Changing The Rules of The Game
Why the United States Needs to Federally Regulate Sports
In his first State of College Sports address to the National Collegiate Athletic Association (NCAA), NCAA President Charlie Baker called for Congressional legislation to help college sports. These advocated measures include additional antitrust immunity for the NCAA, preventions against athletes from being considered employees of their schools, and federal statutes to supersede competing state’s laws. If enacted, they would be one of the largest changes in American sports law in decades. His remarks are monumental, combatting an American cultural taboo—mixing sports with politics. Yet, Baker’s requests for federal assistance were not unprompted.
In the summer of 2024, the United States Court of Appeals for the Third Circuit affirmed in a ruling that collegiate athletes might be considered employees under the Fair Labor Standards Act. While limited in its scope, this creates a blueprint for further legal action by college students against the NCAA, the sole non-governmental regulatory organization for student athletics, presenting the group with yet another setback.
Back in 2021, the Supreme Court unanimously affirmed in National Collegiate Athletic Association v. Alston that the NCAA had violated the Sherman Antitrust Act by placing certain limitations on students to preserve their appearance in amateur sports. Both Justice Neil Gorsuch, in the Opinion of the Court, and Justice Brett Kavanaugh, in his concurring opinion, allude to other practices by the NCAA that may violate the Sherman Antitrust Act, leaving significant opportunities for future litigation. Fast-forward four years, and a plethora of lawsuits have followed, ranging from the aforementioned employment status of student-athletes to eligibility limits.
The reason most of these battles have played out in the courtroom is simple; sports regulation is a relatively modern issue. Beyond greater societal concerns that can encompass sports, like gender equity and labor rights, the United States has played a minor role in sports regulation. Instead, independent organizations, both domestic and international, have governed their fields. To keep it simple, the United States has attempted to maintain a separation between sports and politics.
Yet, over time as problems and controversies have arisen, Congress has delegated responsibilities to various departments, creating an inconsistent legal realm. Today, the creation of a federal agency for sport and sport-related activities in the United States would form a consolidated regulated body to improve the safety, efficacy, and enjoyment of participants, alleviating some of the problems nonintervention has caused. As sports law becomes increasingly prevalent in the United States, Congress should form a federal agency for sports regulation.
The main problem with sports law in the United States is its quasi-existence within the legal code. The development of sports law has passed primarily through the courts, interpreting pre-existing statutes about the field. Even when Congress acted to regulate, its delegation of sports-related topics was questioned. A recent example would be the Horseracing Integrity and Safety Act. Passed with bipartisan support as part of an omnibus appropriation bill at the end of 2020, the law aimed to standardize thoroughbred racing in the United States following multiple highly publicized scandals surrounding the sport, including high-level doping and horse deaths. The law additionally created the Horseracing Integrity and Safety Authority (HISA), a private, self-regulatory organization, overseen by the Federal Trade Commission (FTC), which must approve its proposed rules. The law faced uncertainty when the conservative-leaning United States Court of Appeals for the Fifth Circuit declared parts granting HISA to enforce the law unconstitutional, proclaiming it in violation of the non-delegation doctrine. The non-delegation doctrine requires that the federal government does not provide federal regulatory power to a private entity. The Fifth Circuit found that HISA was not subordinate enough to the FTC, its federal overseer, and hence was operating unconstitutionally. This ruling was met with bipartisan opposition, as members filed amicus briefs upon appeal to the Supreme Court, including former Senate Republican leader Mitch McConnell, and the bill’s sponsor, New York representative Paul Tonko. In October, the Supreme Court put the 5th Circuit’s ruling on hold, allowing HISA to continue operating, notching a victory for the regulator. However, with another case on the current docket regarding the nondelegation doctrine, HISA’s fate is currently unknown.
The uncertainty around HISA raises an important question: why did Congress delegate oversight of the independent regulator to the FTC, an agency primarily concerned about antitrust and consumer protection? While there exists some overlap, FTC commissioners are unlikely to be well-versed in topic specifics, like horse racing safety or anti-doping. Yet, what are the alternatives? Of the existing departments, agencies, and commissions, not a single one closely relates to sport and recreation. Hence, the burden lies on pre-existing agencies to oversee unrelated activities. Creating a new department ensures that the eventual expansion of sports law would find a place of expertise within the federal government.
