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In a very real sense, college football has never been stronger. While television ratings for every other nonfootball entertainment product decline, college football continues to deliver strong ratings. Fox said 2025 was its most-watched season ever.
Television success aside, however, there are some evident cracks in the foundation. The controversy du jour is the release of the final bracket by the College Football Playoff Selection Committee, which left out the BYU Cougars and the Notre Dame Fighting Irish over an Alabama Crimson Tide team that got blown out by the Georgia Bulldogs in the Southeastern Conference championship game, making it the only conference championship game loser not to drop in the playoff committee rankings in the history of the playoff.
But that scandal only pushed aside the previous week’s outrage, prompted by Mississippi Rebels head coach Lane Kiffin abandoning his players before their first playoff run ever so he could make $13 million a year coaching the rival LSU Tigers.
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This came after the University of Colorado announced that its athletic department would post a $27 million deficit for the fiscal year. And Colorado is not alone. Ohio State University, the reigning football national champion, is about $38 million in the red, and the University of California, Los Angeles, is reportedly spending $30 million more than it takes in. While a handful of schools do break even, it is estimated that 90% of Division I schools are underwater, kept afloat by government subsidies and higher fees for students already facing a bleak college affordability landscape.
And then there is the other fallout from all this red ink: the cancellation of nonrevenue sports. College athletes have always been the backbone of the U.S. Olympic program, but many of those programs are now gone, including swimming, diving, wrestling, fencing, and track and field.
College athletics is unique. It is not now, nor has it ever been, a purely commercial enterprise. Nonprofit universities do not have the same goals, constraints, or missions as for-profit commercial sports enterprises. They have always occupied a space between government, public interest, and commerce, one that makes it a mismatch for the tools available to professional sports leagues for creating effective governance. It is far past time for Congress to step in and create the legal framework necessary for college athletics to thrive.
Before moving on to the history of college athletics governance, a quick review of the development of professional sports is instructive. As dominant as the NFL is today, its commercial success depends on special carveouts created by Congress. But our story actually begins with baseball, specifically the Supreme Court’s creation of Major League Baseball’s antitrust exemption in Federal Baseball Club v. National League in 1922.
Founded in 1913, the Federal League competed head-to-head with the National and American leagues in the nation’s largest cities. After some initial success, the NL and AL announced that they would blacklist any player who agreed to play for a Federal League team. The league collapsed two years later, with most owners allowed to buy existing AL or NL franchises. One Federal League owner who was not allowed to buy a team sued the National League under the brand-new Clayton Antitrust Act of 1914 and won at trial. The National League appealed, however, and the decision reached the Supreme Court, where a unanimous decision written by Justice Oliver Wendell Holmes held that baseball was not interstate commerce and was therefore not subject to the Clayton Antitrust Act.
Baseball used this antitrust exemption to regulate player compensation and eligibility for 55 years until pitchers Andy Messersmith and Dave McNally exercised their right to have their contractual disputes sent to arbitration, and the arbitrator granted them free agency. After MLB failed to overturn the arbitrator’s decision in court, executives sat down with the Major League Baseball Players Association and negotiated the beginnings of what would become the modern MLB system that includes a draft, limits on which teams rookies can bargain with, and a “competitive balance tax” that redistributes money from the teams with the biggest payrolls to lower revenue teams.
The National Football League tried to assert its own antitrust exemption in the 1950s but was denied by the Supreme Court in Radovich v. NFL. Players rarely had the resources to fight their NFL contracts in court, however, and it wasn’t until 1968 that the National Football League Players Association was recognized as a bargaining unit opposite the NFL.
The NFLPA repeatedly failed to win the right to free agency through the collective bargaining process, however. In 1989, the union disbanded, thus removing the antitrust protection afforded by labor law, and sued in federal court, arguing that the NFL’s restrictions on player movement violated the Sherman Act. Through antitrust litigation and not bargaining power, the players finally won free agency. But their deal was not as strong as the MLBPA’s. The NFLPA was forced to agree to a salary cap far more restrictive than the competitive balance tax of MLB, and there are hard rookie salary maximums. Even though the NFL deal was not as generous as the MLB one, NFL players have grown rich as the league has thrived.
