Ep. 93: Federal Legislation for College Sports? Breaking down the SCORE Act with Congresswoman Lori Trahan.

Congresswoman Lori Trahan, a former DI college volleyball player and a go-to voice in Congress on college sports issues (among many other issues) gives her perspective on the SCORE Act, the college sports bill that has progressed further than any other piece of college sports legislation. Rep. Trahan also gives insight into the debates in Congress around college sports and where things might be headed from here. 

Thank you for listening! For the latest in sports law news and analysis, you can follow Gabe Feldman on twitter @sportslawguy .

Transcript

SPEAKER_00: 0:05

Welcome to SportsWise, a podcast about sports and the law with your host, me, Gabe Felton, director of the Two-Lane Sports Law Program, and co-director of the Tulane Center for Sports. On this episode, I'm joined by Congresswoman Lori Trahan from Massachusetts, a former Division I college volleyball player and a go-to voice in Congress on college sports issues, among many other issues. Congresswoman Trahan gives her perspective on the Score Act, the college sports bill that has progressed further than any other piece of college sports legislature. And she also gives insight into the debates in Congress around college sports and where things might be headed from here. Here we go. Before I get into the interview with Congresswoman Trahan, I want to set the table a little bit and provide some context for the conversation we're going to have, which is going to focus primarily on the SCORE Act, which is the Student Compensation and Opportunity Through Rights and Endorsements Act, that was introduced and referred to two different committees in the House and then marked up where it passed mostly on party lines. And within a span of about two weeks, the bill was pushed through the committee process despite requests to delay the markup by Democrats to allow for more bipartisan deliberations. The bill is now eligible for a vote on the House floor, making the Score Act the first bill to move through committees in either chamber. And the Score Act's main provisions include, among other things, regulations on college athlete NIL rights, broad authorizations for the NCAA, protection from liability under federal and state antitrust law for carrying out those authorizations, and broad preemption language that would trump state laws covering NIL and other topics. The bill also codifies many parts of the House settlement terms, including around revenue sharing and several NCAA core guarantees as requirements on institutions, including player healthy player health and safety provisions. With that background, let's turn it over to the interview. Welcome to the podcast, Congressman Trahan. Thank you so much for coming on. Thank you for having me, Gabe. All right, where do we find you these days now in the thick of the summer?

SPEAKER_01: 2:51

I'm in Massachusetts. It's been a lovely week back home. New England has three months out of the year where it's just gorgeous. So home with my family, trying to squeeze in a little bit of summer and vacation with them. But then also these district work periods are important to kind of get around to all your communities that you represent. So juggling both, but nice to be out of DC.

SPEAKER_00: 3:14

I can imagine. And those three months in Massachusetts that are perfect are the three months that you do not want to be in New Orleans. So match up, match up well together. Okay. I've I thank you again for coming on. And I want to talk about the Score Act and your perspective on the Score Act and some of the criticisms that you have of the Act, and then just talk about college sports more broadly. And I provided some context in the intro on the act. So we can jump right in, but obviously feel free to give as much context as you want as we're going through. But along with many of your Democratic colleagues, you have expressed some pretty significant concerns with the SCORE Act at both the subcommittee and the full committee markups, particularly on the language around antitrust liability, preemption, and enforcement issues. But despite your opposition, the bill cleared the committee along party line and is now headed to the House floor. Can you summarize your concerns with the Score Act for the audience?

