That’s expected to be announced in July. Should Wilken move forward with the terms as written after that? It will have to go through the legal process further, including the opportunity for athletes to challenge the settlement, at which point Wilken will consider those opinions before making a final, major decision. If revenue sharing is approved, it would likely begin in the fall of 2025.
There’s a lot to keep track of. Don’t worry if you’re confused. You’re in the exact same position as the administrators, coaches and players who will be most affected. But one thing is certain in all of this: Congress remains a key factor. The NCAA and its conferences continue to lobby for federal legislation that would provide antitrust protections, preemption of state laws that run counter to NCAA rules, and a “special status” for college athletes that means they can’t be employees. And they’re lobbying vigorously. For college sports leaders, the settlement makes the push for legislation even more urgent, as they seek protection from upcoming lawsuits that could further undermine the model. They also remain staunchly opposed to the employment of college athletes, an issue being considered in federal court and at the National Labor Relations Board.
So far, Congress has held 12 hearings on the future of college sports, but no bill has made it past the introduction stage. Congressional aides say most senators and representatives are open-minded on the issue and should be able to find a bipartisan solution. But that’s not the case for Rep. Lori Trahan (D-Mass.) or Sen. Ted Cruz (R-Texas). Here are their latest views on whether Congress can compromise on a college sports bill, or whether it would be wise to do so:
Trahan (in a phone interview with The Washington Post this week): “More and more people are realizing that amateurism is dead and the only way to enforce rules on athletes, who are already treated like employees, is to either negotiate with the athletes directly or get Congress to legislate that laws they previously passed don’t actually apply to athletes. I haven’t seen any interest in the latter option.”
Cruz (via a spokesperson in a statement to The Washington Post) said: House [v. NCAA] “This settlement reduces the urgency for Congress to act to protect college sports. Nothing could be further from the truth. If Congress fails to act, college sports as we know it will be destroyed and student-athletes will be at great risk of suffering irreparable harm, including losing their benefits and guaranteed scholarships.”
If the bill were to pass, it would likely mean Democrats agreed to co-sponsor a Republican-introduced bill (or vice versa). Otherwise, without bipartisan support, it would be difficult for a college sports bill to pass the House and Senate, especially since senators can filibuster bills that lean too heavily in either direction. This would be even harder in an election year, but supporters of a college sports bill argue it would be a cakewalk for most politicians. After an initial committee meeting, the bill would pass the Senate or House floor, then the other chamber, and then it would go to the president.
These complex issues and the clock is ticking will not stop the NCAA or the major conferences from making regular trips to Washington. If anything, the apparent obstacles will encourage them to make more trips and keep the lobbying money flowing. Their efforts have not yet been thwarted.
Jim Phillips has been a mainstay in Washington, D.C., since he became ACC commissioner in February 2021, five months before the NCAA changed its name, image and likeness (NIL) rules, and most recently participated in a roundtable discussion in March with Cruz and former University of Alabama football coach Nick Saban. He plans to visit Congress again in the next three to four weeks. The most influential commissioners, as well as NCAA leaders, are hoping a settlement will convince Congress to finally act on their behalf.
“Momentum has continued to build on Capitol Hill since the settlement, and we’ve seen some back-and-forth there,” Phillips said in a phone interview Friday. “The settlement has only served to further reinforce why Congress needs to act. It’s not just a temporary issue; we need their cooperation to codify the settlement provisions into law and secure them for good.”
Prior to the $2.8 billion settlement agreement, House of Representatives v. NCAA, Carter v. NCAA and Hubbard v. NCAA The NCAA had sought an antitrust exemption to sweep away these lawsuits, which players filed over limits on compensation and damages related to their failure to monetize their NILs. After the agreement, the demands changed, and the organization now hopes Congress will grant the NCAA antitrust protections to prevent similar lawsuits from being filed in the near future. If the settlement is approved, it would apply for 10 years. So the NCAA feels it can regulate the NIL market and the transfer portal without the constant threat of litigation and is begging for its authority to be restored.
For example, a lawsuit filed in Tennessee in February forced the NCAA to at least temporarily lift restrictions on using NIL funds to decide which schools to hire. On July 1, a new state law went into effect in Virginia that would allow universities to pay players directly through NIL contracts, which violates NCAA rules. And a proposed settlement would House, Carter and Hubbard It includes a cap on the revenue schools can distribute to athletes and has already drawn antitrust investigations.
So athlete advocacy groups have a very simple message for the NCAA: If you don’t want an antitrust lawsuit, don’t violate the antitrust laws.
“By definition, [a revenue-sharing cap and NIL crackdown] “This is a restraint of trade,” said Brian Davis, a California NIL attorney who represents more than 100 football players. “…To say college football and college basketball as we know it will die, while a lot of money will flow through lobbyists in Congress, I think that’s an exaggeration.”
Once the settlement was agreed to on May 23, the statements began to fly. The NCAA and conferences immediately called on Congress to support the terms. University of Notre Dame President John I. Jenkins agreed, stating that “Congress must pass legislation to save this great American institution of college sports” and listing the NCAA’s demands. The next day, Cruz and Trahan spoke out, further solidifying their positions as the most vocal members of their parties on these issues.
Trahan called on the NCAA to focus on collective bargaining with players rather than Congress, and Cruz was a staunch opponent of players becoming employees.
Prior to the settlement agreement, Steve Berman, one of the plaintiffs’ lead attorneys, House of Representatives v. NCAABerman was also a regular visitor to Washington. He typically arrived there after the NCAA to counter requests for antitrust exemptions. But with the deal in place, Berman and Jeffrey Kessler, the other lead plaintiffs’ lawyer, have pledged to help the NCAA lobby for antitrust protections. As proposed, the settlement includes a system that would allow freshmen to choose whether to participate in the revenue-sharing model, a system that Berman and Kessler believe would protect them from lawsuits challenging the cap or other aspects of the agreement.
“If the NCAA asks us to, we’ll go to Congress. [the settlement] “This is a great solution for college athletes and the NCAA should be given antitrust exemptions for playing pay and NIL,” Berman said in an interview. “That’s all we’re trying to do. We’re not going to make a case for employment issues or unionization or anything like that. We’re not involved in that.”
Phillips added: “The crucial reason Congress still needs to act is that reconciliation provides a framework but not long-term stability.”
Of course, the NCAA and its conferences aren’t the only stakeholders. Just this week, leaders of The Collective Association, a trade group for 40 endowment-funded non-athlete organizations, and representatives from the Student-Athlete Advisory Council (an NCAA-chartered group that typically pitches the corporate case) visited with members of Congress. Collective Association President Russell White said the group expressed “adamant opposition to antitrust protections for the NCAA because there’s still a lot of development to be done before it makes sense.”
SAAC President Cody Shimp took to social media to call for “Congressional intervention on employment and NIL.” As expected, the SAAC’s position is that athletes should not be considered employees. In March, Dartmouth College’s men’s basketball team voted to unionize. The university immediately appealed to the NLRB’s national committee, which has yet to rule.
Trahan, a former Georgetown University volleyball player, has often worked with Sen. Chris Murphy (D-Conn.) on expanding rights for college athletes. When she first called for athletes to have employee status and collective bargaining rights, she knew it would be hard to find bipartisan support. But her goal was to take an extreme position, an approach that some Republicans have adopted in recent months. A middle ground remains elusive.
“If we are considering legislation that would literally turn back the clock on conservation grounds, [athletes]”We need to hear all of those voices,” Trahan said. “I think this year’s outlook is worth spending more time on given the lack of consensus and the lack of more members hearing directly from the players.”
