Paper No. 2

The Authority Problem: Why recent court rulings, NIL enforcement failures, and antitrust law have stripped the NCAA of real governing authority.

"We may indeed with propriety be said to have reached almost the last stage of national humiliation."
— Alexander Hamilton, Federalist No. 15

The instability of modern college football is not primarily a problem of rules. It is a problem of authority.

Rules exist in abundance—transfer restrictions, eligibility standards, compensation guidelines, NIL disclosures, roster limits. Yet none have produced lasting stability. The reason is not difficult to identify: rules that lack enforceability, or that rest on legally infirm foundations, do not govern conduct. They invite challenge.

This paper advances a central claim: college football currently operates without a legitimate governing authority capable of imposing binding, durable, and legally defensible rules. Until that problem is addressed, reform will remain temporary and reactive.

I. The Erosion of NCAA Authority

For much of the modern era, the NCAA functioned as the central regulator of college athletics. Its authority rested on two interrelated premises: (1) voluntary association among member institutions, and (2) judicial deference to the concept of amateurism as a procompetitive justification under antitrust law.

Both premises have been substantially weakened.

The NCAA’s exposure to antitrust scrutiny is not new. In NCAA v. Board of Regents, 468 U.S. 85 (1984), the Supreme Court held that NCAA television restrictions violated Section 1 of the Sherman Act, while at the same time suggesting—though not holding—that certain forms of coordination might be necessary to preserve the character of college sports. For decades, the NCAA relied on this language to justify broad regulatory authority.

That reliance has proven increasingly untenable.

In O’Bannon v. NCAA, 802 F.3d 1049 (9th Cir. 2015), the Ninth Circuit rejected the NCAA’s prohibition on certain forms of athlete compensation, recognizing that limits on education-related benefits could violate antitrust law. While the court attempted to preserve a limited conception of amateurism, it marked a clear departure from blanket judicial deference.

That trajectory culminated in NCAA v. Alston, 594 U.S. ___ (2021), in which the Supreme Court unanimously affirmed that NCAA compensation restrictions are subject to ordinary rule-of-reason analysis. The Court rejected the NCAA’s request for special treatment and emphasized that it is not exempt from the Sherman Act. Justice Kavanaugh’s concurrence went further, questioning whether any remaining compensation limits could survive scrutiny.

Subsequent litigation has continued along this path. Lower courts have shown increasing skepticism toward eligibility rules and compensation limits that function as restraints on athlete mobility or economic opportunity. Recent challenges by athletes such as Trinidad Chambless and Owen Heinecke reflect this trend, with courts granting relief where eligibility restrictions lacked sufficient justification under traditional antitrust principles.

At the same time, the NCAA has retreated from meaningful enforcement in the NIL space. Faced with legal exposure, it has issued guidance rather than rules, and interpretations rather than enforcement actions. The resulting system is characterized by formal prohibitions alongside practical non-enforcement.

An institution that cannot enforce its rules, and cannot defend them in court, does not exercise authority in any meaningful sense.

II. The Absence of a Governing Mechanism

In response to the NCAA’s diminished role, various actors have attempted to fill the void: conferences asserting greater autonomy, collectives facilitating compensation, and more recently, the creation of the College Sports Commission as a centralized NIL clearinghouse.

These efforts reflect a recognition of the problem. But they do not solve it.

The core issue is not coordination; it is enforceability. Any entity that seeks to regulate compensation or restrict athlete movement must contend with the Sherman Act’s prohibition on concerted restraints of trade. Absent a recognized exemption—either statutory or labor-based—such rules are presumptively vulnerable to challenge.

The early difficulties encountered by the College Sports Commission illustrate this constraint. Efforts to review and standardize NIL agreements, including those involving major third-party operators such as Learfield, raise immediate questions: What is the legal basis for rejecting a transaction? What remedy exists for noncompliance? What prevents parties from restructuring arrangements outside the system?

Without binding authority, a clearinghouse functions as an advisory body. Market participants remain free to disregard its determinations.

