As I read through UM’s letter in response to the B1G’s disciplinary notice, it occurred to me that there is enormous risk for the B1G in undertaking any disciplinary action that isn’t thoroughly grounded in its own by-laws and other agreements with its members. Some of the risk is obvious and involves the direct consequences of any half-baked disciplinary action: Michigan could undo the action in litigation. But some of the risk is less directly tied to the ultimate outcome of Signgate and is more fundamental to the B1G’s viability as an instrument for organizing the business of college athletics. If the B1G takes significant action that is held to be unlawful (in Signgate or any other case), such a failure could be the first move in a long slide down a slippery slope towards its own obsolescence.

The recent fate of the NCAA indicates how and why this might be true. Over the last ten to fifteen years, the NCAA has been revealed as a paper tiger. Where it once held seemingly unassailable authority to dictate even the smallest details of college athletics, it now seems to be holding on to its former position by its fingernails, grasping at ways to avoid complete irrelevance. The NCAA managed to lose much of its legal and de facto power because courts concluded that such power was unlawful. These conclusions came first in a couple of litigation defeats about fairly specific and discrete issues. Those defeats emboldened more parties to challenge other aspects of the NCAA’s model of “amateurism” and its general business method. These challenges largely came from the NCAA’s own constituents, whom it professed to serve. Soon enough, the NCAA’s defeats multiplied, and now Congress and state legislatures are starting to think about how they can dictate the organization of college athletics, and the NCAA faces the real prospect of being pushed to the sidelines.

The NCAA finds itself in its current precarious position because it believed that it was invulnerable, and it took aggressive stands in litigation that were premised on this belief. Courts rejected the premise and punctured the NCAA’s puffery about its power. This litigation history suggests that a more modest and self-aware litigation strategy could have slowed – or maybe arrested – the decline in the NCAA’s practical ability to control its members and their athletes. In general, this litigation suggests that the institutional structure for organizing college athletics may significantly depend upon unlawful power. The very recent law journal article about antitrust law and advance scouting rules is an illustration of this problem.

Every entity that organizes college athletics, including the B1G, now faces the same risk that the NCAA first encountered in the 2000s. By now, they should realize that their power is far from unquestionable and largely depends upon the consent of their constituents, both the institutions and the individual athletes and coaches. If the B1G and its companion organizations fail to exercise their power with modesty and care, their constituents will start fighting back, and the lawlessness of their authority may become inescapably apparent. It will be interesting to see if the B1G learns from the NCAA’s unhappy example when it decides how to address Signgate.