Your Alston roundup

If you’ve got questions about the potential ramifications of Judge Wilken’s ruling against the NCAA in the Alston antitrust suit,’s Michael McCann, has some possible answers that might be of interest.

First, from his overall analysis, if you’re looking for a potential real world example of how competition might impact even the limited form of compensation Wilken allows for, here’s something that might be of particular interest to us:

The antitrust dynamic described above can be illustrated using one of this year’s best incoming players: Nolan Smith, a defensive end at IMG Academy in Bradenton, Fla. Over the last year, Smith was ranked as one of the top three recruits in the class of 2019 by every major outlet. Five elite college football programs—Alabama, Clemson, Georgia, Clemson and Tennessee—all aggressively recruited him. During the early signing period in December, Smith officially signed with Georgia, and he will play for the Bulldogs on a full scholarship this fall.

This description of Smith might not seem problematic. In fact, it seems ordinary for a recruit of Smith’s caliber. Yet it nonetheless contains an antitrust problem. Smith was denied the full benefits of the competition for his services. If Smith were a coach or a professor, the multiple schools competing for him could have offered him more money as an inducement to select their school. That doesn’t mean the school would pay Smith a salary. NCAA rules forbid “paying” college athletes as employees, but a similar “compensatory” outcome could be achieved through a scholarship offer that reflects the market competition for Smith. If Alabama offered $100,000 per year in a scholarship, Clemson could offer $150,000 and then Tennessee could top them both at $200,000 per year—and so on.

… While universities regard elite recruits as potential students, these students are assets to a university in ways that other students are not.

Second, here’s a description of how the ruling, should it remain in place, might impact schools.

Judge Wilken nonetheless agreed with the plaintiffs’ proposed remedy that individual conferences ought to be able to develop their own rules for capping scholarship values and accompanying benefits (so long as those rules comply with the limitations that benefits be “related to education”). The plaintiffs argued that individual conferences deciding the maximum value of an athletic scholarship would act more competitively than the NCAA deciding that question.

The related logic is that a conference that sees substantial economic value in sports, such as the Southeastern Conference, might reason that its top student-athletes should be eligible for scholarship values that far exceed the current NCAA cap. Those players play in stadiums that in some cases seat over 100,000 fans and appear on national television as part of lucrative broadcast contracts.

Smaller conferences might view the calculus in a different light and continue to employ the grant-in-aid cap. These leagues might reason that their members feature players whose college experience is not entirely dissimilar from that of their classmates, playing in smaller stadiums out of the national spotlight.

The potential ramifications there, at least to my mind, are pretty simple.  What if the P5, after a few years of this round of competition shaking out, finds it can live with the results, financially speaking?

For the NCAA, the empowerment of conferences will mean less control over amateurism from on high. Conferences will become more autonomous and more adaptive to their individual circumstances. Whether individual members of conferences agree with proposed grant-in-aid changes remains to be seen. It’s conceivable that Judge Wilken’s ruling could lead to conference realignment, particularly if a conference adopts scholarship rules that are opposed by some of its members. Conferences could also evolve or transform into different creatures when it comes to methods of investigations and enforcement of rules. College sports could take on unique forms depending on the conference in question.

I’ll say it again:  if you don’t think Nick Saban is already gaming this shit out, you don’t know Nick Saban.

Finally, in his third piece, McCann explores the impact of the ruling in related areas, about several of which some of you have asked questions.  Take, for example, what he says about Title IX.

Title IX is probably best known for requiring that college athletic programs provide roughly equal opportunities to male and female student-athletes. Here is where Judge Wilken’s ruling might invite Title IX challenges. If a school pays football or men’s basketball players scholarship amounts that exceed what is paid to scholarship athletes on women’s teams, players on those women’s teams could argue that the school has failed to comply with Title IX.

