\n\tThe Student Athlete Fairness and Enforcement (SAFE) Act, a newly introduced college sports reform bill sponsored by Democratic Sens. Maria Cantwell (Wash.), Cory Booker (N.J.) and Richard Blumenthal (Conn.) is as notable for what it omits as for what it includes.<\/p>\n
\n\tUnveiled a day before the federal government entered a shutdown, the SAFE Act, which doesn\u2019t yet have an assigned bill number, marks the first serious Congressional attempt of the NIL<\/a> era to allow universities and athletic conferences to collectively pool their media rights\u2014and, therein, generate more revenue\u2014without running afoul of the Sherman Antitrust Act.<\/p>\n \n\tCompared to the explicitly NCAA-friendly approach of Republican-led H.R. 4312<\/a>, also known as the SCORE Act, the SAFE Act<\/a> has gotten off to a surprisingly upbeat start. Most notably, it drew immediate praise from Cody Campbell, the billionaire Republican donor and Donald Trump acolyte who has made \u201csaving<\/a>\u201d college sports his cause c\u00e9l\u00e8bre.\u00a0<\/p>\n \n\tWhile acknowledging his politics fall on the other side of the aisle, Campbell took to X to applaud<\/a> the Democrats\u2019 bill for \u201cstanding up for\u201d women\u2019s sports, Olympic sports and smaller schools. Campbell has accused the SCORE Act of disadvantaging these groups while coddling the NCAA.<\/p>\n \n\tBut what the SAFE Act doesn\u2019t do is just as important.<\/p>\n \n\tIt steers clear of the two most pressing and controversial issues in the college sports reform debate: whether the NCAA and other college sports governing bodies should be inoculated from future antitrust litigation; and whether college athletes should be entitled to collectively bargain. Indeed, the bill\u2019s title employs terminology\u2014\u201cStudent Athlete Fairness\u201d\u2014borrowed directly from NCAA parlance, which many player advocates have criticized as implicitly buying into the idea that college athletes are different labor creatures than other American workers.<\/p>\n \n\t\u201cCollective bargaining certainly would be one way to manage the system, but this is where we are today,\u201d Cantwell told Sportico in a statement.<\/p>\n \n\tThis circumspection contrasts sharply, both in rhetoric and substance, to H.R. 4396<\/a>, the College Athlete Right to Organize Act, reintroduced in July by Sen. Chris Murphy (D-Conn.) and Rep. Summer L. Lee (D.-Pa.). Their bill would explicitly designate college athletes as employees of their universities by amending definitions in the National Labor Relations Act and expanding the National Labor Relations Board\u2019s (NLRB) jurisdiction to include both public and private universities.<\/p>\n \n\tMurphy, notably, is not among the SAFE Act\u2019s co-sponsors. The senator did not respond to a request for comment about the competing legislation put forth by his fellow Democrats.<\/p>\n \n\tHowever, former NLRB general counsel Jennifer Abruzzo\u2014who, during her tenure, forcefully advocated<\/a> for recognizing college athletes as employees\u2014argues that taking a passive approach to collective bargaining is misguided.<\/p>\n \n\t\u201cLeaving it to the play of economic forces will create chaos, in my opinion,\u201d Abruzzo said in a text message. \u201cIt\u2019s got to be full robust collective bargaining rights, not whatever may be cherry-picked by schools (as in) their players\u2019 best interests.\u201d<\/p>\n \n\tOnly Congress<\/a> can ensure that, Abruzzo added.<\/p>\n \n\tThe SAFE Act sponsors\u2019 discretion on the issue comes at a time when Senate Democrats, more broadly, have shown a growing appetite\u2014or, perhaps, have felt a growing pressure from their base\u2014for more direct legislative confrontations with Republicans, a posture that led to the government shutdown. \u00a0 \u00a0<\/p>\n \n\tDemocratic sources say that the three senators\u2019 decision not to codify collective bargaining rights in writing largely recognized the reality that the college sports market has increasingly come to embrace the concept\u2014if not, the coinage\u2014on its own.<\/p>\n \n\tIndeed, over the past two years, a growing number of athletic administrators and coaches openly considered whether collective bargaining\u2014long considered the gravest anathema to the so-called \u201ccollegiate model\u201d\u2014may now be its only path to survival.<\/p>\n \n\tIn July, Yahoo Sports reported<\/a> on a collective bargaining model that had been \u201cquietly socialized\u201d for months by Tennessee AD Danny White.