Labor law, however, was not the only legal obstacle the NFL had to overcome to reach its current levels of success.
When the NFL first began, each team contracted individually with local television stations for the rights to broadcast their games, much the same way Notre Dame still does today. The more successful teams from bigger markets were able to reach more deals with more stations, often in the same markets that had existing NFL franchises.
In the interests of preserving competitive balance within the league, the NFL issued rules prohibiting teams from broadcasting games in the markets of other teams without their permission. The Justice Department determined that this was a violation of the Sherman Act and sued the NFL in federal court in 1953.
The Justice Department partially won in this first case. The trial court held that the NFL’s rule preventing teams from selling their broadcast rights into the home territories of other teams was a restraint of trade. The court also held, however, that the NFL was a unique entity where teams “must not compete too well with each other in a business way,” and therefore some amount of restraint was reasonable. Specifically, the judge held that the NFL could restrict broadcasts in certain markets when the home team in that market was playing a home game. The judge reasoned this was needed to protect ticket sales. The judge held that these same restrictions were not reasonable when the team had an away game, because there were no ticket sales to protest. If that decision seems random and nonsensical to you, welcome to judge-enforced antitrust law.
The NFL followed the court’s ruling for eight years before it found itself right back in front of the same judge. In 1961, responding to the upstart American Football League, the NFL decided to band together and sell its television rights as one entity to CBS, just as the AFL was doing with ABC. The Justice Department sued the NFL again, but not the AFL, claiming this centralization of broadcast rights was an illegal restraint of trade. And again, the same judge agreed.
Instead of meekly following the judge’s order again, the NFL took its case to Congress, asking for an antitrust exemption that would allow teams to pool their broadcast rights. The NFL argued that such an exemption was necessary to preserve competitive balance between larger- and smaller-market teams. Congress agreed, passing the Sports Broadcasting Act of 1961, which granted not just the NFL, but MLB, the NBA, the NHL, and any other “league or association of clubs” that constitutes a professional “league” antitrust immunity for the pooling and selling of media rights.
With labor law providing the antitrust exemption necessary to coordinate player eligibility and pay, and the Sports Broadcasting Act providing the antitrust exemption necessary to pool broadcast rights, the NFL had all the tools a governing body needed to protect and promote the league as a unified product. The league has since become a truly remarkable success.
College football has none of these protections.
The question of who should be allowed to play college football and whether or not they can be paid is as old as the sport itself. When the Big Ten was created in 1896, it banned teams from paying players so that schools couldn’t stock their teams with ringers who had no real connection to the school.
Player safety was President Theodore Roosevelt’s main concern when he encouraged college presidents to form the National Collegiate Athletic Association a decade later, but creating uniform rules for player eligibility was also a concern of his. The NCAA’s amateur framework, which followed along the Big Ten’s earlier ban on paying players, served college football well for over 100 years before the Supreme Court ended it in NCAA v. Alston in 2021.
The NCAA’s effort to slow the flow of television money into the game, thus preserving some semblance of competitive balance, did not last nearly as long.
When Congress passed the Sports Broadcasting Act in 1961, part of the reason it did not extend it to college athletics was that the NCAA already had tight controls over the sale of broadcasting rights to media companies, and the Justice Department, at the time, did not believe the nation’s antitrust laws should be applied against nonprofit entities. From 1951 through 1981, the NCAA severely limited the number of times each individual school could appear on national television, much to the chagrin of the most successful teams in college football.
In 1981, the universities of Georgia and Oklahoma sued the NCAA in federal court, arguing that the NCAA’s television rules were an illegal restraint of trade under the Sherman Act. The schools won at trial, they won on appeal, and in 1984, they won in the Supreme Court.
Throughout the NCAA v. Board of Regents of The University of Oklahoma litigation, the NCAA argued that while its television plan was a restraint of trade, it had two pro-competitive benefits: 1) it helped encourage attendance at college football games, and 2) it “tended to preserve a competitive balance among the football programs of the various schools.”
