The Alston ruling is out, and if you’re the NCAA, it ain’t pretty.
No, this doesn’t mark the end of amateurism, since that was not what Alston was about. But there’s only so many times a door can get slammed in your face, by the public, by state governments, by the courts and soon to be by Congress, before you get the message you can’t go inside anymore.
The decision the NCAA made to appeal Alston has proven disastrous for them. Where now? Sadly, I suspect the NCAA doesn’t have the first clue about what to do, other than continuing to procrastinate.
Meanwhile, the Supreme Court of the United States just declared it’s open season for antitrust lawyers on the NCAA.
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UPDATE: This part from Kavanaugh’s concurrence, where he roasts the NCAA’s manipulation of the romance of amateurism, is just brutal.
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UPDATE #2: More Kavanaugh.
If I didn’t know any better, I’d say he’s been reading the blog.
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UPDATE #3: And, of course, the take you’ve been waiting for.
The man doesn’t miss.
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UPDATE #4:
In other words, they got nothing.
Get The Picture 
I think procrastination was their whole job in the first place. Once it was clear this was a losing battle, the name of the game for the schools was two fold: 1. Get us as many years of maximum revenue without sharing it as possible, and 2. Take the blame for it.
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Clarification, the schools’ directive to the NCAA was two fold….
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I could see a very real scenario where the SEC, Big 10, Pac 12 and Big 12 get together and leave the NCAA, forming their own collegiate sports organization . I mean; do you really need them now?
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The ACC and Notre Dame will definitely be along for the ride.
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Sort of like the CFA from 1977 w/ Vince as one of the leaders https://en.wikipedia.org/wiki/College_Football_Association#History
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When you lose 9-0 in a court that can be pretty polarized on some issues and will be on some rulings likely still to come out, you have no shot. I won’t read the full decision, but this would seem to be a full rebuke of the NCAA and its decision to use its rule-making as a way to enforce a price-fixing cartel for its members.
Hopefully, this also means NCAA Football 2023 with the real players will be on shelves next year.
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Kavanaugh … get that man a beer. I heard he likes it.
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Great comment.
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That’s what he said
Meanwhile, many people are saying that some people are desperately seeking the LZ atop the Indy HQ Bunker for an escape route
https://twitter.com/RealEmirHan/status/1329071951290142720
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DOOOOON! All that rain this weekend wash you out from under that rock you been hiding? Love me some Doors, rotor thump and fake napalm strike.
Thanks, man.
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So do we get the video game back now?
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The Supreme Court has spoken and it is the end of college sports as we know it. If you think differently you are kidding yourself. What no one knows yet is what will take its place.
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If, by “as we know it”, you mean schools no longer getting away with not fairly paying the hired help, you’ve got a point.
I suspect that’s not what you mean, though.
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Definitely not what I meant. 🙂
Imho, while this may be initially good for the players, the law of unforeseen consequences is marshalling it forces.
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Sure, no one knows what the unintended consequences of this will be … some will be good … some won’t. It doesn’t mean the Court didn’t do the right thing in applying the law to the facts of the case. The NCAA has had years to reform itself on NLI and refused. Instead, they went to Congress begging for an antitrust exemption and to delay the day of reckoning in court.
If we were worried about unintended consequences of court decisions on antitrust matters, we would still live in the world of AT&T as the exclusive telephone service provider. We would still be buying film from Kodak. Standard Oil would be dominating the oil & gas industry. Microsoft would still be bundling Internet Explorer instead of making them compete with the other Internet browsers.
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Dude, try and hold back on all that positivity!
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The way the money has changed here just made this inevitable. With assistant coaches making millions per year and 200 million dollar athletic budgets in the immediate future, there is just no way to make the cogent argument that the players don’t deserve a penny.
When coaches were making hundreds of thousands, and the facilities were just gyms and weight rooms, things were different. They just were.
The money kept expanding and expanding, and now there’s no going back.
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Yep, the schools selling out in an endless search for every last penny from their athletics programs is what killed it. Being forced to do what’s fair is not the “end of college sports”. That ship sailed years ago.
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You nailed it !
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Sure, it is the end of college sports violating the Sherman Antitrust Act. My question to you is why colleges should be excused from violating the law that all other businesses have to follow.
