College sports is experiencing a seismic change. Division I colleges and universities are able to engage in revenue sharing with their respective athletes. This new revenue sharing model is the result of a historic college sports settlement that was recently approved, known as the House Settlement. The House settlement also established several other changes in college sports such as the implementation of team roster limits, the creation of the College Sports Commission, and the NIL deal reporting platform NIL Go. While the House Settlement ushered in may changes in college sports, it did not fix or even address all the issues facing college sports. It is for this reason, that the NCAA and Power 4 conferences continue to spend billions of dollars lobbying to Congress in hopes that Congress will pass favorable NCAA and Power 4 conference college sports legislation. Their most recent effort is known as the SCORE Act.
What is the SCORE Act?
The Student Compensation and Opportunity through Rights and Endorsement Act, known as the SCORE Act is the latest legislation before Congress addressing the myriad of issues facing college sports. In essence the SCORE Act seeks to codify into federal law the provisions of the House Settlement. As mentioned above, federal district court judge Claudia Wilken approved the House Settlement paving the way for colleges to share revenue with their athletes. The settlement led to other changes such as the NIL deal reporting requirement for NIL deals with an aggregate value of $600.00 or more. The SCORE Act seeks to codify this and other provisions of the settlement such as the provisions regarding revenue sharing into federal law.
The SCORE Act goes a bit further addressing issues not handled by the House Settlement. For example, the bill will provide healthcare access for college athletes up to 3 years after their collegiate eligibility expires. The SCORE will also cap athlete agent fees to 5%. The SCORE Act also addresses the question of whether college athletes should be deemed employees. While many of the revenue sharing or NIL licensing agreements that colleges are entering with their athletes’ state that the athletes will not be considered employees the question of college athlete employment is still unsettled. The Johnson v. NCAA case questioning whether college athletes should be considered employees under the Fair Labor Standards Act is still in ligation. Accordingly, the SCORE Act contains a provision stating that college athletes are not to be considered employees of their university or conference based on their participation in college sports. The SCORE Act also seeks to preempt state law where necessary. Perhaps most importantly, the SCORE Act seeks to provide the NCAA with its highly sought after antitrust law exemption.
Giving the NCAA an antitrust law exemption would solve many of the NCAA’s problems while completely gutting college athletes’ ability to fight for their rights. The fight to expand college athletes’ rights has been fought on several fronts. For example, a series of state legislation regarding college athletes’ rights to profit from their NIL led to college athletes gaining NIL rights. However, much of the progress that has been made on behalf of college athletes’ rights has been made in the courtroom. The first courtroom victory that catapulted the college athletes’ rights movement was a case known as NCAA v. O’Bannon. In 2009, former UCLA basketball standout Ed O’Bannon sued the NCAA, EA Sports, and Collegiate Licensing Company for the unauthorized use of his NIL in a videogame. Although O’Bannon did not directly lead to college athletes being granted NIL rights, it laid the groundwork as it proved that the NCAA’s rules regarding athlete compensation were subject to federal antitrust law.
Similarly, NCAA v. Alston led to college athletes being able to receive education-related benefits free of limitations put in place by the NCAA. The basis of this case was federal antitrust law as well. Alston led to college athletes being able to receive what has become known as Alston Awards. Alston Awards are education and financial rewards college athletes may receive up to $5, 980.00 annually. This went to the United States Supreme Court where the Court made it clear that the NCAA’s rules are in fact subject federal antitrust laws and that the Court would not be granting the NCAA an antitrust exemption. Accordingly, the NCAA only chance at getting an antitrust exemption is through Congress. If the NCAA is granted the blanket antitrust exemption that the SCORE Act purports to provide, college athletes ability to fight for rights will be severely hindered or completely taken away.
Accordingly, the SCORE Act while great for the NCAA and Power 4 conferences it is not the best deal for college athletes as it is currently written. College athletes need and deserve a seat at the decision-making table. In professional sports, this is done through collective bargaining between the professional league and the respective players’ association. There is currently no analogues entity to represent college athletes’ interest with respect to the decisions considered. However, college athletes need to and deserve to have a strong voice in these conversations and the ultimate decision making.
Will the SCORE Act Pass?
Since 2020, Congress has held numerous hearings on college sports and several bills regarding college sports have been drafted. However, the SCORE Act has made the most progress as it was expected to receive a favorable vote on the House floor. The vote was expected to happen next week. However, it was recently reported that the vote on the House floor will be delayed because the bill does not have enough votes to pass. The SCORE Act does not currently have the bipartisan support, namely from the Congressional Black Caucus, needed to on the House floor to pass. The bill also lacks the support of non-Power 4 athletic conferences as those conference fear that passing the SCORE Act would only increase the divide between the have and have-nots as it relates to college sports. Thus, tt remains to be seen whether the SCORE Act as written will be able to get the necessary support. The bill will likely require amendments to get the ball rolling again.
College and high school athletes have been granted the right to profit from their name, image, and likeness! Yayyyyyy!!! College and high school athletes can now enter NIL Deals. This is an exciting opportunity for college and high school athletes. However, there are certain topics that college and high school athletes and their parents need to know before entering any NIL Deal. Download by free NIL Contract Checklist for 5 contract terms to know! For more on college athletes' name, image, and likeness rights follow me on Twitter @esquire_coach and on Instagram and TikTok @the_esquirecoach. To receive updates from The Esquire Coach Blog directly to your email please subscribe below.