“Protect College Sports Act” Passes Senate and Furthers Misunderstanding of NIL Rights as a Novelty
By Jennifer E. RothmanOctober 9, 2026
The Protect College Sports Act of 2026 (PCSA), S. 4668 has passed the Senate, 77 to 22. It has not yet been taken up by the House; support there and its prospects are mixed with some significant opposition voiced.
The preamble to the Act states its purpose is “[t]o protect the name, image, and likeness rights of, and provide protections for, student athletes and to promote fair competition among intercollegiate athletics, and for other purposes.” I will focus primarily on the first clause: protecting “the name, image and likeness rights of” student athletes, sometimes referred to as “NIL” rights. Although protecting NIL rights is stated as one of the key objectives of the bill, this bill does little to extend such rights and, if anything, complicates the array of existing laws that do protect them. Instead, most of the 180-page long bill has little to do with protecting the publicity or privacy rights (the actual substantive rights at issue) of student athletes, or any other novel NIL regime for athletes.
Instead, the proposed legislation covers a vast set of issues arising from the chaos created in the wake of the National Collegiate Athletic Association’s (NCAA’s) shift to allow student athletes to earn compensation for endorsements and other income related to their athletic pursuits without losing their eligibility to compete in college athletics. The new regime has led to a Wild West atmosphere in which largely unregulated colleges, universities, and their allegedly unaffiliated supporters try to outbid one another for players, including leveraging endorsement deals and other perks as incentives. The top echelon of student athletes now receive stunning payouts for endorsements, in some instances topping $6 million. This new world of collegiate athletics has destabilized many athletic programs and even the underlying educational institutions who are struggling to compete in this new environment. This increased revenue to (some) athletes also has not addressed the ongoing problems for student athletes, such as insufficient health care or the lack of support for athletes if serious injuries or health problems occur, nor the challenge of trying to get a college education while playing on the most competitive teams, nor inequities across different sports.
The proposed PCSA tries to tackle many of these problems, including significant antitrust questions. I will not consider all of these provisions here. Instead, I will primarily focus on the NIL issues and the proposed legislation’s intersection with state publicity and privacy rights. It is worth noting at the outset that many states have recently adopted statutes that pertain to collegiate athletics and student athletes, but these laws are not harmonized or universal, and some seek to give a state a competitive advantage in collegiate sports rather than to protect student athletes. The proposed PCSA would preempt some of these laws.
What’s in a Name, Image, and Likeness (NIL) Right?
The PCSA and the debate around it incorrectly suggest that NIL rights are unique and novel to the student athlete context. This misapprehension is vast and has worrisomely spilled over into misunderstandings by the very representatives (such as lawyers, agents, and managers) who are supposed to help young athletes navigate these treacherous waters. Student athletes have the same rights as anyone else to limit unauthorized uses of their names, likenesses, images, voices, performances and other uses of their identity, and to commercialize those uses. The only reason some think there is something unique is that the National Collegiate Athletic Association (NCAA) barred commercialization of these rights by student athletes until 2021 (though notably not by the NCAA itself or their member institutions).
In 2021, the NCAA shifted its position on whether student athletes could commercialize their identities (including their names and likenesses) without losing eligibility to play college sports. (Notably, this shift occurred only after litigation and significant political pressure.) The rise of the term “NIL” (name, image, likeness rights) has tracked this shift and now many view the term and issue as limited to the sports context—BUT it is NOT so limited. These rights are protected by broad, longstanding state publicity and privacy rights and other already existing legal frameworks that restrict unauthorized uses of a person’s identity, particularly their names, likenesses (including images), and usually voices and other indicia of a person’s identity. So, although the term “NIL rights” is often misunderstood as the ability of college athletes to receive compensation from third parties for endorsements, sponsorships, social media, appearances, and other things, these rights are not new, didn’t emerge in 2021, and apply to everyone unless a statute limits them solely to students or athletes.
Significant problems arise when legislators and those who represent colleges, athletes, and others don’t know about the many existing laws that apply to student athletes and to everyone else and instead act in a vacuum. This leads to athletes not knowing the full scope of their rights, and the adoption of a cascade of conflicting and overlapping laws all covering the same person’s name, image, likeness, and voice, adding to the “identity thicket.” The frenzy to address NIL for student athletes also sometimes leaves athletes worse off than if they operated under existing legal frameworks and at other times potentially leaves others in worse shape by altering how we understand and apply these laws more generally.
The Alice-in-Wonderland World of NIL in the PCSA
The proposed PCSA provides a number of anomalous definitions of NIL and related rights and again bizarrely treats these rights as if they don’t exist elsewhere in the law.
