{"id":852631,"date":"2026-04-04T04:08:19","date_gmt":"2026-04-04T04:08:19","guid":{"rendered":"https:\/\/www.rawchili.com\/nfl\/852631\/"},"modified":"2026-04-04T04:08:19","modified_gmt":"2026-04-04T04:08:19","slug":"wall-street-cop-drafts-trump-ncaa-order-sure-to-face-legal-challenges","status":"publish","type":"post","link":"https:\/\/www.rawchili.com\/nfl\/852631\/","title":{"rendered":"Wall Street Cop Drafts Trump NCAA Order Sure to Face Legal Challenges"},"content":{"rendered":"

\n\tPresident Donald Trump<\/a> signed an executive order on Friday intended to provide greater legal protection to the NCAA<\/a> in setting rules governing college athlete compensation. But as with any executive order, \u201cProtecting the Future of College Sports Before It\u2019s Too Late\u201d is vulnerable to legal challenges that the president lacks the authority to institute such regulations without Congressional action.<\/p>\n

\n\tAccording to a source, U.S. Attorney for the Southern District of New York Jay Clayton played an instrumental role in drafting the order.<\/p>\n

\n\tA former chairman of the Securities and Exchange Commission, Clayton is an attorney with considerable experience\u2014including in the sports industry. He has overseen SDNY prosecutions of financial advisors who\u00a0defrauded Jrue Holiday<\/a> and other NBA players and of individuals who have\u00a0hacked<\/a>\u00a0sports betting and fantasy sports websites. Clayton is also a former NCAA athlete, having played soccer at Lafayette College.<\/p>\n

\n\tThrough Friday\u2019s order, the president has directed federal agencies to \u201cbolster the effectiveness\u201d of rules related to transferring, eligibility and pay-for-play.\u00a0<\/p>\n

\n\tTrump wants to know whether these rules \u201crender a university unfit for federal grants and contracts.\u201d This description suggests that he wants federal funding for schools connected to whether they are complying with NCAA rules. In theory, at least, that edict could deter schools from violating NCAA rules by funneling money to recruits in ways that circumvent NCAA membership obligations.<\/p>\n

\n\tIn that same spirit, the order signals that colleges which cloak pay-for-play payments as NIL<\/a> deals could get into trouble. NIL deals are supposed to reflect the use of players\u2019 name, image or likeness\u2014in other words, NIL deals are supposed to resemble endorsement deals\u2014but often they are used more as a signing bonus in an employment context.<\/p>\n

\n\tThe order says that \u201cimproper financial activities\u201d is defined as a school \u201cintentionally devising or participating\u201d in a \u201cfraudulent\u201d NIL scheme. Such a scheme also includes using federal funds or\u00a0House\u00a0settlement-endorsed revenue-sharing payments to benefit a coach or recruiter.\u00a0<\/p>\n

\n\tIn addition, the order enunciates a series of rule recommendations that appear to match NCAA rules and support the collegiate governing body in antitrust<\/a> litigation against those rules. Notably, one recommendation is that participating in college athletics \u201cis permitted for no more than a five-year period.\u201d That position is consistent with the NCAA\u2019s legal defense in the more than 70 cases brought by relatively older athletes who wish to remain college eligible\u2014and earn NIL and revenue-share money\u2014after having played four seasons within five years. That line of litigation began when Vanderbilt quarterback Diego Pavia sued to extend his eligibility.\u00a0<\/p>\n

\n\tTrump also wants the rules to state explicitly that \u201cprofessional athletes cannot return to college athletics.\u201d Such a decree is a response to litigation such as former pro basketball player Charles Bediako\u2019s case to return to play college hoops at the University of Alabama. The decree would forbid former G League players, European hockey players and potentially Canadian Hockey League players from joining college teams.<\/p>\n

\n\tThe order also supports the implementation of revenue sharing to protect women\u2019s and Olympic sports. Revenue sharing in the absence of collective bargaining could trigger antitrust litigation, since it might lead to diminished compensation for football and basketball players.\u00a0<\/p>\n

\n\tTrump also takes issue with unlimited transfers, a policy that reflects a litigation settlement of the antitrust case\u00a0Ohio v. NCAA. The president wants rules set up so that players can transfer once within a five-year period and one additional time if the athlete obtains a four-year degree.<\/p>\n

\n\tGiven its policy position, the order supports a deferential standard of review to the NCAA and its member schools in antitrust and other potential cases, such as those involving NIL, revenue sharing, broadcasting, transfers, eligibility and waivers.<\/p>\n

\n\tSince the U.S. Supreme Court\u2019s 2021 ruling in\u00a0NCAA v. Alston, which clarified that the NCAA is\u00a0not owed deference<\/a> under antitrust law\u00a0and is subject to ordinary antitrust scrutiny, the collegiate governing body has been besieged with lawsuits claiming its rules violate antitrust law. Those rules have included restrictions on transfers, NIL collectives and eligibility.<\/p>\n

\n\tCases against the NCAA typically invoke two antitrust theories, which Trump\u2019s order is intended to repel.\u00a0<\/p>\n

\n\tThe first is that as the overseer of conferences and colleges that \u201cbuy\u201d the labor and marketing services of college athletes, the NCAA has no rival and acts as a monopsony.<\/p>\n

\n\tThe second is that as businesses that are supposed to compete, colleges and conferences conspire through NCAA rules to limit how each can economically compete for athletes. These restraints arguably deny the fruits of economic competition, since if colleges could pay athletes market rates\u2014which reflect how schools otherwise compete for faculty, staff and other service providers\u2014some of those athletes would earn more.<\/p>\n