SPEAKER_01: 4:25

Yeah. So I think the best way to characterize the Score Act is to say very clearly that the bill started out as fulfilling the wish list of the NCAA, the power for conference commission commissioners. And in large, it stayed that way. Everything that the NCAA has asked Congress to codify, designating college athletes as non-employees, shielding the NCAA from antitrust liability, and preempting stronger state level protections, that was baked into the SCORE Act from the get-go. Now, obviously, when that happens, the final product that you get is just lopsided. It's protecting the interests of the most powerful actors in college sports at the expense of the athletes themselves. And despite that flawed foundation, we went to work trying to improve the bill in areas that we thought were the most consequential, just to getting it right. So that we didn't lock in a system that sets athletes back at a time when athletes are making some pretty long-deserved progress. So I think we focused, our work focused on three main areas: the antitrust exemption. The initial draft, it was incredibly broad. It went far beyond NIL or fair play and eligibility rule. And it's still too broad, even though the language was improved. But that was a lot of rounds of negotiations. I think the lack of a sunset creates the grounds for the NCAA to do largely whatever they want into perpetuity. And that is something that I think is resonant with the Congress writ large as we head to the floor. The second one was unemployment. I've heard directly from athletes who don't want to be classified as employees, and I've heard from others who do. I've also heard from some who don't want that door just completely closed to them and not having any leverage down the road. But I think the through line in all those conversations is I haven't heard a single athlete say that they feel like they have enough of a seat at the table in college sports and would turn down the opportunity afforded to them through a collective bargaining agreement, even if it's a novel form that doesn't include compensation. And I think the Score Act, it just ends that discussion entirely. I think that's a mistake. When we're talking about an issue that doesn't actually even exist currently in college athletics and is more on the horizon, I think it's a mistake to shut that door. And then the last one certainly is preemption. There are objectively good state laws that could be preempted by the language currently in the Score Act, and including laws that were drafted without college sports in mind at all. Think about the Michigan law that Larry Nasser was prosecuted under, or the Maryland law that Jordan McNair's family was able to sue under. And so my point in those negotiations with Republicans was that without significant clarification on their preemption language, this bill could go far beyond sports. And I think that's dangerous when you think about issues like sexual assault, mental health care, and so many issues that come up for college students. You know, what our big complaint with was the bill, with the bill was the we had one week in between the subcommittee markup and the full committee markup. We were making progress. I think that there was a lot more to go, but uh that didn't happen. And so the Republicans just pushed this bill with breakneck speed. Um, and now we're left with a deeply flawed bill that's going to the House floor in the fall.

SPEAKER_00: 8:19

Thank you. That's very helpful. And I will ask you uh a little bit later on about what you think the prospects are for it once it gets to the full house. But I want to come back to a couple of the points you mentioned because it's all fascinating to get a peek behind the curtain as to how some of this legislation proceeds and how it gets out of committee or doesn't get out of committee. So this is the first uh piece of legislation that has gone to full committee, and you mentioned that it this happened very quickly. What's your sense of why? Because I i correct me if I'm wrong or you don't have to correct me if you can just or sit there silently, but a lot of these issues or some of these issues are are not necessarily deeply held philosophical beliefs by members of Congress, that they strongly believe that college athletes should or should not be employees or should not have preemption of state law, and that there are politics in involved. And what's your sense when it comes to college sports? Because there's so many issues wrapped into it. And when NIL first started to really gain momentum, it was, I don't know if you could call it bipartisan, but it was there was support from both sides. Some might have seen it as a civil rights issue, some saw it as an economic rights issue, but either way, you kind of landed in the same place that college athletes deserve more rights. Um, but for lots of these other issues, it's very fraught with intersecting and conflicting political issues. So, what's driving the the push by the Republicans in the House and the the speech? What do you think is behind it all?