The 7-2 majority decision rejected both justifications, the first empirically — the schools presented evidence that increased television exposure actually increased ticket sales — and the second because the plan apparently was not ambitious enough in scope. “The NCAA does not claim that its television plan has equalized or is intended to equalize competition within any one league,” the majority wrote. “It does not regulate the amount of money that any college may spend on its football program, nor the way in which the colleges may use the revenues that are generated by their football programs, whether derived from the sale of television rights, the sale of tickets, or the sale of concessions or program advertising.”
In other words, because the NCAA was not taking more drastic steps to make all schools completely equal, the limited steps it was taking to limit a school’s national brand exposure were therefore invalid. So much for regulating with a light touch.
With the NCAA’s power to control television revenues gone, the race for each conference to sign the biggest television contracts was on. Seven years after the Board of Regents decision, eight formerly independent schools formed the now-defunct Big East to sell their bundled rights to broadcasters. And the year after that, in 1992, the SEC used a loophole in the NCAA’s existing rules to expand to 12 teams and add a lucrative conference championship game to the end of the regular season. The era of conference expansion had begun.
To understand how harmful conference expansion is to college football, just imagine if the Sports Broadcasting Act did not exist and the NFL were forbidden from pooling its broadcast rights. Each division would be free to enter into its own television deal and cannibalize other divisions to make its division more attractive.
For example, the NFC East, which has the New York, Philadelphia, Dallas, and Washington markets, is already more valuable than other divisions. But why stick with just four regional teams when you could add the lucrative Los Angeles and Chicago markets?
An NFC East with the Giants, Cowboys, Eagles, Commanders, Rams, and Bears would be worth much more than an NFC East with the existing four teams. Would stealing the Rams and Bears hurt the NFC North and NFC West? Sure. But who cares? That is their problem. What about losing traditional rivalries between the Rams and 49ers and the Packers and Bears? Again, who cares? There is more money to be made for the NFC East in a megadivision.
The NFL would never allow this because it wants to preserve competitive balance, geographic coherence, and traditional rivalries. But that is exactly what is happening to college football right now. The only reason the NFL is able to stop that is because of the antitrust exemption given to it by Congress. If college football is going to be able to protect smaller schools from greedy megaconferences, it is going to need a new antitrust exemption.
And then there is the player eligibility and movement problem. Many Democrats argue that just as labor law governs player movement agreements for professional sports leagues and their affiliated unions, labor law could also be an adequate framework for college athletics. But labor law is not a good fit for college athletics for a number of reasons.
First, there is no unified entity for student-athletes to bargain with. Even if colleges agreed to treat athletes as employees, and not students, the employer for each team would be each individual school, not the NCAA. The NFLPA can bargain with the NFL only because each NFL team has voluntarily agreed to bargain as one entity. No such agreement exists between colleges today.
Second, the hurdles to reaching such an agreement would be steep. There are only 32 NFL owners, and despite their other differences, all have similar goals and priorities. They want to win and make money in the football business. That is not true of the 134 Division I Football Bowl Subdivision schools or the 128 Division I Football Championship Subdivision schools, let alone the 362 Division I basketball schools.
All of these schools have wildly different priorities when it comes to the mission of their institutions; their available resources; relevant stakeholders, including both state governments and alumni; and which sports they may want to prioritize over others.
Third, what would the relevant bargaining unit be? A separate union for each sport? A separate union for each division within that sport? Would the rules for eligibility and pay be the same across sports and divisions?
And then there is the problem of Title IX, which prevents schools from discriminating based on sex. The largest revenue-producing sports by far are men’s football and basketball, followed by women’s basketball. Would the revenue generated by men’s football and basketball be split evenly with female athletes? Which sports would get payments and which wouldn’t? Labor law gives us no way to solve any of these problems.
