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Protect College Sports Act - Filtering the mud with Sports Lawyer Josh Frieser · Scouting the League

• Rodrik David @RightStepAdv: The Protect College Sports Act, or PCSA, as you will hear today, is a hot button issue. Agree with it, disagree with it. Unionization, antitrust, salary caps, interstate commerce. There is a lot to it. And if you're not an attorney, or even if you are, there is plenty still to digest. So today, Neil sits down with sports lawyer and principal attorney at Freezer Legal, Josh Freezer, to try and break it down. Have your legal dictionary or other AI tool ready as Neil dives into all things PCSA as Scouting the League tries to get a handle on all things legal. But before we jump in, make sure you head over, like, subscribe, share this podcast wherever you're listening and watching. Love to hear the feedback on this episode, every other episode. Leave those comments wherever you are at. Head over to rsafootball.com for more information on me. I am Roderick David. Won't be along for the ride today, but I will introduce it to you, my website. RSAfootball.com. Follow me on Twitter at rightstepadv. If you need a scouting report, head over to my website, rightstepscouting.com. Check this video out for more on that. It is the best spot for all reports, every kind of rapport, agents, players, coaches, whoever it is, rightstepscouting.com is that spot. Neil is the leader on today's episode. Always does a fantastic job. If you're not following him already, he is at InsideTheLeague on X. InsideTheLeague.com is his website. Josh Freezer is at Josh Freezer on X. Freezerlegal.com is his website. And he throws out his email. Best way to get in touch. Josh at Freezer. Freezerlegal.com. Check the show notes for all those links and spots to get in touch with him. If you're a scout or an aspiring scout, make sure you check out thescoutingcommunity.com and get the best insults on the market over at bluemaka.com, code scouting20 to let them know we senching and get a little discount on that order. But with all the PCSA has to bring you, let's get into it today. So I'm gonna kick it over to Neil. speaker-1: Josh Freezer has built a name in the NIL space as an attorney who's not only knowledgeable about the ins and outs of the legalities of name, image, and likeness, but also experienced working with the entities driving the conversation, including the NCAA, the National Sports Law Institute, and several courts that have shaped policy in the ever-changing field. He's based in Milwaukee, Wisconsin, maybe the only guy who's talking football today with a brewer success. And he joins us today. Josh, thanks so much for coming aboard, buddy. speaker-0: Thanks so much for having me, Neil. Looking forward to discussing the Protect College Sports Act. Obviously, there is so much changing from the legal perspective in college sports. Seemingly every single day we've got something new. and every time that I talk to folks who are not lawyers that are operating in the college sports space, they all think they're becoming lawyers. They all say, you know what, I might as well go get a law degree. but it's good that I I can at least hopefully provide a little bit of insight. because the the legal conversations are really driving what we're seeing day to day on the court, on the field, and in the courtrooms across the country. speaker-1: No doubt. All right. So the Senate has passed the PCSA. What do you think the odds are of the House passing it, of President Trump signing it? If it does pass, what is its most dramatic impact in your estimation? speaker-0: Yeah. So I was pretty shocked in all in all honesty to see how much support the bill got in in the Senate. I think seventy-seven votes were cast in favor of it, which is pretty hot. we basically had rank and file Republicans all vote for it. We had about half of the Democrats vote for it and about half of the Democrats vote against it, which is pretty, pretty compelling. over 75% in favor. Makes me tend to think you're probably gonna get a similar party line. when it does come to a vote in the House. If it does come to a vote in the House. I think what I've heard from most folks is they think it's probably going to be voted on in the lame duck session after the forthcoming election. And it is always, of course, kind of interesting to look at the political landscape and the timing of everything that's going on outside of the college sports world, outside of the sports world. And this is the context with which we have to analyze this. So it's probably not going to come until later this year, if at all, for a vote in the House. But I think if it does come for a vote in the House, it's probably likely to pass. the reason for that, and and we talked about President Trump's support of the bill. President Trump has made this a priority. he likes we we know, you know, not just related to college sports, but we know in general he likes to be a fixer of things. He likes to come in and say, I solved this problem. and I think that's true here too, where we've had a lot of chaos, we've had a lot of challenges, we've had a lot of issues in the college sports space over the last five years. And I think President Trump wants to be the savior. He wants to come in and say, I fixed all of these problems. I'm the one that drove the bus on this. And in turn, I think that's why we got so much support for this particular legislation in the Senate. I think that's probably why we will see support for it, at least on the Republican side in the House. and once we do get there in the House, I I don't think there's any reason to assume that the Democrats are going vote differently in the House than they did in the Senate. With it being about 50-50. and those numbers, just the simple math, means it's probably, I think, more likely to pass than not. in terms of the the biggest changes that we see here, I mean to me the most glaring piece of this is that there's an antitrust exemption written into the bill for the NCAA. and that gives the NCAA a lot of the enforcement power that I think folks have said the NCAA has lacked in the last five years. and we can take a step back, we can look at the Alston case. So the Alston case was decided by the United States Supreme Court in 2021. So importantly, the NCAA lost that case nine to zero. But what happened in the ensuing days after that is that lower courts analyzed the NCAA's eligibility rules and compensation limits under a different framework than those lower