\n\tTrump has used executive orders at a\u00a0high rate<\/a>\u00a0similar to former President Franklin Delano Roosevelt during the Great Depression and World War II. Like other presidents, Trump is empowered by Article II of the U.S. Constitution, which says the president should \u201ctake care that the laws be faithfully executed\u201d and has been construed as an executive order authority.<\/p>\n

\n\tHowever, some of Trump\u2019s orders have faced setbacks in court. The main problem with executive orders is that while the president can ensure laws are \u201cfaithfully executed,\u201d the president can\u2019t unilaterally rewrite a statute.\u00a0<\/p>\n

\n\tArticle I of the U.S. Constitution vests lawmaking power in Congress, so when an executive order travels into what might be regarded as \u201clawmaking,\u201d courts can block the order. The president is not a dictator or king; presidential authority is restrained by the checks and balances of American government.<\/p>\n

\n\tThis was recently illustrated when the U.S. Supreme Court invalidated an order attempting to impose tariffs through the International Emergency Economic Powers Act. The court reasoned the text of the statute didn\u2019t authorize Trump\u2019s actions, and thus the president lacked the legal authority.<\/p>\n

\n\tPotential legal challenges to Friday\u2019s executive order abound. One is that it doesn\u2019t comply with federal antitrust law or the U.S. Supreme Court interpretations of it.\u00a0Alston\u00a0makes clear that the NCAA is not owed deferential review.<\/p>\n

\n\tThere are also potential constitutional concerns, such as whether restricting NIL opportunities\u2014and the ability for athletes to express themselves\u2014runs afoul of First Amendment free speech protections and state right of publicity statutes, or whether allowing colleges to treat athletes differently from other students violates the Equal Protection Clause.<\/p>\n

\n\tTrump\u2019s order does not directly address college athlete employment, though it advocates for guardrails on athlete compensation that would not be borne through employment contracts or collective bargaining agreements. To the extent the order is used to deny college athletes\u2019 potential employment, that too would invite legal challenge. As of now, college athletes are not recognized as employees and thus can\u2019t unionize. However, that could change. The college athletes behind\u00a0Johnson v. NCAA, which argues that college athletes are student employees within the meaning of the Fair Labor Standards Act and accompanying state labor laws, have enjoyed success to date.<\/p>\n

\n\tThere was also the Dartmouth College men\u2019s basketball matter. While the players withdrew their unionization petition after the 2024 presidential election, recall that NLRB regional director Laura Sacks stated the players were employees within the meaning of the National Labor Relations Act. She reasoned that even though Ivy League athletes do not receive athletic scholarships, what\u2019s important in terms of employment law analysis is that the players performed work in exchange for compensation (including priority admissions into an elite university, per diem and gear), and Dartmouth, through coaching and athletics officials, had the right to control that work.<\/p>\n

\n\tTrump\u2019s order can\u2019t change the language of the FLSA or NLRA.<\/p>\n

\n\tThe order also could encounter problems with state employment laws. While the NLRB governs employment and potential unionization at private colleges, states control those areas at public universities. There are progressive, labor-friendly states that might eventually recognize college athletes at their public universities as employees who form unions.<\/p>\n

\n\tThe possibility of legal challenges to Trump\u2019s order is important from a timing perspective. The order could be tied up in litigation for months, and potentially well past November\u2019s midterm elections when the Democrats are expected to win a majority of the House of Representatives. Although Congress hasn\u2019t shown much appetite for passing college sports legislation regardless of whether it is controlled by the Republicans or Democrats, it could pursue legislation next year that tries to counter Trump\u2019s order.<\/p>\n

\n\tThe efficacy of the college sports order is also uncertain, given that some of his orders have proved more aspirational than instrumental. Last year he signed the \u201cSaving College Sports\u201d order, which directed several federal agencies to pursue policies intended to ensure the \u201clong term availability\u201d of college sports opportunities. There is little evidence the order has made a meaningful impact.<\/p>\n

\n\tThe reality is that the economics of college sports involve a vast array of federal and state laws. This complexity makes it difficult for any entity\u2014including the president\u2014to issue a sustainable edict that sets new rules, since the entity doesn\u2019t control all of the applicable law.<\/p>\n","protected":false},"excerpt":{"rendered":"President Donald Trump signed an executive order on Friday intended to provide greater legal protection to the NCAA…\n","protected":false},"author":2,"featured_media":852632,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[4159,78,7,49,48,4161,9609],"class_list":{"0":"post-852631","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"has-post-thumbnail","7":"category-ncaa-football","8":"tag-antitrust","9":"tag-donald-trump","10":"tag-football","11":"tag-ncaa","12":"tag-ncaa-football","13":"tag-ncaa-legal-issues","14":"tag-nil"},"share_on_mastodon":{"url":"https:\/\/channels.im\/@nfl\/116344475113201128","error":""},"_links":{"self":[{"href":"https:\/\/www.rawchili.com\/nfl\/wp-json\/wp\/v2\/posts\/852631","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.rawchili.com\/nfl\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.rawchili.com\/nfl\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.rawchili.com\/nfl\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/www.rawchili.com\/nfl\/wp-json\/wp\/v2\/comments?post=852631"}],"version-history":[{"count":0,"href":"https:\/\/www.rawchili.com\/nfl\/wp-json\/wp\/v2\/posts\/852631\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/www.rawchili.com\/nfl\/wp-json\/wp\/v2\/media\/852632"}],"wp:attachment":[{"href":"https:\/\/www.rawchili.com\/nfl\/wp-json\/wp\/v2\/media?parent=852631"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.rawchili.com\/nfl\/wp-json\/wp\/v2\/categories?post=852631"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.rawchili.com\/nfl\/wp-json\/wp\/v2\/tags?post=852631"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}