However, a school would not automatically violate Title IX by paying higher value scholarships to male athletes. The relevant analysis would be more nuanced and would focus on the extent of disparity between scholarship values at a particular institution. Along those lines, Title IX does not require identical treatment of male and female athletes, nor does it compel that an equal amount of dollars be spent on both. The key, instead, would be whether the school provides the female athletes substantially proportionate opportunities for scholarships. It is possible the Office for Civil Rights at the U.S. Department of Education, which enforces Title IX, will offer advisory opinions that might help schools interpret Judge Wilken’s ruling in a way that signals an acceptable disparity range for scholarships.

If you’re trying to understand what’s going on with these antitrust challenges to amateurism, these three articles are pretty good starting points.  Take a little time to wade through them and see if they help.


Filed under See You In Court, The NCAA

47 responses to “Your Alston roundup

  1. 81Dog

    Sure, women’s sports and their supporters will easily accede to the concept that their athletes don’t work just as hard in their sports as football players, and therefore will happily agree to take less money than football players. I’m sure they’ll appreciate the nuance used to explain that they’re second class citizens to whom federal law doesn’t apply.


    • I must have missed where McCann made that argument. Can you point it out to me?

      If hard work were the sole key to compensation, ditch diggers would make more than Donald Trump.


      • 81Dog

        I didnt say it was a winning argument, or even a good one. But what are the odds someone is happy to make it? Pretending everyone will just fall into line isnt exactly a strategy, but anticipating problems or reactions is. Just sayin’. I understand hard work isnt the only factor in compensation. Maybe I missed the part of your argument where you address “equal pay for equal work.” Are girls gymnasts not working as hard, or as prone to injury, as football players? Sure, they may not make as much money for the school, but they have a zillion national championships, too. What;’s the value in winning at a higher rate than the mens programs, anyway?

        I think athletes should own and profit from their own likenesses. But you’re a more optimistic person than I am if you think paying football players wont lead to claims that Title IX requires the cash to be spread further than the football program. I dont care if McCann addressed it or not. Someone will.


        • Not trying to be snarky here, but what does “equal pay for equal work” have to do with Title IX?

          By the way, McCann wasn’t dismissing the possibility of Title IX litigation related to this. I’m not either, but I don’t think your argument is a winning one.


          • 81Dog

            I’m not trying to snark, either (we all know I am capable of it, but it’s not all I do). I’m just raising what seem to be reasonable questions about potential problems. Title IX is one, but it isn’t the only one.

            It’s not MY argument. It’s AN argument. As for equal pay, it is correct that it has not a thing to do with Title IX. But that doesn’t mean someone wont raise it. Title IX deals with NET opportunities for women athletes, right? Once you start down the road of paying people for their athletic performance, the “work/payment” one or the other does is a Title VII analysis (and Fair Pay Act), right? I’m not arguing it will or wont apply, but it certainly is a consideration, one would think. McCann address Title VII in a slightly different context that may nevertheless be instructive. Just because it doesn’t involve Title IX doesn’t mean it shouldn’t be something to which someone should pay attention

            Maybe it’s all very simple, but it doesn’t sound simple to me at all.



    • Gaskilldawg

      The writer’s point is that Title IX allows for disparity in the value of scholarships based on the value of that scholarship to the school. That is why giving half scholarships in softball and allowing football players to get Bowl swag does not violate Title IX.

      Your post makes a better sound bite on cable news, though.


  2. MDDawg

    He says “five elite college football programs” and then goes on to list Clemson twice and Tennessee, so I only count 3.

    Can a school give a scholarship player a shiny new car so he can drive to and from class and call that “related to education”?


    • I raised that yesterday in the context of a certain program in Tuscaloosa, Alabama. I guess we’ll find out soon enough.


    • Gaskilldawg

      Okay, let’s assume the SEC and Big 10 decide a new car to drive to class is a benefit related to education. The SEC and Big 10 determine that the new car is and allow their conference schools to offer. Who will challenge it and on what legal grounds?
      If the ACC objects, what legal leg does it have? That benefit wouldn’t violate anti-trust laws so it could not sue and win an ant-trust case. Players? The players get a valuable extra benefit and conferences gave Thames what Alston allowed.
      The NCAA? I guess the fight with the NCAA would be whether the car is a benefit related to education but would the NCAA want to litigate against the two conferences providing the most football revenue?


