Sports Law Opinion – The Protect College Sports Act Protects Only The NCAA and the Schools

(Editor’s Note: The following column was written for Sports Litigation Alert by veteran sports lawyer Len Simon, who was recently named a senior writer for Hackney Publications.)

Have you heard about the Protect College Sports Act?  The massive piece of legislation which is supposed to fix everything that’s wrong with college sports?  Do you favor it?  But before you answer, let me ask you a few preliminary questions:

How would you rate the job performance of the NCAA?  Based on that performance, would you give them more power over college sports, or does that concern you?

Have you noticed that when athletes, coaches, or others sue the NCAA, the NCAA almost always loses?  I wonder why?  Maybe they’re messing up?

Do you think the NCAA should be immune from lawsuits on its most important issues, when other large (and small) entities like the NFL, General Motors, and Apple Computer (and your local grocery) are not immune, and must follow the law or face the legal consequences?

Do you think that Congress is in a position to micromanage college sports, dictating things like how many schools should be in a sports conference, whether years spent in junior college count toward athletic eligibility at four-year schools,  etc.?  Really?  What the heck do they know about that?

I hope I have already caused you to wonder if this Bill is a mistake, an overreach, a dangerous step which will be very difficult to erase.  But let me add a few more details.  The more you know about this Bill, the less you will like it.  And if I’m right on several of these issues, how will we be able to fix it?  An NCAA rule can always be amended, but an Act of Congress requires another Act of Congress to change it.  It took five or years to get where we are, so it could take five or more years to passage legislation to fix any errors in this Bill if it becomes law.  That is scary. But let’s get down to some details.

Jack of All Trades, Master of None.  This massive Bill covers a vast number of topics, including: (1) athlete compensation; (2) transfer rules; (3) eligibility rules; (4) agent-related rules; (5) limits on coaches changing jobs; (6) conference makeup and size; and (7) governance of television broadcasts.  It makes major changes across the board, and many members of Congress are in favor of the bill, but I would challenge any congressman or senator to explain why each of these changes is good.  They are mostly not familiar with the entire bill, and are supporting it on the basis of an information and pressure provided by their state universities and powerful (and rich) alumni who are also supporters of the member of Congress.  Much of the information and argument provided by these folks is one sided, and covers only 1-3 issues, not seven or more.  But if the University of Alabama and its alumni tell the Senators and congressmen from Alabama that the Bill is good for Alabama football, that seems to be enough.

Congress is a busy institution.  They have dozens of important national issues to address, and some of them are also busy trying to get re-elected.  There is only so much time for college sports, a rather minor issue compared to wars, immigration, the economy, and the rest.  Given the limited time to study this, reliance on the views of their state universities is the easy solution.    Congress is not only hearing one side of a very complex story, but hearing it from very important people in their state, many of whom are friends and financial supporters.  The deck is stacked, and the game is so complex that many voting on the Bill don’t know what’s in the Bill, or understand the ramifications.

If this Bill covered, for example, only athlete compensation or transfer rules, the senators and congressmen might be able to focus on it, hear from the schools, hear from advocates for the athletes, hear from experts, and intelligently vote yes or no.  I’m not at all sure why it’s Congress’ job to decide how much athletes should be paid or how often athletes can transfer schools, but at least the members of Congress would have a better chance of understanding it.

But Congress is not being asked to vote on one or two of these rules, they are being asked to vote yes or no on a 171-page package of new rules, on the seven important issues listed above and much more.  What is a senator supposed to do if he likes three of the new rules, but not the rest.  He is boxed in, and Congress is in a rush to finish this in 2026, so there’s no time for amendments – take it or leave it, all 171 pages.  And live with it until Congress passes another bill, which could be in 5 or 10 years.

But the story only gets worse.

Power Corrupts, Absolute Power Corrupts Absolutely.  This aphorism is quite apt here, because this Bill not only makes major changes to college sports, but makes them immune from lawsuits and from state laws designed to protect the rights of athletes in their state.  This is a huge power grab, as federal courts and state legislatures have in the past played an important role in protecting the rights of athletes, coaches, schools and the public.  For example, you may remember that, for years, the NCAA didn’t allow athletes to earn a nickel by endorsing products and the like.  “Amateurism” was the excuse, a concept mocked by Supreme Court Justice Brett Kavanaugh in 2021.  But even before Kavanaugh’s trenchant comments, the problem had mostly been solved by California’s legislature passing a short and simple law, which was quickly adopted by most of the other states, and also by antitrust litigation on behalf of UCLA basketball star Ed O’Bannon, Shawne Alston and others.  Problem solved.

