The Student Compensation and Opportunity through Rights and Endorsements Act (SCORE Act) was supposed to go to a House floor vote this week, but that plan was scrapped when the bill’s sponsors reportedly sensed a majority would vote nay.
It’s possible that the Act, with revisions, will resurface for a vote at some point, however it has attracted varying types of criticisms that could doom its fate.
For example, U.S. Senator Maria Cantwell (D-Wash.)—the ranking member of the Senate Commerce Committee—has argued to her colleagues that the SCORE Act would consolidate power within the SEC and Big Ten and denigrate other conferences and their member schools to an inferior status. Meanwhile, billionaire Republican Cody Campbell—who President Donald Trump appointed to his Council on Sports, Fitness and Nutrition—says the act “will destroy women’s and Olympic sports, and will permanently relegate smaller schools to irrelevance . . . will put many of them completely out of business.”
Even if it overcomes political headwinds, passes both the House and Senate and is signed into law by Trump, the SCORE Act—or anything resembling it—would face potential challenges in the courts.
This is one of the least discussed points about the SCORE Act: New statutes are vulnerable to litigation over whether they comply with the U.S. Constitution and other sources of law.
The SCORE Act is viewed by its supporters as a logical next step in a timeline following U.S. District Judge Claudia Wilken approving the House settlement in June. The settlement allows colleges to directly pay athletes a share of up to 22% of the average power conference athletic media, ticket and sponsorship revenue, with $20.5 million pegged as the initial annual cap. Those payments are in addition to athletic scholarships, which cover tuition, housing, health resources and other benefits; and athlete NIL deals with third parties.
The SCORE Act contains features that intend to stabilize the economic and academic landscape of college sports and reduce the exposure of the NCAA, conferences and schools to antitrust and other litigation. To that end, the act enables the NCAA and its members to set rules for transferring, eligibility, NIL and agents in ways that would be deemed presumptively compliant with the law. The SCORE Act also asserts that college athletes may not be considered an employee of their school, conference or the NCAA based on participating in a sport. In addition, the act contains a preemption provision that expresses that no state can enforce a law that conflicts with the act.
One potential problem with this set-up is that the SCORE Act diminishes the role of state law in subject areas traditionally governed by states. Take, for example, employment at public universities: States have historically determined the contours of labor and employment matters at public universities and, on some topics, landed in different places. This is particularly true of student employment, where states have varying laws on whether and when public university students can be recognized as employees and unionize.
State laws governing public universities make sense given that state governments, and their taxpayers, fund those universities. Courts also accord deference to states in regulating public education on account of the 10th Amendment, which instructs that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Public education—along with police powers, the licensing of professionals, divorce procedures and other topics—are generally viewed as “reserved” to state and local governments. As U.S. Supreme Court Justice Abe Fortas wrote in Epperson v. Arkansas (1968), “by and large, public education in our nation is committed to the control of state and local authorities.”
To be sure, Congress has substantial power in preempting states on many types of legal questions. The power is captured in the Supremacy Clause, Article VI, Clause 2 of the U.S. Constitution, which establishes that the Constitution and laws of the U.S. “shall be the supreme Law of the Land.” One employment-related area where preemption has been recognized is retirement benefits. The Employee Retirement Income Security Act (ERISA) preempts states from enacting laws that conflict with ERISA on regulated benefit plans. But employment in the context of public education—especially given that the NCAA, conferences and schools describe college athletics as advancing and enriching education—is a hazier topic that could invite litigation.
This isn’t a theoretical concern, either.
Last year, the U.S. Court of Appeals for the Third Circuit affirmed the dismissal of the NCAA’s motion to dismiss Johnson v. NCAA. The case, which is currently at the federal trial court level in Pennsylvania, is about whether college athletes are student employees of their schools and the NCAA within the meaning of the Fair Labor Standards Act (FLSA) and similar state laws that guarantee the right to minimum wage and, if applicable, overtime pay. The basic logic of the case is that college athletes ought to be treated as well as their work-study classmates, some of whom work at games played by students who are also athletes. The SCORE Act would generate a conflict with Johnson and potentially require a court to address whether the Act nullifies student athletes’ claims under federal and state laws.
There are other ways college athletes could be recognized as employees that pose a conflict with the SCORE Act. Athletes at a public university could seek employment recognition as part of an effort to unionize. In that scenario, labor and employment laws of that university’s state would become crucial.
There’s also potential interplay with federal employment law for athletes at private universities. Last year, men’s basketball players at Dartmouth College formed a union after NLRB regional director Laura Sacks held they were employees within the meaning of the National Labor Relations Act. She reached that determination because the players perform work in exchange for compensation (including priority admissions into an elite university, per diem, clothing, sneakers, etc.) and the school has the right to control that work. While the players withdrew their NLRB petition on account of recent NLRB changes, all it would take is a group of athletes from one team at one private school to try their own shot.
The implementation of the SCORE Act could be impeded by other types of legal challenges. College athletes might argue that by preventing employment and placing other restrictions on their relationship with schools (for example, more stringent rules for athlete transfer), the act denies them the same rights and opportunities as their classmates and thus violates constitutional safeguards for equal protection. Limitations on NIL and agents, meanwhile, could invite challenges with First Amendment and states’ rights of publicity statutes if those limitations are construed as interfering with speech and expression.
The SCORE Act wouldn’t necessarily be deemed illegal if it faces legal challenges. A court might reason it is well within the purview of Congress to establish rules for intercollegiate athletics since those athletics are (clearly) national in scope. One set of national rules for college sports would be logical, a viewpoint I asserted in testimony before the U.S. Senate in 2021.
But the SCORE Act becoming law also wouldn’t make its subject areas immune from further litigation. To the extent college sports wants Congress to create certainty, the act might eventually get them there, but it would be with a fight. There is no shortage of skilled attorneys who seek to represent college athletes in lawsuits against NCAA rules and restrictions on their earnings.
To the extent the powers in college sports want more certainty and predictability, they could recognize some college athletes as employees, acquiesce to them forming unions and then bargain rules with the union. Those rules would be protected by the non-statutory labor exemption, which encompasses a series of U.S. Supreme Court decisions that encourage management to bargain with unions by exempting their agreed-upon rules for wages, hours and other working conditions from antitrust scrutiny.
But college sports doesn’t want athlete employment and, SCORE Act or not, that opposition means more legal battles await.