The College Sports Commission’s proposed agreement could redefine NIL governance, but legal and political challenges may derail its adoption.
UPDATE: On December 3, House Republican leaders pulled the SCORE Act from the floor just hours before a scheduled final vote. As I had anticipated, the bill, which aimed to grant the NCAA and its newly formed College Sports Commission authority to enforce national NIL and revenue-sharing rules, faced mounting bipartisan opposition. The withdrawal signals significant uncertainty for federal NIL legislation and leaves the future of college athletics reform in flux. Stay informed, subscribe to our blog here for timely updates on NIL and college sports reform.
In a recent blog, I wrote about the settlement in the House v. NCAA case, which provides for schools to play a direct role in compensating student-athletes, fundamentally reshaping the college sports landscape. For the past several years, following the NCAA’s change of its NIL prohibitions in 2021, NIL compensation flowed through individual deals or third-party collectives.
The new revenue-sharing model requires all such outside NIL deals to go through a clearinghouse (“NIL-Go”), which will determine whether payments represent a “valid business purpose” and reflect a fair market value. A new enforcement arm—the CSC—College Sports Commission, will oversee the process.
Since its inception, the CSC has sought to establish and clarify its rules and regulations and establish credibility.
What’s in the Participant Agreement?
On November 19, the CSC circulated a proposed Participant Agreement aimed at granting the agency broader regulatory authority over NIL activities and revenue-sharing compliance. The agreement invites Power Four (P4) conference schools (ACC, SEC, Big 10, and Big 12) to formally join CSC as members, a move that would significantly strengthen CSC’s enforcement powers and institutional reach. The CSC also sent the agreement to the other Division I conferences for distribution to any school that wants to provide a revenue share to student athletes.
CSC requested signed agreements by early December. The proposed agreement would:
- Formalize CSC Oversight: It would allow the CSC to enforce rules, run investigations, and hand out penalties. Member schools would agree to CSC’s jurisdiction over NIL transactions, revenue-sharing audits, and compliance reviews.
- Expand Enforcement Tools: CSC could impose sanctions beyond deal denials, including fines and temporary suspension of NIL privileges.
- Create a Unified Framework: Membership would standardize NIL governance.
Why Is It Controversial?
The status of the CSC agreement is in flux. It is facing significant opposition and uncertainty due to concerns over its enforcement powers, due process, and state law conflicts.
Last week, Texas Tech’s general counsel issued a memo explaining why the school should not and could not — from a legal standpoint—sign the agreement. Following that, Texas attorney general Ken Paxton issued a letter to all of Texas’s Power Four schools, explaining why they should not sign the participant agreement. Like the Texas Tech memo, the AG memo raised numerous issues with the participant agreement including that Texas law prevents the universities from agreeing to many aspects of the agreement.
Legal Implications
The agreement raises several legal questions, leading to a waiver of legal challenges:
- No court challenges to CSC authority.
- Mandatory arbitration for disputes.
- Prohibition on aiding third-party lawsuits.
The agreement further requires schools to “not support, advocate for or lobby for any change in federal, state, or local law that would alter or be inconsistent with the school’s obligations under this Agreement.” In addition, schools must also use “best efforts” to get their coaches and boosters to cooperate with any CSC investigation.
- Antitrust Exposure: If CSC membership becomes a de facto requirement for P4 schools, plaintiffs could argue that the arrangement restrains trade or creates a monopolistic governance structure.
- Contractual Liability: Schools signing the agreement may face breach-of-contract claims from athletes or third-party collectives if CSC enforcement invalidates existing NIL deals.
- Due Process Concerns: CSC’s expanded enforcement powers—such as fines or suspensions—could trigger challenges under state laws governing administrative fairness.
- State Law Conflicts: Several states have NIL statutes granting athletes broad rights. CSC rules that narrow those rights could lead to preemption disputes.
Will It Move Forward?
This remains to be seen, so stay tuned. The House v. NCAA settlement obligates schools to implement compliance mechanisms. CSC membership offers a turnkey solution. The CSC says this agreement is about bringing order to a chaotic NIL landscape. However, the CSC is asking for broad authority with limited clarity about how checks and balances will work.
The agreement appears unlikely to proceed in its current form. In fact, after public pushback coming out of Texas and other schools and AG’s, power conference schools did not sign the participant agreement by the December 3 deadline, and as of today, multiple schools are still having internal discussions with conferences about the document. CSC may need to revise its approach to address concerns raised by Texas officials and others — as such, the current version of the agreement may not end up being final.
Will It Spur Federal Legislation?
The SCORE Act reported in my previous blog, is currently on the House floor calendar. A full House vote scheduled for this week has been postponed indefinitely due to a lack of support. Thus, while the bill has passed through two House committees, it has still not been passed by the full House or introduced in the Senate. Even if the bill passes the House, its prospects in the Senate remain uncertain, as it would need bipartisan support (60 votes) to pass, a significant hurdle.
Alternative Legislation: As I previously reported, the SAFE Act, a competing bill with different priorities, has been introduced in the Senate by Democrats.
In addition, Rep. Lori Trahan, a Democrat from Massachusetts, is introducing the College Athletics Reform Act (CARA) in the House as an alternative to the SCORE Act this week. The bill would establish a federal NIL policy and create a bipartisan commission to review college sports governance. CARA, if passed, would mark the end of the College Sports Commission and the related House settlement structure. It would prohibit the NCAA and CSC from restricting athletes from receiving NIL money, and it would prevent athletes from being required to disclose NIL deals. International athletes would be given the same ability to profit off their name, image and likeness as U.S.-born athletes.
Whether through revised agreements or federal legislation, NIL governance is entering a transformative phase—one that will shape the future of college sports.
