GUEST POST: One of these big NIL bills may actually be unconstitutional

Good morning, and thanks for your continued support of Extra Points.

I’m fighting off some sort of 24 Hour Bug/Food Poisoning bug at the moment…which makes this a perfect time for a guest perspective.

I’m happy to bring back Sam C. Ehrlich, a law professor at Boise State, and a frequent commentator on legal issues in college athletics. We were chatting earlier in the week about the potential policy merits of the recently proposed College Athletes Protection & Compensation Act, when he mentioned that he thinks that a core component of the proposed law…might not even be constitutional.

Happy to turn the microphone over to Sam here. I’m going to try and rehydrate and get back to your inboxes and ADS3000 games on Friday.

Most of you are likely keenly aware at this point that the NCAA is pushing hard for Congress to pass some sort of legislation to save its vision of amateur college sports. Even if you didn’t know about it before, you probably heard Greg Sankey rant about it at SEC media days last week, where he said that “only Congress can adequately resolve” the issues currently facing college sports.

And while the impact may have been blunted somewhat due to its likely placement on the ever-growing list of forgotten attempts at Congressional NIL legislation, another new bill was offered last Thursday.

This draft legislation, called the College Athletes Protection & Compensation Act, is a rarity from the current Congress, as it is truly bipartisan: it joins liberal Democrat senators Richard Blumenthal (D-CT) and Corey Booker (D-NJ) with Jerry Moran (R-KS) in effort to join two contrasting approaches to federal regulation of the college sports space.

The bill itself covers a lot of ground. I won’t waste space here trying to summarize the bill, both due to its sheer length and scope and due to the fact that other, much more capable authors have already done just that already. Matt also wrote about the bill’s merits, and unanswered questions, earlier this week. 

But the interesting part of this bill to me is that it would create a new, private corporation—the College Athletics Corporation (CAC)—that would have central oversight authority over NIL specifically, and potentially in other aspects of college sports.

The newly-created CAC would set rules for how, when, and where athletes could activate NIL contracts, serve as a clearinghouse for NIL contract disclosure, and certify NIL agents. The CAC would even have subpoena power, meaning that it would be able to legally compel athletes, agents, third parties, and others to testify and submit information related to an investigation.

Notably, this specific idea isn’t new—a draft bill circulated by Senator Lindsey Graham (R-SC) back in May would have established an “NIL Clearinghouse” that would have been structured functionally the same way. That bill doesn’t seem to be going anywhere, but maybe it had some influence on this one?

Anyway, the NCAA and the conferences seem excited about the Blumenthal, Booker, and Moran collaboration. The NCAA released a statement saying that the association is “pleased to see the legislative outline includes many of the elevated membership standards put in place by NCAA members earlier this year and reflects our continued priority of student-athlete well-being.” The Power Five conferences released a similar statement in collective support, pointing to the bill as evidence that “momentum continues building in both the Senate and the House” to address NIL issues.

But here’s the problem: as currently written, the Blumenthal, Booker, and Moran bill is almost certainly unconstitutional

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