Trump Executive Order on College Sports Unlikely to Move the Needle
A draft of the order, obtained by Yahoo, adopts the viewpoint that big-time college sports has morphed into an unworkable, volatile and overly litigious framework. The order negatively references unlimited transfers, the prospect of college athletes gaining employment recognition and a 'chaotic race to the bottom' with states opportunistically using NIL laws to supply 'competitive advantages' to their universities.
More from Sportico.com
Sporticast 468: 'Pay Us What You Owe Us'
Nevada WR Catches Court Win as NCAA Eligibility Cases Split
NBA Seeks Supreme Court Review of 'Bork Bill' Case After Split Rulings
Dubbed 'Saving College Sports,' the order directs several federal officials and agencies— including the U.S. Attorney General, the Federal Trade Commission, the U.S. Secretary of Education, the U.S. Secretary of Labor and the National Labor Relations Board—to pursue policies that would allegedly ensure the 'long-term availability' of college sports opportunities. Another aspiration is 'greater uniformity, predictability, and cooperation with respect to Federal and State laws and enforcement practices concerning college athletics.'
The order provides several specific requests. They include agency actions within 60 or 120 days and a directive that 15 U.S.C. 7802—the Sports Agent Responsibility and Trust Act, a law that Sportico revealed has not been enforced—be enforced.
For the most part, however, the order is aspirational and refrains from enunciating policy positions. Notably absent are declarations that the NCAA and its members ought to be exempt from antitrust scrutiny or that college athletes aren't employees.
The absence of many specifics is important for several reasons. For starters, agencies that would be directed by Trump are already capable of issuing regulations and other administrative actions to exert control over college sports.
To that point, in the last week of Joe Biden's presidency, federal agencies entered the college sports legal debate without an accompanying executive order. The Department of Education issued a fact sheet expressing that colleges paying athletes for their NIL counts as athletic financial assistance under Title IX. A month later, Trump's Department of Education rescinded that fact sheet.
Biden's Department of Justice also filed a statement of interest in the House litigation. The statement expressed that a revenue share cap of $20.5 million, while better than not sharing any revenue, is still an antitrust problem, because it's a cap that hasn't been collectively bargained. The DOJ under Trump didn't pursue the issue as U.S. District Judge Claudia Wilken weighed the granting of final approval to the settlement.
To be sure, a Trump executive order would elevate the importance and urgency for those agencies to tackle college sports issues. But it's not an essential ingredient. Agencies could act on their own just as they did in January.
Also consider how agencies would implement Trump's order. The more agencies look under the hood of college sports, the more likely they'll see potential drawbacks and limitations of weighing in. The federal government doesn't control the universe of college sports issues, some of which extend well beyond government control.
Take employment. A federal declaration that college athletes aren't employees would presumably mean they're not—at least as the Trump administration sees it—employees under the two most relevant federal laws, the National Labor Relations Act and the Fair Labor Standards Act.
That type of declaration would be challenged in court, since it is a debatable interpretation of federal statutes. Put another way, whether college athletes are employees under the NLRA or FLSA is ultimately a question for the courts, not an agency or even the president.
That is particularly true given the U.S. Supreme Court's decision last year in Loper Bright Enterprises v. Raimondo. Judges are no longer expected to defer to agency interpretation when a statute is ambiguous, meaning judicial deference to agencies, including those in the Trump administration, has been reduced.
Even assuming an agency declaration that college athletes aren't employees withstood judicial review, it wouldn't foreclose the possibility of athletes being recognized as employees under states' laws. There are labor and employment laws in all 50 states, and they vary. There's also the chance that a college or conference voluntarily recognizes athletes as employees, a move that has not happened at least in part because it would violate NCAA rules. But such a move is not implausible—especially since collective bargaining with college athletes would put an end to antitrust lawsuits over those athletes' rights.
Even if an agency declaration says that any, and all, conflicting state employment laws are preempted by federal action, that wouldn't automatically make preemption happen. Preemption is a highly litigated topic that intersects with powers enunciated by the U.S. Constitution and would surely be litigated in this context.
Antitrust is another relevant subject for Trump's possible executive order. The draft states that though the settlement resolving the House, Carter and Hubbard antitrust litigations will provide back pay and revenue sharing, it 'provides little assurance that it will not soon be upended by new litigation seeking more compensation with fewer rules, further reducing in the number of student-athletes.'
