The Supreme Court of the United States issued a rebuke this morning of the NCAA’s antitrust practices that underpin its model of “amateurism,” unanimously upholding a lower court ruling in NCAA v. Alston.
If you’re interested in the nitty gritty of the ruling, you can read a lot more about it here from sports law expert Michael McCann, but the gist is simply this: The NCAA is no longer allowed to prohibit schools from offering unlimited compensation that is “tethered” (the court’s word, not mine) to education.
According to McCann, some examples of compensation that are tethered to education might be computer costs, study abroad programs, internship opportunities, scholarships to attend vocational schools, etc.
If you’re reading this on this website, you most likely are a fan of the Washington State Cougars, which means you likely are primarily concerned with how this ruling is going to impact them. In short: It’s almost certainly going to cost more money.
The only reason I use the qualifier “almost certainly” is because WSU would have the option not to offer additional education benefits to its
employees athletes. But ... we all know how these things go.
What it actually means in practice beyond that? It’s actually tough to say. The knee jerk reaction among many fans is that it’s going to automatically put WSU at a disadvantage because of our smaller pool of financial resources. However, this relies on a conception of collegiate athletics that isn’t necessarily reality.
I remain unconvinced that WSU’s recruiting gets worse because of this, mostly because WSU is already behind, so what does falling “farther” behind actually mean? Maybe Alabama is able to offer the nicest laptops and Ohio State is able to offer summer study abroads to Europe and Oregon is able to offer $20,000 towards graduate studies — things WSU won’t be able to offer. But those schools already are hoovering up recruits who would never come to WSU anyway. WSU only has to keep up with its peer schools, something they’ve done a good job of — lately, anyway.
Maybe this presents an opportunity for someone like, say, Boise State to continue to push up the ranks, but I’m not sure that schools that currently have fewer resources than we do are suddenly going to have more resources to offer these sorts of things. If they did, they’d already have made that move with nicer facilities, bigger coaching staffs, etc., a la Liberty University.
The bottom line is that WSU will find the money for this, like it always does.
To be clear, the court’s ruling doesn’t open up all the floodgates; this is not an authorization for “pay to play.” Direct payments still are not allowed. But the NCAA has always viewed these sorts of benefits as indirect payments and thus not in standing with its defined principles of “amateurism” and thus not something they were ever going to willingly offer.
Of course, the NCAA — or, more accurately, its member institutions — has always had a bit of a malleable definition of what constitutes an “extra” benefit and what is acceptable under its bylaws as it pertains to amateurism; the most recent example is the NCAA’s decision to allow “full cost of attendance” stipends after a century of insisting that would be an extra benefit that was incompatible with amateurism. (Among the first examples of this was the decision to offer athletic scholarships at all.)
And therein lies the problem for the NCAA, which is seeing its model crumble in real time after decades of failing to take proactive steps toward shifting public opinion: Everyone else is getting wise to the racket, including people with the power to do something about it. Justice Brett Kavanaugh suggested this should be just the beginning of dismantling what he sees as anticompetitive practices.
“The NCAA is not above the law,” Kavanaugh wrote. “The NCAA couches its arguments for not paying student athletes in innocuous labels. But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America.”
More from McCann:
In [Kavanaugh’s] concurring opinion, the devoted fan of Yale athletics blasted the NCAA’s business model as one “that would be flatly illegal in almost any other industry in America.” He asked readers how they would feel if (1) law firms conspired to limit salaries “in the name of providing legal services out of a ‘love of the law’; (2) if hospitals could band together to limit nurses salaries “in order to create a ‘purer’ form of helping the sick; or (3) if media companies curtailed salaries to reporters on grounds that doing so would protect the “tradition” of “public-minded journalism.” Justice Kavanaugh described all of those strategies in the same vein as NCAA amateurism: “price-fixing labor is price-fixing labor” and doing so “extinguishes the free market in which individuals can otherwise obtain fair compensation for their work.”
It’s worth noting that Kavanaugh’s opinion is concurrent, and thus not widely applicable; the court’s official opinion was written by Justice Neil Gorsuch, who said that the ruling intentionally avoids diving into larger questions about the NCAA’s business model. But this is likely just the first domino, and it’s only a matter of time before more and more lawsuits regarding other aspects of the NCAA pop up, with the Alston ruling now likely to serve as a precedential underpinning for lower court decisions in those cases.
In order to head that off, the NCAA is going to push for congress to pass legislation exempting it from antitrust laws, and probably try to tie that in with the federal NIL laws. But the NCAA’s leverage in these matters has weakened considerably, and only continues to get weaker.
“The NCAA’s longstanding legal strategy has been to dig in and defend the status quo,” The Athletic’s Stewart Mandel writes. “It would be smart to start devising a new, more modernized compensation model that would withstand antitrust scrutiny.”