The bill would, in effect, formalize the recently approved but contested NCAA v. House settlement as current law (seven appeals have been filed so far) and create a massive pay-for-play and cash transaction culture in college sports. The Drake Group is most concerned that it fails to provide any clarity regarding the application of the new financial distributions to athletes through a Title IX lens. Instead, its silence on this issue will be used to support a gender inequitable distribution of new financial benefits. The Drake Group believes that Title IX compliance must be a condition of receiving the antitrust exemption provided by the SCORE Act.
We also share the following additional SCORE Act concerns:
• The Act does not require institution, conference, or NCAA NIL payments to enrolled or recruited athletes to conform to the same following legitimate NIL standards as the Act applies to “associated third party entities” such as booster NIL collectives: (1) For a valid business purpose related to the promotion or endorsement of goods or services, and not to pay for participation in athletics, (2) Compensation at rates and terms commensurate with compensation paid to individuals with NIL rights of comparable value who are not college athletes or prospects, (3) Submission of agreements to NIL Go (NCAA NIL clearinghouse) in the same manner as NIL agreements with associated entities for verification of (1) and (2). If payments to athletes are not for legitimate NIL or other non-sports performance employment, they are either cash inducements to attend or pay-for-play which are not permitted under NCAA rules.
• The Act declares college athletes to be non-employees while allowing their institutions to control them as employees (e.g., control of and excessive demands on their time, ability to terminate their compensation arrangements at will, right to
terminate eligibility for participation at will, etc.). While the Act will permit schools to pay highly skilled athletes with additional compensation labeled NIL licensing or other cash payments, it does not provide them with potential employee benefits (e.g., collective bargaining, overtime pay, social security and Medicare contributions, workers’ compensation, etc.)
• The Act fails to address the currently evident burdensome and unfair institutional contracts with athletes, as well as the lack of athlete protections such as due process or arbitration options if they lose their eligibility to compete.
• While the Act rightfully protects the athlete’s right to privacy concerning outside third-party NIL agreements, it does not require public education institutions to fulfill their transparency requirements regarding public access to institutional contracts and compensation agreements. The institution’s new NIL licensing agreements, revenue sharing, or other athlete compensation arrangements are not tethered to educational expenses and therefore should be accessible through open records requests. Athletes’ names or identifying information may be redacted if documents contain educational or medical information protected by privacy laws.
Given the above SCORE Act flaws, absent amendments to remove these deficiencies, The Drake Group believes college athletes will be ill-served by such legislation and urges Congress to reject the bill.