What is the SCORE Act?

Main issues, part 1: No athlete input, NIL restrictions, and athletes as employee status.

If you were watching college football this weekend, you likely saw this commercial, from the SEC, urging you to call your reps and tell them to pass the SCORE Act*. The spot asks if you like college sports (yes!), the athletes, the excitement, the competition (also yes!), before telling you that you must protect it! Protect those athletes. Protect women’s and Olympic sports. Make sure the athletes get the benefits they deserve, and also, preserve and standardize NIL!

On the surface, you might think that of course you would vote to pass this bill. Why wouldn’t you? I’m so glad you asked. Though I could go point-by-point on the bill, in the interest of length, I’ll highlight what I believe are the main issues. There are certainly more than I will discuss here.

H.R. 4312, also known as the SCORE Act, was introduced into Congress this summer. The opening line says “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.”

Other purposes? Hmmm. Nothing could ever go wrong by using such a vague term to establish law.

Introduced by Rep. Gus Bilirakus (R-FL), the broad aims of the bill are to establish one national standard for NIL payments (rather than have it be on a state-by-state basis), set rules forth with respect to revenue sharing, and ensure enhanced athlete benefits. Supporters say it will protect student-athlete’s rights, while ensuring fair competition across all NCAA sports, and maintain opportunities for non-revenue sports.

Will it though? We should all know by now that bills (and really, anything to do with the NCAA) deserves more scrutiny. Here is a helpful summary of the key points.

H.R. 4312 seeks to codify the House v. NCAA settlement into federal law while granting antitrust immunity to governing bodies and conferences in college sports.

Problem number one: There are no athletes that are involved in the creation of this law. No athlete representatives. Athletes have spoken about about the lack of voice they have had, and lack of ability to share their viewpoints. Should the bill pass, athletes are not given voting power or governance. The only people creating, and potentially carrying out this bill are the very people who serve to profit off student-athletes.

Here’s problem number two: House v. Alston. This unanimous 2021 decision by the Supreme Court found the NCAA’s prohibition on compensation for college athletes violated federal antitrust law. Justice Brett Kavanaugh wrote “Nowhere else in America 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. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.”

While the SCORE Act says the NCAA cannot restrict name, image and likeness deals, in Section 2, point 19A, it goes on to say NIL compensation must be provided “at rates and terms commensurate with compensation paid to individuals with name, image, and likeness rights of comparable value who are not student athletes or prospective student athletes with respect to such institution;”

Please, someone give me the list of non-student athletes who currently have NIL deals, and how much those deals are worth.

Further, it would monitor and restrict NIL payments, limiting the ability for athletes to freely control their NIL deals…but any non-student athlete with an NIL deal would have free rein to control theirs. The bill also explicitly states that NIL deals can be denied if they come from a collective or exceed a certain pool limit (Section 2, 19B).

What is that pool limit? Section 6, point 5 defines it as “at least 22 percent of the average annual college sports revenue of the 70 highest earning (with respect to such revenue) member institutions of such interstate intercollegiate athletic association (or, if such interstate intercollegiate athletic association has fewer than 70 members, the average annual college sports revenue of all members).”

In 2024, the 70 top revenue earners ranged from top earner Ohio State at $251,733,418 to #70 University of Hawaii, with $49,422,827. All of my degrees are in communication, not math**, so my handy Excel sheet and formula tells me the average revenue for the top 70 schools comes in at $123,617,420. 22% of that is….$27,195,832.40. There’s your pool limit - $27.19 million. (I went with 22% because what school is going to willingly give more than 22% of their revenue?)

So while the act doesn’t restrict compensation…it actually limits compensation. Got it.

Taking that one step further, while the Ohio States, Texases, Alabamas, Michigans, etc. are bringing in over $200 million per year in revenue, a $27.19 million revenue pool to be distributed to athletes would decimate smaller schools. Even for Hawaii, at #70, that would be half of their revenue. The list I linked above shows 232 schools. Beginning with position 127, this is where we see the line where colleges and universities would owe more to their athletes based on that formula than the revenue they bring in.

Problem two: employee standing. The Score Act, in section 9, states “no individual may be considered an employee of an institution, a conference, or an interstate intercollegiate athletic association based on the participation of such individual on a varsity sports team or in an intercollegiate athletic competition as a student athlete.” Should this bill pass, it would nullify a recent decision from the U.S. Court of Appeals for the Third District that said athletes should NOT be precluded from ever filing a Fair Labor Standards Act (FLSA) claim. Within the decision, the Court wrote “We disagree with our sister circuit court’s comparison of college athletes to prisoners and refuse to equate a prisoner’s involuntary servitude, as authorized by the Thirteenth Amendment, to “the long-standing tradition” of amateurism in college athletics.”

That’s right. In a previous legal argument, the NCAA compared college athletes to prisoners. Not in a ‘oh this is bad’ sense, but in a ‘look, this is good’ sense.

Whether you agree that athletes should be considered employees or not, the SCORE Act would allow institutions to control athletes as employees, all while treating them as non-employees (including the ability to terminate their compensation and eligibility at will), and denying them the ability to ever seek any type of employee benefits. It would erase the previous legal victories athletes have had that would allow them to be classified as employees.

Between those three points so far, I’m failing to see how athletes are actually being protected here.

Problem four, focuses on women’s sports, Olympic sports, and the pesky little federal law called Title IX and how that would be impacted. There’s so much there that it deserves its own post. Thus, stay tuned for Part 2.

*The vote for the SCORE Act has been pushed, with no new date listed. If you care about college athletes, pay attention to that and tell your reps to vote no.

**Please feel free to check my math. Tell me if I’m wrong. I will not be offended.