Protect College Sports Act Could Bring More Federal Oversight to NCAA Athletics

Colleges are feeling pressure regarding the “sustainability” of the current roster environment. The NCAA is striving to maintain its position as the ultimate authority of college athletics. Both parties, as well as coaches and others, have vocally petitioned Congress to intercede and return order and stability.

It appears that Congress is trying to do this with the new Protect College Sports Act. But while it formalizes a number of material NCAA rules and contains helpful guardrails, a closer reading reveals what may come with congressional intervention.

The Protect College Sports Act codifies House and expands federal oversight of college sports.

The spotlight has been on two of the act’s major provisions:

• It codifies the status of the NCAA and certain House settlement conditions on name, image and likeness (NIL) and revenue sharing, as well as certain eligibility rules, such as the 5-for-5 rule.
• It preserves a transfer portal with limitations that have widespread college support.

However, the Protect College Sports Act also contains several perhaps seemingly unexpected provisions, one of which is the creation of the “Commission on the Future of College Athletics,” contained in Section 116. The commission appears set up to sunset in five years and exists to “make recommendations.” At first glance, it appears intended as a temporary body with no material authority.

That act mandates that the commission include 20 members, who are appointed by various U.S. representatives and senators, including the House and Senate majority and minority leaders and two committee chairs. Some of these members must be current or former student-athletes, though the act does not specify the sport, level of participation or skillset required to support appointment. More importantly, a majority of 12 commission members can be anyone the political decision makers wish, which can include patronage appointments or political allies, so long as they are “experts” in various areas “related to” college athletics, administration, sports law, labor law and athlete welfare.

The act bestows on the commission a number of enumerated powers, which include the significant power to hold hearings and subpoena documents, records and witnesses to testify under oath. The act calls for hiring of an executive director of the commission and for creation of “such staff, as appropriate, with compensation.” The commission’s powers also include the ability to recommend changes to the House revenue cap and make recommendations in other areas such as compensation models, unionization, athlete employee status, and to “make any other recommendations regarding college athletics.”

The act provides that any member of Congress may propose a resolution for lawmakers to enact into law any recommendation by the commission. Perhaps most significantly, the act includes a continuing authorization of appropriations by Congress for the commission of “such sums as may be necessary in any fiscal year.” Thus, the act comes into existence with assurance of ongoing funding.

The commission’s structure does not indicate a temporary existence, and any act enacted by Congress can, of course, be amended or extended by Congress. In exchange for the protections of the NCAA and the compensation and eligibility regulations it supports, it appears the act invites the U.S. Congress into the governance of college sports, including the sports that produce revenue and the players who play them.

Players get new scholarship, injury and eligibility protections under the act.

The act contains various scholarship and injury protections for players. It prohibits revocation or nonrenewal of a scholarship based on injury, but also on condition of performance or as part of roster management. These provisions seem to at least somewhat limit or allow scrutiny of coaches’ ability to make performance, recruiting and roster decisions inherent in competitive sports.

The act could also bring regulator involvement into athletic program and conference operations. It requires schools to appoint a health and safety officer independent from the athletic department, who must also report to another university employee independent from the athletic department. This isn’t necessarily a bad thing, but does add administrative costs, a somewhat supervisory bureaucratic structure, and potentially external scrutiny and input with respect to many decisions routinely made by athletic departments and coaches. The act defines the responsibilities of such an officer “at a minimum” to include overseeing “any training, oversight practices, policies and procedures,” and “consulting with student athletes and athletic department personnel and reporting any suspected violations of this section.”  The act also requires the NCAA to establish a student-athlete ombudsman with a staff to help athletes resolve any concerns they have with the university, conference or the NCAA.

The act protects former athletes’ ability to pursue degrees after their eligibility expires. A university must allow a former athlete who was enrolled in the last 10 years, if he was enrolled there when his eligibility expired (which appears an additional cost that comes with a transfer portal player), to resume study to complete his degree. The university must pay the athlete the amount of the grant-in-aid he or she previously received while enrolled and participating in his or her sport. The source of funds is not set out, nor is what academic progress the former athlete must make to continue to receive these benefits. Without more, this structure could conceivably allow a former athlete to pace degree progress for an extended period of time.

Section 119 provides a private right of action for certain alleged violations of the act. For example, it appears that Section 119 allows a player who might feel his scholarship was impaired by a decision made by his coaching staff based on his athletic performance, or on team needs and limitations on the roster, as referenced in Section 105(c), to bring a civil action for damages and attorney’s fees against his university. Or, he might involve the NCAA student athlete ombudsman to intercede on his behalf. Likewise, a former athlete might bring such an action under Section 105(d) disputing the amount of his prior grant-in-aid or requirement of progress toward his or her degree.

As to recruiting, the act adopts a modified transfer portal-type arrangement. A player at another university may be contacted for five weeks after a championship competition if the player “opts in.” There is no mention of how an opt-in must be evidenced or what happens if the player is induced to opt in.

The transfer portal would run for 35 days, as opposed to the current 15-day period. The act authorizes athletic associations, like the NCAA, to make and enforce tampering rules, but provides nothing more, which seems to leave that issue in the state in which it presently exists.

Pursuant to Section 122, the act is specifically neutral on the question of whether an athlete, even an athlete earning six or seven figures in revenue-sharing pursuant to an enforceable contract, is excepted from treatment as an employee. Resolution of such an issue is left to the commission to make a recommendation. It seems the act could provide some resolution with respect to highly compensated individuals in revenue producing sports so that contracts could be better tailored, but it falls short in its present iteration.  

Players could still transfer for an additional period after a coaching change, which raises questions in an environment where players are materially influenced to attend a given university by the amounts they are being paid. In an environment in which players enter contracts to be paid, this seems an anachronism from amateur days and a source for future transfer disruption.

The act adds one particularly insightful provision to the 5-for-5 eligibility rule in Section 113(b). In addition to existing NCAA criteria, five years may also be timed from the expected graduation date of a high school student based on the year he started high school. This appears geared to prevent reported manipulation of high school eligibility by holdbacks or “redshirts” to allow athletes to mature to enhance future NIL opportunities.

The act takes aim at “super conferences” and conference mergers.

The act also limits how conferences can merge or consolidate, which appears directed against the possible creation of “super conferences” by current conferences that have the most profitable television and media contracts. This seems designed to further the aim of pooling of media rights of all universities for division among all conferences and all sports. This provision might also motivate conferences to take such action before the act could become law.

The NCAA supports the act, but a cohesive conference reception remains to be seen. While the act appears to address many of the concerns universities have expressed regarding transfer and NIL, it does not address others, such as tampering and contract enforcement, and contains various provisions that appear regulatory in nature. One thing’s for certain: schools, conferences and athletes should watch the act closely as it proceeds through Congress.

Please contact Tom Sullivan, Rhett Parker or any member of the Phelps sports team with questions.