What's missing in the Trump College Sports EO Conversation

Good morning, and thanks for spending part of your day with Extra Points.

Well, my nightmares have come true. Michigan won the Men’s NCAA basketball tournament. Let’s check in our Bracket Challenge Presented by Short Courts, shall we?

Short Courts makes beautiful and authentic framed replica courts and football fields, perfect for your donors, fans and fundraisers. Designed to celebrate your program and thank the people who make it possible, Short Courts are handcrafted and customizable for any occasion. Check out examples courts and fields here.

Here are your winners!

If you are one of these three brackets, please email [email protected] so we can get you your prizes!

Late afternoon on Good Friday is prime News Dump territory. Families are preparing for travel or religious observance, many schools/workplaces have a long weekend, and only degenerate news junkies like me are refreshing social media to see what’s going on. That’s not the window you pick if you want to make a huge announcement that you’re very proud of.

So naturally, that’s when the White House released a new Executive Order meant to fix the biggest problems in college sports.

You’ve probably seen the news by this point, but just in case you’ve only skimmed the headlines, the EO calls for athletes to only be able to transfer once without penalty, for athlete eligibility windows to be limits to “five years to play five”, ban “pay for play” agreements facilitated by collectives, and much more.

The EO is scheduled to go into effect on August 1. Since college sports is not, in fact, part of the Executive Branch, and since Congress hasn’t actually passed any laws about any of this stuff, the EO ties enforcement to federal education funding. Schools that do not comply with the EO, (by say, starting an athlete who has transferred more than once) could risk federal funding appropriations.

Every leading industry analyst appears to agree. This order is almost certainly not constitutional. It will be sued as soon as anybody tries to enforce it. Via Sportico:

❝

Article I of the U.S. Constitution vests lawmaking power in Congress, so when an executive order travels into what might be regarded as “lawmaking,” courts can block the order. The president is not a dictator or king; presidential authority is restrained by the checks and balances of American government.

This was recently illustrated when the U.S. Supreme Court invalidated an order attempting to impose tariffs through the International Emergency Economic Powers Act. The court reasoned the text of the statute didn’t authorize Trump’s actions, and thus the president lacked the legal authority.

Potential legal challenges to Friday’s executive order abound. One is that it doesn’t comply with federal antitrust law or the U.S. Supreme Court interpretations of it. Alston makes clear that the NCAA is not owed deferential review.

…

The possibility of legal challenges to Trump’s order is important from a timing perspective. The order could be tied up in litigation for months, and potentially well past November’s midterm elections when the Democrats are expected to win a majority of the House of Representatives. Although Congress hasn’t shown much appetite for passing college sports legislation regardless of whether it is controlled by the Republicans or Democrats, it could pursue legislation next year that tries to counter Trump’s order.

You don’t need me, a non-lawyer to tell you this order isn’t likely to hold up to legal scrutiny anywhere beyond Justice Alito’s personal chambers (and shoot, maybe not even then). There are plenty of other actual lawyers who will be happy to do that.

But there’s something else I think hasn’t been discussed enough as we analyze the risk/reward for institutions debating whether to comply with this order.

I’ve seen a few versions of this analysis from ESPN’s great Dan Murphy:

— # (#)

I don’t want to pick on Dan! He’s done important original reporting on this topic and is worth following on this and many other stories. And I agree with the substance of what he’s saying here…that the order does have some meaning, even if it isn’t enforced as currently written. Viewing the EO as a potential signal to Congress on how to approach college athletics reform does make some sense in the abstract.

But where I think I differ here, and perhaps from some of my fellow writers, is that I don’t think that actually matters. I don’t believe Trump is powerful enough anymore to will his way to a legislative solution.