Maybe Monday’s U.S. Supreme Court decision against the NCAA was expected. It also was unanimous. In itself, this ruling may not be game-changing. Just wait, though. The tide keeps turning against the idea of the NCAA being a bastion of amateurism. This ruling brought more of that.
The high court upheld a district court ruling that the NCAA can’t enforce certain rules limiting the education-related benefits such as postgraduate scholarships or other resources that colleges offer athletes as long as those are educational benefits.
What was most attention grabbing was a concurrence by Justice Brett Kavanaugh, who brought out a rhetorical hammer against the NCAA, and certainly suggested — no, made plain — where he’s leaning whenever some other suit asking for a broader compensation model reaches his chamber.
» READ MORE: Supreme Court rules against NCAA
Kavanaugh noted some great college traditions but fairly sneered at the idea of NCAA traditions being enough to carry on the facade of amateurism.
“Those traditions alone cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of student-athletes who are not fully compensated,” Kavanaugh wrote.
Can’t get much clearer than that. Kavanaugh went on: “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.”
While noting that Kavanaugh obviously isn’t speaking for the whole court, Ballard Spahr partner Stephen Kastenberg, a specialist on antitrust matters, points out that Kavanaugh’s concurrence is “almost an invitation for further litigation,” and that such an invitation is unlikely to be ignored.
The NCAA tried to argue that a ruling for the athletes could lead to a blurring of the line between college and professional sports, as if paying coaches many millions of dollars hasn’t already done that.
“I wouldn’t say they overplayed their hand,” Kastenberg said of the NCAA’s defense, since it was the hand they had to play. “It was an issue that has been blessed previously by the courts.”
Changing dollar figures change the game. The opinion written by Justice Neil Gorsuch noted that the current television contract for “the March Madness basketball tournament” is worth $1.1 billion annually, that the president of the NCAA earns nearly $4 million per year, and commissioners of top leagues “take home between $2 to $5 million.” Seven-figure salaries for athletic directors and coaches were also noted.
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The Supreme Court upheld the lower-court rejection of the idea that “education-related” benefits — specifically noting that rules that “limit scholarships for graduate or vocational school, payments for academic tutoring, or paid posteligibility internships” could not “be confused with a professional athletes’ salary,” that, if anything, they “emphasize that the recipients are students.”
It’s always worth noting that the NCAA is not just a bunch of administrators at national headquarters but is all levels of sports, most at colleges that lose money on sports. It’s also worth noting that nobody on any level tends to trust anyone else.
The Supreme Court ruling notes, “The NCAA fears schools might exploit this authority to give student athletes ‘luxury cars’ to get to class. Nothing here stops the NCAA from enforcing a ‘No Lamborghini’ rule,” the Court said.
The Gorsuch opinion almost takes pleasure in noting how historically college sports was not always such a bastion of amateurism. It brought up the example of Fielding H. Yost (who later coached football, winning six national titles at Michigan). The ruling brought him up because Yost, in law school in West Virginia in 1896, “transferred to Lafayette just in time to lead his new teammates to victory against its archrival, Penn,” then was back at West Virginia’s law school the next week.
(Don’t get sanctimonious, Quakers, or we’ll add tales of your own ringers over the early years of the sport.)
What can we expect from this? One veteran non-Power 5 administrator hadn’t read the details of the ruling yet but predicted, “any opening up puts Power 5 more in control and dominant.”
If the rich get richer, however it all plays out, popular opinion is on the side of the riches must be shared. Power 5 commissioners recently asked the NCAA that they be allowed to make their own rules on compensation for name, image and likeness, rather than have the NCAA make one-size-fits-all policy. (The NCAA lost that fight in court, too.)
It is not evident, Kavanaugh’s concurrence notes, that under antitrust law, college sports should be able to get away with restraining free-market rates.
His final sentence reads more like a warning than a last word: “The NCAA is not above the law.”