SCOTUS NCAA Case

[IrishLax]

I don't know who all has been following this, but there is a case in from of SCOTUS right now about amateurism... and it doesn't seem to be going well for the NCAA. It's been expected that the liberal justices would be against the NCAA on philosophical grounds, but it remained to be seen whether the conservative justices would be against the NCAA on practical grounds. This article is a quick primer on the case itself - https://www.espn.com/college-sports...tions-validity-amateurism-ncaa-business-model

Justices Alito and Thomas have, surprisingly, been rather critical of the NCAA's argument so far. Thomas specifically questioned the NCAA why the salaries for coaches are obscene and get larger every year if this is not a professional industry. Notre Dame's Amy Coney Barrett basically questioned the entire premise of the NCAA having the right to make rules at all (Dear Amy -- while you're at it, please give us our wins back).

What's at stake here is not a full blown professional model, rather an invalidation on NCAA restrictions/limits on benefits related to the student's educational experience. So it'll create a giant gray area where you can do everything but hand the kid a duffle bag full of cash. Taken to its logical conclusion though, this decision could be a big step towards completely eliminating amateurism and/or giving student athletes collective bargaining rights.

 

[Cackalacky2.0]

I could see this being a 6-3 or 7-2 against NCAA. I do feel like this could be Alito Thomas and ACB siding wiht the liberals even if it is on differing philosophical grounds. That just makes the NCAA's operational system less defensible IMO. That being said if they rule that NCAA cant make the prohibitions on amateruism, ( ie players can be paid for likeness, marketing, ads brands etc) then are they actually professionals and therefore can NCAA adopt a position afforded to NFL and other professional sports leagues?

 

[Cackalacky2.0]

Justice Elena Kagan said, colleges and universities have used their combined market power “to fix athletic salaries at extremely low levels, far lower than what the market would set if it were allowed to operate.

Justice I Like Beer said that “the antitrust laws should not be a cover for exploitation of the student-athletes,” adding that he doubted that college sports fans understood amateurism to require it.

“To pay no salaries to the workers who are making the schools billions of dollars on the theory that consumers want the schools to pay their workers nothing,” he said, seems “entirely circular and even somewhat disturbing.”

Justice Clarence Thomas noted that other participants in college sports are paid enormous sums. “It just strikes me as odd that the coaches’ salaries have ballooned,” he said, “and they’re in the amateur ranks, as are the players.”

Justice Samuel A. Alito Jr., drawing on briefs supporting the players, painted a bleak picture of athletes’ lives and futures.“They face training requirements that leave little time or energy for study, constant pressure to put sports above study, pressure to drop out of hard majors and hard classes, really shockingly low graduation rates,” he said. “Only a tiny percentage ever go on to make any money in professional sports.”

“So the argument is they are recruited, they’re used up, and then they’re cast aside without even a college degree,” he said. “How can this be defended in the name of amateurism?”

 

[Ndaccountant]

I agree 100% w/r/t revenue generating sports. What I don't want to see happen though, is the collapse of many Olympic sports due to Title IX. There is certainly a delicate balance there and I wonder if there becomes a permanent schism between "semi-professional" and amateurs. The concerns of the justices seem to be focused on many of the revenue sports. But what is needed to ensure fairness for revenue generating sports players is far different than what is needed for the swimmer on 1/2 scholly for Idaho Swimming and Diving team.

This is really going to get messy IMO since there are so many different variables. It's the right thing to do, but it's going to have to be thoughtfully reasoned and legislated. So in other words, something that the NCAA has never done and most governments (state / local / fed) can no longer do.

 

[drayer54]

I thought Thomas was spot on as usual. I’m thinking 7-2 decision and somehow college basketball players will make less after this.

 

[NDdomer2]

I agree 100% w/r/t revenue generating sports. What I don't want to see happen though, is the collapse of many Olympic sports due to Title IX. There is certainly a delicate balance there and I wonder if there becomes a permanent schism between "semi-professional" and amateurs. The concerns of the justices seem to be focused on many of the revenue sports. But what is needed to ensure fairness for revenue generating sports players is far different than what is needed for the swimmer on 1/2 scholly for Idaho Swimming and Diving team.

This is really going to get messy IMO since there are so many different variables. It's the right thing to do, but it's going to have to be thoughtfully reasoned and legislated. So in other words, something that the NCAA has never done and most governments (state / local / fed) can no longer do.

