On the eve of the Final Four, President Trump shook up the college sports world, signing an Executive Order intent on bringing order and stability to the ever-evolving world of NIL and college athlete compensation.
The “Protecting the Future of College Sports Before It’s Too Late” Executive Order (EO) was applauded by many, especially those voices frustrated with the regulatory uncertainty of college sports in the new NIL universe. But even those of us who agree and work to assure that athletes receive their fair slice of the immense revenues generated by college sports acknowledge there are some worthy goals in the EXECUTIVE ORDER, including clear rules on player eligibility (an issue where inconsistent rules have spawned waves of litigation), funding requirements for women’s and Olympic sports, and an effort, however imperfectly worded, to push for federal uniformity in NIL laws and thus reduce state-to-state rule changes that foster an atmosphere of legal uncertainty. The entirety of the 10-page Executive Order can be read here.
Unfortunately, like many Executive Orders, Trump’s EO is vulnerable to legal challenges, most notably that under Articles I and II of the Constitution, the President lacks the authority to make new law and institute such regulations without Congressional action. Article II gives President Trump the power to “take care that the laws be faithfully executed.” It means the President can, via Executive Order, direct federal agencies on how to implement and enforce existing law. The President cannot make new law, which is the purview of Congress via Article I. Furthermore, because Executive Orders are not self-executing, the President’s EO cannot create new rights, rules, or obligations the way a statute would.
The EO seems to acknowledge this reality in Section 4(b), where the President directs the NCAA, by August 1, 2026, to “update or clarify its rules….including by establishing” rules to “the extent permitted by law and applicable court orders” clarifying age-based eligibility, creating a five-year eligibility period for all athletes preventing professional athletes from returning to college athletics[1], and limiting transfers. (Emphasis Added). In other words, any new rules created by the NCAA because of the EO must still comply with existing law and survive judicial scrutiny. When an Executive Order does not survive judicial scrutiny, or the rules spawned by the EO fail to survive judicial scrutiny, courts are free to strike them down.
From a belt and suspenders standpoint, the EOR simply directs federal agencies to “bolster the effectiveness” of rules related to transferring, pay-for-play, and athlete eligibility. The effect of the remainder of the EO? It is effectively a series of rule recommendations that are responses to the Cause Du Jour of the day in the collegiate athletics and NIL space.
For example, Trump takes aim at unlimited transfers, a policy that reflects a litigation settlement of the antitrust case Ohio v. NCAA. Cloaking a restraint of travel and freedom of contract in the language of academic interest, the President seeks implementation of a rule that allows only one transfer per a five-year period, with an additional transfer allowed if the athlete earns a degree. If only backed by executive or administrative fiat, this type of rule is likely doomed to failure in court. Another recommendation, calling for a black letter rule stating “professional athletes cannot return to college athletics”, appears to be a direct response to a the recent (albeit ultimately unsuccessful) attempt of G League veteran Charles Bediako to leave the professional ranks and return to play college basketball at the University of Alabama.
More broadly, the President’s Executive Order aligns the Trump administration with the NCAA in antitrust litigation challenging a host of NCAA rules and rulemaking authority.
Citing the “financial perils” of the financial impact of NIL and revenue sharing on the academic mission of NCAA member institutions, the EO laments the way NCAA rules have been “substantially loosened through a number of judicial rulings.”
This language appears to position the Trump Administration on the NCAA’s legal side in a number of suits actively in litigation, and while the EO does not openly call for deference to NCAA rulemaking authority, Trump’s policy position and recommendations support a deferential standard of review to the exercise of this authority.[2] Indeed, while the President’s EO does not (and almost certainly could not) grant college athletics and the NCAA an antitrust exemption, the EO does adopt repeated positions consistent with NCAA antitrust defenses. For example, the recommendation that athletes be permitted to play in college for “no more than a five-year period” is consistent with the NCAA’s legal defense in the more than 70 cases brought by relatively older athletes who wish to remain college eligible and maximize their NIL and revenue share earnings potential despite having played four seasons within five years.
The largest issue with the Trump authority ort the sober criticisms that it lacks immediate rulemaking teeth, challenges existing Supreme Court interpretations of federal law and NCAA authority, or presents potential constitutional issues destined for court.
Instead, it’s that the Executive Order fails to directly address the elephant in every NIL room, which is the question of whether college athletes are employees of universities themselves. At present, college athletes have not been recognized as employees and are not permitted to unionize. The question of whether they will be or should be recognized as employees would bring sea change, a tidal wave of changemaking authority that makes it the most consequential question in the world of NIL law.
Oddly, the EO seems happy to avoid it, proposing new NCAA rules that would not be bargained for with athletes while leaving the question of collegiate athletes’ potential employment to the courts[3] and Senate.
That’s a potential mistake, considering one of the biggest roadblocks to bipartisan legislation on NIL and collegiate sports compensation is the question of whether athletes are classified as employees. Senator Ted Cruz of Texas has said that any legislation must actively forbid employee designations for college athletes. Other lawmakers and attorneys, however, have advocated for collective bargaining between schools and athletes, noting that as NIL and revenue-sharing dollar figures continue to increase, it would benefit schools to designate athletes as employees sooner rather than later, before the millions of dollars at stake create a disincentive among athletes to participate in a collective bargaining agreement regime. Without resolving this debate, laws such as the SCORE (Student Compensation and Opportunity through Rights and Endorsements) Act seem unlikely to launch.
In the end, the immediate impact of the Trump Executive Order won’t be on college athletes. Instead, the EO expands public knowledge and increases pressure on Congress to establish a stable regulatory regime for the NIL world. Absent a permanent, bipartisan federal legislative solution, executive action whose ultimate impact only reaches to the extent permitted by existing law and applicable court orders will do little to change the landscape of college athletics.
[1] Oddly, this portion of the Executive Order is redundant with current law. The current rule in effect allows athletes to receive four competitive seasons in a 5-year clock.
[2] In many ways, adopting this position signals that the Trump Administration welcomes the opportunity to play an active role in the litigation the Executive Order is likely to spawn, given the reality that since the Supreme Court’s 2021 decision in NCAA v. Alston, courts have been instructed to not provide deference to NCAA rulemaking authority under antitrust law. That lack of deference has put the NCAA in the crosshairs on a host of lawsuits challenging transfer and eligibility rules.
[3] Courts that have entertained the employee question have suggested they will likely side with athletes seeking to be designated employees. In Johnson v. NCAA, the argument that athletes are employees under the Fair Labor Standards Act survived the NCAA’s motion to dismiss and a Third Circuit appeal, with the court holding that athletes can be employees under FLSA.
