By Education or Commerce: The Legal Basis for the Federal Regulation of the Economic Structure of Intercollegiate Athletics

This article argues that the commercial characterization of intercollegiate athletics is not required to• subject the economic structure of intercollegiate athletics to federal regulation. It further contends that the regulation thereof may be based on either jurisdictional nexus, but that the educational character provides a stronger jurisdictional basis for the regulation of the economic structure of intercollegiate athletic competition. Part II of this article examines the argument for using the commercial character of intercollegiate athletics as the jurisdictional basis for federal regulation of the cost and revenue structures of the intercollegiate athletics programs. Part III examines the argument for using the educational aspects of intercollegiate athletics as the basis for the federal regulation of intercollegiate athletics. The article then discusses the role of the educational nexus in federal tax law and describes the limitations of tax law as a means of regulating economic structure. Part IV analyzes the cost and revenue structures of intercollegiate athletics and the structural flaws that need regulation. It argues that any federal regulation must address those flaws and briefly discuss how a regulatory scheme based on commercial rules like amendments to the antitrust laws or educational based rules could do so. Finally, Part V argues that Congress could define educational activity versus commercial activity in the case of intercollegiate athletics in the laws on tax exempt status