Louisiana Voice

By guest columnist Paul Spillman

A vote on the SCORE Act was postponed, again, this week in the House.  The bill is a sweeping piece of legislation intended to regulate college athletics. SCORE stands for “Students Compensation and Opportunity through Rights and Endorsements.” The bill has been twice pulled from consideration and now appears dead with opposition from both the Freedom Caucus and the Congressional Black Caucus. While not currently scheduled for another vote it does provide insight into how Congress might address college athletics so it’s worth looking into the details.

The SCORE Act would apply to any institution with either $20M annual athletic revenue or a coach in any sport earning more than $250,000 in base salary. What ramifications this would have for the current structure of the NCAA is unknown as there are more than 350 schools in Division 1 but not all of them earn more than $20M annually from athletics, or pay a coach more than a quarter of a million dollars in base salary.

The legislation would supersede all previous state laws concerning issues covered by the SCORE Act such as state regulation of name, image, and likeness (NIL) compensation. It would also grant to the NCAA an exemption from antitrust law and specifically states that college athletes are not employees of the institution.

Under the SCORE Act the NCAA would be granted the authority to institute a cap on total NIL expenditures according to a formula established in the legislation. Because of the disparity in athletic revenue among various schools this would likely create as many problems for the NCAA as it solves. While the formula is weighted towards the highest earners it is limited to an average so that the relatively small number of schools earning in excess of $100M annually (roughly 5% of the total membership) would be unable to spend freely. This maintains one of the age-old problems with the NCAA – larger schools, loosely defined as the four major conferences (SEC, Big Ten, ACC, Big 12), are held back by the limited resources of the majority of member institutions. That conflict is what drove schools, then athletes, to begin suing the NCAA for violation of unfair trade practices.

This legislation would also allow the NCAA to establish guidelines for and to register sports agents.  It would allow the NCAA to determine all the dates of a season, post-season, signing day, and transfer portal window. It also would allow the NCAA to determine when college athletic eligibility begins and ends and provides athletes with one transfer while maintaining immediate eligibility but would give the NCAA the authority to determine athletic eligibility beyond one transfer. The bill would mandate athletes must be enrolled in an institution for one year before they can transfer and maintain eligibility.

The bill would require the Federal Trade Commission to study whether there is a need to license and/or regulate sports agents specifically for college athletics and establishes the makeup of boards and committees with decision-making authority. It would also require both the NCAA and the federal government to study the impact of travel in conferences that now stretch coast to coast – which could have implications concerning recent conference realignment.

The SCORE Act would also impose the “Lane Kiffin rule,” attempting to define when a coach can be hired. It has the mocking sobriquet “Lane Kiffin rule” but the issue of coaches leaving successful teams who still have post-season opportunities which prompted this provision extends before and beyond LSU hiring Kiffin from Ole Miss. This provision would prohibit the hiring of coaches while post-season competition is still ongoing.

Then things got interesting. What all this is, really, is regulating the market and the SCORE Act dropped all pretense to pure free-market capitalism. Besides capping NIL the legislation provides that salaries and/or buyouts for coaches must be paid out of athletic revenue only. This provision would eliminate groups such as the Tiger Athletic Foundation (TAF). TAF arranged for the bulk of Brian Kelly’s salary at LSU and for most of the buyout when LSU fired him. TAF also provides for most of Lane Kiffin’s salary. In fact Kiffin’s base LSU salary is only $400,000, with some bonus language included. The other approximately $12.6M comes from, through, or related to TAF. But the SCORE Act would define and limit what “outside parties” can contribute to coaches, athletes, even schools.

That raises some interesting questions on the nature of capitalism in America. If we can define what is revenue and regulate salary according to that definition for a football or basketball coach can we also define compensation for capitalists such as Elon Musk, Jeff Bezos, Peter Thiel, Mark Zuckerberg, or Larry Ellison? This is a debate the political right will run from but it is more than a little ironic this provision was written into the bill to win over Chip Roy (R-TX) and other Freedom Caucus votes.

There is little enthusiasm for the Score Act in the Senate. The Senate is working on legislation to regulate college athletics coauthored by Ted Cruz (R-TX) and Maria Cantwell (D-WA), tentatively titled the SAFE Act, but has yet to release any text of the bill or schedule hearings. However, Cantwell has made numerous statements opposing the SCORE Act as a “gift” to the NCAA and the two major conferences (SEC and Big Ten) and stressing her priorities, which include protecting women’s sports and small colleges.

The SCORE Act would have indeed been a “gift” to the NCAA, giving them everything they desire without requiring any institutional changes. But if Senator Cantwell’s comments are an indicator the Senate bill is not likely to be as giving  – to the NCAA or to Power Four schools. One of the ideas mentioned is to force schools to pool media rights as a means of leveling the revenue imbalance among the 350 diverse colleges and universities in Division 1. Such legislation would surely spark another round of debate on breaking away from the NCAA as no Power Four school wants to give up TV revenue so that schools that don’t even play football can shore up their Olympic and women’s sports teams. But we won’t know how restrictive the legislation will be until the Senate releases it.