Although the NCAA lawyers claimed they weren’t seeking antitrust exemption, the justices took their argument as a massive swing for such legal protection, and beyond affirming a rather modest victory for athletes, the court provided momentum for greater change by scrutinizing the grandest rationalizations of college athletics’ governing body. It dismissed the NCAA with ease in a 9-0 decision, a powerful repudiation during a period of rampant American dissent. No one, not even members of the nation’s highest court, is inclined to concur about the sun shining, but NCAA chicanery is a universal truth.
“The NCAA is not above the law,” Justice Brett M. Kavanaugh wrote to end his concurring opinion.
The force of Kavanaugh’s words received plenty of attention and connected with plenty of regular sports fans who are leery of the paternalistic motives of college sports. After the unanimous decision, his passionate thoughts seemed like the legal equivalent of a quarterback throwing a deep touchdown pass when ahead 35-0, or a basketball player dunking in the closing seconds of a game already won. Some, including the NCAA, took it as a wild, rogue scorning. But Kavanaugh punctuated what Justice Neil M. Gorsuch had said more delicately in writing for the court. In its own way, the main opinion hit just as hard as Kavanaugh did.
Of course, you felt it when 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.”
But consider the importance of Gorsuch, who is an antitrust law guru, to a Supreme Court that has changed dramatically in recent years. His words cut deep. Before Kavanaugh told the NCAA plainly to adjust or risk being stomped again, Gorsuch offered a deft evisceration. He was critical of the “amateur label” of college athletics. He went after the stewards who have gotten rich while maintaining that they’re different from pro sports.
“Those who run this enterprise profit in a different way than the student-athletes whose activities they oversee,” Gorsuch said, listing all the jobs, from the NCAA president to coaches to athletic directors to conference commissioners, that pay millions.
Most damning was that Gorsuch challenged the notion that college athletics would lose appeal if an outdated model changed. He articulated that there can be fluidity to the concept of amateurism.
The NCAA had leaned on a portion of the Supreme Court’s 1984 NCAA v. Board of Regents decision — which was the last time the court looked closely at how antitrust laws applied to the organization (a case the NCAA lost) — and considered a few words in that opinion to be a possible opening. The current court couldn’t have disagreed with more oomph.
In 1984, Justice John Paul Stevens wrote: “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.”
That case was about the legality of the NCAA’s television plan, however. It wasn’t intended for antitrust protection, and that passage from Stevens was tangential, something the judges refer to as “dicta.”
Over the years, the NCAA has tested the limits of this “ample latitude.” But when it went too broad in this case, the court reframed that discussion. In essence, Gorsuch’s opinion set up guard rails to consider when using NCAA v. Board of Regents to talk about far-ranging antitrust issues.
“Given the sensitivity of antitrust analysis to market realities — and how much has changed in this market — we think it would be particularly unwise to treat an aside in Board of Regents as more than that,” he wrote.
In other words, find a new con. Or better yet, reimagine the entire system with fairness in mind. The Supreme Court may have ruled on a specific part of college athletics’ intricate rules. But this antitrust lawsuit, filed by former West Virginia running back Shawne Alston and former California center Justine Hartman to represent a class of former college athletes, left open the possibility for more than the redefining of educational perks such as internships, computers and postgraduate opportunities.
This court is like so many of us. It doesn’t get the college sports model. It doesn’t get it because there is nothing of substance to get. It smells the fishiness, and rather than responding with layman’s frustration, it brings judicial weight to the conversation. The NCAA would be wise to shove greed and rigidity to the side and finally take some full, proactive measures to changing the enterprise. The alternative is to be litigated into submission.
“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 wrote. “And under ordinary principles of antitrust law, it is not evident why college sports should be any different.”
Monday’s ruling was not historic for what it did but what it threatens to do. After years of shunning criticism, the NCAA has been given a potent warning. If it doesn’t take it seriously, we will remember it as a final warning.