“Athletes, like every other citizen in the country, ought to have the right to access the market, to capitalize on their own visibility, their talents and their appeal to the public. So this is a sort of baseline, right, that everyone ought to be entitled to, including athletes,” Smith said.
Opinions on the new legislation vary. Some view it as the first step in the right direction, giving student-athletes some sort of opportunity to profit from their work. Many others, however, think the bill is too vague in its phrasing and doesn't accomplish as much as it promises.
Barbara Osborne, a professor of sports law at UNC, said it's difficult to determine how exactly the bill will affect student-athletes around the country.
“Name, image and likeness is something that is regulated by the state. Not all states have this legislation, states that do have the legislation limit what those rights are," she said. "So technically this would be a federal law that would create very different rights for different athletes and different states based on state law which they have no authority over.”
In some states, she said, name, image and likeness rights only apply if someone uses them for commercial purposes without their permission. Other states only have rights limited to endorsements.
Osborne also questioned the feasibility of the bill in terms of how the rights would apply once this bill would be passed.
“The school owns the trademark right to the uniforms, the jerseys, the colors, the name, etc., and so those athletes would be prohibited from being able to identify as an athlete from that school under trademark law,” Osborne said.
Osborne explained that, while she thinks Walker doesn't intend for schools to pay their players, he does want student-athletes to be able to accept outside payments.
“Basically by saying his intention is don't pay players but allow them to be paid for the use of their name, image and likeness, what are they being paid for?" she asked.
The legislation could raise further questions in terms of how players can benefit from their image.
There could be questions regarding the use of student-athletes’ image on the video boards. Osborne said, however, given that these players are in the public domain, they could not necessarily receive any compensation for that.
Osborne also explained the stipulation of the bill and how it would affect the NCAA.
She highlighted Congress' power over the spending code and taxes. Therefore, if the NCAA prevented its athletes from profiting off of their image, the NCAA could lose its tax exempt status.
While Smith said the current legislation is insufficient, he did believe it is a step that shows progress.
“I don't think that is eminent, that change is not eminent and, in the meantime, at least giving them access to the market and freedom from these artificial restrictions placed upon them by the NCAA is a reasonable first step,” Smith said.
Osborne said she thinks, if the bill were to pass, the NCAA would most likely file a lawsuit claiming Congress had exceeded the scope of its authority.