The SCORE Act is unconstitutional

Hi everyone,

Kyle’s away from the computer today planning something big for next week, which means we get to feature a cameo from Sam Ehrlich, a Boise State law professor. Sam periodically weighs in on the intersection of sports and the legal world over on Extra Points, and we’re thrilled to have him take over NIL Wire for the day. Let’s get to it …

— Joan

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The SCORE Act is unconstitutional

by Sam C. Ehrlich

There have been a lot of roadblocks in one of Congress’s latest efforts to bring order to college sports: the Student Compensation and Opportunity through Rights and Endorsements (SCORE) Act.

For one, it seems Congress may not even be able to pass the bill, given strong Democratic opposition — including the introduction of a competing bill, the Student Athlete Fairness and Enforcement (SAFE) Act — and a growing Republican resistance led by Texas Tech Board of Regents chair Cody Campbell (whose motivations and counterproposal Matt wrote about last month on Extra Points). Yet the NCAA and member conferences are still pushing hard for SCORE. On Oct. 10, 31 of 32 Division I commissioners (all but the Ivy League) sent a letter urging the SCORE Act’s passage, and the SEC led a Power 4 media blitz with an ad tying the SCORE Act to women’s and Olympic sports investment.

But even if Congress can eventually line up the votes, the SCORE Act might face a bigger problem later: It’s probably not constitutional.

Sportico’s Michael McCann recently outlined several ways the SCORE Act could be challenged — including under the Tenth Amendment, the Equal Protection Clause and even the First Amendment. I agree with all of these, particularly on the last point: Broad language in Section 3(2)(B) of the bill, which lets schools — including public ones — ban NIL deals that “conflict with institutional contracts” or “violate a code of conduct,” is a First Amendment lawsuit waiting to happen.

But there’s one less known constitutional doctrine that Florida State professor Ryan Rodenberg and I have identified in a new Cardozo Law Review de•novo article that we feel takes the SCORE Act beyond “maybe unconstitutional” to “very unconstitutional.” And it’s a legal principle I’ve written about before: the private nondelegation doctrine.

The private nondelegation doctrine explained

The public and private nondelegation doctrine reflects a rather straightforward idea within constitutional law: Congress — and only Congress — has the power to exercise legislative authority under the constitution. It can’t just hand that power to others.

Of course, Congress regularly does delegate some legislative authority to public agencies like the Federal Trade Commission (FTC) and Environmental Protection Agency (EPA). That’s where the public nondelegation doctrine comes in: Congress must give agencies an “intelligible principle” to guide their rulemaking. Agencies act only within their statutory authority and remain subject to oversight through checks and balances.

It becomes a really big deal when Congress tries to delegate lawmaking power to private entities. Courts get much stricter on laws that seek to give private entities regulatory power, and for good reason: Private actors have private interests, and letting one regulate others creates clear conflict-of-interest and due process concerns — especially when that power can be used over the private entity’s competitors.

Back in the 1930s, the Supreme Court struck down a law that gave a coal trade association power to set labor and pricing standards across its industry. The court found that since larger companies dominated the association, there was potential for them to use their newfound authority to disadvantage smaller competitors, a due process problem the court wouldn’t tolerate. In fact, the court called this law “legislative delegation in its most obnoxious form.”

In that 2023 Extra Points piece, I mentioned the Horseracing Integrity and Safety Act (HISA), Congress’s 2020 attempt to reform horse racing after a wave of safety and doping scandals. The statute operates by creating a new private entity — the Horseracing Integrity and Safety Authority — and empowering it to issue binding national rules on medication and track safety that preempted state laws. (Sound familiar?) The statute did allow the FTC to review HISA’s rules, but it had to approve any that were “consistent” with the statute, even if it disagreed with them.

In 2022, the Fifth Circuit struck down HISA, holding that mere review wasn’t enough; the public FTC needed “pervasive surveillance and authority” over the private authority’s rulemaking. Congress amended the law to give the FTC discretion to “abrogate, add to, and modify” HISA rules, which satisfied two other appellate courts — but the Fifth Circuit still found HISA’s enforcement powers unconstitutional because they lacked FTC oversight.

All three rulings were appealed to the Supreme Court. Before the court acted on them, however, it decided another case, FCC v. Consumers’ Research, which arguably tightened the standard even beyond the Fifth Circuit’s interpretation. There, the court upheld a delegation only because the private administrator was “broadly subordinate” to the FCC; the agency appointed its board, approved its budget and could overrule any decision — meaning it had full control over all of the private entity’s rulemaking, not just oversight.