courts did prior to the Alston decision. And in in essence, the NCAA did not have the antitrust deference. For its eligibility bylaws and its compensation bylaws, restricting athlete income, restricting athlete eligibility. This sort of restores that. This gives the NCAA the ability to go back and have the police power that it once had without the fear of no matter what they do, they are going to get into hauled into court under under antitrust grounds. And I think what we've seen over the last five years, the NCAA and likewise now the College Sports Commission been pretty lax on enforcement. We have not seen a lot of enforcement of NIL rules. I think there's been a couple of players that have been suspended. I think two players suspended for one single game in all of NIL, right? So over the last five years, that's it. Really, not all that much. and we've seen state schools, we've seen state entities pull the NCAA into court under antitrust theory. Of course, this is why schools can now use NIL as a recruiting tool. Remember way back when Tennessee and Ohio brought that case against the NCAA. So that all goes away, and the NCAA has the enforcement power that it did not previously have. so I think that is to me the most important thing. The NCAA has its police power back. I mean, it has the ability to do this under the guise of antitrust protection. the other thing that to me is incredibly important here, and probably particularly important for your listeners. We've got some agent regulation here. So we've got an amendment to Sparta. there's gonna be a five percent cap on agent fees. There's a private right of action. So players can actually sue agents for violating the law. and likewise the NCAA has the ability, again, under the guise of antitrust protection, the authority to decertify agents and fine agents, including for violations of recruiting rules and tampering rules. So that's a lot to unpack. But agents are going to be regulated in a different way now. And at least as it's written, my understanding of it is the NCAA can call up a particular agent and say, Hey, you can't represent players anymore. and what does that look like? I think that's a good question, but to me that's really important. speaker-1: Okay, wow. So many questions to ask now. Let's start here. Will the NCAA now we've been told all along the NCAA is toothless because it does not have subpoena power. Will subpoena power be part of this new policy that they're being new new power they're being granted if the PCSA passes? speaker-0: No, so subpoena power is not something that's contemplated by this agreement. But the way that the NCAA historically for the last 50 years or so has gotten around the subpoena power issue is it has an affirmative obligation to cooperate. So the schools at at the end of the day have always been on the hook for the actions of their coaches, their boosters, folks who are involved with the institution. And it's essentially if you don't cooperate, you don't show up to those enforcement investigations and interviews, we're just going to assume that you're guilty. Right. This is historically what the NCAA has always done. That's what they're probably going to do in the future. and when we think about that in the context of if they call up a player's agent and say, hey, did you do this? We want some more information about conversations you had regarding XYZ player who wasn't in the transfer portal, but probably should have been. and the agent just doesn't respond, they're gonna call up the school and say, Hey, you're on the hook for this. We're just gonna assume that you did it. if we don't have any evidence to the contrary. So you don't have the subpoena power, but you've got the antitrust protection where then if the school says, hold on a second, this violates the antitrust laws, the NCAA has antitrust immunity. I mean that's I think how they're probably going to get around that issue is the same way they historically always have. speaker-1: So is it fair I have been working off the premise that if the PCSA passes, the big winner, and quite frankly, the regulatory body becomes the federal government. But it sounds like what you're saying is this emboldens the NCAA and really strengthens it to become perhaps the authority that it once was, maybe back going back as far as when SMU was handed the death penalty. Is the NCAA in fact the big winner if the PCSA passes? speaker-0: Yes, no no question about it. And and I think there's probably some question marks in the PCSA P PCSA about who is going to be empowered, whether it's the NCAA or the CSC in terms of regulatory authority. so the the PCSA does not specify which association. It just says an intercollegiate athletic association, we know they're talking about the NCAA or the CSC, but it gives the schools who of course are the stakeholders in both of those organizations. the right to decide which entity is going to have that enforcement power. So I think it probably remains to be seen whether or not these investigations are going to come from the CSC or the NCAA, but it's going to be one or the other. And likewise, I mentioned the NCAA has not done a whole lot of enforcement, neither has the CSC. We've started to hear rumors that the CSC is starting to investigate as you know hit a hit a couple schools with inquiries. I've even heard about a player getting an inquiry from the CSC, but so far pretty limited. There haven't been any suspensions. They haven't been declaring anybody ineligible in kind of wide scale. but this probably enables that at least to a degree. and you mentioned a question about the federal government versus these private entities regulating this and enforcing this. This is actually one of the question marks that's still out there in terms of the constitutionality of the Protect College Sports Act, is is precisely on that issue. so, you know, and I I know we probably will talk about this a little bit later on. but what authority does the federal government have to pass this act to begin with? The Congress has commerce power, right? So ability to regulate commerce between the states. They are going to point to our commerce power gives us the ability to do this, to regulate this industry, to regulate this. It's obviously interstate commerce. We have the power to do it. there's a couple challenges there, one of which is the non-delegation doctrine, where in theory, the federal government cannot say, We're going to take some of our authority, our power that's enumerated in in the constitution and give that