But from that perspective, Justice Brett M. Kavanaugh’s blistering concurrence is infinitely worse, an open invitation for student-athletes to file another lawsuit and see if they can’t get the court to strike down the NCAA’s restraints on noneducational compensation, which the court didn’t consider in this case. If students sue and win, college presidents would no longer have to worry only about the burden on their budgets; they’d have to figure out whether college sports can continue to exist in anything like their current form.
“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,” Kavanaugh concludes, and “it is not evident why college sports should be any different. The NCAA is not above the law.”
But like many athletic organizations, the NCAA has long considered itself above this particular law: the Sherman Antitrust Act. The NCAA could even argue that it deserved the exemption, because sports leagues really are a funny sort of a market.
Unlike most businesses, teams need more than just their fans; they need opponents with a fan base and a good enough set of players to make the game interesting. Fans may lose interest if the game becomes too lopsided in favor of the richest teams, which is why baseball, basketball and football all use various devices aimed at equalizing payrolls — and why courts have been fairly willing to let them do so.
But this isn’t why the NCAA is demanding the right to collude against its players. Instead, the league argues that the essence of college sports is its amateurism — a feature so essential that the NCAA must suppress the natural competitive pressure to pay for better players. Because if “college sports” are really being played by salaried professionals whose student status is at best incidental … well, why not watch the actual professional leagues?
Despite Kavanaugh’s brutal dismissal, this argument is at least plausible: Some kinds of goods really are destroyed by turning them into pure market transactions.
For example, you can argue that there’s a mercenary aspect to marriage or politics — wealthy men do better on the dating market than equally handsome poor ones, and former politicians tend to resurface as lobbyists. But that doesn’t mean you can improve matters by sweeping away the obfuscation and putting marriages and political decisions out to competitive bid.
There’s some reason to believe that sports is one of those goods. Witness the brief, tragic life of Europe’s Super League, which aimed to jam all the richest and most successful soccer teams together into one place where they could mostly play each other. It didn’t last even a week; fans revolted at what seemed to be a naked money grab, and the owners quickly backtracked.
Even in the United States, where a super league doesn’t seem outrageously crass, athletics is often at pains to blur the monetary element a bit — for instance, naming sports teams after the city they play in, even if the team has shopped stadiums and tax abatements as ruthlessly as any widget maker looking to site a new plant.
Yet there are limits to that sort of obfuscation, and the facts laid out in the court’s decision, penned by Justice Neil M. Gorsuch, suggest that the NCAA hit those long ago. There’s little evidence that the increases in compensation the NCAA has already allowed have caused fan interest to lag. And while it’s possible to argue that college sports will suffer if more explicit monetary incentives are allowed to intrude, you cannot credibly argue this while the gate receipts and television contracts are pushing into the billions, the NCAA president is collecting nearly $4 million per year, commissioners of the top conferences make $2 million to $5 million annually, and salaries for top Division I college football coaches approach $11 million.
Under those circumstances appeals to amateurism look less like a selfless dedication to pure sport and more like simple greed. Student-athletes at colleges with successful football and basketball programs have made a lot of money for schools and staff, often at great risk of personal injury. The NCAA rules ensure that everyone except the athletes gets a substantial piece of it. It’s no wonder the schools wish to keep things as they are, but greed isn’t grounds for an antitrust exemption.