Pick a topic. Not just sports. Any topic.
Now pick a handful of conservative people you know and a handful of liberal people you know and have them discuss. See if you can get all nine or 10 of them to agree.
On anything.
Let me know how that goes.
Unless the topic at hand is “Better weather in February: Pittsburgh or Honolulu,” you’ll probably never get a unanimous agreement.
This is why Monday’s Supreme Court antitrust decision surrounding the NCAA was so jarring. It was a 9-0 defeat for the NCAA, featuring a stinging rebuke from Justice Brett Kavanaugh.
Some highlights:
• “The NCAA’s business model would be flatly illegal in almost any other industry in America.”
• “It is highly questionable whether the NCAA and member colleges can justify not paying student athletes a fair share of revenues on (the) circular theory that colleges do not pay student athletes. It is not clear how the NCAA can legally defend its remaining compensation rules.”
• ”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.”
Words of a justice appointed by former Republican President Donald Trump that were wildly applauded by thousands of left-leaning blue-checkers on Twitter, who love to paint the NCAA as a monolithic, money-gobbling symbol of corporate greed and economic imbalance.
Go figure.
As Sportico and Sports Illustrated sports legal analyst Michael McCann described the NCAA’s failed argument, “When all of the justices — from the very conservative to the very liberal — don’t buy what you’re saying, there might be something wrong with what you are saying.”
Bingo.
But we need to be very specific about what the NCAA was arguing, and where it lost. As McCann reminds us, “… The justices concluded that the NCAA and its more than 1,200 member schools and conferences are in violation of Section I of the Sherman Antitrust Act. The violation stems from members agreeing to limit how much each can compensate athletes for academic-related costs. … At issue are limitations on how schools and conferences reimburse or pay athletes for computer costs, study abroad programs, internship opportunities, scholarships to attend vocational schools and other academic-related expenses.”
In other words, Monday’s ruling doesn’t mean that the NCAA is now required to start handing out big-time paychecks to Pitt, Penn State and West Virginia football players this fall. As CBS legal analyst Amy Dash tweeted, the Supreme Court refused to address the larger issue of whether student-athletes should be paid to play. Its analysis was strictly about the NCAA’s argument that it should be allowed to restrict student compensation as it sees fit.
Dash went so far as to say student-athletes who were suing the NCAA dropped the ball by not pushing their challenges further down that path.
They should have fully challenged the NCAA model. For now the Court rules that NCAA may keep some restrictions in place to keep its competitive advantage but must provide the very limited extra educational benefits outlined by the lower court
— Amy Dash (@AmyDashTV) June 21, 2021
Given the tone of Kavanaugh’s evisceration of the NCAA, the most interesting discussion is what happens next.
Commissioner Mark Emmert and others associated with the NCAA should worry less about the legal door that just got slammed in their faces and worry more about the dozens of other doors that may have been opened to more specific legal challenges of the long-held stance that student-athletes shouldn’t be paid in the name of “amateurism.”
Amateurism. Also known as a convenient explanation to not share profits with the athletes who help generate them.
We all get that. The NCAA has been losing its grip on its preferred definition of “amateurism” in recent years. Monday’s ruling may accelerate a need to consult a thesaurus. Let’s hope Emmert has one as dense as the NCAA rule book. Looming shifts in name, likeness and image laws are the latest hurdle.
However, if we are going to mock the NCAA’s use of “amateurism,” let’s also mock a word thrown around by those who attack the NCAA: “fair.”
Yeah. That simple, overused word has a meaning that stretches far beyond its four little letters. Everybody likes to screech about how the NCAA isn’t fair to its athletes, and they yell, “The kids should just get paid!”
OK. So, exactly how is the NCAA going to do that? And do it “fairly” for every athlete of every sport at every school in every conference?
I have yet to see anyone come up with an answer even approaching practicality.
Also, how does Title IX come into play? Since, after all, it constantly reminds us we have to be fair to everybody at all times.
Does the starting quarterback at Alabama get the same compensation as the fourth-best women’s tennis player at Duquesne?
Logic says “no.” Yet, I bet some lawyer could surf through enough Title IX dogma to mount an argument that the tennis player should get a lot more. Hey, Duquesne’s enrollment is 64% women after all.