SPEAKER_01: 10:00

Yeah, so you're right to point out that one, there are so many people, most so many members of Congress who are fans of college sports, right? This is an issue that even if you're reading about it casually, you understand like there are flaws in this system. Um, but when you get to the complexity of what it will take to set athletes up for the future, uh, to fix a system that frankly, if we've heard like nightmare scenarios on the transfer portal or collectives, that is that is a challenge to get ramped up on all of that while you're fighting to save health care. And so I get the context completely. I will say, you know, it's not like this came out of thin air. We have had hearings on NIL. We have had plenty of folks come in before you know the committee to talk to us about how college athletics has changed. I think the difference with the speed by which a mark has happened is very different from a hearing. In a hearing format, you get to learn, you get to ask questions, you get to update the things that you're hearing with experts on a panel. When the legislation was dropped and it's changed a few times, what became clear was that this was every, when I sit in front of the big four uh commissioners, this is everything that they want in the bill, right? And so you've got uh conference commissioners who are making regulators of Capitol Hill. You've got CAAA doing the same thing. You don't get, you don't have athletes coming to the Hill to talk to their members of Congress. They are working out this summer or trying to get a part-time job so that they can make some money because they can't do that during the school year. And it is just incredible. So, what we've just been trying to do throughout this process is make sure that members of Congress are talking to players. Their voice just doesn't, it's not organized. It's they don't have lobbyists, like they can't do that. And then it becomes a little bit more self-evident in terms of what the opportunities are for players that this legislation would shut off. Um, and so that has helped. But the the one week in between a subcommittee mark and a full mark, that is done deliberately to fast track legislation to the House. And I think the Republicans have the White House, the Senate, and the House of Representatives. I think they see this as an opportunity to reshape college sports in the way that no, it's a bit too paternalistic, in my view. It really is thwarting the voices of players, telling them we know what's best and setting them back decades at a time when the sky didn't fall with NIL, which so many predicted, including the former president of the NCAA, threatened that it would. And so you lose credibility when sports gets better. Women are signing NIL deals with along alongside men. And so I think what has happened is people are more open to hearing all sides of this issue because the people that they've traditionally listened to have just threatened that sports as we know it will be over.

SPEAKER_00: 13:15

And that's not a new, as you mentioned, a new warning from the NCAA. Every time there's been any move for, I wouldn't even say significant change, but change that's often been just the instinctual response. And not just the NCAA, all pro sports leagues have done it. Many large successful companies don't want change because the way that things have been going is working for them. But you might remember with uh cost of attendance, the school of many schools said that if they had to pay up to full cost of attendance, which might have been four or five thousand dollars per athlete, then they would drop out of division one because they couldn't afford that additional four thousand per athlete. And here we are, where that's just now done as a matter of course, or at least for the power four schools, plus all this additional money. But just going back to one other point, you you mentioned that so many people, so many members of Congress are college sports fans, and it's been an interesting, I think, slicing of the onion a little bit here where so many people are passionate about college sports, they love college sports, they love their local team, they they idolize their coach and the athletes, but they hate the NCAA. And it's an odd mix, and so the tensions that arose when kind when the NCAA asked for antitrust protection and other legislative protection, um, there was a little bit of resistance because why we want to give this all this protection to the NCAA or not been happy with what the NCAA is doing, and now we get this type of um this type of bill. What why do you think there's more willingness, at least from the Republicans, to give this carte blanche to the NCAA without having to worry about antitrust and all these other issues? Do you think it's new leadership or do you think it's something else?

SPEAKER_01: 15:01

Look, so first I'll say I know President Baker really well. He's used to be my governor, and he's put in some great policies along the way. Um and uh and I think he's a great shift in leadership for the NCAA. I think one of the differences is no one's going to deny that the governance of the NCAA is inhibited by all the threats of lawsuits, right? Uh and so I get that. And it's why I've tried to either form a safe harbor or a limited scope around the antitrust exemption and have it sunset. I think it's really important. Think about how much college sports has evolved just in the last three years, five years, right? It's we don't know uh the issues that are going to arise. And we shouldn't pretend. I couldn't have ever, as I suited, you know, from my big east volleyball games, I couldn't have imagined having to fly regularly to the West Coast. Conference realignment happened. That puts more pressure and strain on athletes. And, you know, that's so I think that there are more of those things out there that could happen. And so if you sunset an antitrust, one, it shapes the behavior of the NCAA because they know they have to come back to Congress in a specified amount of time. And two, we get to factor in those uh uncertainties or those things that we don't know as part of that. The I think a big difference was look, I've been in, I've only been in Congress for seven years, but six years actually, I think. But the I never had this intensity of meeting with like conference commissioners, right? They they really drew, I think drove part of this process in terms of getting to their getting to their members, uh, their member school's members. And so that uh that was a force. That was a force we had to contend with um who doesn't want to get a phone call from their alma maters football coach or like their athletic director or college president or conference commissioner. So they were very effective in shaping this legislation and building a coalition.