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Dang, I did not expect a unanimous 9-0 smackdown from the Court. You love to see it! This one’s for Green and Gurley!
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Really, why not? There’s no one left who believes in the NCAA’s bs pretty much anywhere, is there? (Other than Derek, that is.)
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The Supreme Court has operated from a very watered down anti-trust definition for 40 years and I wasn’t sure if the conservatives on the court would take the concerns of labor (athletes) seriously. I’m pleased that they all see the issue the way I do.
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Sounds like Mark Emmert just learned the meaning of the phrase “fuck around and find out.”
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Emmert probably thinks he can appeal…
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When you aim at nothing you seldom miss.
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The entire purpose of the NCAA from inception has been to pigeonhole every athletic department into a “level playing field” set of rules.
For every cash-flush athletic department, there are 4 that want to compete with Alabama and Georgia on a shoe string budget (hello, UCFs of the world). They had the votes to play this out as long as possible.
That model of NCAA operation just got its last rites. Finally.
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Yep, Gulliver (the Power 5) allowed the Lilliputians (the rest of Division 1) to tie them down using the NCAA’s rules in exchange for March Madness money. Maybe some forwarding thinking Power 5 conference commissioners and athletic directors (along with a few other schools) will see the light that there may be more money to make separate from the NCAA. UNC and Duke don’t need Gonzaga and Villanova. The SEC doesn’t need the Sun Belt. Alabama doesn’t need UCF (although UCF would be one of the schools outside the Power 5 that I would invite to join the new organization).
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I’m not one to slam Mr. CFB, but Tony knocked it out of the park with that reaction.
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We don’t call him Captain Obvious in this corner of the internet for nothing.
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Notice that the Supremes have been pretty together lately. I was a little shocked at the total bombing of the NCAA. Seems like the court actually followed the rough questions in the oral augments. Like the Senator said this will create work for anti-trust attorney’s for years to come. I’m not sure but isn’t the something in that law about tribble damages or is that just the RICO stuff. Come to think of it RICO could apply given the organized crime aspects of the NCAA. Emmert makes a shitty Godfather. Oh well pass the popcorn.
EA Sports is going to put together some kind of blanket compensation plan for NIL, because they still have to get the schools’ rights too. If I’m Kirby I’m with the Law school and the Marketing school to put something together. Recruiting got to be served.
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There is one winner from the NCAA staff….Donald Remy. I just wonder how many memos he wrote outlining his belief that there was a good chance of winning these ca$es$.
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I am not well versed on the impact of this ruling. What does this look like on the players end in addition to NIL$? A big bump in the stipends payed to student athletes in revenue generating sports? Is it a flat stipend across the board or weighted on some other metric? Does title 9 mean we pay all collegiate athletes or only the revenue generating sports? Are certain conferences members going to drop because they don’t want to pay the student athletes? I vaguely remember Wisconsin taking a hard line on stipends a few years ago.
I am genuinely curious, I never really dug into the issue.
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See below. The main ruling is just to affirm the lower court finding against the NCAA in it’s narrow ruling on the stipend ruling. The Concurrence, even though there is no other Justices joining it is damning.
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Kavanaugh’s Concurrence was an open invitation to every student-athlete to sue the NCAA under the Anti-Trust Act. I mean he laid out the case and sited USSC cases. This will be the next great class action. I can see the TV commercials now. Are you now or have you ever been a student-athlete? Well call 1-800-SUENCAA and let our firm fight for you. Morgan & Morgan are trying to take over an anti-trust firm as we speak (LOL).
The NCAA just lost the last cover they had and now the the Senate will seriously consider the Student-Athletes’ right to organize. If the NCAA presidents don’t fire Emmert’s butt they should be fired by their school’s for gross negligence in controlling the instrument of their ruin.
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agreed.
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Curious, 69, but could this result in a door opening that potentially would allow someone to challenge the 4-year eligibility rule? Can I play sports as a graduate student as long as I am academically eligible? In theory, could Aaron Murray have stayed at Georgia beyond 2014 while getting a PhD in psychology?
I would assume that taken to the extreme, every NCAA rule could be challenged now under Kavanaugh’s concurring opinion.
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I would take it a step further and ask how the mechanics of being forced to take classes unrelated to my trade would work out — i.e. why do I have to be a student?
