New World for NCAA Athletes after 9-0 Supreme Court Loss

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If you’re scoring at home, the NCAA still hasn’t been able to get a hit off of federal law. The judges continue to have a perfect game after the U.S. Supreme Court last week closed out an eight-year-long case with a profound rebuke of college sports’ prized illusion of amateurism.

As if more truth were needed to demonstrate the pervasive haplessness of the NCAA argument that amateurism is a virtue in a capitalist economy, the justices were unanimous in their decision that the cartel violated anti-trust law by agreeing among member schools how much each can compensate athletes for academic-related costs. A 9-0 vote from this polarized court is as likely as getting Batman and The Joker to sit down for a beer and a laugh (Justice Brett Kavanaugh insisted on the beer).

Loss of the Alston v. NCAA case, named after the West Virginia running back who filed the suit in 2014, was no surprise, but the fact that the NCAA was willing to pursue the futility all the way to the nation’s highest court was a telling mark of its desperation to maintain its out-dated way of doing business.

Prominent sports attorney Michael McCann, writing for Sportico, explained that the ruling’s impact won’t be immediate but sets a precedent that forecloses future NCAA gambits in defending the indefensible. “The most consequential impact of Alston is likely to be felt in the years ahead,” he wrote. “The ruling repudiates a long-standing NCAA argument that it is owed favorable treatment under federal antitrust law. Particularly from the lens of precedent, the NCAA likely regrets appealing the Ninth Circuit’s ruling to the Supreme Court. That decision led to this new precedent, which will govern the relationship between antitrust law and college sports for decades ahead.”

The fig leaf has been removed. Writing for the entire court, Justice Neil Gorsuch called out the obvious hypocrisy of market-rate salaries for coaches and executives while bartering goods (scholarships) for student labor. He included a shot at NCAA president Mark Emmert, the former University of Washington president. “Those who run this enterprise,” Gorsuch wrote, “profit in a different way than the student-athletes whose activities they oversee. The president of the NCAA earns nearly $4 million per year.”

The ruling doesn’t open the door for direct cash payments to athletes. But no longer will there be any caps on resources such as computers and devices, study-abroad programs, internship opportunities, scholarships to attend vocational schools, and other academic-related expenses.

Those resources may not sound like much to the one percent of players in football and men’s basketball who go on to pro sports careers. But the tools have potential value to the remaining 99 percent of players in all men’s and women’s sports who remain important to winning. Many of these athletes understand that the tools can be exploited for better career starts aside from the NFL and NBA. Pro careers on average last only three years anyway.

They will be in position to take the best recruiting offers from schools that now are forced to compete in a new realm previously unavailable to athletes. And that realm is different than the one known as NIL — Name, Image and Likeness.

Confused yet?

Coincidental to the Alston case but no less disruptive to the college-athletics business is the attempt by at least 19 states to create laws, independent of one other, to forbid the NCAA from stopping athletes from receiving outside income from their NILs via endorsements, sponsorships, appearances, and social media influencing.

Led by the Senate Commerce Committee and its chair, Sen. Maria Cantwell (D-WA), Congress is under pressure to cobble together an NIL mechanism covering all 50 states by July 1, the scheduled start of new laws in at least six states, four of which have Southeastern Conference schools. What a surprise. Largely because the committee must reconcile at least eight bills regarding NIL operations and athlete welfare, Cantwell has said the federal legislation, requested by the NCAA, won’t be ready by July 1.

News came Wednesday via several media outlets that Emmert and the association are working up a set of interim NIL rules that essentially suspend prohibitions against athletes receiving third-party money. But it’s unclear how the bridge rules will determine what is fair market value and what is an outright pay-to-play bribe.

The NCAA response to a pivot point in the history of big-time American college athletics is a slapdash collapse that has been years in the making. The NCAA has to have known it was running a crooked shop, but refused to take substantive steps to forestall disaster.

In a concurring opinion, Kavanaugh underscored the known hypocrises. “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,” he wrote. “And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.”

Kavanaugh, a Trump appointee supported by conservatives, seemed to stray from Republican ideology when he slammed amateurism as an artificial contrivance designed to suppress labor costs, not seeing it as a virtue that demands veneration and anti-trust exemptions. “All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that ‘customers prefer’ to eat food from low-paid cooks,” he wrote. “Law firms cannot conspire to cabin lawyers’ salaries in the name of providing legal services out of a ‘love of the law.’ Hospitals cannot agree to cap nurses’ income in order to create a ‘purer’ form of helping the sick. News organizations cannot join forces to curtail pay to reporters to preserve a ‘tradition’ of public-minded journalism. Movie studios cannot collude to slash benefits to camera crews to kindle a ‘spirit of amateurism’ in Hollywood.”

The furor over NCAA’s prohibition against cash compensation is not merely a complaint about inadequate compensation. It’s about the NCAA’s century-long punishment of canceling athletic eligibility for accepting money that is allowed to go to everyone else in the enterprise because they are professionals

The Alston decision ended the sham of amateurism. NIL ushers in the era of professionalism. The colossally messy coincidence of simultaneity is what happens when the perpetrators are too busy counting their ill-gotten gains to look up.

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Art Thiel is a longtime sports columnist in Seattle, for many years at the Seattle Post-Intelligencer, and now as founding editor at SportsPressNW.com.

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