I saw a lot of apprehension based on misconception in yesterday’s comment thread about the SCOTUS’ Alston decision, so I thought I’d devote a post to what the case means now and where it might lead to.
First, it’s important to note what the decision is exactly about.
The Supreme Court handed down a heavily caveated victory for elite college athletes on Monday. The immediate impact of the Court’s unanimous decision in National Collegiate Athletic Association v. Alston is that many elite student-athletes will receive additional education-related compensations, such as additional scholarship money.
To make it even more limited, that amount was capped by the trial judge at $5900 per athlete, per year. To give you some perspective on the impact of that amount, try this.
Now, before you cry out “but what about the schools that can’t afford to pay that?”, keep in mind that this isn’t a mandate. The relief sought by the plaintiffs was simply to prevent the NCAA from imposing limits on education-related benefits athletes can receive for playing college sports (and, as you can see, there is still a financial limit in play). To put it in other words,
It’s a free market, competitive adjustment. And it’s specifically tailored to education benefits. That’s what Alston means in the immediate sense.
That being said, it’s also true there’s a bigger impact from it than just those particular benefits. The NCAA got smacked in the face, hard, about its belief that it was immune from antitrust law. As Gorsuch put it in the court’s unanimous ruling,
… to the extent that the NCAA “means to propose a sort of judicially ordained immunity from the terms of (antitrust law) for its restraints of trade—that we should overlook its restrictions because they happen to fall at the intersection of higher education, sports, and money—we cannot agree.”
In other words, the SCOTUS told the NCAA that if it and the schools want antitrust immunity, seek it from Congress, not the courts. The NCAA’s problem is that right now, it’s naked.
Now, a lot of attention is being paid to Kavanaugh’s stinging concurrence.
In a concurring opinion, Justice Brett M. Kavanaugh wrote: ” … there are serious questions whether the NCAA’s remaining compensation rules can pass muster under ordinary” antitrust legal analysis. Kavanaugh added that the NCAA “must supply a legally valid” justification that “its remaining compensation rules” have sufficient value to promoting competitive balance and that the benefits outweigh the harm being done to the athletes.
“As I see it, however, the NCAA may lack such a justification,” Kavanaugh wrote.
The NCAA and its attorneys have tried yawning past that.
It’s like force of habit for them. And, sure, it’s not like they have much else they could say, but while Kavanaugh’s opinion doesn’t have the weight of a full court ruling behind it, it’s certainly a warning about the road the NCAA takes from here.
The lower courts struck down the NCAA’s limits on education-related compensation for athletes, but left in place other limits on compensation — and the Supreme Court upheld this baby-splitting result in Alston.
But, as Gorsuch notes in his opinion, a major reason why the Supreme Court did not go further is that the plaintiffs did not ask them to do so. As he writes, “the student athletes [did] not renew their across-the-board challenge to the NCAA’s compensation restrictions” when their case reached the Supreme Court.
Although the full Court did not weigh in on whether elite student-athletes should be entitled to more compensation than the Alston opinion requires, Justice Brett Kavanaugh wrote a separate concurring opinion where he argues that “the NCAA’s remaining compensation rules also raise serious questions under the antitrust laws.”
As Kavanaugh writes, “the NCAA’s business model would be flatly illegal in almost any other industry in America.” Among other things, the NCAA “controls the market for college athletes;” it “concedes that its compensation rules set the price of student athlete labor at a below-market rate”; and it “recognizes that student athletes currently have no meaningful ability to negotiate with the NCAA over the compensation rules.”
That’s exactly the sort of iron grip over pricing that antitrust laws are supposed to prevent.
It remains to be seen whether Kavanaugh’s opinion will someday become the law, but it will likely signal to student-athletes that they should consider filing a new lawsuit challenging the NCAA’s remaining restrictions on compensation.
Given the NCAA’s track record in such litigation…
… you’d think that would freak the membership out. It also presents an opportunity for them to get their heads out of their collective ass. (History defying as that may be, I know.)
Will they take it? College athletes’ NIL compensation presents an immediate test. Early results are muddy.
… A group of six conference commissioners, three from the Power 5, are encouraging the DI Council to scrap its long-readied NIL proposal and instead adopt an alternative plan. Under the plan, the NCAA would exempt itself from NIL completely. Schools in states with an NIL law may follow that law without penalty, and schools located in states without a statute are granted permission to each create and administer their own NIL policy, as long as they use two guiding principles: no pay for play or recruiting inducements.
The latest revelation has further delayed the long-awaited NIL vote and hurtled high-level administrators into a space of disagreement during the 11th hour of a process that began two years ago.
“In hindsight, I’m saying ‘S—, why didn’t we act on this in January?’” says one NCAA decision-maker. “We’ve done it to ourselves. Everybody has their own agenda. If we come out of this without doing anything, we are dysfunctional.”
“What a mess,” says another, both granted anonymity to speak with SI. “That’s exactly the right term. It’s a mess. If it doesn’t pass, you’ve got chaos.”
“This decision not only puts at risk any new legislation that might be put forward on NIL, but it puts at risk all restrictions the NCAA has on athlete compensation,” says Gabe Feldman, a Tulane law professor and expert on NIL matters.
The NCAA’s long-constructed NIL legislative proposal is rife with athlete restrictions. Most notably, the proposal prohibits athletes from using school marks and logos in endorsements, outlaws them from using school facilities for NIL activities and bans them from using university-provided content in NIL ventures.
“I don’t know how you can read the Supreme Court decision and not be concerned about being overly restrictive,” says one member of the DI Council. “It should cause everybody to take a deep breath. The proposal establishes restrictions.”
Or, if you prefer the tl;dr version:
“It feels like the NCAA is between three rocks and four hard places,” Feldman says. “There are so many forces closing in on them.”
It’s a mess of their own making. Alston took seven years to resolve! Mark Emmert’s had plenty of time to settle for something the schools could have lived with and it likely would have been less than it’s going to take to settle now. Congress may not be populated with a bunch of rocket scientists, but one thing you can say about most politicians is that they know how to leverage a favorable situation.
Sen. Maria Cantwell, as the chair of the Commerce Committee, the most powerful lawmaker in the NIL debate, says the court’s decision “gives new urgency” to negotiations. Sen. Richard Blumenthal, at the center of negotiations, told SI that the ruling is “a gigantic kick in the butt” for congressional talks and that it’s possible an agreement can be reached by the time lawmakers break for August recess.
“It clears away the myth of amateurism,” he says. “Unanimous Supreme Court decisions are rare, particularly for this court. There will be additional force as a result of this one. ‘Force’ meaning not only legal persuasiveness, but also practical support for athletes rights.”
The NCAA is going to have to sue for terms. They’re likely to get some form of an antitrust exemption, but they’re going to have to give up quite a bit to get it. What they’d best hope is that they’re not playing the role of Germany in the Versailles Treaty.
Needless to say, this still has a long way to go from here.