If you watched the first week of college football last weekend, you saw a well-funded campaign to pass the Protect College Sports Act, or PCSA. College GameDay, ESPN’s flagship pregame show, hosted Texas Senator Ted Cruz to build support for the legislation. He was largely booed throughout his appearance. Cruz was interviewed by former Indianapolis Colts punter Pat McAfee, who echoed the bill’s supporters by saying that college sports were in “absolute chaos,” suggesting that Congress needed to act.
Perhaps the most visible proponent of the bill is Nick Saban, who was the head football coach at the University of Alabama for most of this century. He now works as an analyst on ESPN. Saban has testified before Congress to support the bill and filmed a $10 million ad campaign with Deion Sanders, the Hall of Fame NFL player who now coaches at the University of Colorado.
“The Protect College Sports Act ends the NIL chaos in college athletics by protecting our student-athletes and teams and safeguarding women’s sports and Olympic programs,” he tells viewers in one version of the ad. “Join the winning team today and help protect this American tradition.”
What Saban declined to mention is that the bill would “protect college sports” from the athletes who play them. The PCSA is a life raft for the NCAA, its conferences, and its schools after illegally suppressing college athletes’ earning potential for decades. College athletes were finally able to pursue fair-market compensation for their services over the last few years thanks to a series of major court rulings. Now the NCAA and its allies are trying to turn back the clock to keep as much of the money that college athletes generate as possible.
The bill, like any major legislation in Congress, is the product of a thousand smaller compromises between different factions of lawmakers. There are more than a few things in the PSCA that would appeal to many college sports fans. A variety of restrictions on coaching hires and recruitment would likely appeal to those alienateed by last year’s Lane Kiffen-to-LSU extravaganza, though the bill does not cap compensation for coaches or administrators. Every good thing in the PSCA is a sweetener designed to make its real purpose easier to swallow.
The PSCA’s centerpiece is a harsh earnings cap for all college athletes. At minimum, those athletes could collectively receive only 22 percent of the revenue derived from their performances through their schools and conferences. There are a variety of conditions that could raise that cap for individual schools to accommodate women’s sports and Olympic events, but not by much and not for everyone. This would effectively entrench a recent court settlement—more on that later—into federal law for ten years unless Congress reauthorizes it. The NFL, NHL, and NBA distribute between 45 and 50 percent of their revenue to players by comparison.
The bill also sharply limits athletes’ ability to switch schools by only allowing it to happen once without penalty. Future transfers would cost athletes a year of eligibility, which would be capped at five years, outside of a few narrow exceptions—if their school eliminates a sport, for example, or a head coach is fired or hired elsewhere. To further reduce athletes’ bargaining power, the PSCA would impose a strict recruiting window of between two to five weeks. This would constrain athletes’ ability to shop around for the best deal, so to speak, after proving themselves.
In addition to all of this, the NCAA and its components would receive two long-sought objectives. One is preemption of state laws. By legislating on these issues, Congress would be explicitly barring state legislatures from passing their own laws to regulate compensation and other key issues for college athletes. Second, and even more importantly, the PSCA gives the NCAA immunity from federal antitrust laws when it enforces rules on compensation, transfers, broadcast rights, and more among member schools and conferences. Federal antitrust laws have been a powerful tool for college athletes to keep at least some of the wealth that they generate for themselves. With the PSCA, Congress would slam that door shut.
Arrayed against the bill are labor and civil-rights groups that have strongly criticized the PSCA for what it changes and what it preserves. In a letter to lawmakers last month, the AFL-CIO warned that the proposed law would be a major step backward for college athletes’ rights. “The bill empowers the NCAA to unilaterally set rules for athletes, shielded from antitrust liability, with no suggestion that the rules ever be collectively bargained with athletes at the table,” the labor organization argued.
The NAACP also criticized the bill and urged lawmakers to vote against it, arguing that it would be harmful to Black students who make up a majority of players on the most lucrative college sports. “You have coaches that have been doing this for decades now, and unfortunately, the players did not have the same rights,” Derrick Johnson, the organization’s president, said in an interview on ESPN earlier this week. “Now that players have rights, they’re saying it’s unstable. I watched college football this weekend. Every stand of every game I watched was full. People were excited. The game is as rich as it has ever been. TV revenue is up.”
The bill’s greatest compromise is an explicit neutrality on whether college athletes are employees or non-employees. “This title is neutral on, and does nothing to alter, employee or non-employee status for student athletes,” the bill’s proposed text reads. Federal laws can be vague or silent on certain matters, but I’m struggling to think of another example where Congress explicitly declined to reach a decision like this in black-letter law.
“What this bill does at its core is to protect a system of exploitation,” Connecticut Senator Chris Murphy said earlier this week at an event with the PCSA’s opponents. “This bill protects the billions of dollars that coaches and sports industry executives are making over the suppression of compensation for some of the most highly valued athletes in the world. This bill seeks to give an unprecedented antitrust exemption to an industry that is violating the law every single day.”
