Scoring the SCORE Act: Common Questions and Answers
If you’re a fan of college sports, you’ve likely heard about the SCORE Act (or maybe even seen commercials promoting it on ESPN). However, in today’s complex NIL landscape, it’s often difficult to track and make sense of policy. So how does the SCORE Act stack up against similar bills? And will it be passed any time soon?
What is the SCORE Act?
The SCORE Act, which stands for “Student Compensation and Opportunity through Rights and Endorsements Act” is a bill that was introduced on July 10. The bill is sponsored by Gus M. Bilirakis, a Republican representative from Florida, and addresses several key areas of athlete rights, including NIL and fair competition.
What is the status of the SCORE Act?
The SCORE Act still has a long way to go, as it must pass both the House and the Senate, as well as be signed by the president before it is passed as law. Because it is still a bill, none of its requirements are legal requirements (yet), and it’s likely it won’t pass. Front Office Sports recently reported that House Republicans have delayed the vote on the SCORE Act to next week, indicating that it might lack the legislative votes to pass. However, the SCORE Act is but one of several federal-level bills that have been circulated in recent years and its contents indicate the general priorities of college sports at the moment. Expect similar legislation to be introduced in the future if the SCORE Act dies.
What is in the SCORE Act?
The bill’s most recent version states that the purpose of the bill is to “protect the name, image, and likeness rights of student athletes and to promote fair competition with respect to intercollegiate athletics, and for other purposes.” The bill’s text indicates that, if passed, that will entail:
Protection of NIL rights, except for what the bill considers “prohibited compensation” (more on that later)
Rights to representation and privacy. This essentially means that universities and conferences cannot prohibit an athlete from obtaining agent representation, and universities cannot share information regarding athletes’ NIL activity without the athlete’s consent.
Slight amendments to existing legislation surrounding athlete representation.
In addition, the SCORE Act includes new requirements around athlete compensation in the NIL era. The bill states that:
Institutions that pay any coach of a varsity sport $250,000 (to be adjusted each year in line with the Consumer Price Index for All Urban Consumers published by the Bureau of Labor Statistics) or more shall provide college athletes with academic, career counseling, nutrition, mental health, and other services.
Such institutions should also provide medical care, including out-of-pocket coverage for injuries sustained while competing and at least three years post-graduation (if the athlete leaves in good standing), as well as an administrative structure for independent medical care and return-to-play decisions following injuries. These institutions are instructed to provide mental health care to athletes, as well degree completion programs for former athletes who did not graduate from the program.
This section notably also states that such institutions shall maintain a college athlete’s grant-in-aid regardless of an athlete’s contribution to the team, injury or illness status, and recipient of NIL deals. In other words, an athlete’s financial aid cannot be non-renewed if an athlete signs a lucrative NIL deal, gets sick or injured, or experiences declines in academic performance for the duration of their financial aid contract.
This is arguably the strongest section of the bill. College athletes face unique mental health challenges in today’s hyper competitive and demanding athletic and academic landscape. In addition, because many athletes graduate with injuries they have to pay for out-of-pocket, providing at least some coverage post-graduation is a great step forward. Guaranteeing an athlete’s financial aid is also a great provision, although it doesn’t address the underlying problem: the vast majority of athletic scholarships are renewable, meaning that they expire at the end of the academic year and are renewed the following season at the coach’s discretion, and most are also not guaranteed for four years.
So let’s say that an athlete is on a renewable scholarship that expires at the end of the 2025-2026 academic year. If that athlete sustains an injury during this season, the program can still technically choose to not renew the scholarship at the start of the 2026-2027 academic year. This is still a loophole in NCAA policy that the bill does not address, as the bill does not require guaranteed four-year scholarships. In other words, just because athletic aid can be guaranteed for four years and can cover an athletes’ total expenses, that doesn’t mean athletic aid must cover these bases.
And the bill gets dicier after this section. The following section:
Authorizes an interstate collegiate athletic association (which, for all intents and purposes, is the NCAA) to establish rules surrounding:
The requirement of athletes to disclose NIL agreements to their institutions
The implementation of a process to aggregate and share anonymized data regarding athletes’ NIL deals
What constitutes “prohibited compensation”
The establishment of a pool limit that universities can pay athletes for NIL agreements with some guardrails
Transfer, recruitment, eligibility, and membership policies, as well as policies related to sport seasons and rules
Prohibits the establishment of employee status for college athletes
Offers a limited antitrust exemption for the NCAA
Aside from the benefits the bill provides, this section highlights two significant drawbacks: its prohibition on athlete employment, and the establishment of an antitrust exemption for the NCAA. Let’s break those down.
