The Student Athlete Fairness and Enforcement (SAFE) Act is a groundbreaking college sports reform bill recently introduced by Democratic Senators Maria Cantwell (Washington), Cory Booker (New Jersey), and Richard Blumenthal (Connecticut). This act is noteworthy not only for its proposals but also for its omissions, positioning it uniquely in the ongoing debate surrounding college athletics.
Unveiled just prior to a federal government shutdown, the SAFE Act—currently lacking a bill number—represents a significant Congressional response during the NIL era. It seeks to empower universities and athletic conferences by allowing them to collectively pool media rights, thereby generating increased revenue without violating the Sherman Antitrust Act.
In contrast to the Republican-backed SCORE Act (H.R. 4312), which directly aligns with NCAA interests, the SAFE Act has received a surprisingly warm reception. Notably, billionaire donor Cody Campbell, a prominent Republican and advocate for college sports reform, expressed his support, commending the bill for its commitment to women’s sports, Olympic competitions, and smaller institutions, while critics suggest the SCORE Act favors the NCAA.
However, the SAFE Act notably avoids tackling two contentious issues in collegiate sports reform: the potential immunity of the NCAA from antitrust lawsuits and whether college athletes should have the right to collectively bargain. Critics have pointed out that the act’s title—“Student Athlete Fairness”—echoes NCAA terminology, which raises concerns about its implications regarding the status of college athletes as distinct from other American workers.
In a statement to *Sportico*, Cantwell acknowledged that while collective bargaining could be beneficial, the current political reality necessitated a different approach. This cautious stance contrasts sharply with the more assertive tone found in the College Athlete Right to Organize Act, led by Senator Chris Murphy. This legislation explicitly classifies college athletes as employees, aiming to amend the National Labor Relations Act to expand the National Labor Relations Board’s (NLRB) reach to include public and private universities.
Murphy’s absence from the co-sponsorship of the SAFE Act raises questions about the strategic trajectory of these competing initiatives. Although he did not comment on the SAFE Act, former NLRB general counsel Jennifer Abruzzo argues that a passive approach to collective bargaining could destabilize the college sports landscape. She emphasized that only Congress can guarantee robust collective bargaining rights.
The SAFE Act’s sponsors appear to be navigating a landscape increasingly demanding direct legislative action from Democrats, as evidenced by the recent government shutdown. Reports indicate that a lack of codification regarding collective bargaining reflects a recognition of the market’s evolving attitudes toward this concept, suggesting that collective bargaining may indeed be essential for the future of college sports.
Recent discussions among athletic administrators illustrate a softening stance toward collective bargaining. In July, a *Yahoo Sports* article highlighted a model being informally introduced by Tennessee Athletic Director Danny White, alongside comments from several colleagues expressing openness to negotiations between schools and athletes to resolve ongoing challenges in college athletics.
In August, Athletes.org organized a meeting with 24 athletic department general managers, where surveys indicated overwhelming support for collective bargaining as a viable solution. Such developments indicate a shifting mindset among decision-makers regarding labor-management relations in collegiate sports.
Legally, the SAFE Act may hold an advantage over the SCORE Act, as the latter is perceived as more susceptible to judicial challenges. The SCORE Act could face scrutiny based on its potential infringement on state authority over labor and employment classifications at public universities. These classifications have historically varied by state, resulting in conflicting determinations about student employment and unionization rights.
Moreover, the SCORE Act’s stipulation that college athletes cannot be defined as employees may trigger legal challenges under the 10th Amendment, inviting scrutiny over the U.S. Supreme Court’s historical stance on state control of public education. The act’s differential treatment of college athletes relative to other students could also raise equal protection concerns under the Constitution, with further complications arising from First Amendment rights related to NIL and agent restrictions.
Even if the score for that act appears daunting, the SAFE Act is not without its criticisms. For instance, it leans heavily on an expansive interpretation of the Sports Broadcasting Act of 1961, which has been contested in court as primarily providing antitrust immunity for traditional broadcast media. Critics argue that this framework is outdated, failing to account for the current viewing landscape dominated by cable, satellite, and streaming services.
With Senate Republicans largely resistant to the SAFE Act, its prospects for passing into law appear slim. Ted Cruz, Senate Commerce Committee chairman, has publicly dismissed the bill, labeling it as a “poison pill” aimed at undermining bipartisan reforms in college sports. His ongoing efforts to develop a bipartisan alternative indicate a commitment to addressing athlete status and providing liability protections, although he has critiqued the SAFE Act for not sufficiently including collective bargaining rights.
As dialogue continues, Cantwell is expected to provide further insights about the SAFE Act in an upcoming panel, organized by the Knight Commission, dedicated to college sports reform initiatives.