But under this Bill, there will be no problems solved in court, no problems solved by States, because Congress is being asked to eliminate those avenues for those hurt by the Bill.   This broad preemption provision puts the NCAA squarely in charge, indefinitely, no matter how badly it misbehaves.

So, to summarize, if this Bill passes, and contains a problem or two or three, no one – not the Supreme Court, not any or all 50 state legislatures, and not the President of the United States can fix it – except Congress.  Is that wise?  Is that fair? Our country prides itself on allowing the aggrieved to seek remedies, and is also proud of the separation of powers.  But they will be gone as to college sports, while remaining alive and well for the rest of our economy.  Why?  If the courts can address immigration and other important issues, and if the state courts can address AI and other important issues, why are they t incompetent to address college sports?

Simplify, simplify, simplify.  If Congress really wants to improve college sports, it ought to take up these issues one or two at a time.  It also needs to abandon the notion that neither the courts nor the States can operate in this area. Want to fix eligibility rules, or transfer rules, or both?  Write a short and simple bill, debate it thoroughly, and vote on it. Everyone should know what they’re voting on, and if it passes there’s no reason it shouldn’t hold up in court.  Don’t offer us an overstuffed bill with a lot of stuff that wouldn’t pass on its own, that’s just hiding the ball.

And please don’t make the NCAA immune from antitrust litigation and state legislation.  We have separation of powers in the U.S., and federalism, and although Congress may have a role to play here (although it has many higher priorities), so do the courts and the states.  There are already constitutional limits on each these roles, and there is no need to make special rules for sports.  If the courts can review the conduct of businesses, individuals, and presidents, it should be able to review the conduct of the NCAA.  And if the states are to have their proper role in our federalistic political system, there is no reason why college sports issues are outside the power of the states.

WHAT’S THE HURRY, THE HOUSE SETTLEMENT HAS JUST BEGUN TO BE IMPLEMENTED

The NCAA and its supporters in Congress act as if the college sports has many problems and no solutions other than federal legislation. But the organization just reached one of the largest settlements ever, complete with a plan for the future, in House v. NCAA.

Charley Baker, head of the NCAA, lauded the House settlement, calling it “one of the biggest changes ever in college sports … and creates a future that comes with choices, not bankruptcy.”   Why, after only a few months under House, are we turning college sports upside down, without a track record of how this landmark settlement is working.

Again, if the NCAA wants to make a change on the House deal, easily understood by Congress, such as the proposed increase in the amount of revenue sharing, let’s do it.  But let’s not be in such an all-fired hurry to change a half dozen other things before the dust settles from House.

There is a Better Way.  A far better idea than having Congress govern college sports with this level of detail, and immunity from various checks and balances, great difficult in tweaking any errors, is to allow the athletes (at least in the money-making sports) to form labor unions.  This suggestion, proposed in a short and simple bill offered by Senator Chris Murphy and supported by Tennessee Athletic Director Danny White, among others, would allow a big-time sport like D‑1 football to handle relations between the schools, the NCAA and the athletes more like the professional leagues, where it works quite well.  The rules governing the sports would be negotiated among the interested parties, not dictated by busy politicians, and they would be good for three or four years, not forever.   Rules contained in a collective bargaining agreement cannot be challenged in any court, and   issues of interpretation are resolved by highly skilled private arbitrators, with no right to appeal.  s.   After the passage of a few years, problems can be identified and fixed, and new issues can be addressed and if necessary compromised.

Different rules could be created by unions for different sports.  Just speculating here, but we could have one union each for football, men’s basketball, women’s basketball, and one for all the other sports.  And if it’s not working perfectly, it can be adjusted in a few years by negotiation among the interested parties – not by busy Senators and Congressmen with little background in college sports.

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Let me sum it up this way:  Do we want college sports to be governed by a massive new set of detailed rules, written by the NCAA, approved by slim margins in each House of Congress, and untouchable by anyone but Congress, which could take years?  I think not.

Len Simon is a lawyer (semi-retired) and law professor (retired) residing in San Diego.  He has taught courses on Sports and the Law at Duke, the University of San Diego, and UC Irvine, and has represented Major League Baseball, The San Diego Padres, NWSL soccer players, college coaches suing the NCAA, and has also done a wide variety of non-sports litigation, emphasizing antitrust and securities fraud.