to a private entity like the NCAA, like the CSC. So that's probably one of the most glaring and obvious potential challenges that we see to the act overall. speaker-1: Okay, again, really pregnant the things you're you're talking about here. let's let's start here. It sounds like you're saying that either the CSC or the NCAA will emerge from this as the policing body. Is that correct? Is am I am I putting words in your mouth or or is that correct? And if so, do you see just one of them emerging from this? And which one emerges if it if you had to guess right now? speaker-0: That's a great question. Honestly, I think it's probably going to be divvied up between the two. And certain things are going to be vested in the CSC and certain things are going to be vested in the NCAA. it's just difficult to predict what the enforcement mechanisms are going to look like and who is going to be responsible for what. I I tend to think the NCAA probably is going to have more enforcement power. But we'll see. We'll we'll see exactly what the specific issues are. You know, if we think back to the things that in theory the NCAA is responsible for today versus what the CSC is responsible for today, the CSC is responsible for implementing the house settlement, right? So the cap issues, the revenue sharing contracts, the third-party deals, that's under the CSC. But what's under the NCAA still, the tampering rules, the eligibility rules? The coaching restrictions, the contact restrictions, all of that still belongs to the NCAA. so I think it'll probably continue along those lines, but we're still speculating. speaker-1: Okay. Now, again, maybe it's just because I'm so used to the numerous battles over the last four or five years, but is it reasonable to think that that as soon as this law is passed, someone's going to challenge it in court? It's it's basic constitutionality, et cetera, et cetera. And if so, who would be who would have the standing to want to do that? speaker-0: That's that's a good point. And I think it's probably true. So, you know, who's going to be incentivized to challenge this law in court? Is anybody who's harmed by it, at least in theory, right? So is that a player who is gonna earn less compensation because we're codifying the settlement limits for cap compensation for players? Perhaps. I think with 500,000 or so NCAA college athletes, there's at least one that would be willing to be a named plaintiff. In a civil liberties type lawsuit, where I think it's it's probably likely that some group, some advocacy group is is going to be willing to advance a lawsuit on that theory. what exactly are they challenging and what exactly is going to get severed, if anything, for from this? I think those are the million-dollar questions that we all have to think about. so I mentioned the non-delegation doctrine. that's a good question. Is that does the federal government have the authority to say, Hey, NCAA, we're getting you this regulatory authority that should belong to Congress, at least as far as the constitutionality piece of it goes. I think there's some other really interesting questions about separation of powers, the anti-commandeering doctrine, where we have, in essence, you look at the PC PCSA, one of the things that's in there is they are saying to all the schools, you've got to create these funds for insurance and injuries and long-term athlete disability, right? But at the end of the day, if we do the numbers. Most of the power force schools at the end of the day are state schools, right? So in essence, we have the federal government saying to state operated and owned entities, you need to use your taxpayer dollars for X, Y, and Z. so is that an issue on Common Durant? And I always say I think the the question marks that we have in college sports are so unique because we don't have any other model that is similar to this, right? At the professional sports level, we have private entities. There is no state nexus. Certainly we have state dollars in building stadiums, but at the end of the day, no state entity owns the Indianapolis cults, right? They are owned by a private entity. Whereas here, most of the quote unquote we'll call them semi-professional sports teams, semi-professional football teams, most of them are owned by state entities. So it creates a lot of interesting issues, and we don't really have anything akin that's kind of comparable. I mean that's true in the context of collective bargaining. That's true in the context of constitutional law, separation of powers. There's a lot of interesting issues to unpack here. I mean just not a lot that we can look to and say there's something else that's similar. speaker-1: Let's say the PCSA passes and college football and college athletics starts to orient itself in under these new rules. And then let's say 60 days later someone sues. Does that mean that the PCA is suspended whole cloth and now everyone's got to go back to the old way? Or does it mean well we're gonna stay with the PCSA until we're proven otherwise. I mean, I I'm not an attorney. How how would that shake out? speaker-0: That's a great question. So, in theory, in order to get any court to say this is unconstitutional, it's probably gonna take a while. We're probably gonna get appeals. We may get this going all the way up to the United States Supreme Court, depending on the exact issue, should the high court choose to review it. of course, it depends on what grounds they're challenging the act under. is it again, we're we're assuming it's gonna be constitutional law issues, more likely than not. but what are the challenges? And then the question is, does that lower court grant injunctive relief? and that's just a a question mark. We we don't know exactly what the challenges are going to be. We don't know if it's gonna be some portion of the act or the act as a whole. I assume it's probably gonna be just a portion of the act. Let's say the requirement that again, we'll talk about those state government entities, that they provide insurance for the players. and it's it's under the anti-commandeering doctrine. so let's say that's something that's challenged. Do we have injunctive relief? that portion of it gets stayed for four years or five years until we have final disposition of that issue. but I would tend to think if this gets passed, it probably goes into effect. and it probably will stay into in effect at least in some capacity. May we have some portion of it that is enjoined by a lower court. It's possible, but I don't think whole wholesale