      • MDDawg

        I wonder if they’d get hyper-technical about it and say “as long as the student-athlete is driving to/from class it’s okay, but if he’s driving to the grocery store it’s an impermissible benefit.”


  3. 92 grad

    Ive often wondered how the players could be compensated and I tend to fall back on how graduate schools do it. When I was in graduate school I was a TA, which meant I was paid a stipend. My stipend was earned by me fulfilling a number of hours teaching trumpet lessons and other undergraduate classes, depending on the needs of the department of music.

    I would’ve thought that a similar process could be used to pay the revenue sport players and I think its similar to the hypothetical in the article about Nolan.


    • Gaskilldawg

      It think the economists don’t worry whether you and I can figure out how the players get compensated. The economists think that the owners of th3 money and the owners of the talent can figure out on their own how to do it.


  4. ASEF

    Random thoughts:

    Nolan went to IMG because it was the best prep for a future 1st round contract. His scholarship and his school catered to that priority. He chose Georgia for the same reason. That is going to remain the key differentiator for guys like Nolan. If future Nolans see an equivalent path at two or more schools, then the money becomes much more a differentiator, but it’s still subject to setting him up for the NFL payday. If college compensation rises to “change your life” levels (7 figures), then things get really weird. Football prospecting is much more variable than basketball, and the NBA still finds ways to throw money at Darkos and Marcells and Kwames.

    Still, it changes basketball more than it does football, doesn’t it? Kentucky and Kansas and Duke can now do their NBA one-year warehouse completely above board now, right? Nike endows Coach K’s program with the Zion Schooarship. Because that talent pool is much more reliable.

    I guarantee you Kirby is already working the corporate angles in Atlanta. So is Saban. Corporate sponsorship is the obvious and easy way to get the ball rolling. Tech probably already sent the Wagfle House people a prospectus.


    • Tony Barnfart

      And in basketball, 5-6 guys can take you all the way……..there’s a lot more “education related” expenses for a football team.


  5. Bill Glennon

    Not sure how many you are convincing here, but there is one very influential politician who virtue-signaled his support for your position last week.

    Ok; well, yes, he did deny the Holocaust. On the other hand, he has a lot of twitter followers!


  6. Tony Barnfart

    Does this or doesn’t this increase the price of season tickets at a faster rate than [x] trailing years historical rate of increase ?


  7. Anyone that believes this will ultimately end positively for any involved has not paid much attention to either human behavior or the propensity for most attorneys and the legal system in general to leave most things they touch in shambles.


    • When in doubt, blame the lawyers.


      • macallanlover

        Collectively, they do make such an attractive target! 🙂 Add a corrupt system, millions of Millennials, and stir briskly for a devastating elixir. At my age I worry not for myself, but those coming after me who will be the true losers.


        • ASEF

          Um, who built that corrupt system? Not the generations you consistently belittle in your posts. The one you are familiar and comfortable with. Yours and mine.

          We blew it. The generations behind us are much better equipped – more self aware and less selfish. They can look at a system of professed ideals, slowly twisted over time into a facade protecting and benefitting a tiny few, and see right through it. And now they’re growing into positions of power to tear some of that shit down.

          Like a system of college football that throws millions at mediocrities like McGarity and Damon Evans and Mark Emmert while running a Jordan McNair to death and then telling his teammates they can’t use their positions as Maryland football players to promote a fund raiser for Jordan’s family.

          College sports as currently constituted needs an earthquake. It’s grown into something grotesque. Corrupt, as you put it. At the direction of people like Evans and Emmert and McGarity. Who last I checked were neither lawyers nor millennials.


          • jtp03

            So is it a generational thing? Or are they just assholes?


            • ASEF

              Maybe both? I didn’t bring up the generations thing, but if we’re going to use that frame, seems kind of odd to blame the current state of affairs on “millennials.”


