Paper No. 6 — The Legal Framework
Why any durable system of college football governance must operate within, rather than attempt to avoid, existing legal constraints.
“In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
— James Madison
The structure of college football is no longer shaped solely by internal rules or institutional preferences.
It is shaped, in increasingly direct ways, by law.
Over the past decade, litigation has moved from the margins of college athletics to its center. Courts have not replaced the NCAA or the conferences as governing bodies, but they have altered the range of permissible rules and the assumptions on which those rules rest.
This shift has practical consequences. It limits how institutions can coordinate. It affects how compensation is structured. It raises questions about the legal status of athletes themselves.
Any system that ignores these constraints will not endure.
This paper proceeds from a simple premise: a stable framework for college football must be built in a manner that is consistent with existing legal principles, rather than dependent on exceptions to them.
I. Antitrust as the Governing Constraint
The central legal issue in modern college athletics is not obscure.
It is antitrust law.
The NCAA and its member institutions operate as participants in a market. When they act collectively to limit compensation, restrict movement, or define the terms of participation, those actions are subject to scrutiny under the Sherman Act.
This has been clear for some time.
In O’Bannon v. NCAA, the Ninth Circuit held that NCAA rules restricting compensation for the use of athletes’ names, images, and likenesses functioned as an unlawful restraint of trade.
The court rejected the argument that amateurism, standing alone, insulated those rules from antitrust review. Instead, it applied the “rule of reason,” requiring the NCAA to justify its restrictions in terms of their actual competitive effects.1
That approach has since been reinforced.
In NCAA v. Alston, the Supreme Court unanimously held that limits on certain forms of athlete compensation violated federal antitrust law.
The decision did not resolve every question, but it clarified an important point: the NCAA is not exempt from ordinary legal analysis. Its rules must be evaluated in the same way as other forms of coordinated conduct among market participants.
That principle governs the field.
II. The Limits of Coordinated Restraints
Under antitrust law, coordination among competitors is not inherently unlawful.
It becomes problematic when it restricts competition without sufficient justification.
The NCAA’s traditional model depended on coordinated limits—on compensation, on movement, and on the structure of participation. Those limits were defended as necessary to preserve amateurism and competitive balance.
Courts have been willing to consider those justifications.
They have been less willing to accept them without evidence.
The result is a narrowing space in which such restraints can operate. Rules must be tailored, defensible, and supported by demonstrable effects. Broad prohibitions, particularly those affecting compensation, are increasingly difficult to sustain.
This does not eliminate the possibility of coordinated rules.
It constrains how they are designed.
III. The Emerging Labor Question
Antitrust law is not the only source of pressure.
A related issue has begun to take shape in the courts: whether college athletes should be treated, for certain purposes, as employees.
That question is not yet fully resolved. It has, however, advanced far enough to alter the legal landscape.
In cases such as Johnson v. NCAA, plaintiffs have argued that athletes perform services under conditions that resemble an employment relationship, without receiving the protections typically associated with that status2.
If courts were to accept that characterization, the implications would be substantial. Wage-and-hour laws, collective bargaining rights, and other forms of labor regulation could apply.
Even without a definitive ruling, the direction of travel is evident.
The legal framework surrounding college athletics is expanding, not contracting.
IV. Enforcement Through Litigation
One consequence of these developments is that enforcement has become increasingly external.
Where the NCAA once defined and enforced its own rules, courts now play a more prominent role in determining what those rules may be.
Litigation has produced changes in compensation, in eligibility, and in the permissible scope of institutional control. It has also introduced uncertainty, as outcomes depend on case-by-case adjudication rather than a single, coherent framework.
This is not a stable method of governance.
It is, however, the method that emerges when internal rules are not aligned with legal constraints.
V. Designing Within the Law
A durable system must therefore begin from a different premise.
Rather than attempting to preserve existing rules through narrower definitions or incremental adjustments, it must be designed with legal constraints in mind from the outset.
That has several implications.
First, compensation structures must be grounded in principles that can withstand antitrust scrutiny. Coordination, where it occurs, must be justified and limited.
Second, mechanisms for player movement and eligibility must be consistent with the broader legal treatment of labor markets.
Third, governance must be sufficiently transparent and coherent that it can be evaluated—and defended—under existing law.
These are not abstract requirements.
They are the conditions under which the system will be judged.
VI. The Role of Collective Action
One potential path through these constraints is collective bargaining or a similar form of negotiated agreement.
Arrangements reached through negotiation between institutions and athlete representatives may receive different legal treatment than unilateral rules imposed by a governing body.
This approach does not eliminate legal risk.
It does, however, provide a framework in which coordination can occur with a clearer basis for justification.
Whether such a system emerges, and in what form, remains an open question.
What is clear is that purely unilateral regulation is increasingly difficult to sustain.
VII. The Limits of Private Ordering
It is possible that private coordination alone will prove insufficient to stabilize the system fully.
At present, college athletics operates within an increasingly fragmented legal environment:
state NIL statutes differ substantially;
antitrust exposure remains persistent;
labor classification questions remain unresolved;
and institutional actors often lack clear authority to impose nationally consistent rules.
These pressures may eventually require some degree of federal involvement.
Such involvement need not take the form of sweeping federal control over college sports. More limited legislative measures could include:
clarification of athlete employment status;
preemption of conflicting state NIL regimes;
narrowly tailored antitrust protections for negotiated governance structures;
or statutory recognition of collective bargaining frameworks unique to college athletics.
Whether Congress possesses the institutional competence or political appetite to address these issues coherently remains uncertain.
Even so, the possibility should not be ignored.
The present system increasingly operates at a national commercial scale while relying upon a patchwork of private agreements and inconsistent state-level regulation. That arrangement may not remain durable indefinitely.
VIII. The Limits of Avoidance
It is sometimes suggested that the legal issues facing college football can be managed through careful drafting, incremental reform, or reliance on historical practice.
That view underestimates the extent of the change that has already occurred.
Courts have shown a willingness to look beyond labels and examine the underlying substance of the system. Arguments that depend primarily on tradition or classification are less persuasive than they once were.
As a result, attempts to preserve the current model through minor adjustments are unlikely to succeed over the long term.
The legal environment does not permit it.
IX. Conclusion
The governing framework of college football can no longer be constructed as if it operates outside the reach of ordinary law.
It does not.
Antitrust principles apply. Labor questions are emerging. Litigation has become a central mechanism of change.
A system that fails to account for these realities will be reshaped by them.
The task, therefore, is not to resist the legal framework, but to work within it—to design a structure that aligns institutional incentives, athlete interests, and legal constraints in a way that can be sustained.
Anything less will remain provisional.
https://law.justia.com/cases/federal/appellate-courts/ca9/14-16601/14-16601-2015-09-30.html?
https://sportslitigationalert.com/johnson-v-ncaa-and-the-looming-employment-question-in-collegiate-athletics/