we're gonna get the whole bill, nothing is going to be in effect for for two years, three years, four years until we have final resolution of the case. speaker-1: Okay. At least superficially, when I hear about something like this that has pretty wide ranging effect and impacts all of codja college athletics, my initial thought is this is probably gonna slow the d the discussion of unionization and collective bargaining. However, given what you've said so far about how the federal government is potentially telling states how to spend their money, it Seems now to me that it may be a situation where perhaps the state sues, we get more gumming up of the legal stuff, and it actually th the the net effect is that it pushes more towards collective bargaining. Am I right or am I wrong? speaker-0: Let me take a step back. I I think in order to understand the context of collective bargaining in college athletics, or at least proposed collective bargaining in college athletics, we have to go back to state governments and state nexus between coverage of the National Labor Relations Act and what we have here. and so in theory, the National Labor Relations Act, which is our federal labor law, which allows employees to unionize, it's it's only limited to private employees. So state employees in general cannot unionize. Under limited circumstances, state employees can unionize under state labor law, but not under federal labor law. So the challenge that we have, of course, is if you think about your state employees that in some instances can unionize, police officers, firemen, teachers in some instances are able to unionize. They're able to unionize under state labor law, but they have different rights and abilities in every single state. So for example, the California teachers may be able to unionize. They may be able to go on strike, but the Michigan teachers can unionize, but they can't go on strike. And of course, they can't be in the same union because they're organized under different labor laws. Not a big deal, right? We don't care if the teachers in one state have different abilities than teachers in another state. In the college sports world, again, in theory, the quote unquote employees are going to be employees of state governments. So the Michigan football players would be, in theory, employees of the Michigan government. So they can't unionize under federal labor law. Do we care if the Michigan football players can unionize, but the Ohio State football players can't? That's inherently a challenge and a problem here. so if we look at the professional model, is we have what's called joint employer bargaining. So 30 or 32 teams, essentially all of their employees have come together to negotiate one CBA. So what do you get with joint employer bargaining is you get things that the leagues really value and really care about. Free agency, salary cap, player movement, all of that comes, the draft, all of that comes through multi-employer bargaining. You cannot do that with single employer bargaining because, of course, how are you going to go negotiate free agency with one single team? You you can't do that. Of course, that has to be something that's collective across the whole league. So where in college athletics we've seen a lot of folks Publicly, athletic directors and coaches promote unionization. I mean, a lot more folks privately have have promoted unionization. It's because what do they want? They want everything that they don't have now that the pro leagues do have. And what are those things that they don't have? Free agency, salary cap, player movement, maybe not a draft, but something akin to player allocation. All of that is what they really want. so if you look at the pro leagues, A million out of a million times, they would rather have the antitrust immunity to do all of that stuff, player allocation, player movement, salary cap, as opposed to getting back into antitrust land if if you don't have a union. they would take that quid pro quo a million times out of a million. At the college level, this is my thought, and it is a long-winded answer to your question. I think if they get the antitrust immunity, the NCAA has the antitrust immunity to They essentially have their salary cap, they have their free agency rules, they're able to enforce player movement. What's the incentive for them to want to bargain with the players? and the answer is not all that much. So I think that movement really loses steam. because again, and you've probably had these conversations with folks on campus, they all want it because they want those rules about player movement and restrictions and tampering, salary cap, all of that stuff they want. They're gonna get it without having to collectively bargain with the players. so is there some pathway for the players to still unionize? Yes, but we still have all of the challenges that we have today that I mentioned, where you can't unionize as a state employee under federal labor law. It's gonna have to be under state labor law. What does that look like as a long-term solution anyway? I think there's a lot of question marks about it. and also I think the other thing that's probably not commented on enough about player movement, player organization at the college level. We're talking about players that are on campus for a very short period of time, right? Four, five years at the max. Most of them, you know, a lot of them school to school, a year, maybe two years. How are you going to have enough unity of interest to be able to negotiate anything collectively that's that's really valuable? and I think that's a challenge. I think that's a challenge at the pro level too. Look at the NFL players. They have not done maybe all that well over the last couple of rounds of negotiations. Again, because players are in the league for a pretty short period of time. that's even exacerbated further at the college level when you're talking about players are younger, players are are around for an even shorter period of time. Are you gonna be able to get anything meaningful through a C BA? I just don't know. speaker-1: Boy, again, so much to think about, so much to talk about there. All right. So you want in your in your answer there, you said a very hot word, and that was tampering. Is there any way that the PCSA addresses this specifically, or does it address it indirectly insofar as it is more or less empowering the NCA and maybe giving them tools they didn't already have or at least authority they didn't have to try to kind of work this out? speaker-0: