Paper No. 2 — The Authority Problem
Why the NCAA no longer possesses the legal or practical authority to properly govern major college football.
"We may indeed with propriety be said to have reached almost the last stage of national humiliation."
— Alexander Hamilton, Federalist No. 15
College football remains formally governed by the NCAA.
In practice, that authority has weakened to the point where it no longer defines how the system operates.
The rules still exist. Enforcement mechanisms remain in place. But the underlying capacity to impose, defend, and sustain those rules has eroded—gradually at first, and now more visibly.
This paper proceeds from a straightforward premise: the NCAA’s authority over major college football persists in form, but not in substance. The gap between the two is no longer incidental. It is structural.
I. Authority Depends on Enforcement
The NCAA continues to exercise formal rulemaking power. It defines eligibility, regulates recruiting, and maintains enforcement processes.
That authority, however, is meaningful only to the extent that it can be exercised consistently and credibly.
In recent years, that consistency has diminished.
Rules are revised frequently. Interpretations vary. Enforcement actions proceed unevenly, often after prolonged delay. The result is not the absence of regulation, but a system in which the application of rules is increasingly uncertain.
Participants adjust accordingly. Compliance becomes a matter of judgment rather than clear obligation. Institutions rely not only on NCAA guidance, but on legal advice, state law, and competitive necessity.
A regulatory system can accommodate some degree of flexibility. It cannot function indefinitely when its rules are no longer reliably applied.
II. The Legal Foundation Has Shifted
The erosion of NCAA authority is not solely an internal development. It reflects a broader change in the legal environment.
Courts have made clear that NCAA rules are subject to ordinary principles of antitrust law. In O’Bannon v. NCAA, the Ninth Circuit held that restrictions on athlete compensation operated as an unlawful restraint of trade.
That conclusion was not limited to a single form of compensation. It established that NCAA rules governing economic activity are not insulated from scrutiny simply because they are labeled “amateur.”
The Supreme Court reinforced that principle in NCAA v. Alston, unanimously affirming that limits on certain forms of athlete compensation violated federal antitrust law.
More significantly, the Court declined to grant the NCAA broad deference. Its analysis treated the NCAA as a collection of market participants whose coordination must be justified under standard antitrust principles.
The implication is not abstract.
A system that depends on coordinated limits among competitors must either satisfy those principles—or change.
Recent developments have gone further. Courts have begun to consider whether college athletes may qualify as employees under federal law, raising the possibility of wage-and-hour obligations and collective labor rights.1
If that line of reasoning continues to develop, the NCAA’s current model would not merely be constrained.
It would be incompatible with the governing law.
III. Coordination Under Constraint
The NCAA’s traditional role depended on its ability to coordinate behavior across competing institutions.
That coordination is now subject to legal limits.
Rules that restrict compensation, movement, or benefits are increasingly evaluated as agreements among competitors to limit market activity. Under antitrust law, such agreements are permissible only under defined conditions and must be justified by demonstrable procompetitive effects.
The NCAA’s framework does not fit comfortably within those conditions.
This produces a persistent tension.
Efforts to enforce restrictive rules invite legal challenge. Efforts to relax those rules reduce the organization’s ability to maintain uniformity.
Neither path restores the original model.
IV. Practical Authority Has Followed Legal Authority
As legal constraints have expanded, practical authority has receded.
Institutions now operate with greater independence. They interpret rules in light of their own risk tolerance and competitive position. State laws influence behavior in ways that NCAA rules cannot fully override. External entities—collectives, sponsors, and third-party intermediaries—play an increasing role in shaping outcomes.
Enforcement, where it occurs, is often reactive and contested.
The cumulative effect is a system in which the NCAA no longer defines the boundaries of permissible conduct with the same clarity it once did.
What remains is a framework that is still referenced, but less determinative.
V. A System Operating Beyond Its Formal Structure
From a practical standpoint, major college football already operates outside the structure the NCAA was designed to enforce.
Compensation occurs through mechanisms that did not exist within the traditional model. Player movement reflects incentives that are not fully captured by existing rules. Institutional decisions are shaped by a combination of legal exposure, competitive pressure, and evolving norms.
The formal system has not disappeared.
It has been supplemented—and, in some respects, displaced—by parallel structures that now influence behavior more directly.
VI. Authority and Alignment
A governing system cannot remain effective when its formal authority diverges from the reality it seeks to regulate.
For a time, that divergence can be managed through adjustment and reinterpretation. Over time, however, the gap widens.
Rules that no longer reflect actual conditions become harder to enforce. Enforcement that is perceived as inconsistent loses legitimacy. Participants respond by relying less on the system itself and more on their own assessments of risk and opportunity.
At that point, authority does not collapse in a single moment. It diminishes incrementally.
VII. The Implication
The present condition of college football is not the result of a sudden failure.
It reflects a system that has evolved beyond the scope of the structure designed to govern it.
Major college football now operates as a national commercial enterprise with a functioning labor market and sustained legal exposure. It requires a form of governance capable of addressing those realities directly.
The NCAA, as currently constituted, was not designed for that role.
VIII. Conclusion
Authority cannot be maintained indefinitely through formal designation alone.
It depends on the ability to define rules that are both enforceable and consistent with the environment in which they operate.
In college football, that alignment has weakened.
The result is a system in which governance persists, but authority is increasingly diffuse—shared among institutions, influenced by courts, and shaped by forces beyond the NCAA’s direct control.
The question is not whether that condition can be sustained.
It is how long it can persist before a different structure emerges.
https://harvardlawreview.org/print/vol-138/johnson-v-national-collegiate-athletic-assn-108-f-4th-163-3d-cir-2024/