III. Antitrust Constraints and the Limits of Voluntary Rules

The current system attempts to impose order through what are, in effect, horizontal agreements among competitors—member institutions agreeing to limit compensation, regulate transfers, or standardize eligibility.

Under traditional antitrust doctrine, such agreements are subject to scrutiny under Section 1 of the Sherman Act. While some coordination is permissible under the rule of reason, courts have been increasingly unwilling to accept broad, prophylactic restrictions on athlete compensation or mobility absent clear procompetitive justification.

The NCAA’s historical reliance on “amateurism” as such a justification has lost force. As the Court observed in Alston, “the NCAA is not above the law,” and its restrictions are subject to the same analysis applied to other market actors.

Board of Regents once suggested that some coordination was necessary to produce college football as a product. But subsequent decisions have clarified that necessity does not confer immunity, and that restraints must be narrowly tailored and supported by evidence, not tradition.

Courts do not invalidate NCAA rules because they oppose college sports, but because those rules resemble the very forms of coordinated market restriction that the Sherman Act was designed to prevent.

In the absence of a recognized exemption, any attempt to impose meaningful constraints—salary limits, transfer restrictions, eligibility caps—faces a high probability of legal challenge and potential invalidation.

IV. The Illusion of Player Empowerment

The current environment is often described as one of unprecedented player empowerment. In a narrow sense, this is accurate: athletes possess greater freedom to transfer and to participate in NIL markets than at any prior point.

But freedom without structure is not synonymous with security.

The present system resembles an uncapped free agency market without contracts, guarantees, or enforceable commitments. While a subset of athletes benefit significantly, many others experience volatility and displacement.

Athletes routinely:
- Enter the transfer portal without secured alternatives
- Forfeit existing roster positions upon entry
- Receive informal or nonbinding assurances
- Cycle through multiple institutions in short periods

From a labor market perspective, this is not a stable equilibrium. It is a transitional state characterized by asymmetric information, weak enforcement, and uneven bargaining power.

V. Why a Structured System May Better Serve Athletes

A collectively bargained framework—however controversial in concept—offers mechanisms unavailable under the current regime.

Through collective bargaining, parties may establish:
- Minimum compensation standards
- Contractual terms and duration
- Defined transfer windows and conditions
- Grievance and enforcement procedures

Most importantly, such agreements benefit from the nonstatutory labor exemption to antitrust law, which permits coordinated restraints that would otherwise be impermissible if negotiated between labor and management.

Professional leagues operate within this framework. The resulting systems do not eliminate competition; they structure it.

For many athletes, particularly those outside the highest compensation tier, such a system may offer greater predictability and protection than the current open market.

VI. Legislative and Executive Uncertainty

Efforts to resolve these issues through federal legislation have thus far been inconclusive. Proposals such as the SCORE Act face significant political and structural hurdles, and there is little indication of imminent comprehensive reform.

Recent executive actions signal federal interest in the governance of college athletics, but executive authority alone cannot create a durable regulatory framework capable of withstanding judicial scrutiny.

Absent legislative intervention, the system remains governed by evolving case law and incremental judicial decisions.

VII. The Necessity of Legitimate Authority

A stable system of governance requires authority that is both legally defensible and practically enforceable.

At present, college football possesses neither.

There are, in effect, only two viable pathways to such authority:
1. Collective bargaining, invoking the nonstatutory labor exemption
2. Congressional action providing limited antitrust protection for agreed-upon rules

Absent one of these, the system will continue to operate in a state of provisional legality, subject to ongoing challenge and revision.

VIII. From Authority to Structure

The proposal advanced in Paper No. 1—a football-specific governing federation—must therefore be understood not merely as an organizational reform, but as a legal necessity.

Any such federation must derive its authority from a framework that can survive judicial scrutiny and command compliance among its participants. Voluntary coordination, without more, will not suffice.

Until that condition is met, college football will remain what it has become: a system governed not by rules, but by the limits of their enforceability.

That condition is not stable. And it will not endure.