<\/p>\n \n\tThe article featured public comments by several other athletic directors, including SMU\u2019s Damon Evans, Baylor\u2019s Mack Rhoades, North Carolina\u2019s Bubba Cunningham and Florida State\u2019s Michael Alford, who expressed either support for or openness to the idea that the turmoil in college sports would only be resolved through some sort of labor-management negotiations between schools and athletes.\u00a0<\/p>\n \n\tIn August, Athletes.org, the aspiring college players union, convened a meeting with 24 athletic department general managers. In pre- and post-meeting surveys, those GMs \u201cwholeheartedly agreed that collective bargaining is the solution,\u201d Athletes.org later announced<\/a>.<\/p>\n \n\tFrom a legal standpoint, one advantage the SAFE Act holds over the SCORE Act is that the latter is more vulnerable to being challenged in court if it ever becomes law.\u00a0<\/p>\n \n\tAs Sportico has explained<\/a>, the SCORE Act could be challenged on several grounds, including that it arguably interferes with states\u2019 rights. Through their labor and employment laws, states have long determined how to classify employment of workers at public universities, including whether and which public university employees can form unions.\u00a0<\/p>\n \n\tThat phenomenon has been notably apparent with student employment at public universities. States have reached conflicting determinations about whether and when those students ought to be recognized as employees and, if so, have the opportunity to unionize. This isn\u2019t necessarily surprising. States have different politics and ideologies on the workplace and how public universities should operate, so it stands to reason they would expect some suasion over employment practices.\u00a0<\/p>\n \n\tThe SCORE Act would take away states\u2019 discretion by dictating that college athletes may not be\u00a0considered employees of their school, conference or the NCAA based on participating in a sport. A state attorney general or college athlete denied employment could challenge the SCORE Act, arguing that the 10th Amendment reserves powers to states and that the U.S. Supreme Court has held<\/a> that public education falls within state control.<\/p>\n \n\tThere are other potential challenges to the SCORE Act, including that, by treating college athletes differently from other students, it violates constitutional safeguards for equal protection. Litigation based on the First Amendment and states\u2019 right of publicity could also be used since restricting NIL and agents could be perceived as limiting speech and expression.\u00a0<\/p>\n \n\tWhether any of those challenges succeed would need to be determined by courts. But the relevant point is that the SCORE Act could be mired in litigation for a long time, during which its implementation would at a minimum be postponed.<\/p>\n \n\tThat\u2019s not to say the SAFE Act is immune from scrutiny.\u00a0<\/p>\n \n\tNotably, the SAFE Act relies on an expansive interpretation<\/a> of the Sports Broadcasting Act of 1961 that federal judges have rejected. As Sportico recently detailed, the SBA only provides antitrust immunity<\/a> for sponsored telecasting\u2014a term of art multiple courts have interpreted to mean free and over-the-air broadcasting and other kinds of broadcasting.\u00a0<\/p>\n \n\tSponsored telecasting was how people watched TV in the early 1960s, via antennas that picked up signals for free broadcasts. That\u2019s not how people generally watch sports anymore, with cable, paid satellite, pay-for-per view and streaming far more common. The SAFE Act would extend to college sports the protections it accords to professional football, baseball, basketball and hockey, but the value of that limited protection is questionable. If the SAFE Act stated that the protections would include modern types of broadcasting, it would likely have more of an impact.<\/p>\n \n\tNotwithstanding Cody Campbell\u2019s kind words, the chances of the SAFE Act actually passing this GOP-dominated Congress are next to nil, a point Senate Commerce Committee chairman Ted Cruz (R-Texas) hastened to make after Cantwell\u2019s legislation was introduced.<\/p>\n \n\tIn an interview with Semafor, Cruz dismissed the bill as a poison pill meant \u201cto scuttle real bipartisan legislation to fix the crisis in college sports.\u201d Cruz, who has previously proposed NIL reform legislation<\/a> that included antitrust exemptions for the NCAA and conferences, is now reportedly working on a new bipartisan measure that is expected to feature some form of liability protection. Cruz specifically attacked the SAFE Act for not addressing college athlete employee status, signaling that he will attempt to do so, in the negative, whenever he introduces his own proposal.<\/p>\n