Definitions
The bill begins with a lengthy definitions section (§ 101) which takes us into an Alice-in-Wonderland world in which long understood terms in right of publicity and privacy laws are (re)defined in somewhat off-kilter ways.
These rules and definitions only govern while a person is a “student athlete” so it is unclear what this means for enforcement of a single contract that might cover a particular person’s attributes before, during, and after this time. The bill defines a “student athlete” as an “individual who is enrolled as a full-time student at an institution [of higher education],” who is making “satisfactory progress towards completing a degree” and participates in “intercollegiate athletic competition or for a varsity sports team.”
The bill defines “Image” “with respect to a student athlete” as “a picture, video, computer-generated representation, or other depiction that identifies, is linked to, or is reasonably linked to the student athlete.” Similarly, “Likeness” “with respect to a student athlete” “means a physical or digital depiction or representation that identifies, is linked to, or is reasonably linked to the student athlete.” This includes “(A) the uniquely identifiable body, physical characteristics, or voice of the student athlete; (B) any other mark that identifies or distinguishes the student athlete; or (C) the jersey number associated with the student athlete during the period of athletic participation by the student athlete at an institution if the jersey number is accompanied by” a logo or color “associated with the institution” or is otherwise “associated with the student athlete.” “Name” too is specifically defined “with respect to a student athlete” as “the first or last name”, “a nickname or assumed name,” or online username that “when used in a context that identifies, is linked to, or is reasonably linked to the student athlete.”
It is a little strange and also problematic to differently define terms-of-art that have been developed over more than 100 years of relevant, on-point law. While most of these (re)definitions are uncontroversial even if duplicative or unnecessary, the “linked to” or “reasonably linked to the student athlete” language is vague, idiosyncratic, and potentially much farther reaching than existing laws. This language is underprotective of free speech and could be challenged on First Amendment grounds. It potentially captures a broader swath of uses than traditional publicity and privacy laws do. It seems more expansive even than the much-criticized Ninth Circuit opinion in White v. Samsung Electronics, which allowed for liability for the mere “evocation” of Vanna White’s identity in the context of an ad that depicted a robot with a blonde wig. 971 F.2d 1395 (9th Cir. 1992).
The PCSA’s concerningly broad definition has probably only escaped objection because of the problematic siloing of the NIL issues that sports people focus on and those that the recording and motion picture industries focus on, and this sidelining of sports issues has probably meant that the bill is also not on the radar of organizations concerned with speech restrictions more generally.
The topsy-turvy world of the proposed PCSA continues with its definitions of “NIL Agreements” and “NIL Rights,” which proceeds as if these agreements and rights would only exist if created by this bill—which, again, is patently incorrect and confusing to those trying to navigate this terrain. It also fails to address all of the NIL agreements that have nothing to do with athletes, or that don’t solely have to do with a person in their capacity as an athlete. The bill defines a “Name, image, and likeness agreement” “[as] a contract or similar agreement between a student athlete (or group of student athletes) and a conference, institution, intercollegiate athletic association, associated entity, collective, or third party regarding the commercial use of the name, image, and likeness rights of the student athlete (or group of student athletes).” (§ 101.) There is a question of what this means for the many agreements that already cover (and will cover) these rights beyond the time a person is a collegiate student athlete.
“Name, image, and likeness rights” are defined by the bill solely in connection with a “student athlete,” and as “the ability of a student athlete to market and profit from the commercial use of his or her name, image, or likeness.” ( § 101.) This is a strange definition because the focus of the bill is the shift in the NCAA’s stance to allow athletes to commercialize their identities and get endorsement deals without losing their eligibility to play, rather than about extending substantive rights.
These “NIL” rights are not created by this legislation nor (mostly) enforced by it. Instead, the actual NIL rights stem primarily from state publicity and privacy laws (as well as state and federal trademark and unfair competition law). These broader, existing laws are not limited to “commercial use[s]” or to student athletes, instead they focus on preventing unauthorized uses of anyone’s identity. At times, however, the draft of PCSA suggests it perhaps extends some more substantive provisions, or claims related to NIL; if passed as is, this would create further confusion and add to the ever-growing “identity thicket.”
Substantive NIL Provisions
The section of the Act titled “name, image, and likeness protections” does not create substantive NIL rights—again those are moored to existing state (and some federal) laws that apply to everyone. Instead, the Act focuses on limits on eligibility. The legislation would restrict the ability of “an institution, conference, intercollegiate athletic association, or any representative” of those entities from restricting students’ eligibility to play if the players “market or earn compensation for the value of their” NIL rights or if they enter NIL agreements. The Act permits institutions to directly pay student athletes for uses of their NIL and requires institutions to allow students to obtain legal representation and be represented by an agent without affecting their eligibility to play. (§ 101(c).) Notably, the allowance of legal representation does not require such representation nor address bargaining inequalities, including the requirement of signing such NIL agreements as a condition of playing or receiving a scholarship.
