College athletics at a crossroads: The competing federal visions for NIL, athlete compensation, and the path to collective bargaining
For the better part of a century, the NCAA governed college athletics on a foundational premise: that student-athletes were amateurs, that their compensation was properly limited to the cost of education, and that this arrangement was legally protected. Courts tolerated it. Institutions built billion-dollar enterprises around it. And the athletes whose labor generated that wealth received none of it.
That arrangement is now gone — dismantled not by Congress, but by the courts. What replaces it is still being actively contested, and the outcome of that fight will define the structure of college athletics for the next generation. As of May 2026, there are now three competing federal frameworks vying to answer that question: the SCORE Act, the Trump Administration’s executive orders, and — just introduced — the bipartisan Protect College Sports Act of 2026 authored by Senators Ted Cruz (R-TX) and Maria Cantwell (D-WA). Understanding what each actually does, rather than what its proponents claim, is essential for any institution, athlete, brand, or advisor operating in this space.
How we got here
The modern era of college athlete compensation began not with a statute, but with a unanimous Supreme Court decision. In NCAA v. Alston (2021), the Court held that the NCAA’s restrictions on education-related benefits violated federal antitrust law. More consequentially, Justice Kavanaugh’s concurrence was an explicit warning that the NCAA’s broader compensation suppression model — its entire amateurism framework — was legally suspect. “Nowhere else in America,” Kavanaugh wrote, “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.”
That language, combined with a wave of state NIL legislation led by California, broke the dam. By 2021, athletes could monetize their name, image, and likeness for the first time. What followed was predictable in retrospect and underestimated in scale: a chaotic, market-driven explosion of NIL compensation, booster collectives, and transfer portal activity that the NCAA had no legal tools to effectively constrain.
House v. NCAA completed the transformation. The landmark class action settlement, approved in 2024, committed the NCAA and five major conferences to nearly $2.8 billion in damages to former athletes who were denied NIL compensation, and established a prospective revenue-sharing model allowing universities to share up to $20.5 million annually in athletic revenue directly with athletes. The College Sports Commission (CSC) — a private clearinghouse and review platform operated by Deloitte — was charged with implementing the framework, including examining and approving third-party NIL deals.
The CSC immediately demonstrated the structural fragility of governing a multi-billion-dollar labor market through a private settlement body with no statutory authority. Between June and August 2025, universities submitted over 8,500 deals for approval. The CSC approved fewer than 6,100. Athletes and collectives began routing around the process entirely. The legal architecture underlying college sports remained — and remains — fundamentally unstable. Into that environment, Congress and the White House have now each moved.
The SCORE Act: The NCAA’s preferred vehicle
The Student Compensation and Opportunity through Rights and Endorsements Act (SCORE Act) passed two House committees along party-line votes and remains the most fully developed federal college sports bill. Its stated purposes are uncontroversial and, in isolation, largely sensible: national uniformity for NIL rules, codification of the House settlement framework, athlete welfare protections, and preservation of non-revenue sports. These provisions enjoy genuine bipartisan support.
But the SCORE Act’s operative legal architecture tells a different story, and understanding it requires reading the bill’s core sections together rather than in isolation.
Section 6 delegates broad rulemaking authority to “interstate intercollegiate athletic associations” — meaning the NCAA, conferences, and the CSC — over ten regulatory categories, including, critically, “limits on compensation.”
Section 7 makes the revenue-sharing framework discretionary rather than mandatory, providing that the NCAA may establish a revenue pool “if such rules provide” the pool meets the 22% threshold — meaning the direct-pay system exists at the NCAA’s pleasure, not as a statutory floor.
Section 9 grants antitrust immunity to any rule “adopted, agreed to, complied with, or enforced” under the Section 6 framework, automatically shielding whatever compensation limits the NCAA writes from antitrust challenge.
Section 10 broadly preempts state NIL laws, eliminating the competitive pressure that forced NIL liberalization in the first place.
Read together, these provisions create a closed legal system: the NCAA writes compensation rules, those rules are immune from antitrust challenge, and state law cannot provide an end-run. The mechanisms by which athletes and states forced the NCAA to liberalize compensation over the past decade — antitrust litigation and state legislation — are both foreclosed.