Will football players in the Big Ten get as much as football players in the Mountain West? How about women’s basketball players at UConn versus … well … anywhere else? An even split of the pie?
Is that fair? Because if that’s how we are going to redistribute student-athlete revenue, that hardly seems “fair” to the athletes at the bigger schools who create more of the cash.
If the third guy off the bench of the UCLA men’s basketball team hits one jumper in an NCAA tournament game, that guy is going to do more for the exposure of his sport than the best runner on the men’s or women’s cross country team.
That sounds harsh, but it’s also true.
Go back to Kavanaugh’s opinion that most of America is fawning over today. For as spot on as it was, using the phrase “fair market rate” opened a big ol’ Pandora’s box.
What’s the fair market value for a college athlete? For a Big 12 linebacker versus a Pac-12 baseball player? For a men’s hockey player at Minnesota versus a women’s hockey player at Northeastern?
And who funds the market? Are the SEC and Big Ten football programs supposed to just pay for the rest of the country?
I’m not hypothetically asking to set up some sort of snarky reply. I genuinely don’t know. Neither does Kavanaugh. Neither do any of the Democratic-appointed judges. Neither does Emmert.
And, admit it, neither do you.
Kavanaugh may have also been a bit closer to the truth than he realized when he threw this little dart at the NCAA in his response, “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.”
Kavanaugh’s subtle drop of the word “region” is germane to the conversation.
Only in college sports can places such as Baton Rouge, La. and Ann Arbor, Mich. be considered a higher tax bracket than New York City or Malibu. But “regionally,” the University of Michigan and Louisiana State are going to bring in significantly more money because of the television deals with their regional conferences than Manhattan or Pepperdine.
If those who are philosophically opposed to the NCAA feel emboldened by Monday’s court action and continue to pick it apart on a legal case-by-case basis, maybe we’ll just see it fade away. Maybe the NCAA simply dissolves.
Then the conferences and individual universities are left to fend for themselves to divvy up a pot of money that’s a lot smaller and less impactful for athletes who are playing on smaller television stages and in smaller athletic departments that can’t sustain the expenses without as many national revenue streams.
That’ll be wonderful, huh?
McCann offers one potential solution.
The irony: Could NCAA amateurism be saved by players being declared employees, unionizing and then entering into a collective bargaining agreement with the NCAA and member schools? That would be a stunning conclusion but is plausible since CBA terms are exempt from antitrust law. https://t.co/1SdDF5qDD2
— Michael McCann (@McCannSportsLaw) June 21, 2021
I suppose that’s possible. But are they all going to have agents, too? And if so, why bother with the college element at all and just create a football minor league? Forget one-and-done college basketball players. They’ll figure out what to do for a year between the G-League or going overseas. Or the NBA will eventually do away with that silly rule and go back to letting high school kids declare for the draft right away.
Then if major football and college basketball are gone, college sports can go back to just being glorified club activities and the mean, nasty boogeymen who run the NCAA can vanish into history.
I mean, the way people talk on Twitter, that’s what they want, right? “College sports have gotten too big! All they do is exploit the athletes!”
OK, get rid of the NCAA then. Have a bunch of conference fiefdoms essentially do the same thing on a regional level with no oversight. Or just watch “amateur” athletics as we know them wither away.
At least that would be … fair. No one would have them anymore.
It is easy to hate the NCAA. Its business model is not fair. It’s not ethical. As we learned Monday, parts of it aren’t even legal.
But it’s successful. And it’s made billions of dollars for thousands of institutions and has created millions of scholarships for millions of kids, many of whom wouldn’t have been able to go to a school of their choice.
Not just the 6-foot-9 one-and-done power forward at Kentucky. The four-year economics major at George Mason who is on a swimming scholarship, too.
Maybe a few of them can come up with a better idea of how to parse out the cash that actually works. Because until then, I’m not sure how wise it is to advocate the dissolution of the NCAA’s entire model until a better one is in place.
That’s going to be more complicated. However it’s drawn up, some aspect of it will probably wind up in front of the Supreme Court, too.
And I bet that decision is far from 9-0.
Tim Benz is a Tribune-Review staff writer. You can contact Tim at [email protected] or via Twitter. All tweets could be reposted. All emails are subject to publication unless specified otherwise.