One of the few truly substantive provisions related to NIL requires the enumerated entities to get permission from each student athlete in order to use the name, image, or likeness of any “group” of student athletes. (§ 101(a)(2).) This provision potentially alters some state publicity/privacy laws that do not extend liability if a person is just one among a group appearing in a photo without individually identifiable. See, e.g., Cal. Civ. Code § 3344(b)(2). But it is not clear that this is truly an expansion, as such carveouts for group photos may not apply in the instance of commercializing student athletes. Some courts have already held, particularly in the sports context, that state right of publicity/privacy claims can arise from photos of a baseball team. See, e.g., Shamsky v. Garan, 167 Misc.2d 149 (N.Y. Sup. Ct. 1995). Regardless of whether such a provision is necessary, the provision doesn’t seem to limit the NCAA from having athletes waive these rights, as the standard NCAA release used to do. The NCAA used to claim that its standard release/agreement for student athletes transferred students’ rights of publicity (the right to their own names, images, likenesses, etc.) in all contexts, forever. (See Complaint at 6–7, Thrower v. NCAA, No. C10-00632 (N.D. Cal. Feb. 12, 2010); Complaint at 5–6, O’Bannon, Jr. v. NCAA, No. CV 09 3329 (N.D. Cal. July 21, 2009); The Inalienable Right of Publicity, at 187-188, 196-98).
Section 101 (a)(3) limits the ability of student athletes to use property (including intellectual property) belonging to the universities and colleges for which they play, including prohibitions on using institutions’ facilities, uniforms, logos, and “other indicia” without the “express consent of the institution.” This is in part an appropriate limit on players suggesting that a university or other institution endorses a product or service. This could happen, for example, if an athlete endorses a particular product while wearing a team uniform. The provision also supports these institutions’ ability to maintain their control and ownership of their trademarks. As drafted, however, the language could limit athletes from accurately describing or depicting their lived experiences and identifying that they play for a particular team.
Another substantive NIL provision in the draft bill seems less about protecting student athletes than about monitoring them and tracking the outside funding of sports teams. The PCSA would require student athletes (and recruited athletes) to report NIL agreements and earnings to their institutions (if over $600). (§ 101(b).) These reporting requirements seem onerous and may be difficult to navigate especially for those who may have agreements that are beyond the scope of athletics. For example, a student (or recruited or prospective) athlete might also be a recording artist or an actor. Do they have to disclose those agreements? There also may be some privacy concerns related to these forced disclosures and for public institutions perhaps a First Amendment issue. Notably, these disclosure requirements only apply to Division I athletics. (§ 101(b)(5).) The PCSA requires efforts to anonymize reporting of these agreements and protect the privacy of the players but it is not clear how effective this will be or how it might interact with broader protections for student privacy under FERPA (“ Family Educational Rights and Privacy Act”) and other laws.
Regulation of Agents and Amendments to the Sports Agent Responsibility and Trust Act of 2004
One of the most promising features of the proposed Act (from the perspective of protecting athletes) is the added regulations of sports agents. (§ 102.) With the change in the NCAA eligibility rules, sports agents have increasingly acted in predatory ways toward student athletes (particularly pre-collegiate minors). The PCSA proposes amendments to 15 U.S.C.§ 7802 which regulates “unfair and deceptive acts and practices in connection with the contact between an athlete agent and a student athlete.” (15 U.S.C. § 7802 was originally added in the Sports Agent Responsibility and Trust Act of 2004 (“Sports Agent Act”)). The PCSA would strike the current language in the Sports Agent Act which requires the anachronistic warning about losing eligibility to play if one engages in endorsement deals and other commercialization.
The PCSA would also add new prohibited conduct under the Sports Agent Act. It would bar fees to agents exceeding 5% of the value of an endorsement contract. The PCSA amendments to the Sports Agent Act would also limit the duration of contracts with athletes so that contracts cannot continue “beyond the eligibility of the student athlete to participate in intercollegiate sport.” Limiting the duration of these contracts is a good idea, but it is not clear exactly how this would be circumscribed as the underlying rights pertain to the person as a person, not as an athlete. Could an agent have one narrow collegiate athletic contract, but then a broader one that would persist beyond the collegiate career? There are also open questions of whether these provisions would invalidate existing contracts that are broader in scope and whether contracts beyond the collegiate sports context would be limited by this language. The PCSA and these amendments do not address what happens to, for example, digital replicas or voice clones, that might be created during the collegiate sports career after the completion of that career. The effectiveness or ineffectiveness of this limitation turns in large part on the answers to these questions, as well as how these provisions interact with the host of other laws governing uses of a person’s identity that are not limited to the sports context.