Trump might want the NCAA, conferences and colleges to be exempt from antitrust scrutiny or to receive deferential treatment.
On the surface, a Trump or agency-announced antitrust exemption or deferential standard would make it more difficult for athletes to sue regarding topics like compensation and eligibility. But the president and his agencies can't change the language of the Sherman Act, which has applied to college sports for decades and which the U.S. Supreme Court in NCAA v. Alston (2021) said not only governs NCAA rules but does so without deference.
It's also noteworthy that conservative judges, including those whom Trump nominated, have been among the most critical of college sports amateurism from an antitrust perspective. And there are state antitrust laws, too, that fall outside of federal authority and thus outside any executive order.
Trump might want the Department of Justice to take a permissive approach to antitrust issues in college sports. One could say the DOJ under both Republican and Democratic presidents has already done that: Save for the DOJ joining Ohio v. NCAA (2024), which concerned transfer rules, and suing the NCAA in 1998 under the Americans with Disabilities Act over treatment of college athletes with learning disabilities, the DOJ has largely been on the sidelines. Meanwhile, a long list of athletes, from Ed O'Bannon to Shawne Alston, sued the NCAA on antitrust grounds.
That highlights a key point: Private individuals and businesses can bring antitrust lawsuits. The government isn't needed since federal antitrust law provides for a private right of action. No matter how the DOJ and other agencies oversee college sports, athletes will continue to be able to bring antitrust claims.
There are still other legal complications from a potential executive order on college sports. Any order that leads to college athletes being denied the same rights and opportunities as their classmates would invite an Equal Protection lawsuit. Restricting athletes' expressions, including through limiting NIL opportunities, could trigger First Amendment and right of publicity litigation.
Trump might not need an executive order to influence college sports. If the SCORE Act passes Congress—a big 'if' given that college sports bills in Congress in recent years have all flamed out—Trump would have the chance to sign a college sports act into law. Of course, the SCORE Act could be challenged in court, including on grounds mentioned above. But given that it would be federal law, it would stand a stronger chance of sticking than an executive order.
Best of Sportico.com
College Athletes as Employees: Answering 25 Key Questions
Hashtags
Try Our AI Features
Explore what Daily8 AI can do for you:
Comments
No comments yet...
Related Articles
Yahoo
19 minutes ago
- Yahoo
Trump administration appeals to Supreme Court to allow $783 million research-funding cuts
WASHINGTON (AP) — The Trump administration asked the Supreme Court on Thursday to allow it to cut hundreds of millions of dollars' worth of research funding in its push to roll back federal diversity, equity and inclusion efforts. The Justice Department argued a federal judge in Massachusetts was wrong to block the National Institutes of Health from making $783 million worth of cuts to align with President Donald Trump's priorities. U.S. District Judge William Young found that the abrupt cancellations ignored long-held government rules and standards. Young, an appointee of Republican President Ronald Reagan, also said the cuts amounted to 'racial discrimination and discrimination against America's LGBTQ community.' The ruling came in lawsuits filed by 16 attorneys general, public-health advocacy groups and some affected scientists. His decision addressed only a fraction of the hundreds of NIH research projects that have been cut. The Trump administration's appeal also takes aim at nearly two dozen cases over funding. Solicitor General D. John Sauer pointed to a 5-4 decision on the Supreme Court's emergency docket from April that allowed cuts to teacher training programs to go forward. That decisions shows that district judges shouldn't be hearing those cases at all, but rather sending them to federal claims court, he argued. Lindsay Whitehurst, The Associated Press Error in retrieving data Sign in to access your portfolio Error in retrieving data Error in retrieving data Error in retrieving data Error in retrieving data
Yahoo
19 minutes ago
- Yahoo
Trump signs order aimed at removing homeless from streets
