The Senate’s Protect College Sports Act is one of the rarest of all anomalies in Washington: a bipartisan bill on one of America’s most unifying traditions, college sports. Still, some in my profession — sports agents and attorneys — oppose it.
For the past 40 years, I have fought to protect and assert the rights of amateur, professional, and Major League Baseball players as an attorney and certified agent for the Major League Baseball Players Association (MLBPA). So I see the world only through the lens of the player who, in this matter, is a youthful student-athlete likely to have little or no past business experience. Therefore, it stands to reason that the student-athlete will be heavily dependent on his agent/adviser, who will influence every decision. Consequently, the quality of the agent/adviser will profoundly affect whether the student-athlete’s best interests are served, which is not just paramount, but the sole barometer of whether any undertaking is successful.
And there’s the rub. Currently, no governing body regulates the conduct of agents/advisers who deal with student-athletes. Agents certified by the player associations of major sports such as baseball, football, basketball, hockey, etc., must strictly comply with regulations or be subject to discipline. Attorneys’ conduct in this arena must meet the ethical standards set by their state’s bar association. However, if the agent/adviser is not certified or an attorney, otherwise known as a “street agent,” there are few, if any, restrictions on his conduct. While all states attempt to regulate conduct to varying degrees, most do not enforce it frequently enough to discourage behavior. We all know that when laws aren’t regularly enforced, anarchy ensues, and that’s exactly where we are in this industry.
I was the lone advocate for student-athletes on the president’s Committee to Save College Sports. My subcommittee heard from several bright, articulate, intuitive, and impressive student-athletes who shared deeply disturbing experiences that demand regulation of agents/advisers. The student-athletes made clear that the list of abuses by agents/advisers was interminable. For instance, fees can range from 5 percent to as high as 50 percent. Many decisions serve the advisers’ interests rather than the student-athletes’, such as pushing student-athletes into the transfer portal. Representation contracts contain oppressive provisions, and there are few or no restraints on the authority granted to the agent/adviser.
From the trenches, I have witnessed and experienced the chaos. I have seen the “street agents” swoop in on teenagers, sometimes without a parent present and likely without parental consent. And I have heard of countless bold promises of enormous riches that have no basis in reality.
Good agents/advisers provide enormous value by, among other things, helping student-athletes make informed, intelligent decisions that allow them to choose their own path. Legitimate player representation depends on qualifications, experience, and rules that demand transparency and accountability. The Major League Baseball Players Association has long regulated agent conduct and required applicants to undergo background investigations, meet educational and experience requirements, pass an examination, and fully and strictly comply with regulations that provide players meaningful protections. Any protestations against establishing standards for agents/advisers who are entrusted with the student-athlete’s life and career are hollow, misguided, or disingenuous and designed to further some other agenda.
By instituting rules, the Protect College Sports Act threatens a lucrative and largely unregulated group of “street agents.” The legislation would establish many of the same standards for student-athlete agents that already exist in professional sports. It would limit agent/adviser fees on student-athlete endorsement agreements, require agents/advisers to meet certification standards, and expressly prohibit false or deceptive promises about NIL opportunities.
These provisions are not theoretical. The Congressional Budget Office estimated that the PCSA’s agent/adviser fee limit will put an extra $35 million in student-athletes’ pockets every year. Importantly, agents/advisers who violate the rules can be fined or decertified, and student-athletes can take legal action against them. Thirty-five million dollars is a strong incentive to oppose any rule, regulation, or law, and it’s a reason why many see the student-athlete as nothing more than a revenue stream.
Those who announce that keeping the current system — with its potential for abuses to student-athletes, roster chaos, diminished graduation rates, and endless lawsuits — protects “player rights” should be asked whose interests that argument actually serves. The bipartisan Protect College Sports Act gives student-athletes the very protections against predatory agents they might otherwise have to negotiate collectively. Many critics of the bill would sacrifice these benefits for all student-athletes simply because the solution doesn’t conform to their ideology.
Some of the bill’s critics seem to have a different goal in mind: turning college athletics into professional leagues whose players are employees. Employee status would allow student-athletes to unionize, collectively bargain over revenue-sharing, and pay union dues. Whether student-athletes are employees is a difficult legal question; the Protect College Sports Act does not attempt to answer it. But even if the answer were yes, the road to a union would be long and uncertain.
Most FBS schools are public universities, which fall outside the National Labor Relations Act, so any organizing effort would depend on a patchwork of state laws. If Congress won’t decide whether these athletes are employees, I see no realistic chance it will amend federal labor law to open the door to unionization in college sports. Meanwhile, student-athletes facing predatory agents/advisers today cannot afford to wait for protections that may never come from a bargaining table.
Risk is inherent in progress. Practically speaking, no system will be perfect, but the status quo is unacceptable and shirks our responsibility to protect student-athletes.
For more than a century, student-athletes have been akin to indentured servants until the 2021 unanimous Supreme Court ruling in NCAA v. Alston and subsequent NCAA policy, which justly granted student-athletes the right to control and profit from their name, image, and likeness (NIL). Student-athletes are not about to, nor should they, give back the rights they fought so hard and long to attain.
So the practical question is how to protect student-athletes while preserving the opportunities that make college sports different from professional leagues. The solution lies in creating an independent governing board that, at the very least, provides fair representation for student-athletes, amplifies their voices, and has the strength to protect and assert their rights. Ideally, that governing board would be chaired by a former student-athlete who has walked in the shoes of the students we seek to protect.
Let’s not lose sight of the fact that the overwhelming majority of college athletes are not future professional players. Many, in fact, are gymnasts, swimmers, wrestlers, volleyball players, lacrosse players, golfers, track athletes, etc., whose programs do not produce sufficient revenue for the college, so their existence depends on a broader athletic department model.
Before Congress takes advice from the agents attacking the Protect College Sports Act, senators should ask a simple question: Who makes money if the bill fails? The answer may very well explain the primary reasons for opposition to the bill.
The relationship between student-athletes and their agents/advisers is foundational to their college experience, and all issues flow through it. Congress must protect student-athletes from predatory agents, preserve scholarships and medical benefits, and create enforceable rules against tampering, bogus recruiting inducements, and NIL abuses. In the process, it should also sustain those college sports that do not produce sufficient income and will never produce multimillion-dollar television contracts.
Congress has a responsibility to protect the student-athlete if it ever hopes to protect college sports.
