Although Florida Governor Ron DeSantis has just signed into law Florida’s state name, image and likeness legislation, Florida U.S. Senator Marco Rubio has introduced proposed federal legislation to address concerns regarding the ever increasing number of states introducing legislation addressing the name, image and likeness rights for student-athletes within their states. Sen. Rubio’s proposed legislation,

The Fairness In Collegiate Athletics Act, would require the National Collegiate Athletic Association (NCAA) to implement rules that will allow student athletes to be compensated for their name, image, and likeness (NIL) by June 30, 2021, one day before the effective date of the Florida state law.

The bill would also provide a protective legal shield to prevent the NCAA from being challenged in court as long as the association changes its rules to allow athletes to earn money for endorsement deals and personal appearances.

The Fairness in Collegiate Athletics Act would:

  1. Require the NCAA to implement rules for student athletes to be compensated for their NIL by third parties by June 30, 2021. The NCAA must set forth, processes that, at a minimum:
  • Allow student athletes to obtain professional representation in matters related to NIL, subject to protections under the Sports Agent Responsibility and Trust Act;
  • Require student disclosure, at the time of agreement and payment, to both their university and the NCAA in a clear, uniform way;
  • Preserves amateur status;
  • Ensures appropriate recruitment of prospective student athletes;
  • Prevent  “Boosters” from recruiting or retaining students.
  1. Authorize Federal Trade Commission enforcement under unfair or deceptive practices statutes.
  2. Provide safe harbor for implementing policies set forth.
  3. Provide preemption of state laws based on NIL.

Under the bill, the NCAA would have the latitude to make rules “as are deemed necessary” to:

  • preserve the amateur status of student athletes
  • ensure appropriate recruitment of prospective student athlete
  • prevent illegitimate activity with respect to any third party seeking to recruit or retain student athletes … including any third party” that has “a prior or existing association, either formally or informally” with a school or that has “a prior or existing financial involvement with respect to” college sports.

To provide the shield to protect the NCAA and schools from lawsuits, the bill says “no cause of action shall lie or be maintained in any court” against the NCAA or university member of the NCAA for adopting and enforcing rules under the proposed legislation.

Commenting on the bill, Sen. Rubio, stated,

As states continue to pass laws determining how college athletes can be compensated for their name, image, and likeness, it is clear that a patchwork of 50 state laws would be devastating to college sports. The Fairness in Collegiate Athletics Act is an effort to ensure the NCAA implements policies for NIL and even the playing field.”

The legislation has received initial support from several conferences including the Atlantic Coast Conference (ACC) and the Southeastern Conference (SEC). Big 12 Commissioner Bob Bowlsby commented, “…we are committed to working with policymakers to craft a system that permits student-athletes to profit from their name, image and likeness while also maintaining our uniquely American, education-based collegiate athletics model.”

Despite its supporters, the proposed legislation was criticized by Ramogi Huma, executive director of the National College Players Association, who stated, “Senator Rubio’s bill undermines the rights and protections guaranteed to Florida athletes that the Florida state legislature and governor adopted as law just days ago. It undermines economic freedom, states’ rights, and gives the NCAA immunity for illegal activities. We encourage him to change course on this issue,”

Jackson Lewis’ Collegiate and Professional Sports Practice Group will continue to monitor the development and implementation of this proposed federal legislation and the proposed NCAA’s changes to name, image, and likeness rules. Please feel free to reach out to any member of the Collegiate and Professional Sports Practice Group with questions.

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Photo of Gregg E. Clifton Gregg E. Clifton

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in…

Gregg E. Clifton is a Principal in the Phoenix, Arizona, office of Jackson Lewis P.C. He is Co-Leader of the Collegiate and Professional Sports Practice Group and serves as the editor of the firm’s sports law blog.

Mr. Clifton has extensive experience in the collegiate and professional sports world. He has advised numerous professional franchises on general labor and employment issues, including Title III ADA regulatory compliance and wage and hour issues. He serves as lead counsel for several Major League Baseball teams in their salary arbitration matters and has represented NCAA and NAIA collegiate clients regarding rules compliance, investigatory matters and in disciplinary hearings. In addition, he has handled Title IX investigations and compliance issues for NCAA and NAIA member institutions. Mr. Clifton has also worked extensively in the area of agent regulation and enforcement in professional and college sports and regularly provides counsel on issues relating to NCAA and NAIA amateurism issues and athlete eligibility questions. He has also served as an expert witness in matters involving sports agents’ work and responsibilities, as well as athlete compensation issues.

Prior to joining Jackson Lewis, he spent six years as Chief Operating Officer and Vice President of Team Sports for Gaylord Sports Management. He also served as President of the Athlete and Entertainment Division for famed sports attorney Bob Woolf’s firm, Woolf Associates, in Boston.

Mr. Clifton began his career as an Associate at Jackson Lewis where he focused his practice on traditional labor law. He continues to counsel clients in the areas of collective bargaining negotiations, representation cases, arbitrations and National Labor Relations Board matters.

Mr. Clifton frequently serves as an expert speaker to law schools, including Harvard University, Boston College, Hofstra University and Arizona State University, and bar associations regarding sports law issues, including agent regulation and salary arbitration. He is also often cited as an expert source in national news media for his commentary and opinion on legal issues in sports.