I. Introduction
Federal agencies are executive branch entities whose primary purpose is to carry out and enforce federal laws. Many agencies have quasi-legislative authorities through rulemaking and quasi-judicial authorities through investigations and adjudicatory hearings on matters within their jurisdiction.
Agency enforcement actions are governed by the Administrative Procedures Act (APA). As a creature of the executive branch, the APA covers all federal authorities except Congress, federal courts, and the military.
Since 2019, when the NCAA and Power 5 went on offense to eliminate external regulatory threats to their regulatory authority and business models, the role and importance of federal agencies in college sports have been the least discussed and understood.
Most casual fans/consumers have some understanding of the role of states (through NIL laws), federal courts (the Alston decision), and Congress (through the NCAA/Power 5 four-year engagement), but few could identify a single federal agency that has or might assert jurisdiction to shape the college sports regulatory and financial markets.
An array of federal agencies are relevant to regulating college sports, and many have cross-over or complementary jurisdiction. Determining where one agency’s jurisdiction ends and another’s begins is often tricky. Agencies with cross-over or complementary jurisdiction often enter into “Memoranda of Understanding” (MOU) to facilitate interagency cooperation and efficiency.
For example, and of particular relevance in the current debate over labor issues in college sports, the U.S. Department of Labor Wage and Hour Division (potentially relevant in the Johnson v NCAA case under the Fair Labor Standards Act) and the National Labor Relations Board (relevant in NLRB petitions and charges currently pending against USC/UCLA/NCAA, Dartmouth College, and other NCAA institutions) entered into a MOU on December 8th, 2021 that allows and encourages the exchange of information in investigatory and enforcement cases.
It’s impossible to know the extent of the cooperation and whether it extends beyond information-sharing, but it is fair to assume there are substantial back-channel interagency conversations underway that will influence the federal government’s broader response(s) to the pending college sports-related cases.
Administrative agencies have the authority to substantially change the legal relationship between athletes and institutions. However, with some notable exceptions (NLRB actions since 2014), federal agencies have been reluctant to intervene in college athlete-related issues.
Indeed, some agencies with clear jurisdiction over college sport/athlete issues, such as the Department of Education’s Office of Civil Rights (responsible for enforcing race and sex discrimination laws, including Title IX), are noteworthy for their inaction.
This Tab explores various federal agencies that could have jurisdiction over college sports and athlete issues. We focus primarily on federal agencies rather than state agencies because federal agency action has national implications; however, as discussed below in the context of athletes as employees, state workers’ compensation cases have had a profound impact on the development of the NCAA’s regulatory authority through the creation of the concept of the “student-athlete” in the 1950s.
This Tab is not intended as a grand synthesis of the role of federal agencies in college sports; instead, it offers a broad survey of federal agency jurisdiction and illustrative agency actions in college sports and athletes’ rights.
In the context of college sports and athletes’ rights, federal agency oversight and jurisdiction (utilized or potential) can be divided into five broad subject matter and policy categories: (1) labor/employee protection, (2) civil rights, (3) business regulation/consumer protection, (4) antitrust, and (5) tax.
This Tab contains brief—and admittedly simplified—descriptions of each relevant agency and its role in regulating college sports.
An analysis of the role of federal agencies highlights the interconnection between several major moving parts in the current battle over the regulation and future of college sports, such as Congress, federal courts, and free markets.