Legislative status
The SCORE Act has stalled before a full House floor vote on three separate occasions, with leadership repeatedly delaying the vote due to insufficient support. Even if it cleared the House, reaching the 60-vote Senate threshold required to overcome a filibuster would require seven Democratic votes that the current opposition makes extremely difficult to secure. GovTrack currently estimates a 30% enactment probability, and the window narrows as the 2026 midterm approaches.
The executive order track: Creating urgency without legislation
Parallel to the congressional fight, the Trump Administration has moved on two executive orders that represent the most direct federal intervention into college athletics governance in history.
EO 14322 (July 2025) directed the NCAA to update its rules to protect women’s and non-revenue sport scholarship opportunities and to address NIL compensation structures.
EO 14400 (April 3, 2026), titled “Urgent National Action to Save College Sports,” goes significantly further. Effective August 1, 2026, it applies to institutions with at least $20 million in annual athletics revenue and operates on two tracks: it calls on the NCAA to update its rules by the August 1 deadline, and it directs federal agencies to use a school’s eligibility for federal grants and contracts as the primary enforcement mechanism. Institutions that fail to comply with NCAA rules updated per the order risk losing federal funding — a coercive spending-power mechanism that will surely face legal challenges.
The April order defines a “fraudulent NIL scheme” as any arrangement that pays above actual fair market value in connection with athletic participation — effectively codifying the CSC’s contested review standard as a federal enforcement benchmark, without defining who determines fair market value or through what process. It also directs the Attorney General to take measures to invalidate state laws that conflict with NCAA rules under Commerce Clause and Contracts Clause theories, attempting to achieve federal preemption of the state NIL patchwork through executive enforcement rather than legislation.
The August 1, 2026 effective date is the most consequential near-term development in the college sports legal landscape. It creates a real-world compliance trigger operating entirely independent of Congressional action. How agencies implement it — and whether courts issue emergency injunctions before it takes effect — will shape the entire legislative and litigation environment for the rest of 2026.
The Cruz-Cantwell Bill: A genuinely different approach
On May 27, 2026, Senators Ted Cruz (R-TX) and Maria Cantwell (D-WA) introduced the Protect College Sports Act of 2026 — and the bipartisan sponsorship is the single most significant fact about it. Cantwell has been the sharpest Democratic critic of the SCORE Act, raising antitrust concerns and athlete rights issues for over a year. Cruz is a senior Republican on the Commerce Committee. A bill they can jointly author was engineered to thread the needle between the two parties’ competing concerns, which is precisely what the SCORE Act failed to do. This is the most plausible vehicle for actual Senate passage of anything in this space.
What makes it structurally different
Section 122 — Neutrality on employment status. This is the single most consequential provision in the bill and the one that most directly distinguishes it from the SCORE Act:
“This title is neutral on, and does nothing to alter, employee or non-employee status for student athletes.”
Rather than permanently codifying non-employee classification — the NCAA’s primary ask and the provision most constitutionally vulnerable to challenge — the Cruz-Cantwell bill explicitly refuses to resolve the question. Johnson v. NCAA and the broader employment classification litigation remain alive. The collective bargaining pathway we identify below as the most legally durable long-term solution is explicitly preserved. This is the provision Cantwell required to put her name on the bill, and it fundamentally changes its legal character.
Section 118 — Conditional, narrowly scoped antitrust immunity. Unlike the SCORE Act’s sweeping blanket immunity for everything the NCAA does under its delegated regulatory authority, Section 118 grants antitrust protection only for specific, enumerated conduct tied directly to the bill’s own provisions — enforcing the compensation cap, transfer rules, eligibility standards, agent regulations, and the mid-season coaching transition prohibition. Critically, the immunity is conditional: an association qualifies only if it has actually implemented the required rules. The NCAA cannot sit on antitrust immunity without fulfilling its performance obligations under the statute. That conditionality is a meaningful structural constraint absent from the SCORE Act.
Section 115 — Revenue share cap as statutory floor. Rather than making revenue sharing discretionary, Section 115 provides that upon expiration or termination of the House settlement, the revenue share cap automatically continues and is adjusted annually for CPI inflation. This converts the $20.5 million figure from a discretionary ceiling the NCAA can lower at will into a statutory floor it cannot eliminate through rulemaking.