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Personally, I think that’s a bridge too far, and I would assume a court would agree. Intercollegiate athletics are still considered to be a university activity. To get where you are going, you would have to sever all ties between the university and the athletic association. You have to be accepted as a student to participate in athletics. Now, I could make the leap that the NCAA’s academic eligibility standards could go by the boards. In other words, as long as the university accepts the student-athlete for admission, he/she is eligible to participate. As long as the student meets the university’s academic requirements to remain a student, he/she is eligible to play.
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Until some highly talented doofus sues and claims they are being denied the opportunity to pursue their dream of an NBA or NFL career because of poor academics. This could be the catalyst that pushes the actual schools to step in and take more control over who is admitted as an athlete. I don’t see many, if any, schools willing to sacrifice their academic reputation for a winning sports program in spite of what some wealthy fan wants.
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You mean the parties who have been driving the NCAA train and the money chase for the past several decades? Sure, they’re gonna walk away from that new $2 billion dollar deal they maneuvered *** checks notes *** last week?
Some of y’all are too funny.
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The university’s budget was $1.69B in 2019, I am sure it is higher this year. The entire athletic budget is currently $150MM. Athletics are important but they aren’t driving the bus at the university. The university is not going to sacrifice its academic reputation to help minor league sports teams.
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LMAO. That’s what Michael Adams did when he brought Jim Harrick on board. And I’m sure that’s what everyone said before Jan Kemp lifted the curtain.
The school admits legacies and does political favors all the time.
UGA isn’t pure and it never has been. But you go right on dreaming, my friend. 😉
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Additionally, the $150MM is money collected and controlled by the UGAAA, not the university for the most part. The university could simply part ways with the UGAAA if push came to shove over non students playing or lowering of academic standards became a big issue. If the UGAAA went away, the university would not notice any real reduction in income..
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Right. That’s why I continue to see Jere Morehead in the middle of things.
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That’s an easy one. They can leave their current university and go to one that will accept them. Player A fails to meet the University of Georgia’s academic requirements to remain in school and now can transfer to Auburn University if accepted to continue to attend school and participate in athletics. That student-athlete would have no standing. Using that logic, all universities would have to drop their academic requirements for remaining in school because Chad the Frat Boy partied his way right out of school.
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If Chad the Frat Boy parties too much and fails out, he’s out, just like the athlete that is an academic casualty. I don’t see the difference and I don’t see universities changing the rules so either one will be able to stay in school. Colleges are not going to lower their academic requirements for all students so athletes can get in or stay in school. As much as we enjoy poking fun at Auburn, they are not going to destroy the degree value of the 26,000 regular students so a couple hundred stupid yet talented athletes can get in and stay in school with a blanket lowering of standards.
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I totally agree with that.
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You paint with a broad brush. There are NCAA schools (cough) Auburn, Clemson, etc. that could care less about academics. They are not exactly Harvard and Yale.
You are forgetting the one thing that might be the first casualty of any real anti-trust suit, making any transfer athlete sit out at all. This is well settled by the cases from Pro-sports’. I just think the Supremes through, Kavanaugh’s Concurrence, have all but told congress, do whatever you want to the college/NCAA student-athlete model. The big unions, including the NFL Player’s Association, might just get enough labor votes (student-athletes) to really blow this sh*t show up.
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I think the Kavanaugh certainly shortened the bridge. I also don’t know of another trade that requires you to take unrelated classes/education to work in your profession. Lawyers are required to go to law school (in most states) and pass the State Bar in order to practice law. Football players don’t have a similar positive education requirement so I am looking for another career field in a similar position to college athletics (revenue sports)
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I think this is where a firm line will be drawn by the colleges. No real college is going to allow non students to play for a minor league team with the college’s name and association.
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You could very well be right. I just don’t know what the legal mechanism will be to allow that to happen. (the exclusionary piece)
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I think the colleges would drop the sport before they would allow non students to play. I would hope that would be the case.
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“Kavanaugh certainly shortened the bridge.”
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Madness.
Madness!
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You don’t have to take classes in an unrelated discipline to get a job as a professional football player. You can work out on your own for 3 years in preparation for the NFL draft if you like. The problem at its core is the CBA between the NFL and the NFLPA.