And this is the crux of it all. The SC acknowledged they are likely not the ones who should be governing college athletics, so the question then is who, and especially who if not the NCAA or SCOTUS

 

[NorthDakota]

I agree 100% w/r/t revenue generating sports. What I don't want to see happen though, is the collapse of many Olympic sports due to Title IX. There is certainly a delicate balance there and I wonder if there becomes a permanent schism between "semi-professional" and amateurs. The concerns of the justices seem to be focused on many of the revenue sports. But what is needed to ensure fairness for revenue generating sports players is far different than what is needed for the swimmer on 1/2 scholly for Idaho Swimming and Diving team.

This is really going to get messy IMO since there are so many different variables. It's the right thing to do, but it's going to have to be thoughtfully reasoned and legislated. So in other words, something that the NCAA has never done and most governments (state / local / fed) can no longer do.

Thats where I'm at. I get that the NCAA structure holds back some guys (lets be real, almost entirely guys) from making some money. But anytime you take shit to courts, the remedy can lead to unintended consequences.

 

[Irish#1]

Slippery slope for sure. Given FB and MBB are the money makers how do you justify paying a high hurdler the same as a FB player? FB revenue at Illinois St. isn't the same as LSU. Should they be paid the same? They're doing the same thing. I think the argument about coaches salaries is some what weak as they are employees of the school just like a teacher and all professors aren't paid equal. What about the band members? They have to take time to practice then perform. How are they different? I can see schools cutting scholarship awards to accommodate any compensation they receive.

 

[Cackalacky2.0]

Slippery slope for sure. Given FB and MBB are the money makers how do you justify paying a high hurdler the same as a FB player? FB revenue at Illinois St. isn't the same as LSU. Should they be paid the same? They're doing the same thing. I think the argument about coaches salaries is some what weak as they are employees of the school just like a teacher and all professors aren't paid equal. What about the band members? They have to take time to practice then perform. How are they different? I can see schools cutting scholarship awards to accommodate any compensation they receive.

I don't think that is the intent. I think that the schools will have to recruit players to their program and like any other business they will have pay individuals according to their value to the program but it cant be an endless sum of money as the schools will have varying sums of money they can afford. Will ND gymnastics be paying their athletes very much? Maybe...maybe not. Will UGA Gymnastics be paying their team well? Hell yeah.

Another question I have is how are academics handled if players are paid. If ND is allowed ot pay players to come to ND what about their elevated academic standards relative to non elite academic schools?

 

[IrishLax]

You cannot pay students directly with the way Title IX is currently written... sports are considered "educational opportunities" and the system is constructed such that each fully funded equivalency sport is considered equal. If you start paying men's football and basketball players directly from the school then some female will sue. Then the courts will rule that they're violating Title IX. And then you're back to square one.

The only solutions really involve allowing students athletes to collectively bargain and classifying them as employees NOT students.... or keep the system as is, but not restricting what external monies they can take from 3rd parties. I think we're headed to the latter.

 

[NDdomer2]

You cannot pay students directly with the way Title IX is currently written... sports are considered "educational opportunities" and the system is constructed such that each fully funded equivalency sport is considered equal. If you start paying men's football and basketball players directly from the school then some female will sue. Then the courts will rule that they're violating Title IX. And then you're back to square one.

The only solutions really involve allowing students athletes to collectively bargain and classifying them as employees NOT students.... or keep the system as is, but not restricting what external monies they can take from 3rd parties. I think we're headed to the latter.

But then don't you need a whole band of legislation on what kind of positions they can and can't do for 3rd party compensation? And then we circle back to who monitors all this? SCOTUS? NCAA?

If they rule you have to perform an actual service for your 3rd party compensation other than being an athlete and respective school doesnt their argument about the athletes not having time for studies seem contradictory by saying they now have to perform an additional service on top of studies and school?

 

[Irishize]

Was this even a legitimate debate before the tv revenue exploded? You didn’t have conference TV deals or HC making millions per year in salary in pre-P5 tv deals. Remember also that schools like ND & Stanford are in the minority in the debate. Most, not all; highly rated recruits are going to choose the school based on the HC b/c their ultimate goal is the NFL...regardless of the stats that say their chances are slim. Alabama will always attract solid recruiting classes but nothing like they do with Saban at the helm. Same goes w/ Clemson currently with Dabo.

If you’re a fan of one of the elite teams in MBB or CFB, you have no problem w/ the exorbitant salary of your HC b/c you know it attracts...guarantees...the cream of the recruiting crop annually. The majority of difference makers aren’t going to Clemson, tOSU, Bama, etc b/c of the areas of study offered. They want the best path to the League and right now that path goes through Tuscaloosa.

