What’s Next for LSU, the SEC, & College Sports? Tulane Law Experts Weigh In

College sports have rarely been on more unsettled legal ground. As athletes, schools, and conferences increasingly challenge the rules and institutions that have long governed collegiate athletics, the fight over who gets to make — and enforce — those rules is becoming nearly as consequential as the competition on the field.

The latest flashpoint involving LSU and the Southeastern Conference offers a glimpse of what may come next. Professor Gabe Feldman, Director of Tulane Law’s nationally-renowned Sports Law Program and Eric Blevins, Sports Law Program Manager with the Tulane Center for Sport, examine what the dispute reveals about the shifting balance of power in college sports, the legal arguments now being tested and why conference governance could become the next major battleground in collegiate athletics.

The immediate dispute appears to have cooled now that LSU has filled its roster and will not add the former NFL players. But legally, what remains unresolved between LSU and the SEC, and why does it matter beyond this particular case? 

This dispute began as an eligibility challenge filed by football players in a Louisiana state court, and they won a preliminary injunction. These types of eligibility cases have been filed by the dozen in courts across the country, and the decisions have been all over the place. 

SEC vs. LSU began when LSU indicated its intention to roster some of those athletes, including one or two who signed NFL contracts over the summer. That would have violated an SEC rule prohibiting athletes who signed pro deals. That led to the SEC filing a separate lawsuit asking an Alabama federal court to permit the SEC to penalize LSU, including potential expulsion from the conference. 

The SEC’s suit is technically still pending, but could be resolved soon without fireworks. Ultimately, LSU did not place those athletes on the roster and sent the SEC a letter stating that LSU violated no rules. 

But underlying this whole legal dispute is a bigger question. Can a conference enforce its own rules—rather than the NCAA’s—against a member school? The NCAA has struggled in recent years to enforce its rules. Are we seeing the beginning of eligibility and other governance issues moving to the conference level? Could conferences break away to govern themselves? That could be the next major legal battleground in collegiate athletics.

The SEC is making a First Amendment “expressive association” argument — essentially asserting a constitutional right to determine whom it associates with and under what rules. How strong or unusual is that argument? 

It is a novel legal argument. The First Amendment protects a private organization’s right to associate with members who share political, social, or other views; and a corresponding right preventing the government from forcing a private group to associate with those who don’t. The typical case involves a law or regulation that would otherwise require a private organization to accept a member they do not want. But this right also only applies to groups who are involved in “expressive association,”  for example, of shared values or goals.

The SEC’s case has a few aspects that raise novel questions. First, there is no law or regulation forcing the SEC to associate with LSU; instead, the SEC argues that LSU’s words and actions towards potentially rostering former pro players (which it ultimately did not do) have forced it to associate with conduct it disagrees with. Is that enough? Further, is a collegiate athletic conference involved in “expressive activity” that’s subject to First Amendment Protection, and has LSU’s conduct affected that expression? All unclear.

There’s also a question of whether there’s an actionable case yet. The SEC argues that LSU has forced the SEC to associate with conduct it disagrees with. But a counter-argument could be that there’s no government action preventing the SEC from disassociating with LSU. In other words, the SEC doesn’t need a court’s permission to do it. 

We now have a state court restricting what an athletic conference can do and the SEC turning to federal court to protect its authority. What does this conflict tell us about who actually has the power to govern college sports right now? 

The athletes here did win eligibility relief in state court, but we have also seen some of these types of decisions stayed or overruled on appeal. So it is unclear where the athletes’ eligibility case will ultimately land.

Again, different courts have ruled both for and against athletes and, in a broader sense, these differing court decisions are part of the NCAA’s argument that uniformity is needed. Such uniformity, particularly on the eligibility issue, can probably only be achieved in two ways: through legislation (which the NCAA has lobbied hard for but may or may not ever happen), or collective bargaining (which also has many practical and legal hurdles). Neither path is straightforward.  

One way of viewing the current collegiate sports landscape is as a power struggle between many stakeholders. The NCAA, athletes, conferences, and political actors. This SEC vs. LSU dispute particularly highlights the at-times conflicting interests between the NCAA, conferences, schools, and athletes.

Courts previously deferred broadly to the NCAA, but its power to determine key standards, like athlete eligibility, has eroded in the NIL era. Broadly speaking, athletes have been able to exert some power through the court system now that some have a significant financial stake in playing college sports. This SEC/LSU dispute also puts the power of athletic conferences on the table. 

The X-factor in all of this is Congress, which could act at any time to implement enormous changes in how college sports is governed and operates. Whether such a law actually passes, is uncertain.

The SEC raised the extraordinary possibility of removing LSU from the conference. Even if that never happens, what are the legal limits on a conference’s ability to discipline or expel a member — and how much protection does a university like LSU have once it joins a voluntary association? 

This could be the next billion-dollar question in college sports. The SEC Bylaws grant the member school CEO’s “plenary power and authority with respect to all affairs of the Conference of any type or nature whatsoever,” which gives them extremely broad authority to penalize members.

How much will courts defer to conferences in enforcing their rules against member schools under such a provision? Typically, courts give wide latitude to voluntary associations (like the SEC) to set their own rules and govern their members. But, there are always exceptions, including if the rules are arbitrary or affect significant property rights. When it comes to allowing the NCAA to enforce its rules, courts have gone both ways.

While the notion of the SEC removing LSU always seemed remote, and reportedly is off the table at least for today’s meeting, what if the SEC otherwise punishes LSU? Or what about the next school, in the next dispute? If a court considers an SEC punishment arbitrary and it affects a property right, for example, TV money distributions, a court would probably overturn it. But that determination probably depends on precisely what the punishment is, and what it’s being levied for.

We’ve seen conferences increasingly turn to the courts when their rules collide with state law or judicial decisions. Is the LSU dispute an isolated fight over eligibility, or are we seeing the beginnings of a much larger legal battle over whether conferences can maintain uniform rules across states with increasingly different laws and court rulings? 

This is probably the beginning of a larger legal battle over conference governance, starting with the Big 12 and SEC lawsuits against Texas Tech and LSU, respectively. We haven’t yet gotten a clear picture of where courts will land in the current NIL era. 

The only certainty right now is that uncertainty will remain for the near future, and college sports governance will continue to be decided in courtrooms until a more permanent solution arrives through Congress or collective bargaining.

Frustrating for fans, great for sports law students—the timeline for stability is probably still far off—years, not weeks or months.