SPEAKER_00: 17:14

Yeah, and it also makes sense given the House settlement and the NCAA has been pretty upfront about this fact for or this point for several years now, that they believe that Congress is the answer and that federal legislation is the answer. And that's I think even more true for their perspective post-house settlement, where they believe they are now giving so many benefits to college athletes that they now need protection for the system and they continue to get sued, as we've seen on eligibility issues, and so it makes sense. The the requests have ramped up and they feel like this might be the time to get it all done. Okay, so there's some co complaints or some concerns about the Score Act. You've also called attention to a number of different areas that you think the legislation doesn't cover at all. Um, can you talk about those issues, including some protections for female athletes?

SPEAKER_01: 18:09

Yes. So I do believe there are omissions to the Score Act. There are gaps that leave athletes vulnerable, undermine any claim that this bill is some comprehensive solution. I think first and foremost is enforcement. We we brought this up over and over again in both markups. When this process began, there was virtually no enforcement mechanism. And that was just a glaring fatal flaw with this bill. And I think I used the line that a right that isn't enforced or enforceable is not a right at all. It's just words on paper. And I fought to include attorney generals, state attorney generals as enforcers, but it's just not enough. We need a federal enforcer. If we're going to have a federal standard, and I believe in a federal standard because the patchwork of laws is just a really difficult to navigate for athletes. I think about my 17-year-old self who was signing her letter of intent, that would have been a layer of complexity that would have been daunting. But if we're going to have a federal standard, we need a federal enforcer. The FTC, you know, a perfect enforcer for a law like this. We also need a private right of action so that athletes can hold that actors accountable. And without those tools, and in combination with the bill's sweeping antitrust exemptions and the preemption of stronger state laws, we really do risk in entrenching the very institutions that have exploited these athletes for decades, even. So that's, I think that was a big part of what we wanted to put a spotlight on was the enforcement. I think, second, the bill it fails to extend NIL rights to international athletes, leaving thousands of athletes in a legal gray zone simply because of their immigration status. And I think that's entirely avoidable. And then the third one is the one that you brought up. It the Scoreback just sidesteps entirely gender equity and Title IX transparency. I've said this to the chair of the committee when we should be using this opportunity to require basic reporting on how schools are complying with Title IX and how they're allocating revenue, uh, particularly, particularly in light of the House decision settlement and any future revenue sharing models. If we don't demand transparency, then we can't ensure fairness, especially for women athletes who continue to face structural challenges. Many of my colleagues have raised legitimate concerns about the potential ripple effects on Olympic sports, non-revenue sports, or sports at small or medium-sized schools. You know, as a former college volleyball player, I share those concerns. We can and should protect broad-based athletic programs while still centering the rights and the well-being of the athletes who make college sports possible. But the SCORE Act just doesn't strike any balance. Instead, it's rushes to protect the NCAA, the powerful conferences, while leaving too many athletes, especially women, international students on the outside looking in. So those are things that if we were negotiating a comprehensive bill, uh we would want to see included.

SPEAKER_00: 21:33

And on the gender equity piece, do you is it fair to say that there are I don't know if they're competing or conflicting interests, but you mentioned that we want to provide additional rights or protect the additional rights of all college athletes. And uh at least in present day uh majority of the big NIL deals and the revenue shares going to football and men's and women's basketball. Um we want to continue protecting that, but we also want to protect broad-based opportunities and Olympic sports at the same time. So it's as you said, the there's really no attempt to strike a balance there. Is that that would be the goal from your perspective, is to try to balance those two to protect the rights of everyone as much as you can?