          • Won’t debate it with you, not the place, but the system wasn’t “built corrupt” nor was it built by any generation anyone alive can relate to. While there has always been a certain level of corruption, it has spiraled out of control more recently as the parties gained increasing control and everything moved to the extremes. It wasn’t any one generation, nor party.

            The Millennials, nor the Boomers are to blame for all of that, it evolved over too long of a period of time. But the Millennials (as a whole, not individually) are much too gullible, less aware, more manipulated, more selfish, and ignorant to ever step up to the issues to correct. Yes, they will tear it down, they are foolish sheep. When added to the recipe, is why it is a lost cause. That was what I said.

            For you to make the insane statements you did in characterizing them as you did, is all I need to know about the futility of discussing the issue with you. Didn’t want to anyway, just expressing my opinion. Might need to wake up from your nap, some weird shit is going on. But keep your head in the sand, could well be the safest place.


    • If the result is to give control to the conferences and the players to determine their fate instead of leaving their fates in the hands of a third party, then I do not see much risk of it not ending well for the parties. I think both the conferences and the players can determine what is best for them better than I can.


  8. Forgive me. I meant to leave no doubt.


    • Eh, no big deal.

      Even if they had, Wilken continued, she pointed to numerous exceptions when players could, effectively, be paid. Players are paid, beyond scholarships, all the time: in untold millions of dollars invested in training facilities; in gifts for participating in bowl games; in funds available to purchase loss-of-value insurance.

      “The rules that permit, limit or forbid student-athlete compensation and benefits do not follow any coherent definition of amateurism,” she said.

      I have to respect someone who thinks lawyers are a bigger problem here than the NCAA.

      Speaking of which, if the future is so gloomy for the NCAA, shouldn’t that be an excellent motivator to negotiate a more reasonable arrangement?


      • The NCAA doesn’t have an arrangement with any student athlete. The NCAA is a private organization and like all private organizations that haven’t been corrupted by either political correctness or some misguided judge they have rules for their member institutions to abide by. The schools and the student athletes have a mutually beneficial “arrangement” in which of their own free will they agree to points they believe are good for each party. This is the way it has worked for decades. The way we are heading is ultimately to a place that is good for no one and the people that need it the most will be the most hurt. Congratulations on your big win today.


  9. macallanlover

    Fred Sanford is rolling over and calling out to Elizabeth again. The end isn’t here yet, but it is now visible.

    What a bunch of crap. So tearing down the framework (at least seriously risking doing so) of what has served so many well, for more than a century, is justified by throwing bukoos of money at the few? Sorry, adults should have more wisdom than take this approach.


    • Yes, the courts should spare no effort to leave the money in the more deserving hands of folks like Greg McGarity and Larry Scott.


    • Your reference to a “he framework (at least seriously risking doing so) of what has served so many well, for more than a century,” is factually wrong.
      The NCAA did not place rules on benefits to college athletes until 1948. Prior to then the schools and conferences put whatever rules they wished to impose. I will giev you a couple of examples. The star of thTech’s first win over UGA was Captain Leonard Wood, United States Army, stationed at Fort McPherson, who Tech paid to suit up and play against UGA. There was no attempt to hide that; there was no strict eligibility structure. College football became hugely popular in those times.
      The Carnegie Foundation for the Advancement of Teaching issue a report on Oct. 23, 1929 of its three year study of college athletics. It reported that the popularity of college sports had commercialized it and that payments to athletes was widespread. That very same year Sanford Stadium, subsidized by UGA fans, such as you, who wereo enamored with the sport, opened. The payment to p[layers did not dampen the fans’ enthusiasm.
      I will give you another example close to our Bulldog hearts. Charley Trippi was a coal miner’s son in Pittston, Pennsylvania. UGA had a letterman and alum, Harold “War Eagle” Ketron, who owned some Coca-Cola Bottling Companies in the area. Ketron was .[an active recruiter for U*GA. In order to get Trippi ha gave high schooler Trippi and college student a job riding on Coca-Cola delivery trucks and paid him for his part time work more per year than Trippi’s father was making per year in the mines. Perfectly permissible under SEC rules and the NCAA had no rules concerning it. Other UGA players from the midwest during that era told of working for Keatron. It was not covered up because it was perfectly fine under the rules.