Yeah, it it's exactly that. It's it's the authority to go out and police it. So we talked about that antitrust immunity, that antitrust exemption. It's the ability for the NCAA or potentially the CSC or some other body to go out and actually enforce the rules that are that are on the books today. And like we we know there are there are NCAA rules that say you cannot contact a s a college athlete at another school. Like that that's a rule that's on the books today. The NCAA just does not enforce it because they probably can't under under the current antitrust landscape. but do they feel emboldened to do that once they've got the antitrust immunity? Y you bet. They they certainly will. and what is the the repercussions there? They are probably pursuing everything they can against the schools, which is, you know, the the normal historic penalties that they've had, scholarship reductions, you know, contact periods reduced, scholar, you know, overall roster spots reduced, all of that stuff is probably gonna come into play. speaker-1: And I don't want to go too far down this rabbit hole, but it's a hot topic, obviously, Josh. What would the mechanics of that look like? We still have agents and teams and even players who have a vested interest in not being honest and not talking about anything that may be outside the rules if it benefits them financially. How is that going to change under this new if If we have if the PCSA is the law of the land. speaker-0: Right. And and so then that goes back to the old model, which is that affirmative obligation to cooperate. The NCAA comes calling and you don't answer, you're not truthful, you don't give them all of your text messages and emails and records, they're gonna assume you're guilty. That's historically that that was historically the the enforcement power that the NCAA had. back in the day, that's what they did. They they still do that to a degree. and we even think about, you know, Coach Coach Harbour, Michigan. Right. You don't respond, you don't answer, you don't give them the documentation that they're asking for. They're just going to assume that you're guilty. and under antitrust immunity, I think the NCAA probably goes a little bit further with some of that, where coaches are suspended, schools are fined, athletes are deemed ineligible. And if that does happen, the other folks, I assume, are probably gonna want to cooperate. Because if you've seen, hey, your teammate, his agent got decertified and He was suspended for half the season for doing X, Y, and Z. Are you going to do the same thing? I don't know that you are, right? I I think that's a a legitimate concern. speaker-1: Okay. All right. So let's go back to our earlier conversation. We were talking about maybe the NCAA being in the business now of certifying agents of having some kind of a loose organization of them. Would they in fact be the enforcing body? Would they be the ones that are out going out and maybe having some kind of a licensing agreement with in with you know contract we'll call them contract advisors? Would they be punishing them when they stepped out outside the lines? Would they be I mean, th so they would become part and parcel of the not just the enforcement body for the players and the coaches, but also for NIL agents. Is that what we're saying here? speaker-0: Yes. So so there's a new certification that would come up as part of the act if it's passed, where in essence the NCAA is able to certify agents through two means. One, they're certain they're registered already with an individual state as an athlete agent. About 40 states or so have an athlete agent law. and then the other piece they can certify them under is if they're registered with a union. So they're an NFL PA certified contract advisor. You can become certified. And you've got to have one of those two things. In order to become certified by the NCAA as a quote unquote NIL agent. And then the NCAA has the power to decertify those agents and then fine those agents, which is really interesting. We know that the NFLPA has that power over the agents to fine and decertify. There's obviously a way that they're able to do that. It's called the essentially when we're talking about a labor union, we've got the statutory labor exemption. Again, we're dealing with antitrust law. The NCAA has that same antitrust immunity where in theory they can do that too. And we've seen some agents challenge this from the union level, the pro level, under the antitrust law, and they've all lost because of that statutory labor exemption. So in theory, we have a pretty similar model at the collegiate level where the NCAA would, in theory, have the ability to decertify and fine agents. I think the the biggest difference, at least in my eyes to that, between the pro level and the college level. Is at the pro level, the union, which of course represents the players, has the interest of the players, they're the ones who are saying, we're going to decertify you, we're going to fine you for not acting in accordance of what we, the union, thinks is in the interest of the players. now the NCAA is maybe not quite management, but they're not a union that represents the players. So do they have the players' best interests at heart when they're decertifying or finging, in theory, these agents? Or is it really just for violating NCAA rules that the NCAA is not happy about? I think there's interest in both, but I think it's it's a really good push in and a really good analytical framework to think about should the NCA have that power? what does that look like? How much are they going to wield that power in actually cracking down on NIL agents? and you and I both know if we're talking about compliance, legal compliance in the NIL agent space. Probably most folks are not in compliance, right? So we do have a federal law called Sparta. We do have about forty or so state athlete agent laws. I'd say probably seventy-five percent of the quote unquote NIL agents out there are not following those laws. does that change in the future? Perhaps. speaker-1: Mm-hmm. Okay. Now I'm gonna ask you to speculate here because we're we're so far over our skis to some degree when it comes to this whole regulation part. Would do you think the NCAA would ask an NIL agent to specialize in one sport? I mean, obviously in in in pro sports, we all every different sport has its own licensing body and own union, all those kind of things. However, in this case, if I wanted to represent football players. and I want to re represent gymnasts, would