Section 121 — Targeted preemption with explicit carve-outs. The bill preempts conflicting state NIL, transfer, and eligibility laws — but explicitly preserves tort law, criminal law, civil rights laws, contract law, trademark law, copyright law, consumer protection law, privacy and data breach law, and the Uniform Athlete Agents Acts. States lose their NIL patchwork regulatory authority but retain every other legal avenue to protect athletes from exploitation. This is meaningfully narrower than the SCORE Act’s broad preemption sweep.
Section 116 — Commission on the future of college athletics. A 20-member bipartisan commission — with subpoena authority and a mandatory five-year reporting timeline — is charged with studying and recommending an alternative compensation structure for college athletics, including explicit study of the positive and negative implications of a collective bargaining structure and employment status for student athletes. For the first time in any federal legislation, collective bargaining is formally placed on the congressional agenda as a legitimate potential end-state for college athletics governance. The commission can also recommend changes to the revenue share cap, with a joint resolution mechanism for Congressional implementation of those recommendations.
Section 111 — Athlete representation on governing boards. At least one-third of membership and voting power on any NCAA governing board or rules committee with authority to establish and enforce rules must be current or former student athletes who graduated within the preceding ten years. Former athletes who are currently employed by the NCAA, a conference, or a member institution do not count toward that threshold. This is a structural governance reform — and the thin edge of the collective voice wedge — that no prior bill has included.
Section 110 — Mid-season coaching transition rules. The bill directly addresses a genuine and widely criticized problem: coaches and coordinators leaving mid-season for other programs. Any FBS football coach or coordinator who leaves during a competitive season is ineligible to serve as head coach at the new school through the conclusion of the season at either institution, whichever ends later. Violations result in a one-year head coaching ban. This provision has no analog in any other pending legislation.
Section 106 — Medical coverage. Division I institutions must cover all out-of-pocket medical expenses for athletics-related injuries during participation for five years post-eligibility. The NCAA must maintain a $60 million fund for catastrophic injury coverage and long-term conditions, including CTE. This is the most expansive athlete health mandate in any proposed federal legislation to date.
Section 119 — Private right of action. Athletes can sue for violations of NIL protections, scholarship protections, medical coverage requirements, health and safety standards, transfer rules, eligibility rules, and the Ombudsman provisions — in federal or state court. Pre-dispute arbitration agreements are void for claims under this bill. Athletes cannot be compelled to waive court access as a condition of participation. This enforcement mechanism was largely absent from the SCORE Act.
Title II — Sports broadcasting. The bill expands the Sports Broadcasting Act of 1961 — which currently grants antitrust immunity only to professional leagues for pooled TV rights deals — to cover college sports under a specific compliant-entity structure. It includes protections for traditional rivalry games (defined by top-10 historic opponents), market-level broadcast access requirements for football and basketball, streaming rights mandates for non-revenue sports, and prohibitions on certain conference mergers and acquisitions. Media rights pooling revenue is contemplated as a funding source for the mandatory catastrophic injury and post-eligibility medical fund.
What the Cruz-Cantwell Bill does not resolve
The employment question remains open by design. Section 122’s neutrality is politically necessary but legally incomplete — Johnson v. NCAA continues, and whatever courts decide about athlete employee status will interact with this statute in ways that cannot be fully predicted. The “valid business purpose” standard for NIL deals survives in Section 114, meaning CSC review of third-party deals continues under the House settlement framework. And there is no affirmative authorization of collective bargaining — the Commission studies it; the bill does not create it.
The three-bill landscape: How they compare
The SCORE Act, the executive orders, and the Cruz-Cantwell bill represent three distinct visions for the future of college athletics governance:
The SCORE Act is the NCAA’s preferred vehicle — it delivers broad antitrust immunity, permanent non-employee classification, discretionary revenue sharing, and sweeping preemption of state law. It closes every legal pathway athletes have used to force compensation increases and leaves the NCAA as the unchecked regulator of its own labor market. It is constitutionally vulnerable and unlikely to clear the Senate in its current form.
The executive order track is a pressure instrument — it creates real-world compliance deadlines and funding threats to force Congressional action, but its constitutional basis is aggressive and its substantive content is thin. The August 1, 2026 effective date will generate immediate litigation on emergency injunction timelines. Its primary effect may be to accelerate Congressional action rather than to directly govern college sports.
