The litigation and legislation hasn't stopped
Billable hours remain undefeated
If you thought the House v. NCAA settlement was going to limit the amount of litigation and legalese that has permeated the college athletics discussion, you were plain wrong.
Lawmakers, executives and lawyers are all jockeying to help codify and lock down the future of college athletics. House was only the start, and before the season’s start, courtrooms and boardrooms are full of conversations.
With three major legal documents and battles in the past week or so, it’s time to recap all that’s gone on and what that means for college athletics going forward.
The White House gets involved
Thursday, July 24 saw President Donald Trump finally sign the long-talked about “Saving College Sports” executive order.
As with any executive order, it takes effect immediately. But what did President Trump sign?
The order looks to fill in some of the blanks left by the House settlement, particularly looking at non-revenue and women’s sports. Credit to the Trump administration, which likes to get into a ton of hot-button political topics at every step, but they stuck completely to tangible problems, such as scholarship distribution and NIL opportunities available to students.
Required Reading:
Now, a lot of this executive order is a big nothing burger that won’t do anything immediately, with President Trump instructing the Secretary of Education, Attorney General, the Secretay of Health and Human Services, the Secretary of Education and the Chariman of the Federal Trade Commission to start developing a plan to implement the order.
There is one area of the order that has teeth: the executive order would require schools to consider their scholarship offerings based on income levels of their athletic department (read: income. Not revenue, which most schools do not bring in. Income levels ensures all schools are included in the rules laid out by the executive order). Schools making over $125 million in athletics-based revenue would have to “provide more scholarships in non-revenue sports than during the 2024-25 athletic season”, schools bringing in between $125 million and $50 million would have to provide the same amount, and schools bringing in less than $50 million “should not disproportionately reduce scholarship opportunities or roster sports for sports based on the revenue the sport generates.”
That’s a lot of legalese, so what does it mean?
Essentially, the executive order is trying to keep scholarships available for the non-revenue sports that are struggling in the wake of the House settlement. We’ve seen and talked about Olympic sports being cut and money being funnelled to the revenue-generating cash cows like basketball and football. This executive order seems to address that in a very competent and decent way.
There’s already been movement based on the executive order, with six female athletes filing a lawsuit against Stephen F. Austin University based on the school’s alleged violation of the executive order. The athletes allege that cutting women’s beach volleyball, bowling and golf teams violate both Title IX and the new executive order. With the lawsuit just being filed, there isn’t much happening yet, but it will be a situation to monitor.
Evening the SCORE
Similarly to the President’s executive order, a bipartisan bill seeking to reform college athletics has made it past committees for the first time, clearing the House Energy and Commerce committe and the Committee on Education and the Workforce one week ago.
The bill, entitled the SCORE Act, is seeking to codify much of the House settlement into law, with the listed intent to “protect the name, image, and likeness rights of student atheltes and to promote fair competition with respect to intercollegiate athleteics, and for other purposes.”
To many, the SCORE Act is seen as carrying the NCAA’s water, not the athletes. It would lock most of the House settlement’s terms in as federal law, overriding all individual states’ NIL laws. But that’s not where the problems come in.
The bill would prevent athletes from obtaining employment status at any poitn in time. It also grants full antitrust protections to the NCAA, conferences and member schools, meaning pending lawsuits like Johnson v. NCAA would be forcibly dropped.
An antitrust exemption is the golden ticket for the NCAA. It allows them to ignore labor laws, particularly in restricting earning potential. With that exemption, collective bargaining wouldn’t be necessary. The NCAA would get its teeth back to enforce all their NIL, transfer portal and eligibility rules.
One problem: antitrust exemptions are incredibly rare. Among all the professional sports leagues, only the MLB has an antitrust exemption, and that was granted in 1922. Other leagues have lobbied Congress for an antitrust exemption, but been denied multiple times. Nobody, aside from MLB, has ever gotten an antitrust exemption. Should the NCAA receive that?
In a joint statement, the player’s associations for the NFL, MLB, NBA, NHL and MLS opposed the SCORE Act, saying that the NCAA earning an antitrust exemption would “permit NCAA and its members to collude to harm athletes.” The players’ associations go further, saying the NCAA has a history of “collud[ing] to restrict revenue sharing and deny student athletes fair compensation with the confidence of immunity against legal action.”
That last point is interesting, as the NCAA has shown time and time again that it has no foresight. It doesn’t anticipate what is coming. Instead, it hunkers down and digs trenches for anachronistic practices that are clearly anti-athlete. Every meaningful improvement to athlete’s lives and even coaches’ lives has come through legislation (see Alston v. NCAA, O’Bannon v. NCAA, Miller V. NCAA, and White v. NCAA).
Additionally, the SCORE Act is strongly opposed by the attorneys general in Florida, New York, Ohio, Tennessee and the District of Columbia. The attorneys general letter follows many of the same tried-and-true talking points as the players’ associations’ letter.
One important thing to consider about the SCORE Act: it likely wouldn’t hold up to judicial scrutiny. In Justice Brett Kavanaugh’s cocurrent opinion for the unanimous decision in Alston, Kavanaugh concluded that “nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that hteir product is defined by not paying their workers a fair market rate…The NCAA is not above the law.”
Sounds like something for one Jeffery Kessler to tackle if the bill gets through Congress and is signed into law.
Mending a House divided
Speaking of Kessler, the lead attorney for the plaintiffs in the House case, there’s already been issues raised in the landmark settlement.
The College Sports Commission (CSC), which oversees enforcement of House-related regulations, issued a guidance that stated that the organization would not approve any NIL deals through collectives. The CSC, alongside Deloitte, evaluates each NIL deal signed by an athlete over $600 to see if it has both fair compensation and a “valid business purpose.”
The problem came when the CSC started flat denying deals done through collectives instead of with a third-party. Especially with collectives that are aligned with the university. It was the CSC’s viewpoint that these deals were ways for schools to circumvent the $20.5 million revenue sharing cap on direct compenstation from the school to athletes.
Last week, the CSC updated the previously released guidance and will treat collectives or any “school-associated entity” as they would any third-party organization. Kessler did threaten to take the issue to the court-appointed magistrate judge if the previously rejected deals were not reinstated under the new guidance. The CSC, as of this writing, is still reviewing the previously denied NIL deals under the scrutiny of the new guidance.
Obviously, this greatly changes the impact of the House settlement. What was once a hard cap of $20.5 million can easily be surpassed through school-affiliated collectives. Both Big Ten and SEC commissioners said at their conference media days that they believe the new soft cap would let collectives give additional compensation on top of the listed $20.5 million cap.
To me, this isn’t that big of a deal. Sure, an equal playing field is ideal, but when has that ever existed in college football? Facilities, coaching staffs, dining and so many other factors differ from school to school based on how much an institution can put into athletics. Would you rather practice and work out in Ohio State’s facility or Bowling Green’s?
Yes, it allows the rich to get richer, but that’s always how it’s been. Bag men aren’t new, and paying players isn’t new. It’s just out in the open now.
To me, this allows the settlement to take an even more equitable approach. We can strike a unique mix of two schools of thought. Keep the $20.5 million of revenue-sharing dollars equitable under Title IX, meaning it should be proportionate to the gender discrepancies of each athletic department. Let collectives go over that cap and compensate the athletes they choose.
That ensures Olympic and women’s sports get their rightful cut of the university’s direct revenue sharing. The collectives could then satisfy the want to properly compensate the athletes in high-revenue sports. Everyone’s happy, right?
We’ll see how that turns out, as Title IX’s role in the House settlement is still undetermined.
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