Flock Talk: Invictus

 

“I am the master of my fate, I am the captain of my soul” – William Ernest Henley

There’s no shortage of chaos in college athletics these days. Realignment reshuffled geography, NIL reshaped recruiting, and now, revenue-sharing is redefining what it means to be an amateur. So it came as little surprise that former President Donald Trump—ever the showman—issued a sweeping executive order this week proclaiming it was time to “save college sports.” On paper, it reads like a populist rally cry to preserve tradition, protect women’s athletics, and rein in a chaotic NIL marketplace.

But here’s the truth: it’s not a legal solution. It’s a political message.

Trump’s executive order is essentially a policy position cloaked in legal language—an attempt to mirror the House v. NCAA settlement and SCORE Act while avoiding the thorny process of collective bargaining or congressional consensus. It’s designed for headlines, not courtrooms. And if anyone tries to actually enforce it, they’ll run headfirst into constitutional landmines and administrative paralysis.

Today on Flock Talk, we’re going deeper than the headlines. Because whether you're cheering from Autzen or arguing in Congress, you deserve to know what this EO really says—and why it likely won’t change anything at all.

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A Familiar Framework Disguised as Reform

Let’s start with the obvious: this executive order is not fundamentally different from what’s already happening.

Despite its aggressive tone—calling out NIL bidding wars, warning of Olympic doom, and lamenting a “rudderless system”—the order doesn’t actually ban NIL. In fact, it explicitly allows “legitimate, fair-market-value compensation” from third parties for brand endorsements and similar deals. In other words, it’s the same framework currently used by the NCAA’s new NIL clearinghouse, especially following this week’s clarification that collectives will be treated no differently than other third-party entities.

The so-called “ban” on pay-for-play? That’s already in effect. It's been the guiding principle of every NCAA memo since 2021 and is baked into the settlement framework that attempts to allow direct revenue sharing while still outlawing booster bidding wars for high school recruits.

So, what exactly does this EO add? Functionally, nothing.

It tells athletic departments they should maintain or increase scholarships in non-revenue sports. It tells federal agencies to develop plans to support college athletics. It urges the DOJ and FTC to protect the NCAA from antitrust litigation. And it says universities should not allow third-party payments that don’t reflect market value. But none of these statements create enforceable mandates—and many lack the legal authority to be implemented without congressional legislation or collective bargaining.

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The Score Act Is Already On Life Support

This executive order reads like a backdoor attempt to enact the spirit of the SCORE Act without needing Congress. That’s a problem, because the SCORE Act is already on life support.

While it may find traction in the House, its chances in the Senate are slim at best. This isn’t a red-vs-blue issue. It’s a campus-by-campus, donor-by-donor issue. Lawmakers aren’t lining up along party lines; they’re aligning based on the influence of flagship universities in their districts. And with the Senate already signaling deep skepticism and no obvious 60-vote path to passage, the notion of codifying federal NIL guardrails through legislation is unlikely—at least in this Congress.

Trump’s EO tries to sidestep that gridlock, but without legislative power or the structure of a CBA, it’s nothing more than suggestion dressed up as regulation.

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Executive Orders Without Execution

Executive orders are only as powerful as the machinery behind them. When President Biden issued an EO raising the minimum wage for federal contractors, agencies had clear mandates: comply or lose your contract. That’s leverage.

Trump’s order, by contrast, offers no such teeth. Will the DOJ sue universities that accept NIL payments from collectives? Will the Department of Education reduce Title IX funding to schools that don’t increase non-revenue sports scholarships? Will the IRS audit collectives to assess “fair market value” of brand deals?

Unlikely. And even if they wanted to, those agencies lack the resources, legal clarity, and administrative priorities to pull it off. This EO doesn’t provide authority—it asks for voluntary action. There’s no funding mechanism, no statutory basis, no specific enforcement path. 

Now, in theory, a future Trump administration could attempt to enforce the executive order by threatening to withhold federal funds from universities that fail to comply. That might sound like a nuclear option—but even that move would likely fail under judicial scrutiny. Courts have consistently ruled that conditions placed on federal funding must be clearly stated, reasonably related to the funding’s purpose, and not so coercive as to violate constitutional protections (see South Dakota v. Dole, 1987). Trying to tie federal education funding to compliance with vague and unenforceable NIL policies would almost certainly spark lawsuits—and those challenges would have a strong chance of prevailing.

So, while the President may talk tough and issue sweeping declarations, history shows that these orders tend to fade quickly from the policy agenda—especially when the executive branch lacks the will, or the legal grounding, to follow through.

This EO, like many before it, is designed to dominate the news cycle—not the courtroom. It’s theater. And it’s not even good theater.

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Legal Landmines Ahead

Even if someone did try to enforce this order—or the SCORE Act, for that matter—they’d walk straight into a legal buzzsaw.

Antitrust law is the biggest obstacle. NCAA v. Alston made clear that limiting athlete compensation without a collectively bargained agreement violates the Sherman Act. If this executive order, or any derivative regulation, attempts to cap or regulate athlete earnings outside of a CBA, it will likely be struck down. Period.

The Dormant Commerce Clause adds another layer of complexity. NIL is inherently an interstate market. Brands in one state pay athletes in another. A federal order that interferes with those lawful economic transactions could be seen as a violation of commerce protections—especially if it tries to impose subjective standards like “market value” without due process.

Due process and equal protection arguments could also be raised if the federal government treats athletes differently based on university size, revenue, or state NIL laws. Courts have historically been skeptical of economic classifications not backed by a compelling interest or narrowly tailored rationale.

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What It Means for Oregon and College Football

For Oregon fans, this all matters. Because Oregon’s NIL strategy—structured, compliant, culture-driven—relies on predictability. The Ducks have avoided the arms race while still building elite rosters. But if Trump’s EO were actually enforceable (which it’s not), or if the SCORE Act passed (which it won’t), Oregon could find itself restricted in ways that benefit schools playing a different game.

Worse, these proposed guardrails could become a tool for more powerful conferences to consolidate power. Schools that already have massive donor pools and infrastructure will still find ways to operate—while mid-tier and West Coast programs like Oregon face disproportionate scrutiny.

That’s the irony here: a policy meant to save college sports could actually further entrench inequality.