College Sports Do Not Need a Parliamentary Coach

The Protect College Sports Act has, I am told, passed your Senate by an overwhelming and bipartisan majority, and yet is expected to encounter a rougher reception in the other chamber and before the courts. The bill’s friends say, in effect, that politicians rather than athletes and businesses ought to make the crucial decisions in this trade. Of the bill’s detailed provisions I have only the faintest sketch, but sometimes a sketch is enough. When a legislature, busied with wars, pensions, and the price of fuel, finds urgent time to rearrange a particular entertainment industry, one may safely presume that this zeal has been diligently nourished by interests nearer at hand than the general welfare.

In my inquiry into the Wealth of Nations I remarked that people of the same trade seldom meet without contriving some concerted advantage against the public. When such persons discover that they can pursue this concert not merely in taverns but in parliaments, they commonly exchange the modesty of the back room for the majesty of the public interest. The very name of this measure—professing to protect college sports—betrays the style. The butcher and the brewer do not ask to be protected from their customers; they ask only to be allowed to bargain. When protection is sought, it is nine times in ten protection from some rival, present or anticipated, who has proved too troublesome in that bargaining.

Here the rivals are easily imagined, though the statute’s text remains dim to me. On one side stand the existing governors of collegiate games, with their complex arrangements of scholarships, amateur status, and lucrative spectacles; on the other, emerging ways for young athletes to sell their talents and their celebrity more freely to sponsors, media firms, or themselves. The one party thrives when athletes are bound to a particular institutional structure; the other thrives when those same athletes may treat their skill as any other species of labour, to be disposed of by contract in the ordinary higgling of the market. To decide that politicians, not athletes and businesses, should rule this contest is in substance to enlist the magistrate on one bench of the arena.

I have always maintained that self-interest, operating under known rules of justice, is a better guide for arranging industry than the most refined plans of the man of system. The student who can sell his performance or his image will calculate whether a given college, a rival league, or a private sponsor offers the best prospect; the college will calculate how much of its revenue it must share to retain him; the spectator will, in the end, pay what such contests are truly worth. If instead the law undertakes to decree who may be paid, in what manner, and under what institutional badges, it does not abolish self-interest; it merely forces that interest to express itself in evasions, lobbying, and lawsuits. Any scheme that demands unusual virtue of administrators and legislators will fail; they will behave, as other men do, according to the incentives actually before them.

In The Theory of Moral Sentiments I invited the reader to consult an impartial spectator when judging conduct. Let us seat such a spectator, free from the chants of the crowd and the blandishments of lobbyists, in the highest gallery of this affair. He observes athletes whose bodies furnish the spectacle, universities and associations that package and sell it, broadcasters and sponsors who transmit it, and fans who pay to be amused. He is then told that, though all these parties can bargain with one another, the state must step in to preserve the special purity of one institutional arrangement, and that this must be done in haste, before elections, and under the guidance of those very parties who profit by the status quo. Our spectator, if he retains any firmness of judgment, will suspect that the public is being asked to mistake praise for praise-worthiness.

The natural progress of opulence in any trade depends on extending the market and allowing the division of labour to deepen. When law secures clear property, punishes fraud and violence, and then stands aside, new combinations of talent and capital will arise: rival leagues, novel contracts, improved training, more varied entertainments for the fan. But when a statute is framed to freeze one set of institutional interests in place, to define by fiat which forms of competition are legitimate and which taboo, it narrows the extent of the market. The actors who might have discovered better ways to organise college athletics are told that their experiments are, in advance, suspect. The unseen cost is paid in innovations never attempted, wages never bid up, tickets never made cheaper by more efficient management.

It is sometimes objected that young athletes must be shielded from exploitation, and that only a firm legislative hand can secure fair play. There is weight in the concern but less, I suspect, in the proposed remedy. Justice requires that the strong not defraud the weak; the state therefore must enforce contracts, forbid deception, and provide redress where power is abused. Yet it is quite another thing to confine those same youths to a cartel of favoured institutions and then call this protection. To save a workman from his own bargains by preventing him from bargaining at all is a strange species of compassion. A policy that chiefly preserves existing rents, while muting the voice of those whose labour sustains the spectacle, will in the long run be seen, even by a sporting public, for what it is: a delicate arrangement of other people’s money.

The wealth of a nation does not consist in the handsome revenues of college athletic departments, nor in the political gratitude they bestow, but in the annual produce of its land and labour as it comes to be enjoyed by the great body of the people. If this legislation leaves athletes with fewer options, fans with higher prices or poorer spectacles, and the general taxpayer with new liabilities when the protected structure fails, its bipartisan majority will not rescue it from the censure of the impartial spectator. The invisible hand, though much abused in argument, still gives us this plain lesson: when law chiefly serves to shield incumbents from competition, the public pays more, sees less, and discovers too late that it has been cheering for the wrong side.