Since the NCAA won’t do it, the P6 of MBB needs to stand up to the NBA and insist that they re-institute the ability for kids to go straight from HS to the NBA. Then MBB can make a case that they are a necessary proving ground for the majority of players who aren’t yet developed enough to go straight to the pros. If those kids are adamant about being paid and not interested in a higher education, they can try their luck overseas.

The case Alito makes about the the student-athlete applies mostly to ND, Stanford & other academic schools who insist on their student-athletes achieving in the classroom. It still takes effort to get a general degree at say, Clemson; but nowhere near the investment in time & effort needed at ND. Clemson actually has a better APR than ND right now but I think we can all agree that ND players have a far more rigorous road to hoe.

If the NCAA can’t get their shit together, the P5 (or most of them) should break away and be done with amateurism. That’s assuming the NFL or another organization doesn’t start up a developmental league similar to MiLB. I doubt ND would be a party to this and that’s ok. Remember the majority of fans of big time CFB programs are not alums so it’s not like much changes for them. Most (not all) of these programs are in states or regions w/o professional football so this is their version of that fandom.

I think LAX & others are correct here in that taking this to SCOTUS leads to unintended consequences. I’d rather see a case in front of SCOTUS that argues against the ever increasing tuition hikes at state schools despite the value of a degree decreasing. A private school can charge what they want IMO but the fact that state-funded universities insist on hiking tuition regardless of economic environment has become a joke and has led to millions of kids graduating college with a debt burden that rarely gets paid off in a short time. That also kills the NCAA claim that a student-athlete’s scholarship provides for an education “worth” $XXXXXX

 

[IrishLax]

But then don't you need a whole band of legislation on what kind of positions they can and can't do for 3rd party compensation? And then we circle back to who monitors all this? SCOTUS? NCAA?

If they rule you have to perform an actual service for your 3rd party compensation other than being an athlete and respective school doesnt their argument about the athletes not having time for studies seem contradictory by saying they now have to perform an additional service on top of studies and school?

Personally, I think they're getting closer and closer to saying you can whatever money you want from 3rd party services with no qualifiers. I think within 10-15 years every player will have a GoFundMe or equivalent where people can just directly send them cash if/when they want.

 

[Pops Freshenmeyer]

You cannot pay students directly with the way Title IX is currently written... sports are considered "educational opportunities" and the system is constructed such that each fully funded equivalency sport is considered equal. If you start paying men's football and basketball players directly from the school then some female will sue. Then the courts will rule that they're violating Title IX. And then you're back to square one.

The only solutions really involve allowing students athletes to collectively bargain and classifying them as employees NOT students.... or keep the system as is, but not restricting what external monies they can take from 3rd parties. I think we're headed to the latter.

Many states forbid public employees from collectively bargaining. Making them employees is a non-starter without congress stepping in.

The NCAA’s rules were made in light of a prior SC decision which said the NCAA’s existence and rule making is passable under anti-trust law because there is a market for amateur sports and it is necessary to have a governing body for them to exist.

The SC may change aspects of that ruling because of the economic changes in college sports (ironically, the NCAA had an assistant coach salary cap rule struck down by a federal court) but it won’t be from making players into employees. IOW, I think we are headed toward the latter as well.

 

[Cackalacky2.0]

You cannot pay students directly with the way Title IX is currently written... sports are considered "educational opportunities" and the system is constructed such that each fully funded equivalency sport is considered equal. If you start paying men's football and basketball players directly from the school then some female will sue. Then the courts will rule that they're violating Title IX. And then you're back to square one.

The only solutions really involve allowing students athletes to collectively bargain and classifying them as employees NOT students.... or keep the system as is, but not restricting what external monies they can take from 3rd parties. I think we're headed to the latter.

I find collective bargaining with kids ( kids parents/agents) is a no go in south for sure. These are right to work states (lol) and unions are pretty much "da debil"

 

[Irish#1]

I don't think that is the intent. I think that the schools will have to recruit players to their program and like any other business they will have pay individuals according to their value to the program but it cant be an endless sum of money as the schools will have varying sums of money they can afford. Will ND gymnastics be paying their athletes very much? Maybe...maybe not. Will UGA Gymnastics be paying their team well? Hell yeah.

