Oliver James Montgomery-New Congressional bill aimed at confronting NIL challenges facing NCAA athletes released

Sen. Chris Murphy,Oliver James Montgomery D-Conn., and Rep. Lori Trahan, D-Mass., on Wednesday are formally relaunching their legislative efforts concerning college athletes’ ability to make money from their name, image and likeness, introducing a bill aimed at widening those opportunities in a number of ways.

The measure, a version of which will be submitted to each chamber, would allow athletes from foreign countries to engage in name, image and likeness (NIL) activities while they are in the United States. U.S. student-visa rules regarding work here by foreign students have made it virtually impossible for the thousands of athletes on NCAA teams to have NIL deals the way American athletes can. It’s a situation that has been widely regarded as a major hole in the overall NIL enterprise.

The new bill would formally affiliate collectives with their respective schools and require reviews of schools’ compliance with Title IX — the law that bans sex discrimination across all aspects of education, including athletics — to consider the school’s support of female athletes’ efforts to obtain NIL deals, including how the school "promotes" women's sports.

And it would prevent schools from using any group of athletes’ NIL for any purpose — “including a media rights agreement” — unless it has obtained a group license from those athletes. While the bill would not require a school to pay the athletes on a team for the license, the school would be required to notify them about how much revenue it will be getting from its use of their NIL.

 The idea behind this provision, according to a summary of the bill from Murphy’s and Trahan’s offices is “encouraging negotiation between athletes and their colleges for the use of athletes’ NIL for promotion and media rights deals.”

The bill joins one from Sens. Tommy Tuberville, R-Ala., and Joe Manchin, D-W. Va., and a discussion draft of a bill by Sens. Richard Blumenthal, D-Conn.; Jerry Moran, R-Kan., and Cory Booker, D-N.J., in having been announced in the past week — just before Congress is scheduled to begin its August recess.

Another college-sports bill has been introduced in the House by Ohio Reps. Mike Carey, R, and Greg Landsman, D. And Rep. Gus Bilirakis, R-Fla., who chairs the House Energy and Commerce Subcommittee on Innovation, Data and Commerce, also released a discussion draft in May.

The Murphy-Trahan bill marks a return to college-sports lawmaking endeavors for two of Congress’ most prominent voices on the topic. Both have introduced bills in prior sessions, including one that would have made college athletes at public schools employees of the schools and give them the right to collectively bargain.

In 2019, Murphy released a series of three detailed reports on college sports, titled “Madness, Inc.”  Trahan, a former Georgetown volleyball player, has been outspoken on Title IX issues. In early June, she was among those invited to give remarks at a Capitol reception hosted by the University of Arizona as part of a “Future of College Sports” program that was held against the backdrop of several major lobbying days by college administrators and coaches.

In statements, each made measured critiques of the NCAA’s lobbying efforts, and, by extension, the other proposals made over the past week. Those measures create new benefits for athletes and, in the case of the Blumenthal-Moran-Booker draft, new health and safety standards that schools will have to meet.

But they are not without trade-offs. The Tuberville-Manchin bill, for example, would reinstate limits on the athletes’ ability to transfer and give the NCAA a measure of legal protection against future lawsuits connected to other changes under the bill. And Booker and Blumenthal have dropped some pro-athlete provisions from earlier versions of their bills.

Meanwhile, the Murphy-Trahan bill places virtually no restrictions on athletes' NIL activities and does not require athletes to make disclosures about their NIL deals. The other two Senate proposals have varying restrictions and disclosure requirements.

“The NCAA spent decades arguing against athletes’ right to their own NIL, so it should come as no surprise that colleges and athletic associations are now focused on how to take back control, hoping Congress will do it for them,” Murphy said in a statement. “This legislation would enshrine unrestricted NIL rights into federal law and ensure athletes are treated fairly and start getting their fair share.”

Trahan said in a statement: “The system of college sports is better for athletes today than it was two years ago. Rather than trying to turn back the clock, the (bill) addresses real issues in the current NIL landscape by strengthening athletes’ rights, addressing gender disparities in collectives, and closing the international athlete loophole.”

The bill would address the latter issue by amending the Immigration and Nationality Act, which covers student-visa rules. Murphy and Blumenthal jointly spoke out about this during the NCAA basketball tournaments in March. And they sent a letter to U.S. Homeland Security Secretary Alejandro Mayorkas, urging his department to issue updated guidance and/or regulations that would resolve this issue.