Soon after, the Supreme Court sent all three HISA cases back to the lower courts with explicit instructions to reconsider them in light of Consumers’ Research. This seems like a clear signal that the Supreme Court found even the FTC’s rather pervasive oversight in the amended HISA to be insufficient.

How and why the SCORE Act does not meet that standard

Ultimately, it’s important to remember that the SCORE Act doesn’t just codify the House settlement; it goes much further in its efforts to stabilize college sports, giving loosely defined “interstate intercollegiate athletic associations” (read: the NCAA and the new College Sports Commission) sweeping authority to regulate almost every aspect of college athletics.

Section 6 empowers these entities to set rules governing nearly every corner of athlete life, from disclosure of NIL deals and compensation limits to recruiting calendars, transfer rules, eligibility standards and even the structure and length of playing seasons. And yes, the NCAA and CSC already assert many of these powers, but constitutional problems arise when Congress itself formally delegates that regulatory authority — and then shields it from antitrust and employment law challenges.

So that leads us to our next critical question under the private nondelegation doctrine: How much oversight does the bill grant federal agencies over the private actor’s regulatory authority?

Well, the answer is pretty simple: It gives, well, no federal agency oversight. 

In contrast to the FAIR College Sports Act — a previous legislative effort by the SCORE Act’s primary sponsor, Rep. Gil Bilirakis (R-FL), that literally (and justifiably) copy-and-pasted the FTC oversight language from HISA — the SCORE Act contains no federal agency oversight over the regulatory powers it grants to the CSC and NCAA. In fact, the only references to public agencies are instructions for the FTC and the comptroller general to conduct studies on the act’s effects over agent regulation and Olympic sports funding — essentially, to observe, not oversee. That’s not the “pervasive surveillance and authority” previously required of HISA, and it certainly does not make these associations “broadly subordinate” to any government body as is potentially now required under Consumers’ Research.

Worse, the bill’s agent-regulation provision raises an even bigger red flag. It gives the NCAA and CSC — bodies controlled by the same schools now negotiating directly with athletes — the power to regulate athlete agents. That’s not just bad optics; it’s the kind of self-dealing the Supreme Court condemned nearly a century ago in the coal case. Once again, Congress would be empowering industry insiders to govern their own competitors — “legislative delegation in its most obnoxious form,” all over again.

Is the SAFE Act any better?

At least in this respect, quite a bit.

The Democrat-led counterproposal takes a very different approach. Rather than outsourcing policy to private groups, it legislates directly: mandating lifetime scholarships, stronger health and safety rules, financial transparency and protections for athlete organizing and NIL-related immigration issues. It also enacts Campbell’s plan by amending the Sports Broadcasting Act to include college sports while forcing the NCAA to create a “Committee on Intercollegiate Sports Media Rights” to collectivize conference media rights and distribute them according to a set framework.

To be clear: It’s extremely unlikely the SAFE Act will go anywhere. It’s a Democrat bill, and Republicans control both chambers and the presidency. Though President Donald Trump apparently favors this bill over the SCORE Act, that’s probably more of a signal of his approval of the bill’s inclusion of Campbell’s plan than an overall policy approval.

But when it comes to the private nondelegation doctrine, the SAFE Act does two things that put it comfortably within constitutional bounds.

First, the bill itself makes the policy choices; it doesn’t outsource them. It tells the NCAA and other associations what to do, rather than letting them decide the specifics of how to regulate. That’s a fundamental difference from the SCORE Act, which more generally sketches out goals and then gives private associations sweeping discretion to implement them.

Second, the SAFE Act explicitly gives the FTC enforcement and oversight authority across the board, empowering it to treat any violation of the act as an unfair or deceptive practice under the Federal Trade Commission Act.

Yes, the SAFE Act creates one private committee, but even there, Congress sets strict parameters for how it operates, and the FTC’s supervisory role is baked in. And unlike the SCORE Act’s self-policing agent scheme, the SAFE Act amends existing law (SPARTA) to require states to regulate agents and grants athletes a long-overdue private right of action against bad actors.

Regardless of your views on the merits of the SAFE Act’s policy positions, this is the level of public oversight that the Constitution requires.

Whether or not Congress adopts the SAFE Act’s approach, one thing is clear: The SCORE Act’s structure can’t be squared with the Constitution. It hands private powerholders the keys to public law — exactly the kind of “obnoxious” delegation the Supreme Court rejected generations ago. Even if it shields the NCAA from today’s antitrust and employment battles, it may just create a new constitutional fight.

Sam C. Ehrlich is a law professor at Boise State University and antitrust expert. You can follow him on X at @samcehrlich.

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