      The first NCAA effort to establish a “he framework . . . of what has served so many well” was the 1948 “Sanity Code” that limited athletes to scholarships based on need that were otherwise available to other students. The schools then persuaded the NCAA to lift the “needs based” restrictions and the NCAA allowed athletic scholarships in 1951. Notice a correlation between the passage of the Sanity Code in 1948 and UGA’s football record after 1948. UGA was a National powerhouse in the peace years of the 1940s. UGA was 45-54-6 in the 10 years after the Sanity Code was enacted providing the framework you refer to. In the 10 years prior to the Sanity Code UGA was 79-27-3, with 2 Orange Bowls and a Rode Bowl, a national championship and 1 other undefeated team that could claim a disputed national championship. The coach was the same coach in the 10 seasons prior to the “framework,” and the 10 years after teh “framework.”

      Seems the “framework” did not serve us well, and I will bet the UGA fans were happier under the rules that existed before the “framework.”

      College footballs fans as a whole loved the sport when players were compensated above board, and have loved the sport when college players have been compensated under the table. If we go back to the days when a Harold “War Eagle” Ketron can give a player for his alma mater a cushy job we as fans will still be just fine. I promise you that had you been a UGA fan in 1942 you would have loved the Rose Bowl trip just as much as you did in 2017.


  10. PTC DAWG

    Consider the barrel of worms fully opened.


  11. Dawg in Austin

    So many unknowns and we still have to wait for the results of the appeal when the entire court will likely revise some of this. I’ll just say that I’m thankful we have such a forward-thinking intellectual like Greg Sankey in charge to ultimately make these decisions. 🤣🤣🤣


  12. In the recruitment of student/athlete Nolan Smith, as we like to say here at GTP….CKS “was on the mutha”…….


  13. Junkyardawg41

    Random thoughts and questions — I have no answers and they are probably unanswerable…
    1. “If Alabama offered $100,000 per year in a scholarship, Clemson could offer $150,000 and then Tennessee could top them both at $200,000 per year—and so on.” — this sounds a lot like the MLB Minor league model. Good for the elites but not as good for the players outside the top 500.
    2. I wonder how the transfer rules will change based on paying enhanced scholarships (my term) and if conferences become the clearing house versus the NCAA. Does this become infringement on players’ rights?
    3. If 20% of big time program revenue is generated by donation, I would think donations (no longer 80% tax deductible) would increase substantially. I also would think schools/conferences that would not be able to increase revenue through donation would start to pass an increased amount onto current students.


  14. DawgPhan

    I would imagine we will see the Conferences pushing for antitrust exemption and a deal with a players union as this spirals out of control.

    None of them are going to want to really have to compete with each other because they know that none of them can control themselves.


    • I would imagine we will see the Conferences pushing for antitrust exemption…

      I suspect you’re right about that.

      I also suspect, given the current political climate, they’ll get a chilly reception.


  15. Rocketdawg

    With respect to REM….It’s the end of college sports as we know it and I feel fine.

    It’ll be nice to have Saturday afternoons free for other interests.


    • If by “It’s the end of college sports as we know it and I feel fine” is your way of saying you don’t like players being paid, that’s cool by me. But if you mean that literally it’s the end, how exactly?


  16. ASEF

    Or maybe you’ve been too gullible and too reliably manipulated? You sound like my mother in law. Like most older church members. The younger crowd in our church thinks for themselves. The older crowd, herd-like, accuses them of group think. It’s hysterical how much that older crew lacks self awareness but makes up for it in finger pointing.

    There is a lot of wisdom in that group, too, and when they relax, they’re wonderful contributors. But it doesn’t take much to get them squawking about younger generations. And their anecdotes are usually their own kids and grandkids. Hmmmm.

    I’ve been doing mission work and volunteering with these younge generations. Taught them sales as a manager and English as a teacher.

    The kids are alright. It’s the entitled Boomers who need a serious reality check.