After this week's midterm results, the Protect College Sports Act (PCSA) appears unlikely to pass in its current form. However, the legal and governance challenges facing college athletics persist and the need for legislative action is as great now as it has ever been.

In that light, legislative efforts in this area do not have to die along with the PCSA. Many newly elected Democrats from southern and midwestern states, for example, may welcome the chance to help protect and shape the future of college athletics in a manner popular with their constituents. Using many aspects of the PCSA on which there was consensus, the opportunity for reform may still be present. Congress and all involved in college athletics must accept, though, that there is no way to do this without addressing the most significant issues at hand (specifically, athlete employment and collective bargaining). There could be a path worth exploring on those points, however, that reflects the unique structure of college athletics.

Antitrust Exemption

The NCAA and its schools/conferences' need for legislation largely begins and ends with an antitrust exemption. This is the key to ending and preventing much of the litigation that has persisted in college athletics in recent years. Understanding that any legislation without such a provision would not help relieve the chaos around rule enforcement, eligibility, etc., this would be a necessary component of any bill. The scope and application of this exemption would need to be clearly and expressly defined, and it would need to be subject to compliance with the student athlete representation requirements referenced below. The goal here would be certainty as to a legal framework, not immunity for every single action or decision.

Points of Consensus

Several aspects of the PCSA were relatively non-controversial. Beyond that, many represent clearly needed and positive change in college athletics. Examples include:

• Athlete agent regulations (Sections 102-103 of the PCSA)
• Athlete health and safety standards (Sections 106-107), and 
• Academic protections (Sections 105). 

The provisions seeking to protect women's and Olympic sports (Sections 109, 125, 127, and 203) could also fall within this category. These sorts of policies and reforms could be incorporated into any subsequent version of the PCSA without any extensive debate or amendment.

Athlete Employment

The PCSA was expressly neutral as to whether college athletes are employees (Section 122). Although this may have been understandable as a matter of political compromise, a college athletics reform bill failing to address this central legal issue was always problematic. The pending Johnson v. NCAA case in the Eastern District of Pennsylvania revolves around this point and, if the plaintiffs prevail, could subject some college athletes to minimum wage laws, wage and hour restrictions, and other provisions creating significant legal and financial issues for universities.

One reason employment is politically contested is its relationship to collective bargaining rights. But wage-law status, statutory bargaining rights, and a congressionally created negotiating framework are distinct questions. The public and private institutions participating in college athletics also present different labor-law issues. Therefore, an alternative worth considering is a law that affirmatively gives athletes independent representation and defined negotiating rights without requiring employment status as the gateway to those protections.

Accordingly, for purposes of this article, I would consider a provision that expressly deems student athletes not to be employees by reason of their athletic participation, paired with enforceable rights and powers under the framework below.  

Athlete Representation on Governing Boards and Committees

Without athlete employment and collective bargaining, how could the interests of college athletes be truly and fairly represented? A potential creative answer may fall in Section 111 of the PCSA, which requires that at least one-third of the membership of all NCAA governing boards and committees be current or former student athletes. Such involvement ensures athletes have a direct and meaningful voice in the future of college athletics but, as drafted in the PCSA, no true control. Although this could still be workable for general NCAA governance and/or university-centric decisions, there does not appear to be a current political path forward without giving student athletes the ability to help determine their own rights.

In conjunction with the non-employment provision recommended above, I would consider a change to require at least half of all such voting members on these boards and committees be current or former student athletes. All compensation restraints, transfers/eligibility rules, and other such decisions affecting student athlete rights, compensation, and responsibilities would then be subject to the votes of these equally comprised boards and committees. The possibility of a deadlock would need to be accounted for through a mediation/arbitration provision, or other such means. This change could effectuate the intent of collective bargaining without requiring a fully-fledged union negotiation (which could prove to be at best unwieldy, and at worst impossible, in the context of college athletics). 

Strengthen the Ombudsman Position

If a change like this were made, how could athletes ensure that only student athlete representatives who are aligned with the NCAA's positions or who otherwise are not representative of their peers are selected? The PCSA's “Athlete Ombudsman” provision (Section 108) could provide protection in that regard. As written in the PCSA, this position would be staffed within the NCAA to provide advice to and receive complaints from student athletes. In a revised proposal, the ombudsman could still fulfill that role as part of its duties.

However, I would consider revising and expanding the role of the independent athlete ombudsman to make him or her directly elected by student athletes and in charge of appointments to the boards and committees referenced above. This person would essentially serve as the elected representative for student athlete interests and would exist to ensure that their needs and concerns are represented and included in all governance decisions. If deemed more palatable, the ombudsman's role could instead by performed through a counsel of athlete representatives or another similar group or entity. Either way, a provision such as this would be necessary to ensure that any equal board representation/voting model has its intended effect.

Leave Operational Rules to the Representative Boards and Committees

The PCSA also includes a myriad of provisions around the operations of college sports, including transfer and eligibility rules (Sections 112-113), recruiting rules (Section 117), and restrictions on when coaches can be hired (Section 110). Under the framework discussed here, none of these are truly necessary. The antitrust exemption would provide a clear ability to enforce the NCAA's own rules, and the other provisions would create the need to reach consensus with its athletes. In this light, there would beno further need for government involvement as to the operation of the actual sports and business. The NCAA governing boards and committees would simply set agreeable rules and policies relating to student athletes and then enforce them.

Opportunities for Agreement

Any substantial changes to the landscape of college athletics will come with legal and administrative challenges, including those outlined here. The details and final structure of any bill will be of critical importance. However, regardless of differing opinions as to any proposal, now is the moment to explore innovative and alternative strategies for reforming college sports. A new Congress with fresh faces might signal the end for the PCSA as it stands, but it could also open the door to crafting a more effective and fair solution.

In fact, results were so lopsided that the college sports administrative community scrambled to get a question answered: What does this all mean for the Protect College Sports?

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