A recent television commercial that played on repeat during the first weekend of the college football season emphasized the seismic changes happening in college sports. At the heart of those changes: a new model giving student-athletes a chance to monetize their name, image, and likeness (NIL) through third-party deals, participate in revenue sharing with their respective schools, and transfer schools without many limitations. But the commercial more notably called on Congress to change the Sports Broadcasting Act of 1961 to include the NCAA. That act gave most professional sports leagues a limited antitrust exemption to pool their media rights and sell them collectively. The NCAA does not have the benefit of this antitrust exemption — or any others — and has to sell its media rights by team or division.
But even if Congress were to amend the Sports Broadcasting Act to include the NCAA, the NCAA would likely still be staring at a laundry list of antitrust risks and challenges as evidenced by ongoing litigation that it is facing. Here’s a look at what some of those risks look like, the NCAA’s efforts to get an antitrust exemption, and how the NCAA and its member schools should consider the antitrust implications of any new rules and limits.
Post-House Antitrust Risks
The terms of the now-approved House settlement were intended to address the antitrust challenges raised in the complaint that the NCAA and its member schools have restrained competition in the labor market for college athletes. The terms of the settlement, however, have not entirely quelled those concerns.
Take, for example, the monetization of student-athlete NIL. As discussed in prior client alerts, under the House settlement, NCAA Division I member schools have agreed to share up to 22% of the Power 5 schools' average revenues, including media rights, ticket sales, and sponsorships. This 22% cap is estimated at $20.5 million per school, which means any NCAA member school (including those outside the Power 5 conferences) that opts into the House settlement may share up to $20.5 million of its revenues with its respective student-athletes.
Previously, colleges and universities, through the NCAA’s rules, were barred from sharing any of their revenue and student-athletes were precluded from monetizing their brands. So, the new 22% cap on revenue sharing essentially replaces one cap (of zero dollars) with another, and the settlement contemplates a slight increase to the cap every year. But this approach has drawn criticism from those who insist that the House settlement is no more than an agreement by schools that compete for athletes about the amount of compensation those schools will pay the athletes (in the form of "caps"). Such an agreement, they say, likely harms competition for student-athlete labor. The U.S. Department of Justice (DOJ) seems to agree with this line of thinking, according to a recent statement of interest from the department.
Impact on Elite Athletes
For collegiate student-athletes with elite talent and highly valuable brands like Cooper Flagg, NiJaree Canady, Arch Manning, and Jeremiah Smith, the 22% revenue sharing cap may actually restrain competition and make it difficult for top talent to tap into their true earning capacity, which could, in turn, raise more antitrust scrutiny.
Clearly, the NCAA is aware of the continued antitrust concerns. It has been lobbying for an antitrust exemption from Congress for years and several iterations of various bills have been circulated to memorialize the exemption with little to no support. In late July 2025, the SCORE Act, the latest legislation offering to provide an antitrust exemption to the NCAA, made it through the Energy and Commerce and Education and the Workforce Committees. The proposed legislation would preempt state laws and grant the NCAA antitrust protections, prohibit student-athletes from becoming employees, and protect the NCAA and its member schools from challenges against compensation, eligibility, and transfer rules, among other things, if passed. But the legislation has been met with significant opposition. The U.S. attorneys general of Florida, New York, Tennessee, Ohio, and Washington DC publicly opposed the SCORE Act and any federal efforts to give the NCAA unfettered authority.
Executive Order Suggests More Changes Ahead
The NCAA, however, got another boost when President Donald Trump issued an executive order titled "Saving College Sports" that reinforces the preservation and expansion of women’s and non-revenue sports as a key national priority and instructs several federal agencies to collaborate to develop strategies and policies to carry this out. Remarkably, the executive order directs the DOJ and the Federal Trade Commission — two antitrust enforcement agencies — to "stabilize and preserve college athletics through litigation, guidelines, policies, or other actions, by protecting…collegiate athletic scholarships and opportunities when [they] are unreasonably challenged under antitrust or other legal theories." However, the order stops short of providing an antitrust exemption to the NCAA and it remains unclear if it will ever receive one.
NCAA Likely to Focus on Compensation Unrelated to Education
Rather than relying on a federal antitrust exemption, it may be less risky for the NCAA to focus more on student-athlete compensation unrelated to education. Indeed, the Supreme Court, in Alston v. NCAA, held that certain NCAA compensation limits may have the procompetitive benefit of promoting competition. Rules that restrict compensation and benefits unrelated to education, for instance, may be reasonable because they advance the procompetitive benefit of distinguishing college sports from professional sports. In contrast, restraints on education benefits would not apply at the professional level, meaning any such restraints among competitors do not have the procompetitive benefit of distinguishing the amateur sports product from the professional sports product. Therefore, restraints on education-related benefits agreed upon by NCAA member schools are less likely to withstand antitrust scrutiny.
However, there is sometimes a very fine line between these types of restraints. And the NCAA’s continued efforts to obtain an antitrust exemption confirms this. As the Supreme Court recognized many years ago, section one of the Sherman Act protects competition among colleges and universities for students' athletic labor while providing latitude to colleges and universities in maintaining an academic focus.
The NCAA and its member schools will need to carefully consider the antitrust implications of any new rules and limits, and our team is equipped to advise on those decisions. Antitrust concerns have remained constant in college sports — despite all of the recent change — and we anticipate even more litigation based on these concerns.
For more information, please contact us or your regular Parker Poe contact. Click here to subscribe to our latest alerts and insights.