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‘The NCAA Is Not Above The Law’: Brett Kavanaugh Rips NCAA In Landmark Case

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WASHINGTON, DC - OCTOBER 08: U.S. Supreme Court Associate Justice Brett Kavanaugh attends his ceremonial swearing in in the East Room of the White House October 08, 2018 in Washington, DC. Kavanaugh was confirmed in the Senate 50-48 after a contentious process that included several women accusing Kavanaugh of sexual assault. Kavanaugh has denied the allegations.
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In a major blow to the NCAA’s current model of treating college athletes as amateurs, the Supreme Court unanimously ruled in favor of a group of former and current college athletes over rules limiting compensation. 

According to The Associated Press, the ruling states that the NCAA is not allowed to limit education-related benefits — such as computers, tutoring, and graduate scholarships — for Division I basketball and football players. However, it does not decide whether college athletes are allowed to receive salaries. 

Under the current NCAA rules, the scholarship money offered by colleges can be capped at the cost of attending school, a rule which the NCAA claims is necessary in order to preserve amateurism in college sports. 

The former and current athletes — including former West Virginia football player Shawne Alston — sued the NCAA and 11 conferences, arguing that restrictions on education-based compensation violate federal antitrust law, and the Supreme Court agreed. 

The ruling, written by Justice Neil Gorsuch, will prohibit the NCAA from barring schools from offering additional education-related benefits to Division I basketball and football players but will allow individual conferences to set limits on education-related benefits. According to the decision, as long as the compensation is connected to a student-athlete’s education, schools will be allowed to provide unlimited compensation. 

The landmark decision deals a major blow to the NCAA’s current business model, and — according to experts — will more than likely spurn a deeper conversation on whether college athletes should be paid a salary for their services. 

College athletics currently generates billions of dollars in revenue for the NCAA. Supreme Court Justice Brett Kavanaugh said as much in a concurring opinion in which he criticized the NCAA. His opinion reads in part: 

Businesses like the NCAA cannot avoid the consequences of price-fixing labor by incorporating price-fixed labor into the definition of the product. Or to put it in more doctrinal terms, a monopsony cannot launder its price-fixing of labor by calling it product definition.

The bottom line is that the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year. Those enormous sums of money flow to seemingly everyone except the student athletes. College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries. Colleges build lavish new facilities. But the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing. 

Everyone agrees that the NCAA can require student athletes to be enrolled students in good standing. But the NCAA’s business model of using unpaid student athletes to generate billions of dollars in revenue for colleges raises serious questions under the antitrust laws. In particular, it is highly questionable whether the NCAA and its member colleges can justify not paying student athletes a fair share of the revenues on the circular theory that the defining characteristic of college sports is that the colleges do not pay student athletes. And if that asserted justification is unavailing, it is not clear how the NCAA can legally defend its remaining compensation rules.

If it turns out that some or all of the NCAA’s remaining compensation rules violate the antitrust laws, some difficult policy and practical questions would undoubtedly ensue. Among them: How would paying greater compensation to student athletes affect non-revenue-raising sports? Could student athletes in some sports but not others receive compensation? How would any compensation regime comply with Title IX? If paying student athletes requires something like a salary cap in some sports in order to preserve competitive balance, how would that cap be administered? And given that there are now about 180,000 Division I student athletes, what is a financially sustainable way of fairly compensating some or all of those student athletes?

Of course, those difficult questions could be resolved in ways other than litigation. Legislation would be one option. Or colleges and student athletes could potentially engage in collective bargaining (or seek some other negotiated agreement) to provide student athletes a fairer share of the revenues that they generate for their colleges, akin to how professional football and basketball players have negotiated for a share of league revenues. Regardless of how those issues ultimately would be resolved, however, the NCAA’s current compensation regime raises serious questions under the antitrust laws.

To be sure, the NCAA and its member colleges maintain important traditions that have become part of the fabric of America—game days in Tuscaloosa and South Bend; the packed gyms in Storrs and Durham; the women’s and men’s lacrosse championships on Memorial Day weekend; track and field meets in Eugene; the spring softball and baseball World Series in Oklahoma City and Omaha; the list goes on. But those traditions alone cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of student athletes who are not fairly compensated. 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. 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’s comments caught the attention of many on social media.

“Brett Kavanaugh absolutely eviscerated the NCAA in his opinion here,” Clay Travis wrote on Twitter. “Gonna be fun to see all the blue checkmark brigade members who were crying when he was confirmed gleefully retweeting this today.”

“The NCAA clung to amateurism to the bitter end, only to have Brett Kavanaugh empty the chamber on it in one paragraph,” USA TODAY Sports columnist Dan Wolken said.

In a hilarious twist, even those on the Left were forced to agree with Kavanaugh.

“The NCAA such a garbage inferno that here I am agreeing with Brett Kavanaugh for the first and last time,” Molly Knight of The Athletic wrote.

 

The NCAA has been moving toward a more fair way of compensating student-athletes. In the past several years, the NCAA has allowed more room for college athletes to make money for their services. After the state of California passed the “Fair Pay To Play Act” in 2019, the NCAA board of governors recommended they adopt new rules allowing student-athletes to profit off their name and likeness.

This article has been revised for clarity. 

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