Paper No. 7
Why a lawful system requires defined representation for athletes—and how collective bargaining or its equivalent can reconcile control with consent.
"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, Federalist No. 51
The prior paper established that the current system cannot be sustained under existing antitrust law. Institutions cannot coordinate to impose rules governing compensation, eligibility, and movement without a legal framework capable of supporting such coordination.
This conclusion raises a further question: what form must that framework take?
This paper advances a central claim: any durable system will require a mechanism through which athletes are represented in the creation of the rules that govern them. Whether that mechanism takes the form of formal unionization or a functional equivalent, the principle is the same. Coordination must be grounded in consent.
I. The Limits of the Existing Model
The traditional model of college athletics rests on a fundamental asymmetry. Institutions create and enforce rules. Athletes are subject to them.
For many years, this arrangement persisted under the assumption that athletes were not participants in a labor market in the conventional sense. That assumption is increasingly untenable.
Athletes generate substantial economic value. They participate in a competitive market for their services. They make decisions regarding where to play, under what conditions, and for what compensation.
The legal system has begun to recognize these realities. As it does, the legitimacy of unilateral rulemaking diminishes.
A system in which one side defines the terms of participation without meaningful input from the other is difficult to sustain under modern legal principles.
II. The Role of Representation
The introduction of athlete representation addresses this asymmetry.
Where athletes are represented—whether through a formal union or another structured body—the rules that govern compensation, eligibility, and movement can be negotiated rather than imposed.
This distinction is critical. Negotiated rules are not evaluated in the same manner as unilateral restraints. They reflect agreement between parties with defined interests.
Representation, therefore, is not merely a matter of fairness. It is a legal mechanism through which coordination becomes possible.
Without it, institutions remain constrained by antitrust principles that limit their ability to act collectively.
With it, they may establish rules that are both enforceable and durable.
III. Unionization and Its Alternatives
The most familiar model for such representation is unionization.
Under a traditional labor framework, athletes would be classified as employees, organized into bargaining units, and represented by a union that negotiates with institutions or a governing body.
This model has clear advantages. It is well established, legally recognized, and capable of supporting comprehensive agreements.
It also presents challenges. The classification of athletes as employees carries implications for taxation, benefits, and institutional structure. It may vary across jurisdictions. It introduces complexity into a system that has historically resisted such formalization.
For these reasons, alternative models may be considered.
These could include:
- Athlete associations with defined bargaining authority
- Conference-level or national representation bodies
- Hybrid frameworks that combine elements of labor and governance structures
The specific form is less important than the function. Athletes must have a mechanism through which they can participate in the creation of binding rules.
IV. The Necessity of Consent
The underlying principle is consent.
Rules that are imposed by institutions acting collectively are subject to challenge. Rules that are agreed upon through a structured process of negotiation are more likely to withstand scrutiny.
This is not merely a legal distinction. It is a structural one.
A system grounded in consent is more stable because it aligns incentives. Participants are more likely to adhere to rules they have helped create. Disputes can be resolved within defined processes. Expectations become clearer.
In contrast, a system grounded in unilateral control invites challenge. Each rule becomes a potential point of conflict. Each enforcement action becomes a potential dispute.
The shift from imposition to agreement is therefore central to long-term stability.
V. The Scope of Negotiation—and the Case for Institutions
A representative framework would allow for the negotiation of key elements of the system, including:
- Compensation structures, minimums, and revenue participation
- Transfer rules, windows, and roster limits
- Eligibility criteria and duration of participation
- Health, safety, and long-term welfare provisions
- Dispute resolution and enforcement mechanisms
These are the very areas that are currently unstable under the existing model. Bringing them within a negotiated framework would convert a series of contested rules into a coherent system.
The question, however, is why institutions would agree to such an arrangement.
The answer lies in the limits of the current alternative.
First, a negotiated framework allows institutions to reintroduce enforceable limits that are otherwise vulnerable to antitrust challenge. Salary bands, roster caps, and transfer windows—if agreed upon—become far more defensible than if imposed unilaterally.
Second, it provides cost certainty. The current system produces escalating and unpredictable expenditures through NIL arrangements and transfer-driven roster turnover. A structured system allows institutions to plan, budget, and allocate resources with greater confidence.
Third, it restores control through coordination. Institutions today are constrained from acting collectively. A representative framework provides a lawful mechanism through which coordination can occur.