SPEAKER_01: 22:18

Absolutely. I don't think that there's a big distinction uh when a woman's soccer player or a rower train to play at a collegiate level from a woman's basketball player or a men's basketball player. So they sacrifice so much. They it takes a toll on your body. You just you're all in, right? Because you love to play. And so that is not uh that is not a distinction an athlete makes based on whether their sport generates revenue. They're they work just as hard. And so I think that has to be a recognition and also a recognition of look, there's no wonder that football and men's basketball are what they are. They've had decades of promotion and media deal. And and we're just now seeing that the house settlement, that was pre-Caitlin Clark and Angel Reese, right? That this is before women have just demanded the attention of our country, not just in March Madness, but beyond. And so it's just an outdated model. And it's one I know is going to evolve just in 30 years. I only watched men's sports growing up as all I could, but my daughters don't even do it. They're watching, they're what they're finding women's lacrosse games on on their computer or on TV, even. And so I think those shifts are going to continue to happen, and we can't shut the door on that. Um, and we do have to treat athletes across the board for the sacrifice and the commitment that that they show up with.

SPEAKER_00: 23:49

And do you get a sense that the protection of Olympic sports is more of a bipartisan issue? That that there's not a lot of people who are anti-US doing well in the Olympics?

SPEAKER_01: 24:03

Yes, I do, I do think that's uh it's it's it is it's an area we all have kids who play sports. They're not all playing basketball and football, they're playing sports across the board. We also recognize that the United States is unique and that our feeder program to the Olympics is college sports. And so that I think is an area where you we can find common ground on how to do that.

SPEAKER_00: 24:27

Okay, great. All right, my last substantive question. The as you've talked about, the score act is now headed to the House floor. It technically has two Democratic sponsors, but the votes in the committee seem to suggest maybe it's not truly bipartisan. How do you see the future of the Score Act playing out? And if the bill manages to pass the House, do you think it has a chance in the Senate?

SPEAKER_01: 24:53

Yeah. So first I'll say that one of the things that we said, even as the full committee was marking it up, is we want to continue negotiating in good faith. That is how durable bipartisan policy gets done. Whether they're willing to return to the negotiate negotiating table remains to be seen. But I'm ready. My team is ready. We've sent all those signals out. And so are the many advocates, the athletes, and the experts that we've worked with, um, we've worked alongside for years who want a better bill. We know that a genuine bipartisan, we we know what a genuine bipartisan multi-stakeholder process looks like. It balances the needs of athletes with the realities facing the NCAA, the conferences, and the schools. Um, this does look like it's heading to the high. I like I said, if uh if they take us up on our offer to continue negotiating, I will be very happy. But it sounds like they are moving as quickly as they did between subcommittee and committee to committee and floor. And if that happens and the SCORE Act stay stays in its current lopsided form, I don't see, I don't see many Democrats voting for it on the House floor. I think people have time to read up on it and talk to folks while they're back home. And I just see no future for it in the Senate. I've been in contact with my Senate partners throughout this whole journey. And this just isn't um something that they're going to get the 60 votes for unless they make some major changes.

SPEAKER_00: 26:30

Right. And then so what happens next then? What do you think? If this bill dies, does it get changed with an effort to try to get it through the Senate or different legislation? What do you how do you see this all um shaking out?

SPEAKER_01: 26:44

Yeah, I think it's an important question because what I hope happens is I hope everyone comes to their senses and realizes that from the get-go, they should engage with both sides. Um, where there should be more people at the table negotiating uh for what should be in this bill. Yeah, I hope it's just a wake-up call for everyone involved that this is not going to be this, it's not going to be this granting of a wish list by one or two sides of this of those stakeholders. It needs to be much more comprehensive. And so I look forward to that. I'm ready for it. I I've already put it all out there when we were going through the score act of what my expectations are for a college bill. I think they're aligned with a lot of other folks who care about the future of college athletics. And hopefully we just get back to a table and have a wholesome conversation about what that should look like.

SPEAKER_00: 27:39

And I have you is it fair that to say that you've established yourself or you are the sort of the font of knowledge on college sports, among other things. But given your background, given that you played.