that be separate cer certifications I would need to acquire? Would it be separate exams I'd have to pass? I mean, do you have any idea? speaker-0: I don't look like so. I I don't think so. I think it's gonna be one single certification and that enables you to represent football, basketball, women's basketball, soccer, whatever, whatever other sports it ends up being. whether or not there's an exam is a good question. I don't know that there will be an exam. my understanding of the law as it's written today is it's gonna be one of those two prongs. You're certified by the NFLPA, the MVPA, MLBPA, so on and so forth, or you're licensed by a particular state. You're in and that's it. but it's possible that there might be some changes to that. It's possible when the NCAA implements it, there is more to that. but at least as far as I understand it today, there's not going to be any specific sport specialization. you know, I think again, maybe that's getting a little bit out in advance of, you know, further down the line, it's possible. but at least as of today, I I don't think that's gonna happen. and the reason for that, at least in my thought process behind this, is there's not a whole heck of a lot of Difference between representing college football players and college basketball players from the perspective of the rules. where I think that's the most important thing at the pro level is you've got to know the the league's rules around free agency, player movement, and the like. Obviously, you've got to know the sport, but you've got to make sure you're not violating the league's rules, the PA's rules and the like. Here it's gonna be the same rules for football, basketball, soccer, whatever other sport it ends up being. The rules themselves, the NCAA rules are not gonna change sport to sport. Obviously underlying that the sports are very different, the recruiting calendars are different, the the you know, the the skills that you need to be successful are very different. speaker-1: Mm-hmm. Mm-hmm. Okay. Wow. All right. Let's let's change gears a little bit here. My understanding, I I think anytime you hear of a law that's coming out, there's a certain expectation of maybe justice. And I think if there is any injustice across the NIL landscape right now, at least a glaring one, is the growing chasm between The P4s and the G6s, and even more so between maybe what we call the real P2 and the other P2, and then everyone else, more or less. But my my understanding is they have so raised, they've raised the cap, which was right in the 21, 22 million, you know, and and and graduated steps going forward to approaching 50 million dollars, is my understanding. Now, There are a lot of even P4s that are not going to be able to come up with fifty million dollars to pay their players. In so doing, has the PCA basically walked away from any sense of trying to make it a level playing field, given that it's it's blown out all strictures on what the budget was for paying players? speaker-0: Sure, that that's a good question. So one of the things that the the Pl Protect College Sports Act does is it codifies the portion of the house settlement that deals with the revenue sharing cap. And of course, it increases on that same 10-year period for the injunctive portion of the settlement. After that, there's a, I think it's a congressional review of the cap, and then it increases thereafter going forward, which makes you kind of roll your eyes. The other piece of it, and I think this is the most important piece of it, it adds in a new retention fund. Of about $20 million that schools can use to retain their own players. So you've been here for a year. You're thinking about leaving to go to another school. That other school is paying you a million dollars more than you're making here. We've got this $20 million fund just for retaining our own players. How does the accounting work on that? I have no idea. is it just every single player that you're re signing doesn't count towards your overall cap? And you've got that, you know. basically that that original cap to use on free agents or or players at other schools every year. I I'm not even sure how the accounting works on that. but in theory, it creates about a 40 million and change cap for schools that have the money to fund it. my response to that in a way is it it sort of, at least I think maybe does away with some of that third party NIL that we've been seeing a lot of the top schools really push hard for in the last cycle where they're going above the cap, but it's coming from Learfield, it's coming from Adidas, it's coming from Nike, it's coming from these third party partners. And I don't want to call it money blundering, but the schools are saying to Adidas, hey, as opposed to writing us a check for $10 million this year, write us a check for $5 million and use the other five for NIL. so in a way, I mean, I I say it's kind of performative and stupid because at the end of the day, dollars are you're you're robbing Peter to pay Paul. and here we're just doing away with that, and it's just directly coming from the school. I think from the Athletes' perspective, it probably is a net benefit because then it's guaranteed. And I think the revenue sharing dollars, you're you're not fighting over quite as much as we're fighting over those third party deals where they're not 100% guaranteed. There have been challenges in getting guys paid. Obviously, at this point, it's got to go through that clearinghouse. So to me, getting it guaranteed in RevShare is probably a net benefit. maybe at 10 schools that can't go above that dollar limit, that 40 million or whatever it is. It's probably just Ohio State, Texas, Miami, like the the real serious players that are getting above that anyway. So how does that look going forward? Maybe at those very couple couple top, top, top schools, they're not able to get to the 45 million or 50 million that they're reportedly at today. but I think the overall benefit is probably there. you know, I I think also from the player perspective of representing players is different from the the fan perspective of do we have more parity? Do we have the the you know G6 type schools able to compete financially with the top guys? do we have that now? Have we had that over the last 10 years? I think my perspective in general, we we talk about the dollars and cents that have gone into college football in particular. is there more parity now than there has ever been? I mean, hey, I went to Indiana for college. They're a whole heck