Despite boisterous support from President Trump and over 16 hours of floor debate, the United States Senate declined to vote on or pass the Protect College Sports Act prior to the Senate recess. On the bright side for the President and the bill’s supporters, who hail from both sides of the aisle, Senate Majority Leader John Thune has teed the bill up for a vote after the Senate returns from recess in mid-September.
The Protect College Sports Act (PCSA) legislation is being hailed by supporters and the President as an essential measure that would put guardrails around the escalating college athletics arms race as the industry continues to adjust to the modern world of name, image, and likeness (NIL) compensation where schools can finally, lawfully compensate the players whose talents helped build the billion-dollar college sports universe. The bill also codifies the settlement in House v. NCAA, permitting revenue sharing between schools and student athletes, subject to certain payment caps.
But if passed, what will the PCSA accomplish? More importantly, would the passage of the PCSA truly stem the riptide of litigation that has rocked the college sports world over the past several years?
The PCSA, which also promises to reshape the NIL deals many outsiders blame for spiraling costs in college athletics, takes direct aim at the antitrust scrutiny and ever-evolving eligibility framework that has created a torrent of litigation since the Supreme Court’s decision in NCAA v. Alston, 594 U.S. 69 (2021) holding that the NCAA’s various compensation restrictions were subject to “rule of reason” antitrust scrutiny.
Alston didn’t usher in the world of NIL to college sports, but the unanimous Supreme Court decision subjecting NCAA compensation rules to antitrust scrutiny was just the beginning of an avalanche of court rulings using antitrust rule of reason analysis to award athletes backpay and overturn other NCAA rules, from compensation caps to transfer restrictions to NIL funding to eligibility restrictions.
The PCSA takes direct aim at the antitrust arguments that have helped college athletes gain leverage and earn money in an industry where they previously had none, despite their talents as players being the sun around which collegiate athletics orbit. It also addresses college athlete eligibility, in a straightforward effort to reform an arcane and confusing web of rules the NCAA has preferred to litigate rather than clarify. The outcome of September’s PCSA vote may create lasting changes in the landscape of college sports. But will it slow the rising tide of litigation on eligibility issues? We explore each issue below.
The PCSA would create lasting changes to the college sports antitrust landscape
The PCSA contains two antitrust exemptions. While one concerns only television rights under the Sports Broadcasting Act of 1961, the other relates to NCAA rule enforcement and promises to be extremely impactful in stemming the tide of antitrust litigation against the NCAA in the status quo.
Under Section 118 of the PCSA, the NCAA, conferences, and member institutions receive an antitrust exemption for enforcing or complying with “rules of bylaws”, including PCSA provisions related to agent registry requirements (Section 103), a prohibition on mid-season coaching departures (Section 110), transfer restrictions (Section 112), eligibility rules (Section 113), PCSA guidelines and rules governing athlete compensation caps (Section 114), the revenue-sharing ceiling (Section 115), and anti-tampering provisions (Section 117). The exemption requires rules implementing these provisions of the PCSA, but the functional effect of Section 118 of the PCSA is to immunize the NCAA from the category of Section 1 Sherman Act challenges that resulted in Alston and its progeny. While Section 119 preserves private causes of action for non-compliance with the PCSA’s affirmative requirements, separate causes of action rooted in anticompetition, antitrust arguments are abolished.
While amendments to the bill have come at a frenetic pace and are expected to continue as opposition to the PCSA escalates over the recess, there’s no question that the PCSA would undermine the antitrust pathway utilized by many college athletes to fight for the opportunity to use the intercollegiate athletics market to maximize their earnings and negotiate for better economic opportunities. By giving the NCAA an antitrust shield from rules it promulgates without giving athletes a sword in which to negotiate that shield through alternative dispute resolution processes or collective bargaining, Congress is essentially allowing the NCAA’s rulemaking authority to dictate the terms of all future college athletic market restraints.
The PCSA will still fuel litigation, of course. For example, the PCSA avoids critical questions about whether student athletes are employees, all while restricting player movement and capping compensation without giving athletes a bargaining framework. These questions will invite judicial scrutiny. But if the PCSA passes, a short-term reduction in antitrust litigation against the NCAA is highly likely, if not inevitable.
What impact would the PCSA have on immediate eligibility questions?
One area of constant litigation the PSCA attempts to address is eligibility.
The NCAA recently shifted course from its longstanding, confusing, and arbitrary as applied world of redshirts[1] and waivers to a more coherent five-year rule (colloquially called “5 for 5”) which ties five-years of eligibility to college enrollment and age. Under the new 5-year rule, a student-athlete who meets all other NCAA eligibility requirements and enters college no later than the academic year after their 19th birthday generally will have up to five years of eligibility, subject to a handful of carefully crafted exemptions.