Why does employee status mean for college athletes?
According to the Fordham Law Review, “Employment status represents a distinct legal relationship between people who perform work and the individuals or entities that benefit economically from this work.” Essentially, employee status distinguishes legally recognized workers from, say, volunteers or independent contractors, or, in the case of college athletes, amateurs. Although the college sports industry is already highly commercialized and professionalized, the athletes’ amateur status prevents the athletes themselves from being conceptualized as professionals who are entitled to workplace rights. This definition has been called into question multiple times in the past through evidence including the common law test, which is a set of standards set in place by the IRS that determines whether workers are employees or independent contractors.
The common law test in particular highlights levels of control exerted over employees as key indicators of their employment status. Behavioral and financial control (whether or not a worker’s conduct is controlled by a company, and if business decisions like training and tools used for their job is controlled by the employer) are key pillars of the common law test, as is the type of relationship workers hold with their employees. If a worker is in a continuous relationship with their employer and receives employee-type benefits (like insurance, for example), the worker has a strong case that they are a legal employee. Advocates have argued that because athletes’ conduct is often controlled, at least in part, by their coaches, conferences, and athletic departments as well as the NCAA, and because they receive employee-type benefits in a continuous, contracted relationship with their teams, that they fall under the employee category, although official employee status has yet to be secured.
Should employee status be secured by college athletes in the future, athletes would be able to bargain for workplace rights, which hold multiple benefits to college athletes, including collective bargaining in and of itself. Organizing can lead to tangible benefits like hazard/overtime pay, disability coverage, and maternity provisions, as well as legal protections. In college sports, athletes could also potentially bargain for things like limits on how much they travel, and better academic/athletic balance.
However, by conceptualizing college athletes as employees, employee status also threatens much of the control that is currently held over college athletes. The topic of employee status in college sports is nothing new, and it’s something the NCAA has been fighting since the 1950s. The SCORE Act, if passed, would offer the NCAA a huge advantage in achieving that end.
What is an antitrust exemption?
Antitrust laws essentially exist to promote fair competition and to prevent entities from manipulating fair competition through efforts like monopolizing. The NCAA has been in legal hot water for some time over its alleged violations of antitrust law, including the recent NCAA v Alston case, which determined that the NCAA’s restrictions on educationally-related benefits were in violation of antitrust law.
Antitrust exemptions are special provisions given to unique marketplaces that argue that they need special conditions to operate smoothly. For example, Major League Baseball secured an antitrust exemption in 1922 that allows the league to do business as a functional monopoly, though support for the revocation of that exemption has recently come to light. Other groups, like state licensing boards and unions can also secure antitrust exemptions. Giving the NCAA a limited antitrust exemption as it is written in the SCORE Act would mean that the NCAA would be able to determine rules surrounding NIL data, NIL pool limits, what constitutes prohibited compensation, and, importantly, the bill would legally codify the NCAA’s longstanding notion that college athletes are not employees, which restricts many of their workplace rights.
What are the pros and cons of the SCORE Act?
The bill itself is a bit of a mixed bag. Although some provisions, like mental health services, injury coverage, and scholarship protections are obviously beneficial to athletes, others are not. Also noteworthy is the fact that the beneficial provisions outlined in the bill only impact universities with at least one coach that earns $250,000 or more per year. This means that many universities outside of top athletic institutions (think mid-major schools and HBCUs) will not be held to the same standard of provision. So, if the bill is passed, many athletes will likely be left without these resources.
The bill also states that pay-for-play counts as prohibited compensation, meaning that payments to athletes from institutions can only be NIL deals with clear business purposes. Compensation that exceeds the aforementioned pool limits is also prohibited. But outside of that definition, the SCORE Act hands the NCAA a good measure of control in crafting its own definition of prohibited compensation and authorizes the NCAA to create its own dispute and resolution system if arguments over prohibited compensation arise. The bill also states that institutions can prohibit athletes from entering NIL deals that conflict with their codes of conduct. So an athlete could likely be barred from partnering with a company their university deems controversial or not be allowed to advertise products that clash with their university’s values.
The final SCORE
Because the SCORE Act holds some promise for athletes in terms of provisions but restricts athletes from calling the shots themselves, it leaves much to be desired. If passed, it would walk back decades of progress in athlete activism. The final score is yet to be determined, but as it stands, the SCORE Act leaves much to be desired. Although it is currently unlikely to be passed, keep your eye out for similar legislation with similar pitfalls to be introduced.