Once again, I don’t think Kavanaugh shortened the bridge to “I play intercollegiate sports, but I don’t take classes.”
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I think he shortened the bridge by saying if you play revenue earning sports then “student athletes” are workers and entitled to fair compensation. If they are workers, then they are treated differently under the law.
The CBA you refer is between labor and management. I think the political make up of the NLRB coupled with Kavanaugh’s own words make it increasingly likely that revenue earning SAs will be legally classified as workers — potentially being allowed to form a union and making it (IMO) legally difficult to enforce “I have to take classes to work in intercollegiate sports.”
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I just don’t see that happening, and that would be the ONE thing that would completely turn this guy off to intercollegiate sports. Others may decide truly minor league football affiliated with a university is interesting to them. I would not be one of those.
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First, a concurring opinion, unlike a majority opinion, does not create legal precedence on its own. It can certainly be cited in future cases (and as you point out, I am sure that there will be plenty of cites to his opinion in Alston), but it doesn’t have the impact of a majority opinion such as NYT vs. Sullivan.
The Court’s majority opinion didn’t address the idea of players receiving cash or cash equivalents for playing since that wasn’t the issue before the Court. In affirming the 9th Circuit’s upholding of the District Court’s ruling, what is now established is that the NCAA can’t completely prohibit “non-cash education-related benefits” such as computers, science equipment, musical instruments, travel for study abroad, etc. that are not covered by cost-of-attendance. If the NCAA can now create limitations on NC ER benefits that aren’t outright prohibitions then I think that we see a new round of litigation to determine whether certain limitations are reasonable or not.
What Kavanaugh’s concurring opinion did point out though, which is of particular interest to me, is that in the future using the same analysis that the District Court used concerning non-cash education-related benefit could lead to having the NCAA’s other compensation rules squashed (or at least limited under some yet-unknown reasonable standard). There is no question that Kavanaugh’s opinion raises some pretty serious questions moving forward. Such as, for example, was the majority opinion really just an affirmation of the 9th Circuit’s ruling or is a majority of the Court in favor of attacks on all NCAA compensation rules? Or, as we all know football and men’s basketball (for the most part) are generating the lion’s share of the billions of dollars that Kavanaugh points to as going to facilities, commissioners of various leagues, NCAA leadership, etc. I need to re-read Kavanaugh’s opinion, but I don’t recall him acknowledging that portions of those billions of dollars fund non-revenue generating sports at schools. I don’t know the answer, but if direct compensation to all athletes out of the revenue generated by a far fewer number of athletes results in the termination of some non-revenue generating sports at schools, I’m not so sure that is a good thing.
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Great post. My question is whether his concurring opinion will encourage others to challenge the NCAA’s rules. You could make the case that 4 years of eligibility when it normally takes a student 5+ years to graduate is a restraint of trade. If I’m studying to be a lawyer, why can’t I continue to play a sport and receive an athletic scholarship while in law school?
I knew the concurring opinion isn’t precedent, but it certainly opens some doors for other types of challenge to the NCAA’s rules.
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As I’ve always said, live by SCOTUS (Oklahoma v. NCAA), die by SCOTUS….
It will be interesting to see how this disrupts the upcoming season, now that the NCAA and schools have the Sword of Kavanaugh hanging over their heads….
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“Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate…”
I think overlooked is Kavanaugh’s identification of the industry and specifically calling out Student Athletes as Workers. I am not sure how the NLRB won’t recognize potential unionization attempts in the real near future which will inevitably lead to pay for play.
Short version is I would expect a minor league football league/minor league basketball team sponsored by academic institutions in the near future.
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You say that last sentence like that isn’t what we have now.
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There is a form of it but there are still stipulations — like the athlete has to be a student, only has 4 years to play, etc.
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Wow!!! Minor league football and basketball leagues sponsored by college athletic programs. This is crazy that this could happen. I guess I’ve kept my head in the sand on the issue (shocking as much as The Senator has brought it up over the years).
Wow….things are going to be so different in the very near future. I don’t know how to react.
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Interesting thought. How much of the college’s money will go towards supporting these “minor league football and basketball leagues”? How much will students be expected to pay so other students, or even non students brought in to make the minor league team better, can be paid to play a game every student may not care about at all? Will these minor league teams have to rent the stadiums, arenas, practice facilities and other venues from the college that owns these facilities? Will colleges be forced to allow any athlete to be on these minor league teams sponsored by the college regardless of their grades or even standing as a student? If players are paid and are truly “employees”, can they be fired for not performing their work duties as expected like employees in other jobs?
