Protect College Sports Act Advances in Congress

The landscape of college sports has changed significantly since the Supreme Court decided Alston v. NCAA in 2021. Although Alston dealt with a fairly narrow antitrust issue, the decision, particularly Justice Kavanaugh’s broad criticisms of the National Collegiate Athletic Association in his concurring opinion, accelerated challenges to various fundamental principles of the NCAA model for collegiate athletics. In a few years’ time, student-athletes have successfully overturned restrictions on compensation for name, image and likeness (NIL), transfer limitations, and basic eligibility requirements imposed by the NCAA. They also have asserted rights as putative employees of their universities, conferences, and the NCAA, seeking union recognition under the National Labor Relations Act and compensation under federal and state wage laws. 

The U.S. Senate responded to these seismic changes on September 28 by advancing the Protect College Sports Act. The bipartisan bill, which cleared the upper chamber by a vote of 77-22, attempts to restore some of the NCAA’s control over intercollegiate athletics by providing broad protection for “intercollegiate athletic associations” from antitrust laws and permitting these organizations to set and enforce minimum academic and other standards. It also attempts to restore previous restrictions on athlete eligibility by prohibiting most professional athletes from participating in intercollegiate athletics and limiting student-athletes to five years of athletic competition, subject to exceptions for serious injury, religious missions, active-duty military service, and pregnancy. Finally, the bill would re-affirm that Title IX protections continue to apply to college athletics. 

Although many of the bill’s provisions are focused on restoring the model that prevailed prior to 2021, it would also codify new rights for student-athletes. For example, the bill would guarantee the ability of student-athletes to receive compensation for their NIL rights, ensure they can transfer from their existing university if their coach leaves or they are subject to sexual assault or harassment, and require that universities provide them with appropriate medical care and insurance coverage for injuries resulting from their participation in college sports. It would also regulate agent representation of student-athletes, establish an “Office of the Student Athlete Ombudsman” to protect student-athlete interests, and provide student-athletes with representation on NCAA governing boards. 

One issue the bill does not resolve is whether student-athletes are “employees” of their universities. The legislation specifically provides that it “is neutral on, and does nothing to alter, employee or non-employee status for student-athletes.” The bill accordingly would do nothing to address pending claims by student-athletes for minimum wage and overtime compensation under the Fair Labor Standards Act and state wage laws, nor would it resolve future claims by student-athletes to unionize under the National Labor Relations Act. The absence of any provision regarding the latter issue is particularly noteworthy, as both Republicans and Democrats have advocated for a provision that resolves the question of college athletes’ collective bargaining rights. 

It remains unclear whether the Protect College Sports Act will ever become law. It still must be approved by the House of Representatives, where passage is far from clear. In addition to unionization issues, the bill contains controversial provisions regarding student-athlete budgets, restrictions on college coaches, and conference expansion. These and other political issues could prevent the bill from advancing further. Littler’s Sports Law and Higher Education practice groups will continue to monitor this legislation.