The Cruz-Cantwell bill is the most legally honest of the three. It grants conditional, narrowly scoped antitrust immunity tied to specific conduct with compliance prerequisites, preserves the employment question for the courts and a study commission, creates a statutory revenue-sharing floor rather than a discretionary ceiling, gives athletes a private right of action, mandates meaningful governance representation, and — crucially — places collective bargaining on the official legislative agenda for the first time. Its bipartisan authorship makes it the most plausible vehicle for actual Senate passage.
The two congressional bills are not easily merged. Section 122’s neutrality on employment status directly contradicts the SCORE Act’s non-employee mandate. Conference committee reconciliation between a House SCORE Act and a Senate Cruz-Cantwell bill would require one side to concede the most contested question in the entire debate.
Where this is headed: The case for collective bargaining
The Cruz-Cantwell commission’s mandate to study collective bargaining is significant precisely because it reflects what the most careful analysts of this space have increasingly concluded: collective bargaining is the only legally durable long-term architecture available for college athletics.
The NCAA’s core objective — coordinated rules on compensation, transfer eligibility, and athletic participation — is not inherently unlawful. Every major professional sports league in the United States operates with exactly those kinds of coordinated rules. The NFL, NBA, NHL, and MLB achieve them through collectively bargained agreements with recognized player unions. Terms negotiated through collective bargaining are exempt from antitrust scrutiny under the nonstatutory labor exemption. The NCAA could have everything it is trying to buy through the SCORE Act’s antitrust immunity provision — durably, legally, and without ongoing constitutional vulnerability — if it were willing to recognize athletes as employees and bargain with their representative organization.
The path there is genuinely complicated. Public university athletes are governed by state labor law, not the NLRA, creating a public/private fragmentation problem that either a federal legislative fix or a private employment entity structure would be required to resolve. A SAG-AFTRA-style non-employee representative bargaining framework — legislatively authorized for the specific economics of college athletics — could provide a collective voice and enforceable minimums without requiring formal employee classification, a potential compromise that threads the needle the SCORE Act could not. The Cruz-Cantwell Commission is specifically charged with evaluating both models and reporting recommendations to Congress and the President within five years.
The NCAA’s resistance to this conclusion is psychological and political more than legal. Conceding employee status feels like an existential loss to an organization that built its identity on amateurism. But the amateurism model is already gone. The question is no longer whether athletes will be compensated. It is who will control the terms of that compensation, through what legal mechanism, and with what structural accountability. Every path that does not involve collective bargaining — including the SCORE Act — keeps that question in litigation indefinitely.
Practical implications
The legal environment for college athletics will remain unsettled regardless of how any individual legislative vehicle resolves. The Cruz-Cantwell bill, if enacted, buys five years of structural stability while the Commission works, which is meaningful but not permanent. The executive orders create an August 1 compliance deadline that is weeks away. Johnson v. NCAA continues in federal court. And the SCORE Act has not been abandoned.
Schools, conferences, athletes, brands, and collectives are all operating without definitive rules on compensation structures, NIL deal parameters, transfer rights, or employment status. That uncertainty creates meaningful legal risk at every level of the ecosystem.
Specific areas of active legal exposure include: structuring NIL agreements to withstand CSC review under the House settlement’s fair market value and valid business purpose standards; evaluating conference template agreements — including broad sublicensing structures — for the rights they capture and the compensation they suppress; advising on employment classification exposure created by Johnson v. NCAA and related litigation; assessing August 1 compliance obligations under EO 14400 and the litigation risk of non-compliance; and monitoring all three legislative vehicles for the specific compliance obligations and liability shifts each would trigger upon enactment.
The legal architecture of college athletics is being written in real time, by courts, executive agencies, and competing Congressional factions simultaneously. The practitioners who build fluency in this space now — before any framework stabilizes — will be best positioned to serve clients when the rules finally do crystallize. The question is whether your institution, your brand, or your athlete has sophisticated counsel engaged while the decisions that will govern the next decade of college sports are still being made.
Mitchell Capp is a trial lawyer and strategic advisor at McDonald Hopkins LLC. He has been a thought leader on college athlete compensation issues since 2021. For questions regarding NIL advisory services or college athletics compliance, contact mcapp@mcdonaldhopkins.com.