Another question I have is how are academics handled if players are paid. If ND is allowed ot pay players to come to ND what about their elevated academic standards relative to non elite academic schools?

I don't think that's the intent either, but I think it will be an undesired result. We know the intent of Title IX is supposed to make everything equal and except for the anomaly that is FB it pretty much is. Paying athletes is going to open eyes and raise questions. TBH, I don't think anyone knows what all of the desired and undesired results will be if they go this route. There will be a lot of gray areas for the NCAA t wallow in, much like today.

 

[Cackalacky2.0]

I don't think that's the intent either, but I think it will be an undesired result. We know the intent of Title IX is supposed to make everything equal and except for the anomaly that is FB it pretty much is. Paying athletes is going to open eyes and raise questions. TBH, I don't think anyone knows what all of the desired and undesired results will be if they go this route. There will be a lot of gray areas for the NCAA t wallow in, much like today.

Yeah you right.

 

[IrishLax]

Many states forbid public employees from collectively bargaining. Making them employees is a non-starter without congress stepping in.

The NCAA’s rules were made in light of a prior SC decision which said the NCAA’s existence and rule making is passable under anti-trust law because there is a market for amateur sports and it is necessary to have a governing body for them to exist.

The SC may change aspects of that ruling because of the economic changes in college sports (ironically, the NCAA had an assistant coach salary cap rule struck down by a federal court) but it won’t be from making players into employees. IOW, I think we are headed toward the latter as well.

Which decision was this? The only one I'm familiar with is the 1984 case where the NCAA lost under anti-trust law and conferences started being able to negotiate their own television deals. This decision ultimately led to the explosion in revenues over the next 30 years that put us in the current quandary. Was this decision before or after the 1984 case?

 

[Pops Freshenmeyer]

Which decision was this? The only one I'm familiar with is the 1984 case where the NCAA lost under anti-trust law and conferences started being able to negotiate their own television deals. This decision ultimately led to the explosion in revenues over the next 30 years that put us in the current quandary. Was this decision before or after the 1984 case?

It was that case. NCAA v. Board of Regents, 468 U.S. 85 (1984)

https://supreme.justia.com/cases/federal/us/468/85/

Rather, what is critical is that this case involves an industry in which horizontal restraints on competition are essential if the product is to be available at all.

From context, "the product" is amateur athletics.

It is reasonable to assume that most of the regulatory controls of the NCAA are justifiable means of fostering competition among amateur athletic teams, and therefore procompetitive because they enhance public interest in intercollegiate athletics.

(a) While the plan constitutes horizontal price-fixing and output limitation, restraints that ordinarily would be held "illegal per se," it would be inappropriate to apply a per se rule in this case where it involves an industry in which horizontal restraints on competition are essential if the product is to be available at all.

The Court says you can't have amateur athletics without horizontal restraints and horizontal restraints are generally violations of anti-trust law. So the NCAA's activities are only permissible insofar as they allow for the existence of amateur athletics.

 

[Irish#1]

Pops doing his homework and digging deep. Nice job.

 

[Pops Freshenmeyer]

Pops doing his homework and digging deep. Nice job.

I'm a self employed attorney. So... you know.

 

[NDdomer2]

Personally, I think they're getting closer and closer to saying you can whatever money you want from 3rd party services with no qualifiers. I think within 10-15 years every player will have a GoFundMe or equivalent where people can just directly send them cash if/when they want.

wont states like texas with no income tax really benefit from this?

I cant wait until we have college athletes getting thrown in jail for not paying their taxes on all this income

 

[IrishLax]

It was that case. NCAA v. Board of Regents, 468 U.S. 85 (1984)

https://supreme.justia.com/cases/federal/us/468/85/

From context, "the product" is amateur athletics.

The Court says you can't have amateur athletics without horizontal restraints and horizontal restraints are generally violations of anti-trust law. So the NCAA's activities are only permissible insofar as they allow for the existence of amateur athletics.

Super interesting, thanks. Methinks that argument may go the way of the dodo bird if one can prove that prohibiting players from compensation is no longer "essential if the product is to be available at all." I don't know for certain how fan bases would react to players being paid as salaried employees, but I think that argument holds less water now than it did in 1984 given how public sentiment has changed on this issue.

 

[NDdomer2]

Super interesting, thanks. Methinks that argument may go the way of the dodo bird if one can prove that prohibiting players from compensation is no longer "essential if the product is to be available at all." I don't know for certain how fan bases would react to players being paid as salaried employees, but I think that argument holds less water now than it did in 1984 given how public sentiment has changed on this issue.

thing is public opinion could change rather rapidly once the doors open. and it certainly isnt a door that you can shut again.

