Official Congressional Record
Madam President, the Senate will soon pass landmark legislation to protect college sports. When any legislation, particularly landmark legislation, is enacted into law, there can be debate over that law’s implementation. This isn’t surprising. As the Senate prepares to potentially send the PCSA to the House of Representatives, I want to take a few moments to briefly explain the reasoning and intent behind some select, key provisions of the PCSA. I believe this will be useful not only for my colleagues here today, but for the PCSA’s implementation. Section 118 of the PCSA provides specific, targeted, and narrow antitrust protection for intercollegiate athletic associations, such as the NCAA, conferences, institutions, and the designated enforcement entity within the House settlement--the College Sports Commission. Although these entities are composed of schools--or conferences--who have chosen voluntarily to adhere to certain rules as a condition of membership, these rules cannot be enforced due to constant litigation and rules set by ``court order.’’ Section 118 intends to end this by providing antitrust liability when entities act, including through use of their own rules or bylaws, to enforce or comply with specified sections of the PCSA. The intended antitrust protection is comprehensive for all antitrust suits, including State statutory or common laws governing antitrust, trade regulation, trade restraints, and unfair methods of competition. The PCSA intends to stop the current instability and close any further avenues for litigants to use antitrust claims to undermine the requirements and standards specified in the PCSA. The PCSA intends the revenue share cap adopted in the House settlement to be a ``hard cap’’ without any ``loopholes.’’ It is no secret that institutions currently take advantage of a gray area in the settlement that allows them to directly use, contract with, or maintain any a relationship, even an indirect one, with an ``associated entity.’’ Today, an associated entity, which is oftentimes a collective, booster, a multimedia rights company--MMR--redirects compensation to student athletes that would have otherwise gone to the athletic department. By funneling these arrangements through an ``associated entity,’’ an institution can spend money or recruit in a way that would otherwise exceed or circumvent the House settlement’s revenue share limits. The PCSA intends to clarify this ambiguity and ensure an even playing field. We further considered the ongoing debate in the courts around whether MMRs or collectives should constitute associated entities. There has yet to be case, and likely never will be one, when an MMR is anything but an ``associated entity.’’ The PCSA adopts the settlement’s definition of ``associated entity’’ and also expressly states that collectives are ``associated entities.’’ As introduced, the PCSA included text to clarify that an entity was ``associated’’ if they ``acted for the benefit of, in coordination with, or at the direction of the institution.’’ This was discussed within the College Sports Commission’s guidance and practice, but we ended up removing that phrase from the definition to ensure consistent definitions for ease of compliance. That decision should not be construed as affirming that an entity that acts in this manner should not be considered ``associated.’’ We instead decided that this CSC guidance and practice was upheld by the Special Master and subsequently by a Federal court. We understood the existing CSC guidance and practice to inform the application of the term ``associated entity’’ and that deals involving MMRs, corporate sponsors, or any third party will be scrutinized to ensure there is no effort to elude being considered an associated entity. In fact, we have added legally-enforceable certification requirements by schools, vendors, and MMRs, when applicable, to uphold the cap and prevent circumvention. The PCSA recognizes, protects, and codifies portions of the House settlement, particularly with respect to the revenue share cap. But there are several provisions--specifically in section 114--where we have chosen a different Federal requirement than in the settlement. For example, in section 114, the PCSA: We do not want the PCSA to terminate the House settlement. We fully expect that the settlement will remain in effect. We instead chose to enact Federal requirements to govern when the PCSA establishes a different requirement than what is in the settlement. Thus, the PCSA assumes the continuation of the settlement--even providing antitrust protections for its ongoing implementation--while providing Federal requirements that governs when there are conflicting provisions within the settlement. To stop an institution’s ``redirection’’ of funds to a student athlete, the PCSA imposes additional requirements on all NIL agreements involving an institution’s multimedia rights holder or certain entities with which the institution has a commercial relationship. In such deals, the institution and third-party entity must each sign a certification attesting that the institution was not involved in sourcing, negotiating, or paying for the NIL agreement. Any applicable deal subject to this section that fails to comply with these certification requirements violates Federal law. These certification requirements are supplemental to all other provisions of the PCSA. In other words, even if the certifications are provided, there still must be an independent determination--likely by the College Sports Commission--if the deal involves