After decades of watching coaches sign multimillion dollar contracts and universities rake in billions from television deals, college athletes are finally getting their prize money. Star University of Texas quarterback and Heisman favorite Arch Manning has inked contracts worth $6.5 million, while Duke basketball star Connor Flagg and Louisiana State University gymnast Livvy Dunne have commanded deals totaling more than $4 million.
Even little-known players are earning an average of $40,000 annually — not riches, but much better than the previous status quo, which was nothing at all. But just as these young athletes are tasting financial freedom, Congress is preparing to take it away.
Last month, the SCORE Act, a bill that would give the National Collegiate Athletic Association nearly unprecedented immunity from labor and antitrust laws, is making its way through the House of Representatives at lightning speed.
The SCORE Act, the result of an NCAA lobbying campaign that cost more than $15 million, would overturn the Supreme Court’s unanimous 2021 ruling that the NCAA and its member schools were running an illegal wage-fixing cartel, that amateurism was a myth they couldn’t rely on anymore, and that they did not have antitrust immunity.
As Justice Brett Kavanaugh wrote at the time, scathingly, “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. The NCAA is not above the law.”
But if NCAA backers have their way, that’s just what will happen. The NCAA will be above the law and free to exploit athletes again.
The SCORE Act accomplishes much of this through stealth. It says the NCAA cannot restrict name, image and likeness deals, which are student athletes’ biggest earnings opportunities. But it also completely undermines them by prohibiting endorsement contracts unless they compensate college athletes at rates that are comparable “to individuals … who are not student athletes.”
Hello? Are we comparing star college quarterbacks to regular college students? This standard is nonsensical. Nobody cares about a random college student’s endorsement, but they do care about Arch Manning’s and Cooper Flagg’s. This framework alone could crush college athletes’ compensation.
The bill also builds a surveillance state for suppression of athlete earnings. One of its more troubling provisions allows schools to “collect and publicly share aggregated and anonymized data related to name, image, and likeness agreements.” This creates the perfect environment to develop algorithms to artificially suppress athlete earnings. This isn’t just techno-paranoia.
The newly created College Sports Commission — tasked with policing name, image and likeness deals for compliance with the NCAA’s own new “fair market value” rules — is already doing this. It hired accounting firm Deloitte to build an algorithm that evaluates such deals, and it rejected 70 percent of athletes’ existing contracts with collectives. Because the SCORE Act’s antitrust exemption is so broad, the NCAA (and advertisers that want to set rates) could probably call this “compliance” and use the software with impunity.
The bill also erases many of college athletes’ legal victories. It prohibits schools from treating athletes as employees, contradicting a recent federal court of appeals decision whose dim view of the NCAA’s amateurism mirrored the Supreme Court’s. In a blistering opinion published last year, the Third Circuit skewered the NCAA for favorably comparing college athletes to prisoners in its legal brief. The SCORE Act would reverse this landmark decision. For student athletes, this would amount to snatching defeat from the jaws of victory.
The SCORE Act was, most damningly, written without meaningful input from the people it affects most — the college athletes. Sure, it pays lip service to the need for better health care and education support, but those provisions are toothless. It ignores other problems athletes have been begging the NCAA and Congress to fix for years, like dangerous practice conditions and exhausting travel schedules created by money-hungry conferences used to treating the athletes under their control as unpaid commodities.
In professional sports, athletes can unionize and negotiate wages, roster limits, free agency, health care and safety requirements. That’s why the NFL Players’ Association — which represents about 17,000 football players — has a collective bargaining agreement that is nearly 500 pages long. If the SCORE Act becomes law, more than 500,000 athletes will be governed by 30 pages of rules written by organizations and institutions that took advantage of them for decades. This is the opposite of a level playing field.
The NCAA and its supporters call college sports the “Wild West” and claim that government intervention, whether through executive order or the SCORE ACT, would create transparency and stability. But they are running a trick play that will hurt athletes while making coaches like Nick Saban richer.
The claimed chaos is of the NCAA’s own making. They refuse to give athletes collective bargaining rights, which would solve nearly every antitrust problem the NCAA is facing. And they continue to prohibit athletes in less lucrative sports like tennis from collecting tournament prize money.
President Trump and Congress should not reward this behavior by giving the NCAA sweeping immunity from our antitrust laws. They should instead work toward a system that treats college athletes as the valuable contributors they are and end the era of college athlete exploitation once and for all.
Katherine Van Dyck is a Senior Legal Fellow at the American Economic Liberties Project.