Trump Executive Order on College Sports Unlikely to Move the Needle

Yahoo

2 days ago

President Donald Trump is weighing an executive order that would attempt to stabilize the business and law of college sports but might instead kindle new legal challenges.
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.
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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 A month later, Trump's Department of Education rescinded that fact sheet.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.
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