Lots of details to be dealt with, I’m only thinking of a few.
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So will could student pay look something like the NFL draft slot $allocation? I am assuming the student athletes would have to have a union like Northwestern tried a few years back. man this is going to be insane.
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That is a possibility
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Does it matter that the players don’t play for the NCAA? I would imagine that everyone who actually “works” for the NCAA gets paid.
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No, it doesn’t matter. What matters is that the NCAA is an organization set up by its members and those members have agreed to limit education-based compensation using the NCAA as the cartel. The NCAA is the college sports equivalent of OPEC. Of course, the Sherman Act has no jurisdiction over OPEC as a price-fixing and supply-controlling cartel since it is domiciled in Vienna, Austria. In theory, the EU or the Austrian government could go after OPEC if they wished. The NCAA doesn’t have that luxury with it and all of its members being based in the US.
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I won’t be surprised at all to see the members leaving in droves now.
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They aren’t going to leave unless they believe they can replace the money from March Madness (both the men’s and women’s tournaments) and, to a lesser degree, the College World Series. Maybe the Power 5 (including ND) plus Air Force, Appalachian State, Army, Boise State, BYU, Cincinnati, Colorado State, Fresno State, Houston, Memphis, Navy, San Diego State, and UCF could form an organization that could tell the rest of Division 1 to stick it where the sun don’t shine.
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In its argument before the district court, the NCAA admitted that it ‘uses its monopsony power to “cap artificially the compensation offered to recruits.” Id., at 1097. In a market without the challenged restraints, the district court found, “competition among schools would increase in terms of the compensation they would offer to recruits, and student-athlete compensation would be higher as a result.” Id., at 1068. “Student-athletes would receive offers that would more closely match the value of their athletic services.” Ibid. And notably, the court observed, the NCAA “did not meaningfully dispute” any of this evidence. Id., at 1067; see also Tr. of Oral Arg. 31 (“[T]here’s no dispute that the—the no-pay-for-play rule imposes a significant restraint on a relevant antitrust market”)’ (Gorsuch opinion, p. 10).
So what’s the justification for this restraint, NCAA? A “pro-competitive” one (Gorsuch opinion, p. 10). The only problem is, the NCAA’s argument in favor of pro-competitive restraint sucks.
NCAA: “Rule that we’ve violated the Sherman Antitrust Act and you’ll kill amateurism in college athletics. You’ll destroy the uniqueness of our product, thereby destroying our product.”
SCOTUS: “And what’s amateurism again?”
NCAA: “Uh, we don’t really know. But if you kill it, whatever it is, our consumers will no longer want our product, as we said.”
SCOTUS: “Prove it.”
NCAA: “Uh, we can’t. But here’s an expert who doesn’t know anything about consumer demand, who says we’re right.”
‘The NCAA’s only remaining defense was that its rules preserve amateurism, which in turn widens consumer choice by providing a unique product—amateur college sports as distinct from professional sports. Admittedly, this asserted benefit accrues to consumers in the NCAA’s seller-side consumer market rather than to student-athletes whose compensation the NCAA fixes in its buyer-side labor market. But, the NCAA argued, the district court needed to assess its restraints in the labor market in light of their procom- petitive benefits in the consumer market—and the district court agreed to do so. Id., at 1098.
Turning to that task, the court observed that the NCAA’s conception of amateurism has changed steadily over the years. See id., at 1063–1064, 1072–1073; see also supra, at 3–7. The court noted that the NCAA “nowhere define[s] the nature of the amateurism they claim consumers insist upon.” D. Ct. Op., at 1070. And, given all this, the court struggled to ascertain for itself “any coherent definition” of the term, id., at 1074, noting the testimony of a former SEC commissioner that he’s “ ‘never been clear on . . . what is really meant by amateurism.’ ” Id., at 1070–1071.
