Marco Rubio’s Fairness In Collegiate Athletics Act Is Anything But What Its Name Implies

Last Thursday, U.S. Senator Marco Rubio (R-Florida) introduced a proposed bill entitled the “Fairness in Collegiate Athletics Act.” From its name, this proposed bill would seem to protect the interests of college athletes. But, in substance, the proposed bill would actually limit college athletes’ economic freedoms — especially in California and Florida.

When looking closely at Senator Rubio’s proposed bill, two specific concerns immediately come to mind. First, while the proposed bill would require the NCAA to grant college athletes limited rights to control their own names, images and likenesses (”NILs”), the bill leaves it to the NCAA, rather than to individual state legislatures, to determine the extent of these rights. Thus, while California and Florida’s new Fair Pay to Play laws would allow college athletes to sign endorsement deals with all types companies, Rubio’s bill, which would preempt state law if passed and legally enforceable, would allow the NCAA to determine what types of deals to allow. Thus, presumably the NCAA would foreclose college athletes from signing with sneaker companies — something that the NCAA presently opposes.

In addition, Senator Rubio’s proposed bill, depending on its interpretation, might hurt college athletes in another important way too. Although drafted somewhat ambiguously, one might argue that Section 4(B), which states that “no cause of action shall lie or be maintained in any court against any intercollegiate athletic association [based on enforcement of the previous section],” may prevent college athletes from filing antitrust lawsuits against the National Collegiate Athletic Association to challenge any concerted practices among NCAA member schools. Thus, if Senator Rubio’s bill is passed, it would mark an end to one of the most powerful ways for college athletes to push for systematic change.

It is notable that at present, Senator Rubio does not have a co-sponsor for his proposed bill — thus, indicating the bill may never gain much traction. In addition, past efforts by the NCAA to secure from Congress an antitrust exemption have repeatedly failed. For example, Congress in 1991 rejected then-U.S. Representative Tom McMillen’s proposed legislation to give the NCAA a five-year antitrust exemption in exchange for certain de minimis benefits for college athletes. (McMillen is now the head of a trade association representing NCAA Division-I college athletic directors).

Nevertheless, the mere fact that Senator Rubio even introduced this bill is bad news for those who believe in fundamental fairness and free market opportunities for college athletes. The deep-pocketed NCAA is likely to advocate strongly for this bill’s passing. Meanwhile, more moderates within NCAA circles will use this bill as a guidepost to try to argue that their more nuanced proposals for a partial NCAA antitrust exemption, by comparison, are not nearly as bad as they would otherwise seem.

Marc Edelman (Marc@MarcEdelman.com) is a Professor of Law at Baruch College’s Zicklin School of Business and the founder of Edelman Law. He is the author of “A Short Treatise on Amateurism and Antitrust Law,” “The NCAA, Fair Pay to Play, Antitrust Scrutiny, and the Need for Institutional Reform,” and numerous other sports and education law articles. In July 2019 he testified before the State of California legislature on behalf of the Fair Pay to Play Act.