A Review of the Latest Executive Order Aimed at College Sports and the Latest Decisions in Retroactive NIL Compensation Lawsuits.
By Adam R. Bialek and Dara S. Elpren*
On July 24, 2025, President Donald Trump signed an Executive Order titled, “Saving College Sports,” the stated purpose of which is to “protect student athletes and collegiate athletic scholarships and opportunities, including in Olympic and non-revenue programs, and the unique American institution of college sports.”
The Order comes at a time of significant upheaval in college athletics, with ongoing debates over student athlete compensation, the future of non-revenue sports, and the overall structure of collegiate competition. Recent court decisions and the president’s Executive Order are causing many to question whether the recent changes to monetary influence in college athletics is “saving college” sports or forever altering the landscape of “amateur” sports, diluting the difference between organized college sports and professional sports leagues.
College sports support more than 500,000 student athletes, but the impact of college sports on the public is even more significant. The University of Michigan alone averages more than 110,000 fans for their home games, and in excess of 12 million viewers watched the Michigan vs. Ohio State football game on television on November 30, 2024. Similarly, the National Collegiate Athletic Association’s (NCAA’s) March Madness averaged 9.3 million viewers on television over the first two rounds, with the national championship averaging 18.1 million viewers. With annual revenues in the billions of dollars, college sports is big business.
The business goes beyond just the athletics. In a report commissioned by tourism venue Destination Ann Arbor, the economic impact of Michigan football games on the region found that the football season alone generated $226.7 million in direct visitor spending from visitors to Ann Arbor who live outside the county. Local boosters and third parties who stood to gain from the impact, along with die-hard fans, created a cottage industry of finding ways to support their local universities, and in some cases athletes, by contributing hundreds of millions of dollars to schools and arranging for student athletes to find jobs or have benefits provided to their family members. Thus, college sports have far-reaching implications to the economies of large and small cities and towns across the country. Any change that could impact that calculus could send ripples through the economy. College sports have therefore been a guarded industry – until recently.
With the legal, administrative, and legislative changes that have arisen over the past few years, student athletes now command more control over their images and their ability to transfer schools, and the leverage that schools previously had over college sports may be changing. While the large revenue-producing sports have often controlled what schools can do with non- or low-revenue-producing sports, many people worry about the impact that the change in college sports could have on the availability for scholarships and opportunities for students to participate in the lesser-known or non-monetized sports.
Key Provisions of the Executive Order
Ban on Third‑Party “Pay‑for‑Play” Payments
The change in the college sports equilibrium and the potential impact it could have on non-revenue sports (and the athletes who participate in such sports) did not go unnoticed by the government. President Trump’s Executive Order draws a line between permissible and impermissible compensation for student athletes. While it continues to allow legitimate, fair-market-value NIL (name, image, likeness) endorsement deals, it explicitly prohibits any payments from third parties – including boosters and collectives – that amount to “pay-for-play.” This provision is intended to curb the growing influence of outside entities in recruiting and retaining athletes, while still permitting athletes to benefit from their personal brands. The Order, however, went further to try to ensure the integrity of the college sports system and the opportunities it has offered many student athletes.
As the White House’s “Fact Sheet” notes, “President Trump recognizes the critical role of college sports in fostering leadership, education, and community pride, the need to address urgent threats to its future, including endless litigation seeking to eliminate the basic rules of college sports, escalating private-donor pay-for-play payments in football and basketball that divert resources from other sports and reduce competitive balance, and the commonsense reality that college sports are different than professional sports.”
Support for Women’s & Non‑Revenue Sports
The Order takes a tiered approach to preserving and expanding opportunities in women’s and non-revenue sports:
- Programs with more than $125 million in athletic revenue (2024–2025) must increase scholarships and roster spots for women’s and non-revenue sports such as gymnastics and track.
- Programs with $50–$125 million in athletic revenue are required to at least maintain current scholarship levels in these sports.
- Programs with less than $50 million in athletic revenue or without revenue-sharing sports must avoid reducing scholarship opportunities or roster spots in women’s and non-revenue sports.
This structure is designed to ensure that the financial pressures facing major college athletic programs do not result in cuts to women’s and non-revenue sports, which have historically been vulnerable during periods of budget tightening.
Clarifying the Employment Status of Student Athletes
A central issue in recent years has been whether student athletes should be classified as employees, with all the attendant rights and obligations. The Order directs the Secretary of Labor and the National Labor Relations Board to issue guidance or rules clarifying that student athletes are not employees. The stated goal is to preserve the amateur status of college athletes and protect the viability of non-revenue sports, which could be threatened by the costs associated with employee status.
Antitrust Shield & Federal Oversight
The Order instructs the Attorney General, the Department of Education, and the Federal Trade Commission to:
- Develop enforcement strategies within 30 days
- Use Title IX, federal funding decisions, litigation, enforcement, and administrative actions to protect student athletes, uphold competitive balance, and stabilize college sports amid antitrust challenges.
This provision is a direct response to the wave of antitrust litigation that has challenged NCAA rules and the traditional structure of college sports. By invoking federal oversight and enforcement, the Order seeks to provide a legal shield for colleges and universities as they navigate these challenges.
Consultation with Olympic & Paralympic Authorities
Recognizing the role of college sports in developing elite athletes for international competition, the Order requires the White House Domestic Policy team to consult with U.S. Olympic and Paralympic organizations. The goal is to ensure that college sports continue to serve as a pipeline for Olympic and Paralympic success, and that any changes to the collegiate model do not undermine the United States’ competitiveness on the world stage.