The PCSA would also prohibit agents from making “any materially false, deceptive or fraudulent representation as an athlete agent, including any materially false, deceptive, or fraudulent statement . . . that misrepresents the existence, nature, or value of a name, image, or likeness opportunity.” This is a bizarre requirement given the current state of affairs. While the language is mostly focused on misrepresenting a particular deal, it can also be read as requiring sports agents to know more about the law than most of them do. The fact is that many sports agents (and even sports lawyers) think that NIL rights are solely about student athletes and emerged in the 2020s with the shift in the NCAA eligibility rules. Many are unaware of the actual legal landscape protecting the athletes (and everyone else’s) identity rights. This lack of awareness jeopardizes the protection student athletes already have. Athletes deserve to understand and be advised about the full range of their rights, but this provision does nothing substantively to combat the vast amount of misinformation in this area that is spread without malicious intent, and even exacerbated by legislation like this that fails to acknowledge the actual underpinnings of NIL rights.
The PCSA would add to the Sports Agent Act new “endorsement contract requirements.” Endorsement contracts would be considered “void from the inception” if they are not in “writing”; “plainly state” that a student can retain an agent or legal representation; describe services to be rendered; state parties to contract, terms of contract, compensation amount, and basis for termination; declare that cannot require student to remain enrolled in a particular institution or live in a particular place; and any such contract cannot extend “beyond the eligibility of the student athlete to participate in intercollegiate sports.” These requirements seem to apply broadly rather than solely to contracts negotiated by a sports agent. If applied broadly this could be a move in the right direction, however, it is still underprotective of young athletes who will like not have representation
The amendments to the Sports Agent Act include a private right of action to invalidate NIL and agency contracts that violate its provisions. The invalidation of contracts provision may have the greatest positive impact especially if the voiding can apply without regard to whether agents were involved in drafting or negotiating the contracts.
Attorneys fees and costs may be recoverable in such instances. This potential fee-shifting provision is likely meant to support athlete challenges but given that it is not limited to prevailing plaintiffs it is just as likely to discourage challenges, as many athletes may not have the resources to hire their own lawyer, let alone pay for a defendant’s lawyer if they lose. The PCSA amendments would invalidate pre-dispute arbitration and waiver agreements with agents. The PCSA amendments would also require sports agents to register with “a State before representing a student athlete for an endorsement contract” and to enter into an agency contract with the student.
Private Right of Action
Section 119 of the bill sets forth some claims allowed under the Act, in addition to those added to the Sports Agent Act. In particular with regard to NIL, claims can be brought for violating § 101(a)—this would allow institutions, conferences and intercollegiate athletic associations to be liable for limiting a player’s eligibility on the basis of the player commercializing their identity. There could also be liability if these entities do not get individual permission to use the player’s NIL when used as part of a group. It is not clear that a claim could be brought under the Act for use of the individual’s identity as an individual—though other laws would govern such uses.
Claims can also be brought under Subsection § 101(c), but it is not clear how this provision would be violated. It provides that entities “may pay” for NIL use. Section 119 allows an action for failure to report information for the NIL and other databases that would be created by the Act (discussed more below). These causes of action (and other claims under the act) would allow for the recovery of actual damages and other “appropriate relief,” including equitable relief, declaratory relief, and potentially attorney’s fees. The private right restricts the enforcement of arbitration agreements made in advance of any dispute. Actions require 60 days notice before filing so a cure can take place.
Some Other Aspects of PCSA
Most of the nearly 200-page proposed legislation focuses on issues other than NIL rights that affect student athletes and college athletics—some of these intersect with NIL issues, but most do not. I highlight some of these intersecting aspects and a few other highlights of the bill below.
Creation of NIL Database and Reporting of Revenues and Expenditures
The PCSA would require institutions to report revenues and expenditures related to their sports programs. It requires anonymized reporting each year of disclosed NIL agreements, including services rendered and amount of compensation, as well as agreements with the institution itself involving uses of NIL “disaggregated by sport.” Institutions must also report how much time athletes spent on sports, academic outcomes, and differential treatment across men’s and women’s programs. This proposed provision seems like a bit of a fishing expedition to try to address a host of concerns, including transparency and public data about “fair market value” of NIL agreements, revenues and expenditures of different colleges to figure out what is happening in the post-amateur world, student’s access to academics, and gender equity issues. Notably, the reporting requirements appear not to apply outside of Division I schools. (§ 103).