an associated entity and an evaluation of the proposed deal. Such certification may be relevant to the College Sports Commission’s determination of whether the entity is associated, but is not dispositive of the question. The certification is intended to supplement and aid the College Sports Commission’s review process, as well as ensure compliance with the PCSA. Section 118(d) of the PCSA allows an intercollegiate athletic association or conference to designate an entity under its control within the House settlement, for which it won’t be unlawful under the antitrust laws, to enforce or comply with section 114. The College Sports Commission has been designated as the enforcement entity under the settlement and any rulemaking, guidance, investigative or enforcement action, or penalty issued by the College Sports Commission for purposes of section 114 is intended to be protected from liability under the antitrust laws. Section 119(e) is intended to preserve the arbitration framework created by the settlement. Any dispute a student athlete, institution, or associated entity or individual may have regarding any CSC determination must be arbitrated consistent with the terms of the settlement. Section 121(a) preempts any law, regulation, rule, requirement, or standard that conflicts with the PCSA, including the established arbitration framework. With some exceptions, section 123 prohibits the PCSA from applying to an action or proceeding commenced prior to the enactment of the PCSA. The purpose of this section is to preserve most ``pending’’ active legal cases that were commenced prior to enactment of the PCSA. There are three notable statutory exceptions: First, section 123(a) says the PCSA shall apply to pending cases dealing with sports gambling or wagering matters. Second, section 123(b)(2) specifies a ``pending case’’ cannot allow a student athlete eligibility to compete or participate on a D1 or D2 sports team for more than 5 total years. We do not want the PCSA’s eligibility provisions to be undermined by court orders that directly conflict with the implementation of the PCSA’s eligibility provisions. Third, section 123(b)(2) does not permit a ``pending case’’ to undermine the revenue share cap. The PCSA’s modifications to the House settlement, as well as the implementation of the broader settlement framework contemplated in this bill, are critical to its success at stabilizing college sports and ending the legal chaos. We do not want to provide any avenue for judicial decisions to prohibit enforcement of the revenue share cap or prohibit modifications to the settlement when the PCSA governs a specific requirement. This exception intends to prevent that type of conclusion to be drawn by a court because it would defeat a critical purpose for why Congress passed the PCSA. I would like to briefly discuss how the PCSA’s eligibility standards relate to the PCSA’s preemption in section 121. Section 113 specifies eligibility standards for individuals to participate in NCAA D1 or D2 college athletics. Per section 118, if the NCAA, conferences, or institutions enforce or comply with these provisions, they will receive antitrust immunity. Section 113 species five eligibility standards: The NCAA, conferences, and institutions are free to place additional eligibility restrictions not specified in the PCSA, but those restrictions will not receive Federal antitrust protections unless otherwise permitted. Establishing such additional eligibility restrictions is also not a violation of section 113. Similarly, States may impose additional eligibility requirements not expressly prohibited by section 121. The PCSA has two types of preemption: Those specified eligibility categories are: No. 1, you have to be a student athlete; No. 2, you can’t be a professional athlete; No. 3, you have to meet academic standards; and No. 4, you have to abide by the age restrictions and maximum number of years to play. We made a deliberate drafting choice to only have ``field preemption’’ for subsections (a)(1)-(3) or (b) to ensure that States can legislate on eligibility matters not covered in the PCSA, provided that those laws also don’t ``conflict’’ with the PCSA. We intend that State laws that prohibit men from competing in women’s sports are clearly not preempted by section 121 because they neither conflict with the PCSA nor do they relate to those matters specified in subsection (a)(1)-(3) or (b) of section 113. The PCSA does not contain any express waiver of any sovereign immunity rights of a public institution, nor is it intended to contain any express or implied waiver of the sovereign immunity rights of a public institution. Title II amends the Sports Broadcasting Act to allow for a ``covered’’ entity to pool media rights and not be subject to antitrust liability. In order to receive this protection, the entity must meet the membership requirements specified in the bill and other requirements expressly outlined in the text. A conference or institution’s decisions to join or participate in this pooled media entity is completely voluntary and optional. We have made clear that they cannot be held liable for a decision not to join the entity nor can they be forced to join or participate in the entity. Moreover, this title makes clear that it does impact any existing contracts. Madam President, today, the Senate has the opportunity to protect more than half a million college student-athletes and the millions more who will follow in their footsteps. The era of NIL is here, and it is not going away. Yet the system we have today is unsustainable, plain