Not every college team or sport is profitable, but college sports as a whole is a multi-billion dollar industry. ESPN, for example, paid $5.64 billion for a twelve-year deal to broadcast the College Football Playoffs in 2012 when they were first introduced. Two years ago, the network signed an extension with the NCAA and its components to broadcast the games through 2031 for $7.8 billion. This is just the playoffs, with the Big 10 and the SEC also reaching multi-billion agreements with the major broadcast networks for regular-season games. And it’s not just college football: Networks now pay $1 billion a year to air the annual men’s basketball March Madness tournament. Some of those networks’ parent companies have lobbied, both officially and unofficially, on the bill’s behalf in recent weeks.
Until recently, none of that money went to college athletes. The NCAA long championed the idea that its student-athletes should not be paid or compensated to preserve amateurism in college sports. NCAA rules allowed it to punish players, coaches, and schools who offered any sort of financial benefits to players beyond a limited number of scholarships. To that end, the association also opposed any efforts to classify players as employees, to allow them to unionize, or to accept any brand-endorsement deals from third parties.
Major American sports leagues are generally structured as cartels, where member teams work together to set costs and restrict worker employment and compensation. Federal antitrust law does not look kindly upon this sort of arrangement. If businesses in most other industries colluded to raise prices for consumers, depress employees’ wages, or prevent workers from changing jobs, they would be engaging in illegal anti-competitive practices that could open them up to major legal consequences.
Every major American sports league has two features that prevent this: a collective-bargaining agreement with athletes that maintains labor peace, and an antitrust exemption that shields the league from litigation over anticompetitive practices. Major League Baseball has a judicially created exemption to antitrust laws thanks to a 1924 Supreme Court ruling. Other major leagues have partial exemptions to antitrust laws by act of Congress.
The Sports Broadcasting Act of 1961, for example, allows the NFL and its teams to collectively negotiate broadcast-rights packages with the networks. In exchange for this exemption, the law also prohibits the NFL from broadcasting games on Friday and Saturday for most of the season to preserve interest in high school and college football on those respective days.
To secure congressional approval of the AFL-NFL merger in 1966, the NFL also agreed to create expansion teams in certain markets favored by key lawmakers. Two key members of congressional leadership at the time, Representative Hale Boggs and Senator Russell Long, pressured then-Commissioner Pete Rozelle to promise an expansion team in their state by threatening to kill the antitrust exemption bill required for the merger. Rozelle agreed to their terms, and the New Orleans Saints began operations that same year.
Congress, when it wants to do so, can use the promise of antitrust immunity to extract meaningful changes and reforms from sports leagues. This time, the NCAA is hoping to get everything it wants without giving up anything it wouldn’t be losing anyway. It is implacably opposed to recognizing college athletes as workers, fearing that they would be obligated to the provide them with the basic workplace rights that every American receives, and it does not have a statutory or judicial exemption to federal antitrust laws, despite its past occasional claims to the contrary.
As a result, the NCAA faced a wave of federal lawsuits over player compensation over the past decade. The first and most momentous ruling came in NCAA v. O’Bannon in 2014 when Judge Claudia Wilken, a federal judge in California, ruled that the association’s rules forbidding athletes from profiting from “name, image, and likeness” deals, or NIL deals, violated federal antitrust law. After O’Bannon, other groups of college athletes filed a lawsuit to challenge the NCAA’s restrictions on education-related compensation.
Those cases were also consolidated under Wilken, who partially ruled in favor of the athletes. In 2021, the Supreme Court unanimously upheld her injunction against the NCAA over its restrictions. The case, NCAA v. Alston, went about as badly as it could have gone for the association. Justices from across the ideological spectrum excoriated its antitrust claims. Justice Brett Kavanaugh, raising concerns about “exploiting” college athletes, warned in a concurring opinion that other NCAA rules might face a similar fate.
Finally, in NCAA v. House, the association reached a settlement with former and then-current athletes to end multiple antitrust lawsuits, which Wilken approved last year. Among the settlement’s terms was a $2.8 billion compensation fund for back payments for college athletes. It also allowed schools to pay their athletes directly for the first time, with a starting cap of around $20.5 million for each school. (Athletes had already won the right in court to accept NIL payments from third parties, including school boosters.) That cap is scheduled to last for a decade with periodic increases after each school year. The settlement forms the starting point for the PSCA, though Congress has gone well beyond it to unfairly constrain college athletes’ earning and bargaining power.
Perhaps the most galling aspect of the PSCA lobbying blitz is the face of it. Nick Saban is undoubtedly the best college football head coach of the past quarter century. He was also handsomely compensated for it. The University of Alabama paid him between $3.5 and $11 million each year between 2007 and 2023. Saban was paid a fair-market value for his labor, and he was able to leverage his success into greater earnings along the way. The players he led and coached had no such opportunities while playing for him.
Even as the NCAA fought to prevent college athletes at Alabama and other schools from pursuing NIL deals, Saban was able to pursue them himself. He signed an endorsement deal with insurance giant Aflac in August 2019 that made him one of the faces of its complex advertising strategy. Had one of his players signed that same deal that year, they would have lost their eligibility to participate in NCAA sports.
Fortunately, this legislation might be one victory that even Saban can’t achieve. The good news is that the PSCA might not become law in the 119th Congress. While the Senate is on course to pass its version of the bill later this month, the House adjourned on Wednesday until after the November midterm elections. Speaker Mike Johnson’s decision left a host of other major legislative issues on ice until the lame-duck session this winter. If the clock runs out on the PSCA, college sports and the athletes who play them will be better off for it.
