THE BLOG
03/28/2014 02:28 pm ET Updated May 28, 2014

The NCAA and the Law

Within its realm, the NCAA is the absolute sovereign. Armed with a rule book as large as a small house, the Association enforces its edicts without much challenge. The NCAA will even penalize a member school for not admitting to its transgressions. This autocracy in Indianapolis has the first, middle and last say in every matter involving the enforcement of its own rules, and courts will not interfere. When it determined that an athlete was not eligible to play college football because he was also a fashion model -- the case involved world-class skier Jeremy Bloom -- that peculiar result stood. The Colorado courts found the NCAA's ruling unchallengeable. If UNLV wanted to stand up for its basketball coach Jerry Tarkanian, it could so, but only outside the NCAA. If it wanted to play basketball against a team from any NCAA college or university, it had to abide by the NCAA's edict and fire its coach.

The only time when the NCAA runs into trouble is when its ukase violates the law. For example, another sovereign -- in this case, the United States of America -- says it violates the law to unreasonably restrain trade. Although for years the NCAA had limited the number of football games a college could sell to a television network, the Supreme Court called that limitation a restraint of trade in violation of the antitrust laws. The king had to follow the federal law.

The NCAA was formed over a century ago in an effort to make football a safer sport, responding to Teddy Roosevelt's threat to ban the mayhem that resulted in multiple deaths each fall. As a prime example of "mission creep," over the last half century the NCAA broadened its purview to maintaining a distinctive brand for college athletics. NCAA Executive Director Walter Byers even invented a term for college sports entertainers. They would be known as "student-athletes." The NCAA carefully circumscribed what benefits these young men and women could receive from their institutions, limiting payments to tuition, room, board and books. It was a brilliant marketing tool that lasted for decades, but it is now starting to crumble.

This week, the NCAA suffered its greatest defeat, one that will result in the end of college athletics as we know it. In response to a representation petition filed by football players at Northwestern University, the regional director of the National Labor Relations Board ruled that the athletes were employees, and employees are covered by the Labor Act. If upheld by the full five-member Labor Board (which it should be) and ultimately upheld by the DC Circuit Court of Appeals (not quite as sure, but quite likely to occur), the union of Wildcat footballers and their great university in Evanston will sit down and negotiate over terms and conditions of employment.

Those who find the very thought of unions, let alone unions of college athletes, to be an anathema have already expressed their disbelief in these developments. They want the "student-athletes" myth back where it belongs -- at the very center of the NCAA universe. Unless they can marshal enough congressional votes to repeal the Labor Act (or, at least, to include an exemption for colleges and universities as there are exemptions for agriculture and public employment), they will have to learn to live with reality instead of mythology.

There is a great irony in one of the concerns expressed by those who oppose the unionization effort. What about women's sports under Title IX? How can there be collective bargaining to improve the wages and hours of men's football and basketball players when national law requires gender equity? The NCAA had been the lead organization that opposed Title IX when it was before Congress. Now it and its allies hoist that legislation in defense of its indefensible position. The answer, of course, is that every unionized employer must respond to a variety of stakeholders and constituencies. A city might negotiate with both police and firefighters and decline to grant all the wishes of one because it must also deal with the other at the negotiation table. Title IX imposes a legal constraint that will keep a college or university from giving in to all the demands of the football team. These are matters to be raised and adjusted through collective bargaining.

This is not the only present threat to the hegemony of the NCAA. One suit has been pending that would dismantle NCAA prohibitions on a "student-athlete's" control over his name and likeness. This litigation stands a very good chance of succeeding. The second suit attacks the NCAA regulations as a whole as an antitrust violation. While this second broad-based attack is more problematical, the two cases combined with the Northwestern University unionization case will certainly have a dramatic impact on college athletics.

I would not be surprised if the president of the NCAA is convening a working group of college presidents who will design a replacement structure for college athletics consistent with national law. There are times when even the sovereign must meet with his dukes and knights and write a Magna Carta that will lawfully guide college athletics through its second century.