President Donald Trump on Thursday signed an executive order aimed at removing homeless people from streets. The measure, titled by the White House as 'Ending Crime and Disorder on America's Streets,' calls on Attorney General Pam Bondi to seek to overturn legal rulings the Trump administration says make it difficult for cities and states to force homeless people into shelters and substance-abuse centers, USA Today first reported. It will also redirect federal funding for homeless programs, many of which aim to provide housing to those in need, to addiction programs and mental health resources, although it was not immediately clear how much money would be involved. 'By removing vagrant criminals from our streets and redirecting resources toward substance abuse programs, the Trump administration will ensure that Americans feel safe in their own communities and that individuals suffering from addiction or mental health struggles are able to get the help they need,' White House spokeswoman Karoline Leavitt said. The order also seeks to prioritize federal grants to cities and states that 'enforce prohibitions on open illicit drug use, urban camping and loitering, and urban squatting, and track the location of sex offenders.' Official figures say America's homeless population is more than 700,000 and rising. But advocates say the number is actually much higher. New York City is one of a few jurisdictions with a 'right to shelter,' meaning in theory that any homeless person has the right to a spot in a shelter. Trump has made fighting big city crime and disorder a major plank of his second White House term, although most measures show crime is declining. Instead of working with Congress or big city mayors, most of whom are Democrats, he has preferred to enact executive orders, some of which have faced critical scrutiny from courts. The edict is touted as forming part of Trump's commitment to ending homelessness, according to a White House fact sheet. It comes after an executive order in March directed the National Park Service to clear homeless encampments and graffiti on federal lands. The Supreme Court ruled in June that that authorities can fine or arrest homeless people for sleeping in public spaces. The ruling, which was approved by a 6-3 margin along ideological lines, overturned a lower court's ruling that it is cruel and unusual punishment to enforce camping bans when shelter is lacking. ________
CNN
20 minutes ago
- CNN
Analysis: Republicans want to game the next election. Could Democrats get ‘ruthless' to respond?
Donald Trump Congressional newsFacebookTweetLink Follow A version of this story appeared in CNN's What Matters newsletter. To get it in your inbox, sign up for free here. Democrats' only real opportunity to set up a roadblock in front of President Donald Trump during his remaining years in office comes with next year's midterm elections. They'd need to pick up just a few seats to take control of the House. But Republicans want to game the system by pursuing a rare effort to redraw congressional lines in multiple key states and squeeze more seats out of delegations already designed to favor them. 'Very simple redrawing. We pick up five seats,' Trump said recently at the White House, referring to an ongoing effort by Texas Republicans. But the effort extends to other states as well. It also may not be so simple. The strategy, which is playing in various ways across the country, could backfire if Republicans turn safe seats into competitive ones in the long-shot event that these redrawing efforts succeed and are blessed by courts. Separately, if Republicans change the maps, Democrats are vowing to abandon years of their own rhetoric about the importance of nonpartisan line-drawing and respond in kind by looking for seats in California, New York and New Jersey, despite legal hurdles in those states. 'Never bring a knife to a gunfight,' New Jersey Gov. Phil Murphy told reporters Monday, according to The Hill, quoting the mafia movie 'The Untouchables.' 'We're from Jersey baby, and we won't be laying down.' But the problem for Democrats is they could face more obstacles in court due to their state laws. There are some vacancies, but Republicans won 220 seats in 2024; 218 is a majority. The president's party — with only a few exceptions in the past hundred years — loses seats in midterms. Related: Read the latest from CNN's Manu Raju and Sarah Ferris Mid-decade redistricting not an unprecedented idea — Texas did it, controversially, in 2003 — but it's far from normal, and it goes against the thrust of the Constitution, which suggests redistricting each decade after the census. ► The legislature in Texas wants to find five more seats by carving up Democratic seats in Texas cities. ► Florida Gov. Ron DeSantis thinks the Trump administration should reconsider the 2020 census and give his state at least one more seat. DeSantis is also entertaining the idea of again redrawing Florida's maps after the state Supreme Court blessed maps he engineered in 2022 that gave Republicans four more seats in Florida and arguably maintained the GOP majority in the House. 'I think the state malapportioned,' he told reporters in Florida on Thursday, adding it would be 'appropriate to do a redistricting here in the mid decade'. ► Maps in Ohio must be redrawn under a quirk of state law since earlier maps were gerrymandered by Republicans. Now they could try to make the state's delegation even more overwhelmingly Republican and carve up two Democratic seats, according to a report in June from CNN's Fredreka Schouten. ► Missouri legislators are also being pushed by the White House to consider a special session to redraw maps and carve up the state's sole remaining Democratic seat. Making new Republican seats requires carving up Democratic seats, something that could theoretically blow up in Republicans' faces if the national tide turns against Trump. It's called a gerrymander when lines are drawn by one party to its own benefit. It would be what's called a dummymander if those lines backfired. In the event of a wave against the president's party by voters, Democrats could theoretically end up winning more seats in the Texas delegation, according to Sam Wang, a Princeton neuroscience professor who also directs the Princeton Gerrymander Project. He laid out his argument in a post on Substack. 