For years, the NCAA has seemed legally untouchable. It is a corporate structure complete with lavishly compensated executives, but was able to avoid paying its labor class by invoking a long-ago tradition derived from British private schools, where wealthy competitors were able to exclude the unwealthy by refusing payment and calling it amateurism.
At one time, the idea of amateurism might have been useful, but in the last 30 years, the system has been flooded with network money, with athletes generating millions for schools and the NCAA, many of them arriving from families too poor to even travel to attend games. Students were cut from teams for tiny infractions, while the obvious inequities in the system grew larger. The system has been broken for a long time, and legal precedent is now admitting that reality.
It was a 9-0 blowout on Monday, when the Supreme Court ruled against the association in NCAA vs. Alston. Technically, this was a narrow decision — limited in scope — that goes to whether or not the collegiate sports governing body can limit compensation when it comes to education-related benefits.
But reading the decision itself, it’s clear that the NCAA has been seen for what it is; a billion-dollar industry hiding behind a fig leaf called amateurism, long after the term has lost most of its meaning.
The SCOTUS decision methodically counters the NCAA’s arguments on competition and markets with comparisons to van rental agencies and record labels. These analogies make it clear that the NCAA isn’t just a full stadium on Saturdays, an idea and a tradition — it is an economy, one subject to the rules all economies play by.
Or as noted left-wing (yeah, right) activist Justice Brett Kavanaugh wrote in his concurring opinion: “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, whose confirmation hearing had him declaring his love for beer, may not have been the most obvious tailgate-killer, but here we are.
The majority ruling, penned by Justice Neil Gorsuch, says that schools could provide education-related benefits for college athletes, like a laptop, or a saxophone for a lacrosse player in a music class. It doesn’t directly relate to the name, image and likeness legislation that will allow college athletes in some states to make money soon, but the NCAA recognizes the inevitability of it.
“Even though the decision does not directly address name, image and likeness, the NCAA remains committed to supporting NIL benefits for student-athletes,” said NCAA President Mark Emmert in a statement after the decision. “Additionally, we remain committed to working with Congress to chart a path forward, which is a point the Supreme Court expressly stated in its ruling.”
The truth is that the NCAA has been playing four-corners offense against this coming storm for the better part of a decade. Emmert received a contract extension two months ago worth nearly $4 million a year (according to the Supreme Court majority opinion) and, despite that, is forcing Congress and the Supreme Court to make the hard decisions for him.
Sometimes you need an outsider’s perspective to really reveal the rot in a system.
For the NCAA, that came in the form of Taylor Branch and his definitive 2011 piece in the The Atlantic, “The Shame of College Sports,” which exposed how.” While the NCAA had made it bad business for broadcast partners to cover the league like the labor-stiffing industry that it was.
“It’s taken a long time to get here, and it’ll probably take a long time to go forward more,” Branch said.
Back then, this from Branch was stunning in its simplicity:
For all the outrage, the real scandal is not that students are getting illegally paid or recruited, it’s that two of the noble principles on which the NCAA justifies its existence—“amateurism” and the “student-athlete”—are cynical hoaxes, legalistic confections propagated by the universities so they can exploit the skills and fame of young athletes.
Branch is a writer and a civil rights historian, who was looking for a project between books with The Atlantic. Editors asked him to take a look at the NCAA topic, and what emerged was a scathing long-form exposé now echoed by Justice Kavanaugh’s concurrence.
“The NCAA couches its arguments for not paying student-athletes in innocuous labels,” Kavanaugh writes. “But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America. All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that ‘customers prefer’ to eat food from low-paid cooks.”
Reached after the decision came out, Branch laughed at the comparison between his piece and Kavanaugh’s concurrence and cautioned that this was not the end of the NCAA’s influence.
“The NCAA still has the inertial advantage of even vocabulary,” Branch said. “Even this decision is written with the term ‘student-athlete’ throughout. We don’t hyphenate any other students by what they do outside the classroom. They still have a lot of inertia on their side.”
But today, at the highest level of the American judicial system, things are becoming clearer. Gorsuch starts his opinion with a simple story about the way donors lured talented footballers to Ivy League schools for a big game day, but it is clear that the rules needed to keep out ringers in the early 1900s have become a way to lock players out of the revenue from what has become a lucrative industry. Even if it takes a decade, ideas that take root can grow. The scales have fallen, and the Justices who will decide future antitrust litigation, suits that Kavanaugh practically calls for in his concurrence, can agree on this.
All nine of them.
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