It is past time for Division I colleges and universities to recognize that their student-athletes deserve both the right to bargain collectively and recognition that they are employees because of the compensation their institutions provide to them and the control those institutions have over them.
A deluge of media coverage has been aimed at other issues in big-time college sports, particularly football and basketball, but too little attention has been given to what should be center-stage — how student-athletes should be fairly treated by the institutions that benefit from their athletic prowess.
The Senate Commerce Committee recently held a hearing on the Protect College Sports Act of 2026, sponsored by Sens. Ted Cruz (R., Texas) and Maria Cantwell (D., Wash.), to “restore order” to college sports. This 111-page legislative effort is the latest in a series of approximately 40 bills aimed at reversing judicial rulings that oblige universities to share financial gains with their players.
Like their legislative predecessors, the 2026 bill limits or ignores existing player rights and immunizes universities from antitrust liability resulting from player-initiated litigation and substitutes Congress’ judgment for the courts, players, and universities.
Thus, the 2026 bill restricts the ability of players to transfer through a “portal” from one college to another and limits player eligibility to five years beyond the day of high school graduation. The bill would preclude awarding antitrust damages to players who seek to increase their mobility and earnings. It would also preempt state laws guaranteeing players compensation for their names, images, and likenesses used, for instance, on video games and athletic clothing (this has come to be called NIL money).
Until the last decade, the unchallenged position of the National Collegiate Athletic Association was that all college players are amateurs entitled to no more than athletic scholarships and frequently inadequate reimbursement for college expenses. Post-World War II football and basketball were dominated by the Southeastern Conference and the Big Ten, and both were big businesses.
Notwithstanding this reality, the NCAA maintained that the players were amateurs who could not be paid until the U.S. Supreme Court in 2021 ruled that the NCAA and its member campuses were liable for treble damages when they conspired to deny the players “educational” compensation beyond athletic scholarships and reimbursements.
Universities became involved in class-actions brought by their players about player transfers, eligibility, and related issues following that Supreme Court ruling. The ruling recognized that the universities have always treated athletes differently from other students, sometimes providing them with preferred admissions as well as under-the-table monies and other benefits, frequently in conjunction with wealthy alumni and “boosters.”
With California leading the way, many states enacted so-called NIL laws that allow players to be compensated for use of their names, images, and likenesses.
But the NCAA continued to insist the players were amateurs. As a result, outside “booster” groups or “collectives” were created to provide business deals to attract or retain college athletes from a source other than the universities.
Meanwhile, institutions of higher learning went to war to attract coaches with multimillion-dollar salaries, often exceeding those of any other employee, and — among state universities — any other state employee, including governors.
In the wake of these developments, an immediate response was the negotiation of financially lucrative media deals by the universities and a realignment of college conferences.
Stanford University, for example, left the Pac-12 Conference to join the Atlantic Coast Conference, requiring all its varsity athletes to travel regularly across the country, increasing the separation from their classrooms.
Further, NIL procedures have become a kind of Wild West, sometimes composed of shadowy characters and “agents” who operate without any regulation as is provided in the professional leagues.
Earlier this year, President Donald Trump convened a meeting of business and university officials in connection with a new executive order to preempt state regulation. The 2026 Cruz-Cantwell bill is the most recent response. It consigns players to minority representation on an athletic “governing board” or “rulemaking committee.”
Deeply troubling, it avoids even a mention of collective bargaining or employee status for the players. The current National Labor Relations Board is unlikely to address these issues effectively. And this Congress is unlikely to act on the Cruz-Cantwell bill.
Some, we realize, claim we should go back to an earlier era when money was not center stage in every aspect of Division I college sports. But it is too late to return that genie to its bottle.
Rather than wait for voluntary recognition of the organizing power of college players, or for state legislatures to take action, Congress should amend the National Labor Relations Act to allow student-athletes to exercise their collective bargaining rights.
This step by a new Congress in 2027 could provide much-needed protections for college athletes in terms of adequate compensation, health and safety protections, as well as a reasonable measure of player mobility fashioned by both students and universities seeking a balance between freedom and a disruptive revolving door.
After all, the most appropriate forum for resolving the complex matters around modern-day college athletics isn’t through one-off legislation or the occasional court ruling, but rather at the collective bargaining table.
Thomas Ehrlich is the president emeritus of Indiana University, former provost of the University of Pennsylvania, and former dean of Stanford Law School. Currently, he is an adjunct professor at the Stanford University Graduate School of Education. William B. Gould IV is the Charles A. Beardsley Professor of Law, emeritus, at Stanford Law School. He is a member of the National Academy of Arbitrators and former chairman of both the National Labor Relations Board and the California Agricultural Labor Relations Board.
