The College Sports Commission’s Faustian Bargain

OPENING STATEMENTS

The College Sports Commission sent its University Participant Agreement to Power Conference institutions this week with a two-week signing deadline. What arrives as an enforcement solution leaves as a legal minefield that protects institutions least and student-athletes not at all.​

The agreement attempts to solve one of college sports' oldest problems: how to enforce rules when individual schools benefit from breaking them. Under the House settlement's new compensation structure, allowing schools to pay athletes up to $20.5 million annually, the CSC needs teeth. Without collective commitment, the worry goes, programs will exploit NIL loopholes and destroy competitive balance.​

The agreement demands total capitulation. Schools must waive their right to challenge CSC rulings in court, submitting instead to binding arbitration. This includes the fact that they cannot "support, advocate for or lobby for" any law inconsistent with their obligations. This can include aiding their respective state attorney general, an entity that universities cannot control. Doing so can result in penalties such as revenue cutoffs, postseason bans, transfer reductions, and more.

While I agree that the current landscape needs rules, regulations, and enforcement that currently don’t exist, this is not it. Institutions, and subsequently student-athletes, may come to regret it if signed.

The agreement's fatal flaw is this: schools become strictly liable for violations by "Representatives, student-athletes, and Associated Entities and Individuals" – a category so broad that it seems to capture boosters, collectives, and third parties beyond any institution's actual authority. Schools must "use best efforts" to secure compliance, but remain responsible regardless of whether those efforts succeed.​

This is a liability trap more so than rules enforcement.

The CSC gains authority to "draw adverse inferences" against schools whose associated entities refuse to cooperate, even when those entities operate independently. A collective rejects a CSC interview request? The school could face penalties for someone else's decision. The agreement acknowledges this absurdity by requiring schools to name the CSC a third-party beneficiary in contracts with collectives, yet many such arrangements predate this requirement and cannot be amended.​

Many key provisions only apply "to the extent not prohibited by Participant's state laws." Several states have laws or court rulings that bar or limit public institutions from arbitration agreements. Others have passed college sports laws contradicting CSC rules. The result? Uneven enforcement creating precisely the geographic competitive advantages the agreement purports to prevent.​

I would envision that this will be challenged by several entities.

State attorneys general represent the most potent threat. They aren't bound by university contracts, and some, like Tennessee and Virginia, have already sued over NCAA NIL restrictions. The agreement's Section 28 attempts to punish schools for state litigation, a provision so constitutionally dubious it may invite rather than deter AG intervention.​

Individual schools facing harsh penalties could challenge the agreement as unconscionable, void as against public policy, or unenforceable under state arbitration prohibitions. The all-or-nothing condition requiring every school to sign creates potential contract law defenses if even one institution refuses or state law blocks participation.​

Student-athletes, conspicuously absent from this agreement's protections, could bring antitrust claims arguing the rules illegally restrain their compensation. They must disclose all NIL contracts for CSC review without clear approval timelines, submit to "fair market value" determinations with limited appeal rights, and face potential eligibility loss for violations they didn't commit.​

Congress has signaled concern about other aspects of CSC. Representative Lori Trahan called the CSC’s NIL approval process "slow, inefficient, and unclear," accusing it of "sowing new chaos in college athletics."​

Those who likely will pay the biggest price if institutions sign? The student athletes they purport to support. Every athlete has a unique situation, eligibility complications across two dozen Division I sports, not just football. The agreement requires annual certifications from each head coach confirming full compliance. That pressure flows downward to athletes, who become compliance risks rather than beneficiaries of the compensation system they were promised.​

Schools are unlikely to grasp these implications before the deadline expires. Student-athletes will bear consequences of an agreement negotiated entirely without their representation.​

This approach reminds me of when I helped shape the implementation of Title IX regulations. Like then, this pendulum has swung from lawless to immutable. What happened next was predictable: institutions were left to figure out compliance themselves, creating an entirely new set of problems.​

The CSC agreement doesn't fix college sports' enforcement problem. It just changes who gets hurt.

EXHIBIT A

I missed it last week, but this story about HBCUs and female athletes is so important. In part, because it’s not really about them. It’s about a system so broken that student-athletes are asking whether their sports will survive, not from market failure, but because the House settlement forces schools to cannibalize their own programs. As someone who helped shape the implementation of Title IX regulations, this was particularly painful to read: “I don’t even see how the spirit of Title IX is kept in place, let alone Title IX at all,” said bobsledder Elana Meyers Taylor, a five-time Olympic medalist and former softball player at George Washington. “You’re talking about maybe top SEC schools that can actually afford this. What are the other schools going to do?”

EXHIBIT B

Jordan Acker’s recent quote regarding the Big Ten’s private equity deal cuts to the heart of college sports’ paradox: “signing the Grant of Rights extension 21 years down the line is a pretty big thing to do when you don’t know what college football will look like four or five years from now.”  The University of Michigan Board of Regents certainly seems to suggest that conference realignment isn’t over, even including exits from the Big Ten. But here’s the twist: continued upheaval might actually be healthy. If football breaks away, Olympic sports and non-revenue athletes could finally escape its gravitational pull, freeing resources and attention for sustainable models that serve the vast majority of collegiate athletes. It’s just not going to be painless getting there.

ON THE DOCKET

All eyes are on Lane Kiffin this week, whether you follow or even care about Ole Miss. His next move is a live test of where college sports is heading. If he stays, it signals that even top coaches see stability in a shifting market. If he bolts, it shows the old incentives still rule. Either way, his choice will ripple through hiring cycles, revenue, athlete decisions, and the broader balance of power across college athletics.

FOOTNOTES

“So because I have a year of eligibility left… does that mean I can go back and play my last season at Weber State before I retire from basketball?” 

- Damian Lillard, Portland Trail Blazers point guard (via X).