The proper role of judges has been on many a mind in recent years. In summer 2020, New York Times resident race scold and professional hysteric Jamelle Bouie penned “Down With Judicial Supremacy!,” a column urging Democrats to challenge “the idea that the courts, and the courts alone, determine constitutional meaning.” In March, the Federalist’s John Daniel Davidson wrote a nearly identical case, lamenting “the fallacious notion that the federal judiciary has the exclusive power of constitutional interpretation.” Both men are opportunists, of course, and dislike mainly the “supremacy” of rulings with which they disagree — note: I’m no different, which is the point. Yet even staunch institutionalists are getting in on the game. In a much-discussed aside in last month’s Trump v. CASA decision, Supreme Court Justice Amy Coney Barrett zinged fellow Justice Ketanji Brown Jackson for “embracing an imperial Judiciary.”
Almost no one has had the energy to carry this quarrel onto the hardwood or gridiron. Nevertheless, the interaction of college sports and judges is already one of the defining athletic narratives of the decade. Later this year or next, the Universities of Miami and Wisconsin will square off in the toughest and least forgiving of competitive arenas: the American judicial system. The question, in part, is whether rival athletic programs may legally induce one another’s players to renege on their contracts. But also at stake is the willingness of judges to play referee as colleges vie for on-field advantage. Should Wisconsin’s tortious interference claim prevail, the threat of lawsuits will likely shape player recruitment for the foreseeable future. One imagines the resultant Sportscenter cliché: “It’s not about the X’s and O’s. It’s about the gavels and robes.”
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So furiously have epochal decisions followed one another that one has barely had time to survey each month’s new landscape, let alone complain that the courts have overreached. All the while, governance of college sports has leached steadily from the once-mighty NCAA to the people tasked with interpreting the law. Perhaps they will do the job well, and university athletics will flourish. What is certain is that, in the absence of meaningful congressional action, judges will be the ones carrying the metaphorical whistle.
The shift began with 2021’s NCAA v. Alston ruling, in which the Supreme Court declared the NCAA’s player compensation policies to be in violation of antitrust law. Though the majority decision encouraged the association to “seek [further] clarification” about “the scope of its authority,” Justice Brett Kavanaugh’s fiery concurrence said much about the NCAA’s chances. According to that document, “the NCAA’s business model would be flatly illegal in almost any other industry in America.” Thus chastened, the association has retreated to the locker room to draw up a new set of plays. This year’s House v. NCAA settlement, which opened the door to direct payments from universities to student-athletes, was merely a humiliating face-plant as the association stumbled off the field.
Other lawsuits further threaten the old college sports dispensation. Braham v. NCAA, filed in May, asks whether the association may limit the eligibility of junior college transfers, a question already before the 6th Circuit Court of Appeals thanks to Vanderbilt quarterback Diego Pavia, 24, who is looking to play his sixth season. Johnson v. NCAA, which may well come before the Supreme Court, considers whether student-athletes are employees of universities. As of this writing, President Donald Trump is reportedly considering an executive order on the subject. If issued, it would likely wind up before a judge.
Conferences, too, are hopping aboard the litigation train. PAC-12 v. Mountain West concerns the legality of “poaching fees,” typically paid by one conference to another upon “stealing” a school. Earlier this year, Florida State University and the Atlantic Coast Conference settled their own 14-month legal battle over “exit fees.” A “defined path” now exists for the Seminoles to take their talents to, say, the Big Ten should they so desire.
University of Wisconsin v. University of Miami is novel for introducing a school-versus-school action into this chaotic legal landscape. The case concerns former Wisconsin cornerback Xavier Lucas, who signed a two-year “Name, Image, and Likeness” contract with the Badgers in late 2024. According to Wisconsin’s complaint, Miami representatives met with Lucas shortly thereafter and persuaded him to break his deal. In addition to violating “the NCAA’s established anti-tampering rules,” the Hurricanes allegedly disregarded “established contract and tort law.” Consequently, Wisconsin suffered “substantial pecuniary and reputational harm.”
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If the first half of the 2020s was about player compensation, the second half promises to define the terms of player movement. Having established themselves as multimillion-dollar professionals, big-money student-athletes may now be bound by the same contractual rules that obtain elsewhere. Just as LeBron James can’t simply flee the Lakers for another NBA franchise, the star college footballer of the future (probably) can’t cancel his just-inked, high-dollar bargain unless all the parties to the deal agree.
We are a long way from amateurism. Nor are universities likely to do anything but intensify the current athletics disarray, so pronounced are their incentives to field winning squads. In theory, Congress could clean up the college sports mess with a single thoughtful bill. But, well, this isn’t a humor column. Instead, look for judges to say what the rules of university athletics will henceforth be. Will that outcome please anyone? No, but it’s what we’re stuck with. Hey, Your Honor, throw the flag.
Graham Hillard is editor at the James G. Martin Center for Academic Renewal and a Washington Examiner magazine contributing writer.