and simple. Students are transferring three and four times. Pros are trying to play ball against college kids. Conflicting court decisions have created a fragmented system--one that no one intended. Young men and women are losing opportunities to compete and receive an education. The question before this body is whether we will act or stand by while the institution that Americans have known and loved for generations--college sports--is fundamentally changed. Will we protect the future of women’s sports, of Olympic sports, of nonrevenue sports, or allow college athletics to be consumed by uncontrollable bidding wars that force schools to cut programs simply because they don’t generate headlines or massive television contracts? The answer to this question should be simple: We must act, and we must act now. We must pass the bipartisan Protect College Sports Act. This bill puts an end to the chaos plaguing college athletics. It protects NIL opportunities because student-athletes deserve the opportunity to benefit from their talent without being taken advantage of by unscrupulous agents and backdoor deals. It creates clear, enforceable rules for eligibility and transfers. It protects our traditions and rivalries. It prevents the most powerful and wealthy conferences from breaking away to form a superleague. But most importantly, it protects our student-athletes. It ensures that the men’s volleyball player has a team to come back to next year. It ensures that a first-generation student who excels in track and field has the opportunity to receive an education. It ensures that when American athletes compete on the Olympic stage, it is the United States and not China and not Russia bringing home the gold. It preserves the traditions passed down from one generation to the next--the second graders learning to cheer for the Aggies, just as their parents and grandparents did before them, with the hope that when they get to college, the program they grew up loving will still be there. This bill is about protecting what makes college sports uniquely American. The Protect College Sports Act has an amazing coalition of support. It has the support of 32 conferences--every single major conference--as well as more than 380 schools and also historically Black colleges across all 50 States and Washington, DC. It has the support of the NFL, the NBA, Major League Baseball, the National Hockey League, the U.S. Olympic and Paralympic Committee, and more than 500,000 student-athletes across the country. Don’t take my word for it; take their word for it. They are the ones on the frontlines directly impacted by the chaos unfolding. This bill isn’t perfect. No bill ever is. What this bill reflects is a compromise--tough conversations and Republicans and Democrats sitting across the table from one another, working through disagreements, and producing legislation that can actually get across the finish line. I want to take a moment to express my sincere gratitude to my staff and to the staff of Ranking Member Cantwell who have devoted thousands of hours to working on this bill. From Ranking Member Cantwell’s committee and personal office staff, I would like to thank Lila Helms, Melissa Porter, Nicole Frazer, Phil Murphy, Ramesh Nagarajan, Erik Eykel, Kate Sprague, Ciara O’Donoghue, Josie Lang, Tricia Enright, Rob Blumenthal, Seth Kolloen, Elizabeth Cuttner, Amit Ronen, Ansley Lacitis, Lauren Bazel, and Shannon Smith. I would also like to thank from my team Brad Grantz, Joel Wellum, Blair Taylor, Robert Smith, Mike Spierto, Ryan Cannon, Bethany Holden, Rachel Cusnir, Christina Herrera, Dan Huguenin, and Nicole Christus from the Commerce Committee and John Etue, Preston Howey, Omri Ceren, Macarena Martinez, and Chavonne Ludick from my personal office. This team is extraordinary, and I cannot thank them all enough for their incredibly hard work day in and day out. I would also like to extend my deepest thanks to my staff director on the committee, Brad Grantz, and to my policy director for consumer protection, Joel Wellum. Brad and Joel both joined the committee when I became ranking member and began working on this issue right away. They have been dedicated for the past 3 years to resolving the chaos that is college sports. I also want to thank their wives Katie and Stephanie for enduring the many hours away from the family so they can pass this landmark legislation. In the course of this bill, I have used more than a few football analogies, so I am going to switch it up tonight. Picture March Madness. A Cinderella team that few thought would make it past the opening round is facing the No. 1 seed. The clock is winding down. The underdog is down by 2 points with 1 second left. The ball goes up. A 3-pointer. The buzzer sounds. The crowd erupts. That Cinderella story is what the Protect College Sports Act is trying to preserve. It is about protecting the underdog and ensuring that each and every team has the opportunity to develop and compete and maybe even make it to the Final Four next season, but those stories only happen if those teams still exist. So I urge my colleagues: Let’s show the American people that bipartisanship still exists. Let’s show them that Republicans and Democrats can still come together to solve a problem facing this country. Let’s protect millions of student-athletes. Let’s protect the traditions. Let’s protect the future of college sports. Let’s pass the Protect College Sports Act, and let’s get a big bipartisan vote in this body to show that the Senate can still make a difference in America. I yield the floor.