The House of Representatives was set to vote on the Student Compensation and Opportunity through Rights and Endorsements Act last week, legislation financed heavily by the megaconferences, but was derailed by Kiffin’s untimely exit from Ole Miss. The legislation would have codified the recent “House decision,” a trial court’s holding in a class action antitrust lawsuit claiming billions in damages from the NCAA allegedly illegally preventing student-athletes from sharing in TV revenue for decades.
While representing a huge payout for past student-athletes, the SCORE Act functionally just reaffirms the fundamentally broken status quo, a fact only highlighted by Kiffin’s decision to go to LSU before his team competed in the playoff this December. It also would have done nothing to restrict player movement. As generous as both MLBPA and NFLPA agreements with their respective leagues are, free agency is restricted to veterans, and there are mechanisms to prevent teams from poaching each other’s players mid-contract. The House settlement includes no such functional restrictions. Under the status quo, every player in college athletics is a free agent at the end of every season. No sports league anywhere has ever survived a system like this.
“Why would Mike Johnson and Steve Scalise think it was a good idea to bring the Lane Kiffin Protection Act to the floor of the House of Representatives?” House Minority Leader Hakeem Jeffries (D-NY) said at a press conference before the bill was finally pulled from the floor. The bill “would do nothing to benefit college athletes and everything to benefit coaches like Lane Kiffin.”
The legislation was no more popular among many conservatives, who rightly pointed out that it would do nothing to address the real underlying problems in college athletics.
“If we’re going to take a big federal step because a federal court intervened and we’re going to intervene, well then maybe we should fully intervene,” Rep. Chip Roy (R-TX) said during a hearing on the bill. “Maybe we should fix the damn mess so that we don’t have 16 teams in the SEC and 17 teams in the ACC and 19 teams in the Big 10 and fricking Stanford and Berkeley on the West Coast in the Atlantic Coast Conference all because of money.”
“We’re going to go try to slap a Band-Aid on a broken college athletic system,” Roy continued. “And I’m still going to end up with a crappy playoff structure, with a crappy system that doesn’t even really work very well, that destroys the very fabric of the conferences that were so great, that built up the traditions and the rivalries that are now just blown to hell because of money and because of TV contracts.”
Roy is right. College football’s problems go well beyond the scope of the SCORE Act, and far more expansive legislation is needed.
As the preceding histories of both the NFL and college athletics show, any suggestion that college athletics is just a creature of the free market and should be left alone to figure out its own problems ignores the myriad of ways that government, particularly the Supreme Court, has prevented college football from governing itself for decades.
As the majority opinion ending the NCAA’s ability to regulate player movement and compensation notes, “The NCAA is free to argue that, ‘because of the special characteristics of [its] particular industry,’ it should be exempt from the usual operation of the antitrust laws—but that appeal is ‘properly addressed to Congress.’ Nor has Congress been insensitive to such requests. It has modified the antitrust laws for certain industries in the past, and it may do so again in the future.”
If Congress wants to save college football, it should take the Supreme Court’s advice and create a specialized antitrust exemption for college athletics.
What would such an exemption look like? In 1978, Congress passed the Amateur Sports Act, which created a private corporation, the U.S. Olympic Committee, and granted it limited antitrust protection to regulate U.S. participation in international competitions. The Supreme Court upheld the USOC’s antitrust immunity in 1987. The original act was then amended in 1998 to guarantee athletes more representation on the governing boards and provide them with the right to hearings and arbitration for disputes with the committee and its affiliates.
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Congress does not need to, nor should it, micromanage college athletics. But some sort of governing body is needed to ensure student-athlete welfare, ensure a semblance of competitive balance, and prevent colleges from spending themselves into debt in a race to buy the best talent.
College football’s chaos is not the product of too much regulation but of a Supreme Court that stripped the sport of the tools every successful league needs. The justices themselves pointed Congress to the solution: a tailored antitrust exemption allowing a unified governing body to restore balance, protect athletes, and preserve the rivalries that make the sport great. If lawmakers want to save college football from financial ruin and competitive collapse, the path forward is clear: Follow the Olympic model and act.
