Money in college football has long been water on concrete, finding every nook and hidden cranny. For decades, the vast majority flowed to athletic department coffers and coaches’ salaries, with trickles making their way to players in the form of under-the-table payments.
Name, image, and likeness (NIL) rocked that foundation. For the first time, athletes could legally profit from their efforts. Hushed hundred-dollar handshakes gave way to endorsement deals with national brands, hometown businesses and university-adjacent “collectives.” Earlier this year, a federal court approved a $2.8 billion settlement in House v. NCAA, paving the way for direct payments from universities to college athletes.
The ever-changing landscape left many yearning for stability. To get it, some have turned to Congress. Federal legislation could provide uniformity and finality, ending the patchwork of state regulations and settling college athletics on a fixed framework. And, depending on who you ask, it could provide an antitrust waiver — removing the gavel that has struck down a litany of NCAA rules (and empowered student athletes in the process).
But, as with all things involving Congress, there is disagreement on what that legislation should entail. The debate has pitted institutional NCAA interests against athletes’ rights groups, created unlikely bed fellows, and tested the influence of a prominent West Texas billionaire with the ear of the President.
The Athlete Rights Bill Backed by an Unexpected Booster
Cody Campbell is an anomaly in college sports. Most wealthy boosters operate in the shadows, infusing cash — and wielding the influence it buys — away from the limelight and the public’s scrutiny. But not Campbell. The former Texas Tech offensive lineman turned billionaire landman isn’t shy about bankrolling Texas Tech’s newly found athletic success, including one of college football’s most expensive rosters and a men’s basketball team with Final Four aspirations.
He also isn’t afraid to flex his influence nationally. A close ally of President Donald Trump and co-chair of the short-lived President Sports Commission, Campbell has regularly counseled the president on the future of college sports. And publicly he’s been a ubiquitous presence on college football broadcasts, spearheading a national ad campaign advocating for “modernizing” the Sports Broadcasting Act to allow the NCAA to collectively sell broadcast rights.
He is now using that influence as the most unlikely backer of the Student Athlete Fairness and Enforcement Act. Introduced by Democratic Senators Maria Cantwell, Cory Booker and Richard Blumenthal and supported by professional athlete associations, the SAFE Act takes an athlete-centric approach to establishing federal standards. It guarantees athletic scholarships for 10 years and medical coverage for five years after their eligibility expires. It caps agent compensation at 5 percent of NIL deals. And it authorizes the Federal Trade Commission and states attorneys general to exercise oversight.
As important is the SAFE Act’s silence on two critical issues. First, it does not exempt the NCAA from antitrust laws, preserving the primary tool used by athletes to challenge what some consider to be oppressive NCAA rules. Plaintiffs in the recent O’Bannon, Alston and House cases each used federal antitrust laws to secure critical athlete benefits, including the ability to receive NIL and revenue sharing income. Second, the SAFE Act is quiet on whether athletes qualify as employees, leaving the door open for future litigation and potential collective bargaining.
Two SAFE Act provisions particularly align with Campbell’s advocacy. Most notably, the SAFE Act enacts the Sports Broadcasting Act amendment Campbell has pushed, allowing the NCAA to once again bundle broadcast rights as opposed to the current mosaic of conference broadcasting deals. The move is expected to increase total revenue, with the surplus earmarked towards Campbell’s other cause: protection of Olympic and women’s sports.
To date, Campbell’s public backing has not moved the needle. The SAFE Act has yet to receive support from across the aisle. Given Republican control of both branches of Congress and the White House, the SAFE Act faces steep odds of enactment.
The NCAA Backs a Different Approach
The Republican-sponsored Student Compensation and Opportunity through Rights and Endorsements Act takes an opposite approach. Despite clamor for federal standards, the SCORE Act largely cedes full authority to the same institution that oversaw the current predicament: the NCAA.
The SCORE Act affords the NCAA the same ability to establish standards that the organization possesses today, ranging from restrictions on transfers to caps on agent compensation. It allows the NCAA to determine an appropriate percentage of revenue to be shared with athletes and whether that percentage should be modified in the future. And it leaves oversight of the industry to the NCAA, zeroing out a role for federal or state regulators.
Instead, the SCORE Act pronounces where the SAFE Act stays silent, granting the NCAA the two exemptions it has long sought. It largely exempts the NCAA from antitrust liability, insulating NCAA decisions related to compensation, eligibility, and transfer restrictions. And it prohibits athletes from being recognized as employees, codifying the “student-athlete” moniker the NCAA has long pushed (and at least one Supreme Court justice has admonished).
Unsurprisingly, the SCORE Act has the backing of the NCAA. In a recent letter, 31 of the 32 college athletic conference commissioners (Ivy League Executive Director Robin Harris being the sole holdout) advocated for the bill. NCAA President Charlie Baker has also expressed his approval.
Despite that support, the SCORE Act’s outlook does not appear much more promising. Though it has passed through two House committees, the SCORE Act has not yet received a full floor vote. And even if the act passed the House, its prospects in the Senate appear dim, unlikely to clear the necessary 60-vote threshold or obtain the bipartisan support needed to get there.
Though the SCORE Act and the SAFE Act take divergent approaches, the bills reflect growing congressional interest in establishing national standards to govern college athletics. But given the partisan divides and fundamental differences, federal regulation remains unlikely. It appears the NCAA will not be able to count on the federal government to save college sports.
Yaman Desai is an attorney with Lynn Pinker Hurst & Schwegmann in Dallas. He represents a diverse set of clients on a wide array of commercial litigation matters.
