Are Student-Athletes Employees? What the Protect College Sports Act Means for the Future of College Athletics

by Tyla A. Swinton

On September 28, 2026, the US Senate passed the Protect College Sports Act (“PCSA” or the “bill”) with bipartisan support.[1]  If passed by the House of Representatives, as amended, the PCSA will codify and enforce numerous rules that, according to the National Collegiate Athletic Association (NCAA), will provide “important student-athlete protections.”[2]  However, support from the House and the entire NCAA is neither expected nor guaranteed.

Among other things, the PCSA seeks to do the following:

  • Prohibit institutions, conferences, and interstate collegiate athletic associations, like the NCAA, from restricting student-athletes from entering into name, image, and likeness (“NIL”) agreements;[3]
  • Mandate agents to register with a state and cap agent fees on endorsement contracts at five percent;
  • Provide student-athletes with the option to transfer once without losing eligibility;[4]
  • Expand protections for women’s, Olympic, and Paralympic sports by requiring large institutions to offer and maintain “grant-in-aid opportunities and roster spots for sports that do not generate positive net revenue”; and
  • Require colleges and universities to provide medical care and insurance coverage for injuries resulting from participation in college sports.

The House’s position will become clearer after congress members return on November 9, 2026.  The bill has drawn concerns on several fronts, particularly with respect to antitrust protections, athlete representation, and compensation, and these unresolved issues have generated questions across party lines that could delay its passage.  Most importantly, however, the PCSA leaves open a fundamental question with far-reaching implications for college athletics: the employment status of student-athletes.

The bill is purposely silent as to whether college athletes should be deemed employees of their respective institutions, stating that it “is neutral on, and does nothing to alter, employee or non-employee status for student-athletes.”  Nevertheless, certain provisions of the PCSA could have implications for future litigation concerning athlete employment status.  In particular, the PCSA’s requirements that institutions track and report the time athletes spend on their sport, as well as the aggregate revenue generated by each sport, may provide evidence that could be invoked in future lawsuits to support arguments that student-athletes are employees.

The bill likewise does not address existing claims brought by student-athletes seeking minimum wage and overtime compensation under the Fair Labor Standards Act and applicable state wage laws.[5]  Nor does it address whether student-athletes may unionize or otherwise exercise collective-bargaining rights under the National Labor Relations Act.

Notably, several organizations, including the Congressional Black Caucus and the National Association for the Advancement of Colored People, have explicitly condemned the Senate’s passage of the PCSA.  The day after the Senate voted 77-22 in favor of the bill, the Congressional Black Caucus published a press release citing major concerns about the impact of the legislation on Historically Black Colleges and Universities (HBCUs) and the Black communities that “helped build college sports into a multibillion-dollar enterprise.”[6]  In particular, the Congressional Black Caucus questioned whether these communities would retain a meaningful role in shaping the future of the athletics industry and the economic opportunities available to Black athletes.

The Congressional Black Caucus further criticized the Senate for advancing legislation that is silent about student-athletes’ employment rights, yet explicitly includes antitrust provisions that restrict their ability to bring private legal action when disputes arise, and fails to guarantee funding for HBCUs.  In the Congressional Black Caucus’ view, the PCSA as written would only serve to further empower and protect athletic institutions, to the detriment of Black athletes, coaches, agents, and entrepreneurs.

Despite these unresolved questions, the PCSA could provide the college athletics industry with a uniform national framework by establishing consistent rules and protocols for schools and student-athletes across the country.  Such uniformity could, in turn, reduce uncertainty and potentially slow the pace of litigation challenging NCAA policies, including disputes arising from its recently adopted age-based eligibility model and ongoing litigation concerning NIL compensation.[7]  Ultimately, whether or not the PCSA becomes law, the question it leaves unanswered, whether student-athletes are employees, will likely be decided by the courts, and that answer may shape the future of college athletics more than anything in the bill itself.

[1]Protect College Sports Act, S. 4668, 119th Cong. (as passed by Senate, Sept. 28, 2026).

[2] Protect College Sports, NCAA, https://www.ncaa.org/protect-college-sports-act/.

[3] Per the legislation, name, image, or likeness compensation of $600 or more must be reported to the institution.

[4] There is a specific note that this item will allow student-athletes to transfer if their coach leaves or if they are subject to sexual assault and/or harassment.

[5] Letter Opposing Legislation That Empowers the NCAA to Unilaterally Set Rules for Athletes, Shielded from Antitrust Liability, AFL-CIO, https://aflcio.org/about/advocacy/legislative-alerts/letter-opposing-legislation-empowers-ncaa-unilaterally-set-rules.

[6] Press Release, Cong. Black Caucus, Congressional Black Caucus Condemns Senate Passage of Protect College Sports Act (Sept. 29, 2026), https://cbc.house.gov/news/documentsingle.aspx?DocumentID=3237.

[7] Tyla Swinton, NCAA Adopts Age-Based Eligibility Model Amid Growing NIL Litigation, RPJ Law, https://rpjlaw.com/ncaa-adopts-age-based-eligibility-model-amid-growing-nil-litigation/.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Associate Tyla A. Swinton who counsels clients on employment, workplace investigations, compliance counseling, litigation strategy, and diversity and inclusion initiatives. Ms. Swinton is admitted to practice law in New York.