SPEAKER_01: 27:52

Well, given that it's on I'm a member of the subcommittee and the committee of jurisdiction, which is also very helpful. Uh look, there are part the way Congress works is there are parts of this bill that sit on judiciary, right? I'm not a member of the Judiciary Committee and I'm not on Edin Workforce, which all the Title IX uh legislation around enforcement in international athletes, all of that sits there. Employment. I found myself in the last few weeks like shuttling between committees to make sure people understood what was at stake here. And like I said, there are so many people who are fans of college sports or have a personal experience, whether they're their nephew or their uh their daughter, that it but it it's also really tough to put people's attention on college sports when there are so many things right now that Congress needs to be acting on. And so that is just a uh just out of the gate, that's a challenge. Uh, and it's maybe come a little bit easier for me because I lived it, right? It's part of my lived experience. So I can one, it's given me some credibility to talk to folks about it. And then two, it just makes it just much more comfortable for me because I know the life of a college athlete.

SPEAKER_00: 29:06

Yeah, that makes sense. Okay. Last two questions, non-substantive. I told people on this podcast that the piece of advice that I've received that I use most often is lefty loosey, righty tidy for what to do when you're using a screwdriver. And so I've been asking other folks, what's the piece of advice that you have received at some point that you use most often?

SPEAKER_01: 29:33

So there is no shortage of advice from influential coaches.

SPEAKER_00: 29:38

And yeah, I'm sure.

SPEAKER_01: 29:39

Uh there is there's so many. I think I think when a coach early in your career uh breaks down the difference between playing to win and playing to not lose, it really sticks with you, right? Because it gives you uh it gives you this permission to just go out aggressively, right? Uh what they're Basically, saying is don't tip the ball like when it's a close game and you know you're in overtime. They want you to spike the ball down. Um, and that comes with risks, uh, but sort of teaches you, I think, early on, like just to play to win, like to not give up, not second guess yourself, not be hesitant, but to be all in on those in those important clutch moments. And I probably didn't understand how much of a life lesson that would be uh when I first heard it, but I get it.

SPEAKER_00: 30:33

Yeah, that's great. And it also reminds me of uh, I don't know if you're a uh NFL fan, but uh Herm Edwards famously said, uh, you play to win the game when he was asked what motivation they had at the end of the season when they weren't gonna make the playoffs. But all right, so play to win, I like it. And then last question what is the most memorable sports moment of your life?

SPEAKER_01: 30:55

Either as a player, as a fan, as a parent, any I think my I think my most memorable moments are uh yet to come because now I'm a proud parent in the stands, and it's true, like it's so much cooler just watching uh your kids play sports and hit some of so many of those milestones. But I have to say my most memorable moment is when I signed my letter of intent with my mom and dad. It um the first person in my family to graduate from college, definitely the first to play a sport. And it was a long, arduous, stressful journey, um, one that we had never done or only had guidance from our coaches. But it was, we were in our modest home in Lowell, Massachusetts. There were no signing ceremonies back then, but we all knew what we achieved together. And and it was definitely like one of those proud moments that have made all the hard work and the sacrifice worth it to see how happy my parents were. So yeah, I that one's gonna stick with me for a lifetime.

SPEAKER_00: 31:58

That's great. That is a perfect note to end on. Congresswoman, thank you so much for your time and your insight. I really appreciate it. And thank you for your dedication and your passion for for college sports and all the other very challenging issues you deal with in Congress. So thank you for coming on. Um I will be following this closely and hopefully can have you on at some other point to talk about whatever law has passed and where college athletics is headed from there.

SPEAKER_01: 32:23

I look forward to it. You take care.

SPEAKER_00: 32:26

Thank you so much. You too.

SPEAKER_01: 32:28

Bye.

SPEAKER_00: 32:28

Thank you. And thank you all for listening. And thanks as always to my loyal sponsor, the Tulane Center for Sport. See you next time on SportsWise.