Post-House Settlement, Are Federal NIL Laws on the Horizon?

The House v. NCAA class action settlement was approved on June 6. While the House settlement changes the college sports landscape, it has also left institutions, coaches and athletes with questions.

Since 2021, there has been a push to pass a piece of federal legislation that creates national standards and guidelines for the use of student-athletes’ name, image and likeness (NIL). To date, nothing has garnered any traction. But on June 12, lawmakers discussed a new bill that could shed light on the future of NIL legislation.

Past Federal Discussions

Before the House settlement, congressional bills generally focused on prohibiting institutions from retaliating against student-athletes who enter NIL agreements and centered around ensuring that student-athletes have the right to use an agent. The proposed bills included a preemption clause that would invalidate any conflicting state NIL laws.

But the proposed bills in Congress varied when it came to other details. For example, the proposed College Athlete Economic Freedom Act would have banned entities from colluding to implement a cap on NIL compensation and would have allowed students to collectively bargain. The College Sports NIL Clearinghouse Act of 2023 would have created a clearinghouse to serve as a governing body for matters regarding NIL agreements. Several other bills were also proposed:

• The Collegiate Athlete Compensation Rights Act of 2022
• The FAIR College Sports Act of 2023
• The Student-Athlete Leveling Playing Field Act of 2023
• The Protecting Athletes, Schools, and Sports Act of 2023

Interestingly, most of the proposed bills put the FTC at the center of enforcement. Only the College Athlete Economic Freedom Act included a private right to action, however.

In 2023, Senator Cruz posted a discussion draft that would have barred an institution from restricting a student-athlete from entering an NIL agreement and would have allowed student-athletes to hire agents. The draft would have allowed the NCAA to regulate agents, enforce rules for recruiting, organize championships, and create bylaws to govern membership. If enacted, the proposal would have also preempted other state and federal laws.

None of these proposed federal legislative responses to the changing NIL landscape have gained any traction.

Current Moves in Congress

On June 12, members of the Subcommittee on Commerce, Manufacturing, and Trade met to discuss the Student Compensation and Opportunity through Rights and Endorsements (SCORE) Act. In its current state, the SCORE Act is a discussion draft sponsored by Rep. Gus Bilirakis. The bill:

• Prohibits institutions from limiting a student-athlete from profiting off their NIL, unless the deal conflicts with the school’s code of conduct or impermissibly uses an institution’s intellectual property
• Requires athletes to report any NIL deals worth more than $600
• Gives student-athletes the right to hire agents and requires NIL agents to register with what would become the Interstate Intercollegiate Athletic Association (IIAA)
• Codifies NCAA guarantees like access to medical professionals, academic support services and scholarships
• Preempts state and federal laws

This discussion draft leaves the question of antitrust liability open, so the issue can be addressed through later legislation.

After the subcommittee hearing, it became clear that committee members agreed on at least one thing—student-athletes have the right to hire an agent. There was bipartisan support for this condition in federal NIL legislation, and the witnesses present also believed that there is an increasing need for agents in college sports.

But while the discussion draft was comprehensive, it did not gain unanimous support in the subcommittee hearing. Opponents of the draft expressed concern that the SCORE Act would impose more restrictions on student-athletes.

Congresswoman Lori Trahan—a former Division I volleyball player—took issue with the fact that the draft allows for a possible antitrust exemption, does not allow collective bargaining, allows schools to block NIL deals that conflict with existing contracts, preempts state laws, and does not address Title IX concerns or the rights of international athletes. Big Ten Commissioner Sherika Montgomery testified that she, like Congresswoman Trahan, believed that Title IX concerns need to be monitored and addressed before passing a federal NIL law. Congresswoman Yvette Clarke agreed that an NIL bill should not have an antitrust exemption, should allow for student-athlete collective bargaining, and should not include any barriers to NIL collectives, since the House settlement already created a revenue sharing pool.

Unionization was also a contentious issue at the hearing. Like Congresswomen Trahan and Clarke, the executive director of the National College Players Association, Ramogi Huma, said the ability to unionize is the right of any athlete. He also thought that collective bargaining would put athletes in a position where they could demand that NCAA implement important safety protocols. Huma said he would not support a federal bill like the SCORE Act that prohibits student-athletes from being considered employees, because they would never be allowed to unionize. In contrast, Ashley Cozad, SAAC Chair at the University of North Florida and a Division 1 swimmer, reasoned that Olympic sports would die out under an employee framework. She argued that smaller sports would no longer have a place in college athletics under an employer-employee model.

What’s Next?

The past federal proposals and the latest congressional hearing provide several insights. First, if a federal NIL bill is passed, there will likely be a provision that codifies student-athletes’ rights to hire representation or agents. Second, as addressed in prior bills and despite pushback from some lawmakers, a federal NIL bill will likely include a preemption clause that overrides any other federal or state NIL law.  

Nonetheless, several points remain unresolved, particularly over antitrust exemptions, private rights of action, and employment status and unionization. Likewise, several legislators signaled wanting to keep an eye on how the House settlement affects female athletes under Title IX. These issues will likely be front and center to the NIL conversation going forward.

Please contact Rhett Parker, Patrick Judd or any member of the Phelps litigation or media, sports and entertainment teams if you have questions or need advice or guidance.

Special thanks to our contributing author, Bailey Bates, a 2025 summer associate from Tulane University Law School.