Nor did the district court find much evidence to support the NCAA’s contention that its compensation restrictions play a role in consumer demand. As the court put it, the evidence failed “to establish that the challenged compensation rules, in and of themselves, have any direct connection to consumer demand.” Id., at 1070. The court observed, for example, that the NCAA’s “only economics expert on the issue of consumer demand” did not “study any standard measures of consumer demand” but instead simply “interviewed people connected with the NCAA and its schools, who were chosen for him by defense counsel.” Id., at 1075’ (Gorsuch opinion, pp. 10-11).
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Did the NCAA really think that the terrible pro-competitive argument it made in the district court would somehow work in the Supreme Court?
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NCAA tried to use Board of Regents to ‘foreclose any rule of reason review in [Alston]’ (Gorsuch opinion, p. 20). SCOTUS’ reply: ‘[W]e cannot agree. Board of Regents may suggest that courts should take care when assessing the NCAA’s restraints on student-athlete compensation, sensitive to their pro-competitive possibilities. But these remarks do not suggest that courts must reflexively reject all challenges to the NCAA’s compensation restrictions. Student-athlete compensation rules were not even at issue in Board of Regents. And the Court made clear it was only assuming the reasonableness of the NCAA’s restrictions: “It is reasonable to assume that most of the regulatory con- trols of the NCAA are justifiable means of fostering compe- tition among amateur athletic teams and are therefore pro-competitive . . . .” Id., at 117 (emphasis added). Accordingly, the Court simply did not have occasion to declare— nor did it declare—the NCAA’s compensation restrictions pro-competitive both in 1984 and forevermore.’ (Gorsuch opinion, p. 20).
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Board of Regents also doesn’t foreclose rule of reason review because market realities have changed hugely since 1984, when Board of Regents was ruled on.
‘When it comes to college sports, there can be little doubt that the market realities have changed significantly since 1984. Since then, the NCAA has dramatically increased the amounts and kinds of benefits schools may provide to student-athletes. For example, it has allowed the conferences flexibility to set new and higher limits on athletic scholar- ships. D. Ct. Op., at 1064. It has increased the size of permissible benefits “incidental to athletics participation.” Id., at 1066. And it has developed the Student Assistance Fund and the Academic Enhancement Fund, which in 2018 alone provided over $100 million to student-athletes. Id., at 1072. Nor is that all that has changed. In 1985, Division I football and basketball raised approximately $922 million and $41 million respectively. Brief for Former NCAA Executives as Amici Curiae 7. By 2016, NCAA Division I schools raised more than $13.5 billion. Ibid. From 1982 to 1984, CBS paid $16 million per year to televise the March Madness Division I men’s basketball tournament. Ibid. In 2016, those annual television rights brought in closer to $1.1 billion. D. Ct. Op., at 1077, n. 20.
Given the sensitivity of antitrust analysis to market realities—and how much has changed in this market—we think it would be particularly unwise to treat an aside in Board of Regents as more than that. This Court may be “infallible only because we are final,” Brown v. Allen, 344 U. S. 443, 540 (1953) (Jackson, J., concurring in result), but those sorts of stray comments are neither’ (Gorsuch opinion, p. 21).
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Fucking lawyers.
TL;DR, world is ending. Or so they say.
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I’m going to miss College Football……it was a good run.
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Just let Kirby win the big one before it shuts down, Please.
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Amateurism lives on, despite today’s ruling: ”[T]his case involves only a narrow subset of the NCAA’s compensation rules…. The rest of the NCAA’s compensation rules are not at issue here and remain on the books” (Kavanaugh concurring opinion, p. 1).
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I really wanted to see some analysis that I have yet to see, but I think we will soon see it.
When we talk about the budget of the AA’s and the funds it receives, the direct funds flows are clear. Most AA’s are self-funding as a closed loop [expenses: coaches, facilities, scholarships (which is of course counted as full cost despite having limited marginal cost), etc vs. revenue: student fees, direct donations, ticket revenue, tv revenue, etc…]
AA’s usually do not have surpluses to distribute to the University. So what do universities then get from successful athletic departments if they don’t get diatributions? 1) increased general fund donations, 2) broader applicant base, 3) other ideas? How much do these add up to?
The ways athletic departments respond economically when the final nail is in the coffin of amateurism will point directly to how much the universities are getting from that halo effect of having an athletic department. Interesting to me at least.
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Only a season or two before players’ uniforms will like like those of NASCAR drivers. The money has to come from somewhere.
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