Impact of the Order
The Order’s language on pay-for-play keeps the status quo by largely restating the current NCAA rules and many state law prohibitions against direct payments to student athletes for their athletic performance, while still permitting legitimate, fair-market-value NIL deals. Effectively, the Order makes no real impact or changes as to how college sports currently operate.
However, the Order does mandate interesting new protections for scholarships and roster spots for women’s and non-revenue sports. While Title IX already requires gender equity, this specific, revenue-based tiered approach to preserving and expanding opportunities in non-revenue sports is new and could force some athletic departments to rethink their resource allocation.
Finally, the Order marks a significant shift in college sports by bringing the federal government into the NIL rule-making space, by instructing the Secretary of Labor and the National Labor Relations Board to issue guidance or rules clarifying that student athletes are not employees, and instructing federal agencies to implement a layer of oversight that does not currently exist. We have yet to see exactly how the federal government will become involved.
While the Order seeks to address pressing concerns about athlete compensation, the future of non-revenue sports, and the legal status of student athletes, its effectiveness will depend on implementation, enforcement, and the evolving legal and political context. Colleges, athletes, and stakeholders should closely monitor further guidance and potential litigation as the Order’s provisions take effect.
Update: Lawsuits on Retroactive Compensation for NIL
In previous articles, we discussed several lawsuits against the NCAA pertaining to the retroactive compensation of NIL student athletes who played prior to June 15, 2016. These litigations are fairly active, and decisions are issued frequently that could change the landscape of the “business” of college sports.
On April 28, 2025, U.S. District Court Judge Paul A. Engelmayer granted the NCAA’s motion to dismiss a proposed class action by 16 former men’s basketball players accusing the NCAA of exploiting them long after their careers ended. Mario Chalmers et al. v. National Collegiate Athletic Association et al., 1:24-cv-05008, in the U.S. District Court for the Southern District of New York. Judge Engelmayer agreed with the NCAA that the plaintiffs’ claims expired long ago.
On July 18, 2025, Ohio U.S. District Court Judge Sarah D. Morrison in Pryor v. National Collegiate Athletic Association et al, 2:24-cv-04019, in the U.S. District Court for the Southern District of Ohio, Eastern Division, dismissed Pryor’s proposed class action. Judge Morrison found that Ohio State was immune from the claims due to sovereign immunity under the Eleventh Amendment and that Pryor’s claims against the NCAA, OSU, and others were untimely.
The next day, on July 19, 2025, defendants in Denard Robinson et al. v. NCAA et al., 2:24-cv-12355, in the U.S. District Court for the Eastern District of Michigan, filed a Notice of Supplemental Authority requesting that the Court take notice of the decision in Pryor in support of their motion to dismiss. As expected, on July 21, 2025, plaintiffs responded in opposition to the defendants’ notice, arguing that the merits of the two cases are materially different and that the defendants misrepresent Judge Morrison’s analysis.
Similarly, since the decision in Pryor, plaintiffs (the “Cardiac Pack”) in Members of North Carolina State University’s 1983 NCAA Men’s Basketball National Championship Team et al. v. National Collegiate Athletic Association et al., 2024CVS17715, in the North Carolina Business Court, have argued that the Order in Pryor has no bearing on the issues in their cases. The plaintiffs argued that it “does not address questions central to resolving Defendant’s Motion to Dismiss, such as the timeliness of Plaintiffs’ misappropriation, UDPTA and monopoly claims, and it side-steps the critical question of whether Claim One (price-fixing) is timely if, as Plaintiffs here allege, the forms did not validly convey rights to the NCAA.”
Nevertheless, on August 7, 2025, the court in the “Cardiac Pack” case issued an order and opinion dismissing plaintiffs’ claims. Special Superior Court Judge for Complex Business Cases Mark A. Davis found that the statute of limitations expired and that the players lacked a legally enforceable right of publicity in the game footage under North Carolina law.
Further, on August 15, 2025, former Heisman trophy winner Reggie Bush urged a Los Angeles Superior Court judge to reconsider his tentative ruling that would dismiss Bush’s claim that accused the NCAA, USC, and the Pac-12 Conference of exploiting his NIL. The Court had issued a tentative ruling finding that the statute of limitations expired on Bush’s claims, as he last played college football two decades ago, and that he had signed a contract giving up his NIL rights in perpetuity.
Taken together, these decisions underscore a growing judicial consensus that, whatever the merits of the underlying NIL theories, claims seeking retroactive compensation for pre-2016 conduct are largely time-barred. Federal judges in New York and Ohio, as well as a North Carolina Business Court, have all concluded within the past few months that the applicable statute-of-limitations periods expired well before the plaintiffs filed suit, and defendants in other jurisdictions are already invoking those rulings to bolster their own dismissal motions (with a decision pending in Los Angeles Superior Court). The prevailing trajectory suggests that most, if not all, retroactive NIL compensation lawsuits will continue to rest on timeliness grounds.
Will the new rules and the court decisions change college sports, or will they save college sports as President Trump’s Executive Order claims? Change is likely and has already been seen with athletes moving more freely through the transfer portal and elite athletes selecting schools based on their “NIL packages.” Yet college sports continue to garner higher attendance and ratings, and show no signs of slowing. It may, however, take years to see the impact on smaller schools, the lesser-known or non-revenue sports, as well as women’s sports, and to see whether the president’s Order helps to “save” college sports.
*Adam Bialek is a partner and co-chair of Wilson Elser’s Intellectual Property & Technology Practice. He focuses on intellectual property, internet law, data security and privacy, and cyber/media risk matters.
Dara Elpren is an associate in the practice, focusing on IP and technology law matters, and litigation over copyrights, trademarks, trade secrets, rights of publicity, web accessibility, defamation/libel, and related matters.
