OPENING STATEMENT
An email landed in my inbox late Wednesday night with the subject line: DARE WE HOPE THIS IS TRUE. It was connected to a story suggesting that the Protect College Sports was in danger of failing due to the outcome of the midterms.
The election’s consequences for college athletics extend well beyond that bill. I’m watching three issues in particular: 1) what survives of the PCSA , 2) whether schools’ compensation systems withstand Title IX scrutiny, and 3) how far athletes can advance their employment and bargaining rights without waiting for Congress. While their legal paths and timelines differ, the results change the political leverage around each. Institutions now face decisions they can no longer postpone on the assumption that Congress will deliver the protections they want.
1. PCSA: The Deal Institutions Wanted is Almost Gone
The Senate’s passage gave the PCSA substantial momentum, but the House never delivered its vote before the election. The remaining lame-duck window offers little reason to expect a turnaround. If it fails to become law before the new Congress begins on January 3, its Senate passage does not carry forward. The legislation must start again, under Democratic congressional leadership with different priorities and greater reason to demand concessions.
I see two likely paths from here. One is another attempt at federal legislation, building on the PCSA’s worthwhile medical, academic, and NIL protections while giving athletes a legitimate role in shaping the bargain. This path requires more than inviting players to endorse a proposal already negotiated by schools and conferences. Athletes need independent representation, usable remedies, and real influence over the compensation restrictions lawmakers are being asked to protect.
The second is a significant shift toward conference-level governance, with leagues assuming more authority over compensation, eligibility, and transfers as confidence in a national solution erodes. This may produce rules better suited to conferences’ different resources and priorities. It could also concentrate power in the leagues without giving athletes any greater say.
Neither path guarantees an athlete-friendly outcome. The question is whether institutions use this setback to negotiate with athletes or move the same decision-making into a smaller room. Wherever the rules are written next, athletes need authority to help shape them.
2. Title IX: The Compensation Decisions Still have to Survive in Court
The PCSA’s likely collapse does not resolve whether schools’ compensation systems comply with Title IX. Neither did the Trump administration’s withdrawal of proportional-payment guidance. Universities are making allocations whose legality remains unsettled.
The CSC’s recently released basketball figures show the scale of the disparity. Median men’s revenue-sharing compensation was six times women’s in the ACC and 7.2 times in the Big 12. The gaps ranged from 3.8 to 4.1 times across the Big Ten, SEC and non-Power Four programs.
Those differences do not, by themselves, establish a Title IX violation. They do demand scrutiny. Courts could examine direct payments as athletic financial assistance or assess compensation opportunities under Title IX’s requirement for equivalent benefits and treatment.
I would be especially skeptical of treating market value as an answer that needs no explanation. In the amicus brief I filed with Professor Michael LeRoy and Pamela Seidenman, we argued that the House settlement’s allocation rests on revenue disparities shaped by decades of undervaluing women’s sports. That challenge concerns the settlement; the underlying question also matters now: how much of women’s supposed market value reflects the opportunities institutions denied them?
Institution-level disclosures will be worth watching closely. Conference medians identify a pattern; school-by-school figures can reveal who received the money and what those institutions must explain.
Even the PCSA would have preserved Title IX’s applicability without resolving these questions. Schools hoping Congress would make their allocations legally secure were waiting for protection the bill never promised.
3. Labor: Athletes Have Routes that do not Run Through Congress
Democrats have shown greater openness to athlete unionization. Senator Chris Murphy outwardly spoke to replace the PCSA’s neutrality on employment status with an affirmative right to organize. His proposal would allow college athletes to bargain collectively, a position that could carry greater weight in the next congressional negotiation.
Athletes are already pursuing that authority elsewhere. Oregon State’s women’s basketball players are seeking recognition under Oregon’s public-sector labor system, raising demands for compensation, continuing healthcare and a meaningful voice in their treatment. Their status turns on state law, not federal labor-board policy.
Institutions should also take bargaining seriously as a route to the predictability they want. Federal labor law can protect certain restraints arising from collective bargaining against antitrust challenges, subject to important limits. That protection comes through negotiating with athletes rather than imposing terms on them.
Another consequential question reaches the Supreme Court November 30. Crowther asks whether educational employees can bring private Title IX suits for employment discrimination. Its outcome could affect remedies available to future athlete-employees, depending on their claims.
Compensation, equity and employment are converging. Schools can keep fighting athletes’ authority to negotiate, but they should stop assuming Congress will make that fight unnecessary.
The midterms have sharply reduced the chances that institutions get their preferred protections first and leave athletes to establish their rights afterward.
The NCAA and institutions have a choice about how to respond. They can spend another congressional session trying to preserve unilateral control, or begin building arrangements athletes have reason to accept: defensible compensation practices, enforceable protections and genuine negotiating authority.
EXHIBIT A
Speaking of labor, we looked more deeply into the CSC’s recent compensation release. We plan to share more in the coming weeks, but there are a few particularly revealing data points. Power Four quarterbacks had median school revenue-sharing compensation of $230,000, compared with $65,550 in contracted third-party NIL. Additionally, defensive linemen, offensive linemen and defensive backs ranked above receivers and running backs in median school compensation, but below them in third-party NIL. Both of these look remarkably like schools pricing labor, rather than compensation for licensing. Outside sponsors pay for an athlete’s public profile and promotional appeal. Schools’ payments appear to track what they need to win on the field. Seems that schools should explain why payments described as licensing compensation align so closely with roster value.
EXHIBIT B
Fiona McAleer’s Cornell Daily Sun column deserves your attention. She describes reporting sexual assault, experiencing institutional betrayal and struggling to attract media interest until another case put Title IX in the headlines. Her account raises questions every institution and athletic department should confront: What happens after someone reports? Does the institution protect their education and safety? Who answers when its response compounds the harm? Public scrutiny cannot depend on a prominent case or a convenient news cycle. We need to examine how schools handle reports, follow the outcomes and keep asking questions after attention moves elsewhere. Students should not have to make their suffering newsworthy to make institutional accountability matter.
ON THE DOCKET
Speaking of midterm consequences, curious to see how Cody Campbell’s voice and authority evolve. His financial influence at Texas Tech seems unlikely to diminish, but his institutional position is another matter. Democrat Gina Hinojosa’s defeat of Greg Abbott gives her the governor’s appointment power over university regents, subject to Senate confirmation. Campbell’s term as a Texas Tech regent expires January 31, 2027. As Campbell becomes increasingly vocal about football operations, will he continue speaking as board chairman, a major donor or both? His money will command attention regardless. What interests me is whether university leadership responds differently if his influence no longer comes with governing authority.
FOOTNOTES
“I think the days of self-sustaining athletic departments are in the rearview mirror. … I think the bigger and broader question that every university administration board has to answer is what’s the value of an athletic brand to that institution. And if you can determine that, then I think you can figure out what’s the level of investment that we, when I say we, any university is willing to make.”
