What is the Protect College Sports Act and how will it affect College Sports?

The Protect College Sports Act (“PCSA”) is a bipartisan effort to add rules and stability to college athletics, primarily by granting the NCAA and its members an antitrust exemption on select topics. An understanding of the historical backdrop of the PCSA and the litigation that preceded it will help paint the picture of what the PCSA is and what it truly aims to do. A Short summary of the Key Provisions can be found at the end of this article.

History of Antitrust

The history of the NCAA is best told as an antitrust story, with the foundation built on the amateurism model. Antitrust laws are federal and state statutes designed to promote competition in a free economy and to prevent unfair monopolies. By way of background, American professional sports leagues have all been subject to some sort of antitrust litigation. Resolution was reached via a collective bargaining agreement between player unions and the respective leagues. College athletics has operated differently. Since its inception, the NCAA and college sports as a whole, have operated from the top down. This means that the NCAA’s rules were never collectively bargained, rather they were imposed on members, who in turn enforced those rules against student-athletes.

There have always been questions and challenges regarding the NCAA’s model. However, the NCAA and its leadership have danced through these challenges. In the 1950’s, Walter Byers introduced the term “student-athlete” in part to deflect and defeat workers’ compensation claims from injured players. Similar legalese helped form the foundation on which the NCAA was built on, the amateurism model. In 1984, Justice Stevens in the pivotal case, NCAA v. Board of Regents, praised the NCAA. Justice Stevens stated that the NCAA’s model was “a revered tradition of amateurism in college sports.” Further, Justice Stevens stated that the NCAA needed “ample latitude” to preserve that amateurism model. Although these statements by Justice Stevens were pure dicta, meaning they did not create any binding legal precedent, they were nonetheless treated as a pseudo safe harbor for antitrust claims against the NCAA.

Cracks in the “Amateurism” Shield

Eventually, the shield began to crack with cases like O’Bannon v. NCAA, NCAA v. Alston, and House v. NCAA, each a steppingstone leading to the current state of college athletics. O’Bannon challenged the unpaid use of players’ likenesses. Although the remedy was narrow, Judge Wilken held that amateurism rules were not exempt from antitrust scrutiny. Alston was also narrow in its facts and ruling. It challenged only limits on education-related benefits; however, Justice Kavanaugh delivered a resounding concurrence that set the stage for the introduction of the new age of college sports. In his concurrence, he stated the NCAA “is not above the law.” Furthermore, Kavanaugh stated that the NCAA surprisingly “shielded its compensation rules from ordinary antitrust scrutiny.” Very bluntly, Kavanaugh addressed that the suppression of student-athletes’ pay despite the billions of dollars of revenue that they generate for colleges. Arguably, the most powerful statement he made was:

“Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. And under ordinary principles of antitrust law, it is not evident why college sports should be any different.”

Ten days later, state Name, Image and Likeness (“NIL”) laws took effect, and with no legal ground left to defend its own NIL restrictions, the NCAA adopted an interim policy permitting athletes to profit from their NIL. The age of student-athlete pay was underway.

Long-standing NCAA rules began to fall to countless litigants and the NCAA looked less able to enforce any of its rules. Then came House v. NCAA. House and two other cases were consolidated for settlement purposes. The plaintiffs alleged that the NCAA and the power conferences violated antitrust laws, which allowed for rules that prevented athletes from earning money on their name, image, and likeness as well as a share of broadcast revenue. The plaintiffs sought damages for unpaid NIL compensation. Ultimately, the case settled and helped set out some rules that help govern college athletics. The NCAA agreed to pay $2.8 billion over ten years to former athletes. Additionally, it allowed schools to directly pay athletes but set a cap of roughly $20.5 million in one year. There were also roster limits and oversight that was implemented.

Beyond the House Settlement

Although the House Settlement was supposed to add some level of stability, it faced a similar fate to previous NCAA regulations. Reports indicate that many schools circumvented the cap (and continue to do so), the oversight commission failed to effectively deter the circumvention, and there were still outstanding questions regarding eligibility and transfers. This led to the NCAA seeking federal legislation from Congress so that it would have the ability to finally enforce its rules, prevent further litigation, and bring stability to college athletics.

After several efforts to have Congress implement a form of federal legislation, where we are today is the proposed PCSA. As stated above, the PCSA is an effort to bring stability to college sports. Read against history, the PCSA aims at specifically answering the challenges presented in prior lawsuits. The PCSA would provide the NCAA with a limited antitrust exemption, allowing it to enforce its rules without facing constant litigation.

The PCSA would essentially codify parts of the House Settlement into law. This means that the revenue-sharing cap would be implemented, allowing schools to pay approximately $21.6 million directly to the athletes starting next season. On top of the revenue-sharing cap, the PCSA would allow schools to use a retention pool of $22.5 million for payments to retain players, meaning total direct payments from a school may be as much as $44 million (with an option to reach $49 million if money is used on non-revenue sports).

Furthermore, the PCSA would preempt state law. This means that whatever is written in the PCSA would have precedence over competing state laws. It also answers questions about eligibility and transfers – allowing for 5 years of eligibility and a one-transfer rule (with some exceptions).

Many advocates have stated that the PCSA will bring stability to college sports because it will be federal legislation, and answer many of the common questions and concerns that have troubled the NCAA. Additionally, the limitations on transfers would likely provide less churn in rosters.

For as comprehensive as the PCSA is, it still does not answer the looming question that has always followed college sports: are the athletes employees? That omission is no mistake. Previous efforts, like the SCORE Act, have failed in part because of their stance on the employment classification issue.

Unlike many professional sports leagues, whose rules are shielded because they are collectively bargained, the PCSA aims to protect through statute. Proponents of the PCSA call this an effort to provide stability, whereas critics like the NAACP call it entrenching the old model.

There remains the real possibility that the PCSA’s goals of curbing the endless cycle of litigation may not be realized. For example, if written into law the PCSA may be challenged under private nondelegation laws. These problems occur when Congress empowers private entities to act as mini law and rule makers. Additionally, the PCSA preempting state law will likely also be challenged. This is all to say that there are some things the PCSA does well, and some that it does not. Regardless, it is not a perfect shield to litigation and will likely not bring college athletics to a point of full clarity.

If the PCSA is passed, it will set clear rules on eligibility, transfers, and school spending. However, it will not be a shield to all litigation.

_______________________________________________________________________

Key Provisions of the PCSA

NIL Standards: Creates a nationwide right for college athletes to earn NIL compensation, replacing the current patchwork of state laws.

Revenue Sharing & Retention: Sets direct school-to-athlete compensation caps and establishes a retention fund pool (roughly $22.5 million to $27.5 million).

Transfer Rules: Generally standardizes a one-transfer rule without a mandatory yearlong sit-out, while placing limits on subsequent transfers.

Eligibility & Scholarships: Codifies a five-year eligibility window and guarantees athletic scholarships for up to 10 years, protecting them from being revoked due to injury or performance.

Health and Safety: Mandates Division I medical coverage for sports-related injuries, independent health officers, and up to five years of post-eligibility medical care.

Agent Regulations: Requires a nationwide agent registry/certification process and caps agent fees at 5%.

Conference Limits: Restricts Power Four conferences from expanding beyond 19 schools.