You probably ought to prepare yourself to hear that expression quite a bit in the future.
It’s at the heart of Friday’s ruling in the Alston case, which is something of a mixed bag, as the header on the AP’s summary — “NCAA can claim victory after losing federal antitrust case” — illustrates.
The victory is both real and spectacular if you’re all about the short term… you know, like the NCAA and the schools are. Judge Wilken left the biggest prize in their hands.
At the same time, however, her 104-page ruling prevents athletes from receiving unlimited benefits, as the plaintiffs had hoped.
The NCAA “may continue … to limit compensation and benefits that are unrelated to education,” Wilken ruled.
Their win is far from complete, though. First, Wilken again found that the NCAA’s current limits on athlete compensation “unreasonably restrain trade.” She went on to find that there is one form of compensation no longer within the NCAA’s jurisdiction to regulate.
A federal judge ruled Friday night that the NCAA cannot “limit compensation or benefits related to education” for athletes playing Division I men’s or women’s basketball or Bowl Subdivision football.
Among the items U.S. District Judge Claudia Wilken said these athletes may receive are scholarships to complete undergraduate or graduate degrees at any school. The judge also appeared to open the possibility of athletes being able to receive cash or cash-equivalent awards based on academics or graduation, albeit under some constraints.
The response to that can range from the fairly benign — I seriously doubt that, regardless of one’s feelings about amateurism, anybody out there is going to object to schools offering scholarships for graduate work, or for studies for a former student-athlete’s lifetime — to the whatever Nick Saban can cook up after assigning a couple of analysts to the usual routine envelope-pushing (“Tell Sankey that these kids can’t get to campus and their studies without that new Mercedes we’re furnishing them”). And that’s even before you get to the argument that “related to education” isn’t just about going to class.
If you’re the NCAA, however, that’s not the truly alarming part. This is.
Judge Wilken, then, as findings of fact, shredded every argument the NCAA’s lawyers made to justify the current amateurism protocols. So why didn’t she proceed to give the Alston plaintiffs everything they asked for? Well, that takes us back to the header, “related to education”. That’s the justification the Ninth Circuit used in O’Bannon to limit the antitrust relief granted in that case, and Wilken feels bound by that precedent.
Make no mistake, though, that’s a problem for the NCAA. Call an organization an illegal cartel often enough (and this ruling makes it three straight times, including once by the very same Ninth) and pretty soon everyone sees it in that light. The schools have to be worried that some court out there finds they’re running a cartel while not being concerned about the “related to education” standard the Ninth Circuit crafted (yes, it’s unique to O’Bannon).
What should even scare the NCAA even more, however, are the ramifications in the political realm. We’ve already seen a member of the House Freedom Caucus introduce legislation to allow student-athletes to monetize their names, likenesses and images this past week. How much easier does it get for legislators to jump into a game where universities are labeled lawbreakers by courts?
“There is a great disparity between the extraodinary revenue” that the NCAA and the schools get from Division I basketball and FBS football “and the modest benefits” athletes “receive in exchange for their participation in these sports relative to the value of their athletic services and the contributions they make,” Wilken wrote. Athletes “contribute their elite talent and time, they limit their educational options, and they risk their long-term health to create enormous financial value” for the NCAA and the schools.
“Allowing each conference and its member schools to provide additional education-related benefits without NCAA caps and prohibitions, as well as academic awards … may provide some of the compensation student-athletes would have received absent” the NCAA’s compensation limits.
The Congressional hearing on student-athlete compensation almost writes itself from there. You would think that’s a sobering warning for an organization animated by even a shred of proactive sensibilities. But this is the NCAA we’re talking about, so don’t expect any miracles on that front. For one thing,
… because Wilken determined that her decision constituted a judgment in favor of the plaintiffs, she ruled that the NCAA will have to pay the plaintiffs’ legal costs. This is an amount likely to be in the tens of millions of dollars.
Donald Remy sounds like a man who’s got the litigation shampoo ready for another round of lather, rinse and repeat.
“Although the court rejected the plaintiffs’ desire for a free market system, we will explore our next steps as appropriate,” a statement from the NCAA’s chief legal officer, Donald Remy, said in part. “We believe the ruling is inconsistent with the decision by the 9th Circuit Court of Appeals in O’Bannon. That decision held that the rules governing college athletics would be better developed outside the courtroom, including rules around the education-related support that schools provide.”
In other words, the NCAA’s gonna NCAA, y’all. At least it can still afford to.