Fourth, it reduces litigation risk. Each rule that is negotiated rather than imposed is less likely to be invalidated through antitrust challenge. The system shifts from a defensive posture to a proactive one.
These advantages do not eliminate tradeoffs. Institutions would relinquish unilateral control over certain decisions. They would accept negotiated constraints where they previously asserted discretion.
But the relevant comparison is not between control and concession. It is between a system in which control is continuously eroded and one in which it is reestablished through agreement.
VI. The Case for Athletes
Any durable system must also align with the interests of athletes.
At present, athletes benefit from a degree of flexibility that did not exist in prior eras. They may transfer more freely. They may participate in NIL arrangements. They may, in some cases, command significant compensation.
These developments are meaningful. They are also incomplete.
The current system offers opportunity without structure. It provides upside, but limited protection against downside.
A representative framework offers several advantages.
First, it provides guaranteed minimums and baseline protections. While top-tier athletes may command substantial compensation in the current system, many do not. A negotiated structure can establish floors, ensuring that all participants receive defined benefits.
Second, it introduces predictability. Transfer windows, roster rules, and eligibility standards create a more stable environment in which athletes can make decisions. The risk of entering the transfer portal without a landing spot is reduced.
Third, it provides enforceable rights. Agreements reached through negotiation can include mechanisms for dispute resolution, grievance procedures, and standardized terms.
Fourth, it aligns short-term opportunity with long-term stability. A more structured system can improve development, continuity, and overall welfare.
The tradeoff is clear. Athletes would accept defined limits in exchange for certainty, protection, and enforceable rights.
This is not a reduction of agency. It is a reallocation of it.
VII. Legal Foundations and Precedent
The concept of negotiated coordination among participants in a competitive market is well established in American law.
Professional sports leagues provide the most direct precedent. In those leagues, agreements among teams that would otherwise raise antitrust concerns—such as salary caps, free agency restrictions, and draft systems—are sustained through collective bargaining agreements with player unions.
These arrangements operate within the framework of federal labor law, including the National Labor Relations Act, and are evaluated under doctrines that recognize the legitimacy of negotiated restraints.
The non-statutory labor exemption permits certain agreements between employers and employee representatives that would otherwise be subject to antitrust challenge. Its practical effect is clear: coordinated rules that are the product of collective bargaining are treated differently than those imposed unilaterally.
College athletics has, to date, operated outside of this framework. But the increasing recognition of athletes as economic participants, combined with ongoing litigation, suggests that this position may not be sustainable.
The relevant question is not whether precedent exists for such arrangements. It does.
The question is whether college athletics will adopt a structure that aligns with that precedent, or continue to operate in tension with it.
VIII. Risks, Failure Modes, and the Path Forward
No structural change of this magnitude is without risk.
For institutions, risks include:
- Increased financial obligations
- Administrative complexity
- Potential spillover into other sports
For athletes, risks include:
- Acceptance of limits on movement or compensation
- Uneven representation
- Negotiated outcomes that may not reflect all preferences
There are also systemic risks, including fragmentation or legal challenge if improperly structured.
These risks must be addressed in design.
But they must also be compared to the risks of the current system.
Those risks include:
- Continued erosion of institutional control through litigation
- Escalating and unpredictable financial commitments
- Increasing instability in roster composition
- A lack of enforceable rules
The relevant comparison is not between risk and certainty. It is between competing forms of risk.
A negotiated system carries the risk of imperfection. The current system carries the risk of incoherence.
One may be designed and improved. The other evolves without direction.
IX. From Authority to Legitimacy
The central challenge identified in earlier papers was the erosion of authority.
Authority is not restored through assertion. It is established through legitimacy.
A system in which rules are negotiated, agreed upon, and enforced within a recognized framework possesses a form of legitimacy that unilateral systems lack.
This legitimacy supports enforcement, reduces conflict, and provides a foundation for stability.
X. The Necessary Condition
A lawful and durable system of college athletics requires more than rules. It requires a structure within which those rules are created.
That structure must account for the interests of both institutions and athletes. It must operate within the constraints of the law. And it must be capable of sustaining coordination over time.
Representation is not optional within such a system. It is a necessary condition.
The question is not whether athletes will have a voice in the system that follows. It is how that voice will be organized—and whether institutions will participate in shaping it.
A system that governs without consent will not endure. A system that incorporates it may.