FREQUENTLY ASKED QUESTIONS: PROTECT COLLEGE SPORTS ACT, TITLE IX, AND STATE LAWS ON WOMEN’S SPORTS

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Claim: Does the Protect College Sports Act (PCSA) “gut Title IX”?
Reality: Section 127 of the revised PCSA expressly preserves Title IX:

SEC. 127. TITLE IX SAVINGS CLAUSE. Nothing in this title or the amendments made by this title shall be construed to override, modify, or amend the applicability of Title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.).

This language addresses any claim or concern that the PCSA short-circuits or hinders any Title IX lawsuits. All current lawsuits, including those filed by the Independent Council on Women’s Sports, are fully protected.

In addition, the revised PCSA text extends greater protections for Title IX whistleblowers (see Section 120). Relevant additions in bold and italics below.

(a) In General.—No institution, conference, or intercollegiate athletic association, or any agent thereof, may discharge, demote, suspend, withdraw or reduce benefits from, threaten, harass, or in any other manner discriminate against an employee, a student athlete, a prospective student athlete, a former student athlete, a contractor, a subcontractor, a service provider, or an agent of an institution, a conference, or an intercollegiate athletic association because of any lawful act done by such individual—

(1) to provide information to, or cause information to be provided to, an agency of the Federal Government, an agency of State government, Congress, or any law enforcement agency regarding any act or omission that such individual reasonably believes to be a violation of this title or title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.); or

(2) to file, cause to be filed, testify, participate in, or otherwise assist in a proceeding filed or about to be filed relating to an alleged violation of this title or title IX of the Education Amendments of 1972 (20 U.S.C. 1681 et seq.).

This applies to any entity covered by the PCSA, including the NCAA, conferences, or universities, providing important legal protection and rights for those who experience discrimination under Title IX to hold the NCAA accountable for those actions.

Claim: Does the PCSA preempt state laws that prohibit men in women’s sports?
Reality: The PCSA does not override state laws that prohibit men in women’s sports.

Concerns have arisen from the fact that Section 121, which addresses preemption, says states may not maintain laws that regulate “any provision described in section 113 relating to the eligibility of a student athlete to participate in intercollegiate athletics.” This preemption is necessary to stop the eligibility lawsuits that have thrown college sports into chaos.

But the phrase “any provision described in section 113” was expressly added to the text to limit the scope of this preemption provision. Section 121 only preempts those provisions expressly listed in section 113.

Section 113 sets an eligibility standard only for NCAA Division 1 or Division 2 schools. To be eligible, an individual must meet the following requirements:

1. Be a student athlete
2. Meet academic standards
3. Not be a professional athlete
4. Comply with established rules that restrict eligibility for violations of state or federal law (i.e., criminals)
5. Play no more than a maximum of 5 years, nor beyond age 24

These are the only categories of state law that can be preempted. Crucially, section 113 says nothing about state laws on sex-based eligibility for women’s sports.

It is important to preempt state law on the eligibility categories that are listed to set a baseline national standard. There is unanimity amongst athletic directors (ADs), coaches, schools, conferences, and the NCAA on this approach because they don’t want a creative state legislature enacting a law to help its home-state school at the expense of everyone else. For example, a state might enact a law that says former G League or NBA players can come back and play college ball. That would be a disaster.

But there has been confusion around what it means for a student athlete to comply with “established rules that restrict eligibility for violations of state or federal law.” This language has two purposes. First, it means the NCAA can stop criminals from playing. Second, it seeks to protect state laws—like West Virginia’s—that prohibit men from competing in women’s sports. It ensures the NCAA can enforce WV’s law via its eligibility rules. In fact, under section 118(c) of the PCSA, the NCAA only gets antitrust immunity if it has established rules that penalize violations of state and federal law. Without this paragraph, Georgia could pass a law saying that the NCAA is forbidden from denying eligibility to a student athlete who has been convicted of a DUI or a drug offense, effectively rewriting the established rules for how to treat legal violations.

Again, section 121 contains limited state preemption for the eligibility provisions expressly listed in section 113 of the bill. Nothing above preempts or invalidates a state law, like West Virginia’s, that prohibits men in women’s sports. On the contrary, it means a state cannot invalidate NCAA rules restricting eligibility of student athletes who violate state law, including prohibiting male athletes from competing in women’s sports.

And, if the NCAA (or an institution) chooses not to comply with the Act or fails to put in place rules restricting eligibility for athletes that violate state or federal law, (1) the NCAA or institution will be stripped of its antitrust protections, and (2) any person (including a state) can sue the NCAA and institution under section 119 to ensure the bill is being followed.

Without the provision as written, progressive states could prohibit or invalidate NCAA eligibility rules imposing consequences for violations of another state’s men-in-women’s-sports law. The result would be that 113(a)(4)’s “established rules” would operate only where a state permits them to operate. If that were to occur, the NCAA would feel pressure to adopt the most permissive established rule on consequences for federal and state law violations, because that rule might produce fewer state exclusions and a more unifying national standard. This would drive a race to the bottom. Faced with opposite legal commands from states, the NCAA might follow the lead of those progressive states that attempt to exercise authority outside their borders, controlling the ability of other states to protect women.

Claim: Are there any competing bills better for women’s sports than PCSA?
Reality: PCSA is the only college sports legislation that seeks to preserve state law prohibiting men in women’s sports.

The bill is designed to allow states to prohibit men from competing in women’s sports. Other legislation that has been proposed could actually give legal recourse for men to argue they should be allowed to play in women’s sports.

For example, a different college sports bill mandates that a student athlete is able to play for five years “regardless of injury or any other event.” The bill further prohibits a state from restricting the “rights” of student athletes. Putting both of these provisions together, that bill could actually be a Trojan horse that provides men the legal authority to say that a state transgender law (like West Virginia’s) is inhibiting their “rights” and they should be allowed to play for five years “regardless of injury or any other event.”

While the House’s Student Compensation and Opportunity through Rights and Endorsements (SCORE) Act does not have this fatal flaw, it lacks the same protections as the PCSA in requiring the NCAA to restrict eligibility for student athletes who violate state laws prohibiting men from competing in women’s sports. It also doesn’t give recourse to states to hold the NCAA accountable for violations of the Act. PCSA’s robust oversight provisions and legal protections for student athletes and states makes it far superior in ensuring female student athletes have the recourse to protect against sex discrimination under Title IX and receive justice for violations of the Act.