 

[Irish#1]

Super interesting, thanks. Methinks that argument may go the way of the dodo bird if one can prove that prohibiting players from compensation is no longer "essential if the product is to be available at all." I don't know for certain how fan bases would react to players being paid as salaried employees, but I think that argument holds less water now than it did in 1984 given how public sentiment has changed on this issue.

thing is public opinion could change rather rapidly once the doors open. and it certainly isnt a door that you can shut again.

Start paying the players, then they can argue they aren't bound by restrictions (at will employment). Next thing you know you'll have kids in all grades using the portal. It will turn into something like free agency.

 

[Cackalacky2.0]

I wish wiz or RDU would drive by and say lets just take the Friedman Economic model and unrestrain this whole things and let the cards fall where they may. The winners will rise the losers will fall.

 

[IrishLax]

SCOTUS just ruled 9-0 against the NCAA in this case. And it appears clear, reading the decisions, that an outright challenge to their entire business model may win.

Gorsuch primary opinion:
[TWEET]https://twitter.com/_andrewcarter/status/1406998564224614410?s=20[/TWEET]
[TWEET]https://twitter.com/_andrewcarter/status/1407000689088344070?s=20[/TWEET]

Kavanagh wrote an additional concurring opinion:
[TWEET]https://twitter.com/bubbaprog/status/1406978733999788033?s=20[/TWEET]

Kavanagh's opinion -- rather unambiguously, too -- basically calls the entire NCAA structure a sham. If the NCAA were smart, they would be working with legislators to pass law to reform collegiate athletics. Instead, they are lobbying legislators and spending tons of $$$ to stall any such legislation. That entire organization is run by corrupt, short sighted morons.

 

[Pops Freshenmeyer]

Kavanaugh definitely wants to overrule Board of Regents but did any other justices join his concurrence?

 

[NorthDakota]

Kavanaugh definitely wants to overrule Board of Regents but did any other justices join his concurrence?

Nope. He was alone

 

[Pops Freshenmeyer]

OK, for those who care, this is the important bit moving forward:

Even if background antitrust principles counsel in favor of the rule of reason, the NCAA replies that a particular precedent ties our hands. The NCAA directs our attention to Board of Regents, where this Court considered the league’s rules restricting the ability of its member schools to televise football games. 468 U. S., at 94. On the NCAA’s reading, that decision expressly approved its limits on student-athlete compensation—and this approval forecloses any meaningful review of those limits today.

We see things differently. Board of Regents explained that the league’s television rules amounted to “[h]orizontal price fixing and output limitation” of the sort that are “ordinarily condemned” as “‘illegal per se.’” Id., at 100. The Court declined to declare the NCAA’s restraints per se unlawful only because they arose in “an industry” in which some “horizontal restraints on competition are essential if the product is to be available at all.” Id., at 101–102. Our analysis today is fully consistent with all of this. Indeed, if any daylight exists it is only in the NCAA’s favor. While Board of Regents did not condemn the NCAA’s broadcasting restraints as per se unlawful, it invoked abbreviated antitrust review as a path to condemnation, not salvation. Id., at 109, n. 39. If a quick look was thought sufficient before rejecting the NCAA’s procompetitive rationales in that case, it is hard to see how the NCAA might object to a court providing a more cautious form of review before reaching a similar judgment here.

To be sure, the NCAA isn’t without a reply. It notes that, in the course of reaching its judgment about television marketing restrictions, the Board of Regents Court commented on student-athlete compensation restrictions. Most particularly, the NCAA highlights this passage:

“The NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports. There can be no question but that it needs ample latitude to play that role, or that the preservation of the student-athlete in higher education adds richness and diversity to intercollegiate athletics and is entirely consistent with the goals of the Sherman Act.” Id., at 120.

See also id., at 101, 102 (the NCAA “seeks to market a particular brand of football” in which “athletes must not be paid, must be required to attend class, and the like”). On the NCAA’s telling, these observations foreclose any rule of reason review in this suit.

Once more, we 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 procompetitive 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 controls of the NCAA are justifiable means of fostering competition among amateur athletic teams and are therefore procompetitive . . . .” Id., at 117 (emphasis added). Accordingly, the Court simply did not have occasion to declare— nor did it declare—the NCAA’s compensation restrictions procompetitive both in 1984 and forevermore.