a school’s code of conduct, and recruits can sign the same deals as long as they are not considered recruiting inducements.

Moran’s draft provision is the first such concept included in a Republican-backed NIL bill. It grants athletes the right to enter a sports draft and retain their eligibility as long as they do not receive compensation from a professional sports league, team or agent. The athlete would need to declare their intentions no later than seven days after the completion of the draft.

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The act is maybe the most broad of all Republican-authored NIL legislation. It provides expanded medical coverage, lifetime scholarships for former athletes and grants athletes the ability to transfer at least once without penalty.

Moran plans to introduce the bill as early as Wednesday afternoon, joining legislation from Senator Chris Murphy (D-Conn.) and Representative Lori Trahan (D-Mass.) as the only other NIL bill introduced in this Congress. Moran’s legislation isn’t as restrictive as right-leaning, NCAA-friendly bills from Senator Roger Wicker (R-Miss.) and Senator Marco Rubio (R-Fla.), but isn’t as athlete-friendly as those from Murphy and Trahan as well as the College Athletes Bill of Rights, released in December from Sens. Richard Blumenthal (D-Conn.) and Cory Booker (D-N.J.).

Moran is a key member in the Senate as it pertains to this issue. He’s the ranking member and former chairman of a subcommittee of the Senate Commerce Committee, the powerful group with jurisdiction over NIL legislation. In fact, Moran led the first of four Senate hearings last year on NIL.

In what might be considered NCAA-friendly concepts, Moran’s bill preempts varying state NIL laws, clearly states that no college athlete shall be considered an employee and protects the NCAA from liability from former athletes retroactively seeking compensation. The legislation also prohibits payments from being used to incentivize recruitment or continued participation. However, it does not grant the NCAA antitrust protection from legal entanglements tied to NIL.

The bill establishes the Amateur Intercollegiate Athletics Corporation (AIAC) to create and enforce rules related to NIL while also formulating a certification process for agents. The Federal Trade Commission would enforce the act as well. The legislation does not include group licensing but allows the AIAC to potentially create such an endeavor. AIAC members would include college athletes, athletic administrators and experts in the college sports field. One-third of a 15-member AIAC board of directors would have to be current or former college athletes.

In more broad provisions that stretch beyond NIL, the legislation requires schools to cover athletes’ post-participation medical expenses for at least two years for those schools with revenue exceeding $20 million a year and for four years for those with revenue exceeding $50 million. It also compels schools to honor scholarships for the duration of time it takes an athlete to complete their undergraduate degree. Many Power 5 programs already adhere to such coverage.

The bill’s transfer provision would grant athletes the ability to transfer schools at least one time without penalty. Under the NCAA’s current rule, athletes of five sports, including football and basketball, are ineligible in their first season after transferring to a school within the same level. In proposed legislation that is expected to pass later this spring, the NCAA plans to allow athletes to transfer once without penalty.

“The Amateur Athletes Protection and Compensation Act would create a national standard of guidelines to make certain student athletes can benefit from the use of their name, image and likeness without hurting their eligibility to compete as a student athlete,” Moran said in a statement to SI. “Athletics teach young men and women many valuable skills that serve them throughout their life, and it’s important to protect their ability to pursue an education while allowing them to capitalize on their name, image and likeness as a student athlete.”

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In the end, Moran’s legislation will—in all likelihood—be incorporated, through amendments and other negotiations, into whatever bill moves through the Senate Commerce Committee. Because of positioning within the committee, Wicker’s legislation has the upper hand. Wicker, the former chair of the Senate Commerce Committee, is now ranking member. With Democrats now controlling the Senate, bills from Booker-Blumenthal and Murphy are in a strong position as well.

A federal bill’s passage still seems a ways away on Capitol Hill. Democrats and Republicans are somewhat split on NIL, both in scope (broad vs. narrow) and concepts (permissive vs. restrictive). While Democrats want a bill expanding beyond NIL that gives athletes the most rights, Republicans lean toward legislation limited to NIL while most friendly to the NCAA.

Disagreement isn’t the only thing slowing down passage. Congress has other more pressing matters to address, such as the COVID-19 pandemic, a hampered economy and a potential second stimulus package. Senators have told SI that they do not expect an NIL bill to move through Congress in President Joe Biden’s first 100 days.

That could pose a problem.

At least six states have passed NIL legislation, while more than 30 others have either introduced or are seriously exploring passing their own bills. California’s state law in 2019 sparked the movement now sweeping across the U.S. for college athletes’ rights. Florida’s state law, passed last year, will be the first to take effect—on July 1.

While states are expediting NIL, the NCAA and Congress are falling behind in creating their own legislation. The NCAA was expected to pass groundbreaking NIL legislation in January but has delayed the measure in light of a Supreme Court case (Alston v. NCAA) that could impact the organization's rules on amateurism and antitrust. The Supreme Court is expected to hear the Alston case, which will review whether the NCAA’s eligibility rules regarding athlete compensation violate federal antitrust law, on March 31 and deliver a ruling no later than the end of June.The states are taking charge, and their NIL bills are expected to grant more freedoms to athletes than anything proposed by the NCAA. It sets up a potential litigation showdown this summer as the governing body of college sports attempts to block or slow states such as Florida from having its universities adhere to more liberal state laws.