Worldwide, the formation of national ministries or departments for sports has existed for over a century. Sport Canada, a branch of the Department of Canadian Heritage, directs sports policy for the country, including funding and additional projects. The body additionally possesses similar powers to the United States Olympic and Paralympic Committee (USOPC), managing the national governing bodies for each accredited sport. However, while the USOPC was organized by an act of Congress, the Committee is independently operated and receives minimal to no financial support from the U.S. government. Sport Canada demonstrates the ability to create sectors within the government to handle sport-related activities without overstepping the boundaries.
Similarly, the United Kingdom may soon have another sports regulatory agency, as the government continues to pursue its Football Governance Bill. Its consideration comes during a tumultuous period for British football (soccer in America). Numerous football clubs throughout the country operate with negative cash flows and some have gone bankrupt, with a disproportionate difference between the Premier League, the highest league, and the EFL Championship, the next league below. Additionally, in 2021, football fans massively protested a proposed European Super League, which would have had the best teams in Europe join one private international league without promotion or relegation, upsetting the established formula for competitions. These events culminated in the crafting of this bill, originally by the previous Conservative party government, before being picked up again by the new Labour government. The bill would create the Independent Football Regulator (IFR), which would aim to tackle club finances, club ownership, television rights and earnings from the leagues, club heritage, and a plethora of other issues.
While it remains in the early stages of Parliament, the continued press coverage indicates a public interest in the bill, alongside a greater acknowledgment of sports regulations in general. Coverage of the bill has been closely tied to British heritage and its connection to football, striving to derive positive emotional support, as a protector of national treasure. If the United States were to form a new department, especially one possessing greater levels of regulatory authority like the IFR, it would greatly benefit from a public campaign aimed at ensuring national sports remain an essential pastime throughout the country. As foreign governments move to tackle changes in sports law, the United States must keep up.
For many Americans, the intersection of sports and government is seen as taboo. There exists a desire to keep sports isolated from the cynical nature of politics. Yet, sports, by nature, are governed by rules to maintain consistency throughout. Because the United States has refrained from implementing itself into the governance of these fields, other international entities have assumed that role. While these organizations help foster international cooperation, they also fall under pressure from foreign countries. As such, the United States is unable to maintain an expected fairness of play, which threatens the institutions of sports themselves as well as the sovereignty of the United States.
This battle between national interests and international pressures has been on full display throughout the past year, as the United States has feuded with the World Anti-Doping Agency (WADA) and the International Olympic Committee (IOC) over domestic interests in anti-doping measures. The controversy began in 2021, when news agencies reported that top Chinese swimmers tested positive for the banned drug trimetazidine, but were later cleared secretly by China and then by WADA. A year earlier, Congress passed a law empowering the United States to prosecute those involved in doping schemes where American athletes compete. Outraged by the ignorance of the positive tests by officials, federal officials began a complex investigation into events under their newfound authority. The investigation infuriated WADA, which repudiated these claims and challenged the United State’s encroachment on its authority, desiring that Congress repeal the law. The IOC, additionally upset by the country’s actions, had threatened Salt Lake City’s bid for the 2034 Winter Olympics, alongside the approval of U.S. officials to the body. In a further breakdown, the Biden administration, with the approval of Congress, withheld its dues payments to WADA, leaving the relationship between the United States and international organizations in a tense position.
These recent events have eroded a long-standing trust between the United States and these independent organizations. If these problems continue, the clearest alternative is to look introspectively and assume the responsibility to ensure the continuation of equality within sports. However, without a department specifically created to handle these challenges, the United States’ ability to match the capabilities of these international bodies will be limited. As demonstrated by these stated examples, large swaths of developments in sports law form from controversy. Regulators are reactive and aim to fix the problems as they arise. However, in this instance, Congress should be preemptive. These organizations have repeatedly failed to protect their fields, and require improved oversight. As such, a new department can collaborate and manage the ever-increasing realm of sport and its institutions.
With independent regulatory organizations, like the NCAA, shifting their attention from the courts to Congress, Congress should use that momentum to establish the playing field for the future of sports law. While Baker’s remarks seek to remedy recent court decisions and better position the NCAA, they reflect the growing acknowledgment of the necessity of regulatory law within sports. They are an integral part of the daily lives of countless Americans, whether by participating or spectating. As such, sports have evolved past the games themselves, being ingrained into our culture and American mentality. Congress needs to recognize that defense is a good offense, and creating a department for sport does more than solve arising problems; it preserves a fundamental pillar of America.