College Athletes Are Not the Legislature’s Property

News that a “Protect College Sports Act” has passed the Senate with overwhelming, bipartisan numbers would have many suppose the matter near settled. Seventy‑seven in favor, twenty‑two against: such a tally has a certain majesty, and in every age men are tempted to mistake majesty for right. Yet even its friends admit the bill faces a harder trial in the House and in the courts, and one account charges that its backers think politicians, not athletes and businesses, should take the lead in ordering this domain. When I see political power being claimed over the earnings and conduct of particular men, under color of their own good, I do not first ask how many hands were raised for it in the chamber; I ask by what right.

In the Second Treatise of Government I defined political power, in paraphrase, as a right of making laws with penalties for the regulation and preservation of property, and of employing the force of the community, all only for the public good. This definition is strict, for it must be. Men are by nature free, equal, and independent; they are the workmanship of one Maker, sent into the world about His business, and not made for the sport or profit of any earthly legislature. No one is born bound to play a game, to entertain spectators, or to surrender the fruits of his training and bodily risk to the contrivances of politicians. If such men are to be subjected to rules that touch their livelihoods, we must see clearly how they have consented, and how those rules indeed preserve, rather than consume, their property in the wide sense: their lives, liberties, and estates.

I am told only a little of this bill’s contents, and so I will not feign knowledge of particular clauses. I know that senators, moved by some urgency, have devoted weeks to it instead of other pressing concerns; that lawsuits are expected should it become law; and that at least some of its advocates prefer decisions to be made by politicians rather than by athletes and businesses bargaining among themselves. Even this scant description reveals the true point in dispute. It is not whether college sports shall exist, or whether order is desirable in that trade, but whether those whose labor and capital sustain it shall principally govern their own affairs, or be governed by distant legislators who neither train on the field nor invest in the enterprise, yet claim authority to arrange both by statute.

The burden of proof, in such a contest, lies always on power, not on liberty. In the state of nature, as I described it, every man has a perfect freedom to order his actions and dispose of his possessions and person, within the bounds of the law of nature, without asking leave of any other. When a law steps in to direct those actions and to limit that disposal, it must be shown that free and equal persons could rationally consent to it, because it secures them better than they could secure themselves. If this act merely clarifies rules, protects athletes from fraud or violence, and establishes impartial judges where disputes were formerly decided by those who were judges in their own case, then it may well fit that measure. But if it seizes control of their contracts, their earnings, or their opportunities principally to satisfy the projects of office‑holders, then whatever its title, it is not protection but usurpation.

Here the law of nature gives us a compass even where particulars are obscure. Reason, which is that law, teaches that no one ought to harm another in his life, health, liberty, or possessions. A statute that systematically diminishes what athletes may earn by their honest labor, or that locks in advantages for certain favored businesses at the expense of others, so that there is not “enough, and as good” open to the rest, would stand under suspicion. Nor is an act cleansed merely because it distributes some benefits in return; a robber who leaves you a portion of your purse has not therefore become your trustee. The question is always whether the legislative is acting as a faithful guardian of the common good, or as a partner in a scheme whose burdens fall chiefly on those without seats in its chamber.

The uncertainty this measure now faces—in the House, and especially in the courts—shows that its justice is not self‑evident. That is not by itself an argument against it; wise laws are often contested by those whose present gains they disturb. Yet when a bill that rearranges the rights and earnings of identifiable persons is hurried forward on a tide of anxiety about the future of a popular amusement, and when those most affected have not plainly entrusted such detailed care of their affairs to the political class, suspicion is natural. I argued long ago that the legislative is but a fiduciary power, held on trust from the people, and forfeited when used to invade, rather than secure, their property. The possibility of numerous lawsuits is a sign that many already fear that invasion.

Yet I do not say that every ill‑judged or overreaching statute warrants resistance beyond lawful challenge. The dissolution of government is a grave matter. It is not accomplished by every bad law, but by a long train of abuses, tending all the same way, to reduce a people under arbitrary power. This act, so far as I can see, is one piece of a larger pattern in which rulers accustom themselves to manage ever more of men’s day‑to‑day callings; it is therefore worth watching with a jealous eye, but not yet a trumpet to revolution. The proper course, while the constitution stands, is to scrutinize, to contest in court, and to demand from every proponent of this power a clear account of how it truly protects, rather than spends, the lives, liberties, and estates of those who make the game worth watching.

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