'The backfire effect is pretty large,' he said in a phone interview. 'In our preliminary calculations, it looks like this would make up to a dozen seats competitive that are currently safe Republican seats.' There are other assessments that draw different conclusions. The consequences of who controls the House — even by one vote — are enormous. Trump and House Speaker Mike Johnson have gotten a lot done — see the controversial One Big Beautiful Bill Act — despite having one of the smallest possible congressional majorities. Democrats, who for years have been preaching for the need to get politics out of map drawing and cut down on gerrymandering, are talking tough about redrawing maps in the states they control. 'I think Democrats in the past too often have been more concerned with being right than being in power,' former Texas Rep. Beto O'Rourke said on CNN's 'State of the Union' last Sunday. 'We have to be absolutely ruthless about getting back in power,' he said. California Gov. Gavin Newsom is exploring the idea even though it would violate the will of voters who in 2008 blessed the nonpartisan commission that's supposed to draw California's congressional maps. Taking map-drawing power back from the commission would likely require another constitutional amendment, which complicates the timing of any effort to retaliate against Texas. House Minority Leader Hakeem Jeffries, who represents a district in New York, told CNN's Manu Raju Democrats are looking at maps in California, New York, New Jersey, Minnesota and Washington state. 'Some of the best and brightest lawyers in the country are looking at every single aspect of what's possible in these states,' Jeffries said. Expect lawsuits if Democrats try to redraw their maps in these states too. California, which utilizes an independent commission to draw congressional lines, has been considered something of a leader in depoliticizing the drawing of maps, and many of its districts are more competitive than in a state like Texas. Its lopsided Democratic majority is a testament to how blue the state has become. 'What little competition there is in Congress rises in large part from these independent commissions,' Wang said. 'Stepping back from fair districting would also reduce Congress's responsiveness to voters.' After the 2020 census, Republicans controlled the process for the drawing of more than 40% of congressional districts, compared with 11% controlled by Democrats. Nearly 20% were controlled by independent commissions, according to the Brennan Center at New York University. There's a growing perception among Democrats that unless reform can be applied nationwide, they should do more to gain advantage. David Imamura is the former chair of New York's state redistricting commission, which was paralyzed after the 2020 census. The state's maps, like those in multiple states, were the subject of years of litigation. He is now a Democrat in elected office in Westchester County and a partner specializing in election law at Abrams Fensterman in New York. He supports a nationwide standard for redistricting like one Democrats have proposed in previous years. But until then, and despite legal obstacles in New York, Democrats should do what they can to win, he said. 'If Republicans are going to cheat, then we have to match them tit for tat,' he said. Republicans in Utah set aside their own nonpartisan redistricting commission to split the Democratic-leaning Salt Lake City area into multiple Republican-leaning districts. But Democrats drew advantages for themselves in Illinois, Oregon and Nevada. Republicans' current advantage as a result is gerrymandering is no more than a handful of seats, according to Wang, even though Republican state governments controlled more of the process than Democratic state governments. Americans have gotten used to taking power from president's party. All five of the last presidents going back to Bill Clinton lost control of the House in a midterm election. That includes Trump during his first term. That means no amount of redistricting will save Republicans' slim majority if the country turns against Trump and Republicans. 'In a district-by-district fight for the House, picking up a handful of seats in Texas and maybe a seat or two in Ohio is probably enough for Republicans to hold the majority,' said Nathan Gonzales, publisher of the nonpartisan Inside Elections. 'But if the broader national mood shifts against President Trump and Republicans in power or Republicans have problems turning out the Trump coalition when he's not on the ballot, then Democrats have an opportunity to win control, even with new maps in some states.'