of a lot better now than they were when I was in school. So, you know, are there other teams that can can compete better today than they were able to before? I think the answer is yes. I think the jury's out on financial resources and and how well teams can compete. but that's just my perspective as a fan, which is I think a little bit different than my perspective in representing players as an attorney. speaker-1: Yeah, no, I understand. I I think to some degree the bill still hasn't been paid on all this. I think we're everyone's trying to keep up, but I don't know that we really, you know, the the accountability has isn't quite there yet. Okay. I don't know how closely you followed this as it kind of traveled through the Senate. Maybe you did, maybe you didn't. What had to be scrapped, Josh, that you did wish didn't have to be scrapped because it's all about compromise and A few things had to be thrown away. Were there anything anything along the way that you thought, man, I really wish they could have included that that didn't wind up in the final bill? speaker-0: So I mean, really at at bottom, this this bill is kind of a hybrid mix of the Safe Act and the SCORE Act, which those may sound familiar. Those were proposed a year and a half, year, year and change ago. and it sort of drew from some pieces and drew from other pieces and kind of put some of them together. so the big compromises here in in theory is that a lot of the stuff that came from the SAFE Act were protections for athletes related to health and safety. so long-term disability coverage, insurance coverage. Those protections came from the SAFE Act. a lot of what came from the SCORE Act was the antitrust exemption for the NCAA, capping the house settlement benefits pool. All of that came from from the other, from the SCORE Act. the thing that was scrapped that a lot of folks thought was going to be in there that was originally in the Score Act was comment commentary about athlete employment status and unionization. So the bill wound up being, at least as it's proposed today, facially neutral on that. Doesn't comment. On anything related to athlete employment or athlete unionization. The original score act said expressly, college athletes are not employees under the federal federal law. so that was moved out. I mean, what the the other side, so to speak, got as as a compromise was they got those health and safety protections, the insurance protections, long-term disability care and coverage. My perspective, the things that I probably would have liked to have in here that are not addressed, We don't know anything about Title IX. I bet a lot of the schools would like to know how Title IX is impacted by this. No answer on that. and then I think the other issue that we don't have that I would really like to have an answer and clarity on, that I think to me was kind of low-hanging fruit because it was pretty popular politically, I think, on both sides of the aisle, was international athletes. maybe matters a little bit less in football, but certainly matters in particularly men's basketball, but a lot of other sports too. and it's still unclear about what income. Can athletes receive under their visas as international college athletes? Can they participate in NIL and revenue sharing? and there's a lot of question marks out there. a lot of folks have said the answer is yes with the right workarounds. But I think to me, it would have been a good opportunity for Congress to say, we are going to create a special type of athlete visa or or whatever it ends up being, where international college athletes can come here, be paid for their NIL, receive an education concurrently, which at this point we just don't have. speaker-1: Okay. Now, I know this is a federal law and would be the law of the land, but we've talked a lot about state schools and kind of what they're mandated to do. Would Duke and Miami and Northwestern and SMU also have to play by these rules, given that they're not state schools? speaker-0: Yes, they would. So so there that's an interesting dichotomy again in college athletics. We've got interplay of public and private entities. so again, this is under the the federal government's commerce clause, Congress's the commerce clause that gives Congress the ability to regulate commerce between the states. historically that has been viewed as incredibly, incredibly broad. so we have all kinds of laws on the books that you would think have nothing to do with commerce that Congress has said that's our commerce power. That's how we're regulating that. and to me, one of the more extreme examples that'll maybe put this into context, if we think about there's some criminal laws against felons owning firearms, right? So if you've been convicted of a felony under state law, you cannot own a firearm. so what what power does Congress have to do that? Of course, we've got a Second Amendment that regulates that. but what power does Congress have to do that? The firearm in theory traveled in interstate commerce. So that's Congress's authority to regulate. That as a criminal statute. That's pretty broad and pretty tangential, but it's the same thing here. So we're talking about private entities, private individual schools like Miami or Duke, they are being regulated because they act in interstate commerce. And how do they, you know, play ball in interstate commerce? They're going to other states to play football, basketball, whatever sport it ends up being. So that's how Congress is going to say we have the authority to do this. Of course, there's other challenges on the flip side of that coin with the state institutions. Potentially saying we shouldn't be bound by this because we've got that anti-commandeering doctrine. We've got protections as state entities, right? Our dual system of federalism. but yes, I don't think there's an inherent advantage to state schools, private schools, or or the like. and that's been a big question, I think, historically over the last handful of years. Do you have advantages in state schools? And I think the jury's still out on this, state schools versus private schools. What benefits are there? Financial reporting, public. records, laws, even issues related to sovereign immunity. There's a lot of question marks out there and I I just don't think we've got clarity at this point about who who tends to benefit the most. speaker-1: Sure. All right. So Senator Corey Booker, during when this was all kind of traveling through the Senate, wanted to cap coaching salaries at five million