A pocket of hardline conservatives have held up a largely bipartisan bill that would set the first federal rules for universities and college athletes looking to profit off of their name, image, and likeness, citing concerns over transgender athletes.
They argue the Protect College Sports Act (S. 4668), aimed at replacing a patchwork of different state laws regulating college sports, could override state laws that ban transgender girls from playing for women’s sports teams. But not everyone on the right agrees, potentially endangering the landmark bill when the Senate returns to Washington next month to take it up.
Without explicit protections, GOP critics say that the bill could allow the NCAA to change its current policies limiting competition in women’s sports to student-athletes assigned female at birth or allow a judge to block state restrictions.
While the NCAA, college athletics’ governing body, rejected the claim, conservatives seeking greater certainty on the issue are backing a proposed amendment from Sens. Josh Hawley (R-Mo.), Tommy Tuberville (R-Ala.) and Jim Banks (R-Ind.) that would explicitly protect state laws on transgender athletes.
The amendment has drawn support from conservative groups, including the Alliance Defending Freedom, the American Principles Project and Concerned Women for America, as well as the influencer, Riley Gaines. But other Republican leaders and advocacy groups maintain the bill wouldn’t encroach on states’ ability to make laws regarding the eligibility of transgender athletes.
“The bill does absolutely nothing to impact the 27 states, including my home state of Texas, that have quite rightly acted to protect girls’ sports and women’s sports,” Sen. Ted Cruz, the bill’s lead Republican sponsor, said in an interview on Newsmax earlier this month.
‘Good-Faith Disagreement’
The bill, which is slated for a key procedural vote in mid-September, doesn’t mention the issue of transgender athletes explicitly.
Its supporters in the GOP, along with top White House lawyers, argue that the bill’s preemption language is narrow enough that it only usurps certain state laws related to the administration of “name, image, and likeness” programs; transfer policies; and specific eligibility criteria related to age and professional status.
The controversy has thus far proven immune even to the ministrations of President Donald Trump, who berated those holding up the bill over the preemption issue as “grandstanding” liars and demanded that the Senate pass the college sports bill before leaving for the August recess.
That didn’t happen, but bill supporters continue urging lawmakers not to let the perfect be the enemy of the good.
The White House-aligned think tank America First Policy Institute, defended the bill in a letter to senators earlier this month, while also touting the bill’s benefits for women’s sports, which along with Olympic sports are already facing elimination at some schools due to budget constraints stemming from the NIL era.
The White House counsel’s office also pushed out an analysis declaring that “states may still legislate on the question of whether trans individuals should play on a men’s team or a women’s team.”
That isn’t good enough for others on the right.
“There is no serious argument that these preemption provisions are not, at the very least, ambiguous and could be misconstrued,” GOP attorneys general from Florida, Indiana, Alabama, Utah, Alaska, and Kentucky warned in a letter to Cruz and his fellow Republican bill co-sponsor, Missouri Sen. Eric Schmitt.
To the Alliance Defending Freedom, the existence of the debate points to the bill’s ambiguity.
The Christian conservative legal group helped defend state-level transgender athlete bans upheld by the Supreme Court in June, and has spearheaded similar legal challenges around the country. ADF started engaging with the the bill’s sponsors early on in the process to ensure that its work at the state level wouldn’t be at risk, Matt Sharp, ADF’s vice president of public policy, said in an interview with Bloomberg Government.
Such “good-faith disagreement” over the issue between prominent conservative legal minds only underscores the need for clarity, he said, pointing to diverging interpretations between the White House and the Republican state attorneys general.
Perfect, the Enemy of Good
The NCAA, universities, athletic conferences, pro sports leagues, and more have coalesced behind the bipartisan bill, which they argue is imperfect but preferable to the status quo.
The legislation is vital to pulling college sports out of a “deep, rapid dive toward ruin,” New York Yankees President Randy Levine, a vice chair of Trump’s college sports roundtable, wrote in an op-ed last week in the Sports Business Journal.
Conservatives’ concerns about the legislation preempting state transgender athlete laws are “completely unfounded,” Levine wrote.
“These opponents’ argument is therefore not based on what the bill actually says, but on the possibility that some judge could someday interpret the law differently,” he said. “But that possibility exists with virtually every piece of legislation ever passed.”
Two people briefed on the negotiations said there is a potential fix in the works that is aimed at addressing conservatives’ concerns without the need for a vote on Hawley’s amendment. But even if Republicans do manage to bridge the divide, the bill has plenty of other obstacles to overcome.
On the left, the Congressional Black Caucus and Democratic allies, such as trial lawyers and labor organizations, have called on Democrats to oppose the bill for a variety of reasons.
Meanwhile GOP senators representing certain schools in the Atlantic Coast Conference are pressing for protections related to conference realignment. The House, which has yet to pass its own college sports bill, is widely expected to seek its own changes to the proposal as it runs up against a dwindling legislative calendar before the midterm elections.