The rule was simple enough, and a welcome change, except that the NCAA arbitrarily declined to provide a fifth year of college eligibility to athletes in the Class of 2022, almost all of whom qualify under the rule’s plain language, having enrolled four years ago. The new five-year rule does allow current Class of 2023 members a fifth year and promises the opportunity for a fifth year to student athletes in the class of 2024 and beyond as well.
The Class of 2022, having already suffered the competitive disadvantage of competing against players in the Classes of 2017-2020 who received fifth or sometimes sixth or seventh years of eligibility under a blanket COVID waiver system, have understandably sued, arguing that the NCAA’s exclusion of the Class of 2022 is arbitrary and unlawful and forecloses their access to the market for intercollegiate athletics.
Thus far, the athletes have won the day in court, securing a federal injunction (under appeal to the Tenth Circuit at the time of this writing) enjoining the NCAA from prohibiting Class of 2022 athletes from competing in a fifth year of collegiate athletics “under the Rule or any NCAA bylaw.” Class of 2022 athletes have also prevailed in a host of state court actions, securing relief ranging from temporary injunctions allowing them to compete in a fifth year to relief allowing certain Class of 2022 athletes to enter the transfer portal outside the NCAA’s transfer portal period.
Rather than backtrack on the exclusion of the Class of 2022 from the new, otherwise sensible five-year rule, the NCAA has vowed to never surrender, fighting each case in court. The plain language of the PCSA makes that decision extremely curious.
Under Section 113(b) of the PCSA seems to plainly include the Class of 2022 within its eligibility definition. As currently constructed, the section reads:
(b) Years of eligibility. —
(1) IN GENERAL. —Subject to paragraph (2), a student athlete is eligible to compete in intercollegiate athletic competition for a maximum of 5 calendar years beginning on, whichever occurs first—
- the beginning of the academic year following the 19th birthday of the student athlete; or
- the date the student athlete initially enrolls full time at an institution.
Textually, that does not appear to create any ambiguity. The Class of 2022 is eligible, without exception. The NCAA could, presumably, argue that a Class of 2022 athlete is not a “student athlete” as defined by the PCSA, but that definition only requires (1) enrollment as a full-time student and (2) satisfactory progress towards a degree. As such, a Class of 2022 player enrolled and working on a degree would, under the PCSA definition, clearly qualify as a “student athlete” under the PCSA as currently drafted.
Ultimately, the NCAA’s most sensible solution would be to abandon opposition to Class of 2022 eligibility
Given the plain language of the PCSA seems to ponder an eligible Class of 2022, passage (and timely adoption and implementation) of the PCSA would likely stabilize Class of 2022 eligibility issues. Whether the PCSA passes Congress and is implemented in time to assure Class of 2022 athletes can participate in the upcoming athletic year is another question, one that can only be answered inside the Beltway.
But what if the NCAA disagrees with a reading of the PCSA making Class of 2022 athletes eligible?
Given the NCAA has lobbied so hard for the PCSA, it seems odd that they’d aggressively litigate Class of 2022 eligibility, which appears to be contemplated and resolved in the Class of 2022’s favor by prospective legislation.
Then again, the NCAA’s scorched earth litigation strategy on Class of 2022 eligibility issues has never made much sense. Whether through federal or state courts or Congressional action, the Class of 2022 seems likely to play, and the NCAA’s continued opposition to that reality seems Sisyphean at best.
Indeed, whatever outcome occurs in the Tenth Circuit in Wisne, Class of 2022 athletes who adopt belt and suspenders strategies and, rather than rely solely on federal courts, seek relief in state court remain immensely likely to receive temporary restraining orders declaring them eligible to compete in a fifth season. The NCAA could thus win the Wisne battle and lose the war.
What makes the NCAA’s fight all the odder is that age-based eligibility reform was a wonderful, meritorious idea that is a dramatic, needed improvement on the inconsistent and arbitrary status quo, where five-year basketball pros could gain eligibility but athletes who played only minutes as 18-year-old freshmen were forced to hope for a waiver. Consistency and fairness are admirable eligibility goals and long overdue reforms.
Instead, the NCAA fights on, once again at the expense of the Class of 2022. What’s more, the damage from the NCAA’s litigious strategy isn’t just an eligibility issue; It’s a financial one. The NCAA negotiated specifically for revenue-sharing abilities in the House v. NCAA settlement framework. Class of 2022 athletes have had only 1 year of access to that remunerative structure. Every enrolled athlete after them will have the opportunity to access the revenue-sharing structure for 5 years. In other words, the NCAA isn’t just fighting tooth and nail in court to deny Class of 2022 athletes a year of eligibility every class after them will receive. It’s fighting to deny them access to a concrete, known financial benefit.
Why the NCAA would target one class of athletes in this way will never make sense. The ultimate question is whether the courts or Congress will finally stop them
[1] Under the NCAA’s old system, a “redshirt” was a season that does not count against afforded eligibility years.