dollars a year and also make coaches sit out a year when they change jobs. This amendment failed narrowly. Would you support such a measure and do you think it'd be a net benefit for college athletics? speaker-0: So I I tend to think that was more performative and more of a political statement than a a true, you know, thought of this is gonna get passed and be part of this bill. I I I understand Senator Booker's perspective there and I I think it's a really fair counterpoint to we're regulating athlete compensation. Why shouldn't we be regulating coaching compensation too? from the political perspective, I I think that's fair. what's the inherent benefit to college athletics more broadly, to athletes more broadly? I I just don't know that it's there. I I think the only benefit is to schools and at the end of the day just paying less because they know that coaches don't have the ability to jump ship quite so easily and increase their compensation at another school quite so easily. but does that really benefit college athletics? I I just don't know that it does. you know, and I sort of liken this, at least my perspective, to the same issue we've got related to the to the cap on player compensation. does that really benefit college athletics overall that at some schools we we've got players that aren't getting paid as much? I just don't know, you know, sort of the nexus between those two things. speaker-1: Okay. Wrapping things up here, the five for five, five years rule has been adopted by the NCAA. That's part of the PCS as well as PCSA as I understand it. But there are still we work, we we're we're talking about football here. That's our focus. Is there any way that we can make it so that there's some clarity with players that want to leave or I mean early? Maybe after the traditional four years, is it gonna be w things remain very muddy and I'm speaking very personally for scouts and such that they're gonna have to make that determination. Is the guy leaving early? Is he gonna play his whole five? I mean, I I guess I'm not even sure that I've got a good question here, but it it seems like we're making this very unclear. We're almost going back to the when the covet rules were out there and no one really knew who was eligible and who was coming out. Is it fair to say this does nothing to clarify that situation? speaker-0: Well, I think the intention of the the five for five new age-based eligibility model from the NCAA was to do the opposite. At least the intention of it was to provide clarity that you get five years, there's no hardships, there's no redshirts, it's just a five year period, and that's it. So we all know the guys that are gonna be done for sure. again, do they go into court and try and fight those in lawsuits? Do they try and get a sixth year? We've seen some guys try that. I think it's possible, but I think i the more likely than not the litigation is probably gonna slow down on this, probably at least a little bit. and I think the likelihood of success for players trying to get a sixth year under the arguments that are currently being made for guys trying to get a fifth year, those are probably diminished at least a little bit. I also tend to think, and you know the numbers on this better than I do, historically over the last couple of years with NIL, more and more players are staying in college longer. For anybody that's kind of marginal, they're maybe gonna get drafted sixth, seventh round, maybe gonna be, you know, an undrafted free agent, rookie. They they rather stay in college for another year, one because they're paid pretty well, at least comparatively. but then also they get the opportunity to showcase their ability and move up in their draft stock. so I tend to think the guys that are gonna come out, you know, again, this is more your world than my world, but I think the guys that are gonna come out, they're the ones that are gonna be those top. you know, three, four round picks. They they are the guys that are very talented that we all know they're not hanging around in college. I think anybody that's kind of marginal, they're probably gonna stay. that's just been the trend over the last couple of years. and the numbers do work out to being if you're a fifth year college football player and you're you know kind of marginal may or may not get drafted, you're probably gonna make more with an additional year playing in college football. and again, we've even seen there are players that have gotten drafted I'm at by NBA and NFL that have come back to college because the opportunities are still better, even with being drafted. speaker-1: Don't remind me. Okay, so let's war game this out a bit. If it passes in the lame duck session, sometime before the end of January, let's say, when would you presume that this this becomes the law of the land and is implemented in schools across the nation? Are we talking about would it be in time for the 2027 football season? Would it be later? Would it be sooner? What what are your thoughts there? speaker-0: Yeah, I think the the overwhelming likelihood of this is that it probably goes into effect at the end of this academic year. I I just think that's probably what it's gonna fall under. And that, you know, if we we go back to the house settlement, the the dates for for the annual cap year, it's July first through June thirtieth. I think we're probably talking about July first, twenty twenty seven is when this all goes into effect. that's my assumption. speaker-1: If you've made it this far, you probably still have lots of questions for Josh. Unfortunately, we are reaching the end of our hour and I don't want to take up his time. Josh, if someone wants to reach out to you with questions, where could they find you? Social media, otherwise, to get more answers. speaker-0: So so the best way to reach me is to email me, Josh at freezerlegal dot com. You can give me a a quick Google. That's F R I E S E R Legal. find my contact information, reach out by email is the easiest way. speaker-1: It's a new day. It's a new world. What a fascinating hour. I feel like we could go another hour, but we wanna be respectful of Josh's times. Josh Freezer, thanks so much for joining us. It's again, a brave new world and you've got a better grip on it than most most do. Thanks so much again for joining us and for sharing your experience, expertise with us, Shazi. speaker-0: Thanks so much. You know, appreciate you having me. Great discussion. And like you said, we could go on for another few hours here talking about all this.