Limits on Payments from Institution
Section 114 prohibits certain compensation and agreements, including those that would “circumvent or result in the institution exceeding the revenue share cap.” This section also limits payments under a “NIL agreement” with an institution that is “not [] for a valid business purpose” and is “not commensurate with compensation paid” to similarly situated athletes. There is no definition of valid business purposes so it is not clear what this would actually limit, especially given that the Act expressly would allow such agreements. Amendments were added on the Senate floor to § 114 that allow for apparel deals to not be considered as coming from the institution.
Preemption
Section 121 provides a preemption provision that explicitly provides for conflict preemption (which is likely not necessary but may be useful with uncertainty on Supreme Court justices’ views on how to apply conflict preemption under the Supremacy Clause). It also provides some field preemption in its provision that limits state laws that regulate student or prospective student athlete compensation, transfers, or student eligibility. This preemption provision could help address the many, different state laws that have passed in recent years to govern student athletes. However, § 121 (b) expressly preserves a host of state laws if they don’t conflict, including the Uniform Athlete Agent Acts, civil rights laws, tort laws, criminal laws, fraud, privacy, contract law, trademark law, copyright law, and consumer protection law. Section 121(c)(2) explicitly states that nothing in the PCSA modifies or overrides federal trademark and copyright law.
Other Aspects of PCSA
My focus here has been on the way the Act intersects with existing laws that protect NIL rights, but the lengthy Act also seeks to effect change in many spheres of college athletics. Some of these provisions only apply to Division I schools and some apply differently to Division II and III schools. Section 105 seeks to promote positive academic outcomes for student athletes, including limits on pressure and retaliation based on students’ academic choices, as well as protections for scholarships. Section 106 provides requirements for medical coverage and some funding for “post-eligibility insurance and catastrophic” injuries. Section 107 provides some “health, wellness, and safety standards.” Section 108 would require the establishment of an Office of the Student Athlete Ombudsman at each “intercollegiate athletic association,” which would support athletes and compliance with the Act. Section 109 seeks to provide “comparable standards” for men’s and women’s athletic programs. Private rights of action for violation of each of these provisions are available.
Many of provisions of the proposed Act seem genuinely focused on supporting student athletes but others are more focused on limiting the current madness, particularly in Division I football. There are lengthy provisions about “traditional rivalries,” specific bowl games, and even the “Army-Navy” game. I will not focus on these but the broader concerns are made plain in Section 110, for example, which limits recruiting and other actions by coaches who make “mid-season coaching transitions.” Sections 112 and 113 seek to limit transfers and professional athletes (rather than full-time student athletes). Section 112 limits eligibility after one transfer and Section 113 limits how long and under what conditions a student can be eligible to compete, including requiring meeting “uniform academic standards,” not being a “professional athlete,” and generally limiting eligibility to no more than 5 years. Notably, receiving prize money does not turn an athlete into a professional unless they play football or basketball. Section 114(b) limits payments to coaches—sort of, and sort of, does not. The section suggests that coaches’ salaries should be limited to $500,000 if the institution has more than $80,000,000 in total annual athletics revenue but can be made any amount as long as the funding comes from “college sports revenue or a donation or contribution to the athletic department.” Section 117 places some other (modest) limits on “recruitment [of] and tampering” with athletes at other schools or who are committed to other schools.
Notably, Section 118 states that many current activities and requirements under the Act do not violate “antitrust laws.” This may be a particularly important element of this Act because much of what is happening currently across colleges, the NCAA, and with booster clubs may violate such laws.
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In short, this lengthy draft bill has two primary objectives, among many other secondary ones, that are not always related or in alignment. The first is to protect student athletes and the second is to try to bring some order to the chaotic and messy, post-amateur world of competitive college sports.
Given my expertise, my primary concern with this and other “NIL” student-athlete legislation is that these bills are drafted as if they exist in a vacuum in which no other laws apply. By doing so, the PCSA adds to the challenges of the “identity thicket,” inadequately protects student athletes (and minors who may wind up in collegiate athletics), and potentially undermines protections for both athletes and others under other state and federal laws. This doesn’t mean some of its other provisions aren’t worthwhile and even long overdue (like medical care and coverage for injuries sustained while playing). To truly address concerns over student athletes and NIL rights, legislators and those who work in this area must engage with the actual legal landscape, including right of publicity and privacy laws that already directly protect student athletes’ rights to their names, images, and likenesses.