Supreme Court

NCAA Can't Ban Colleges From Compensating Athletes, Supreme Court Says

"The NCAA is not above the law," wrote Justice Brett Kavanaugh in a fiery concurring opinion.

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The Supreme Court has delivered a unanimous smackdown to the National Collegiate Athletic Association (NCAA) for its rules banning schools from compensating college athletes.

The court's unanimous ruling today in NCAA v. Alston is actually a relatively narrow one that deals only with whether schools can give student-athletes education-related benefits, such as providing free laptops or access to internships as a condition of playing sports. But the case seems likely to throw open the doors to a broader challenge to the NCAA's requirement that student-athletes be unpaid amateurs. In a fiery concurring opinion, Justice Brett Kavanaugh outlined how that next step might go—and it doesn't look great for the NCAA.

"The NCAA's business model would be flatly illegal in almost any other industry in America," wrote Kavanaugh, a former college basketball player. "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."

For example, Kavanaugh wrote, restaurants could not agree to refuse to pay their cooks under the theory that consumers would prefer to eat food prepared by amateur chefs. Likewise, law firms would not be allowed to ban compensation for their attorneys under the premise that lawyers were working "out of a 'love of the law.'" But this exactly what the NCAA has long argued: that even giving college athletes the most minimal of compensation for their efforts would somehow sully the games that the NCAA earns big bucks by marketing to television.

"The NCAA is not above the law," Kavanaugh concluded.

NCAA v. Alston originated back in 2014, when Shawne Alston, a University of West Virginia football player, and dozens of other former Division I college football and basketball players sued over the "interconnected set of NCAA rules that limit the compensation they may receive in exchange for their athletic services." This case dealt exclusively with education-based benefits that could be given to student-athletes, but other lawsuits have also targeted the NCAA's limitation on paying athletes for the use of their names, images, and likenesses in officially licensed NCAA products, including jersey sales and video games. Several states have already passed laws carving away at the NCAA's ban on giving athletes a share of the revenue derived from the use of their likenesses, and the NCAA indicated last year that it is reading the room and might change its policy.

So Monday's ruling did not happen in a vacuum. It is part of an ongoing trend of legal and legislative defeats for the NCAA's unpaid-amateurs mandate.

"Even though the decision does not directly address name, image, and likeness, the NCAA remains committed to supporting [such] benefits for student-athletes," NCAA president Mark Emmert declared in a statement on Monday. "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."

This ruling may end up having parallels to the Supreme Court's 1985 ruling in NCAA v. Board of Regents of Oklahoma University. That decision struck down, on antitrust grounds, the NCAA's policy that only it could negotiate deals with television networks seeking to broadcast college sports. In the wake of that decision, schools and college athletic conferences were able to negotiate their own television deals—and, as you might expect, the result was a lot more college sports on TV and a lot more television revenue for schools and conferences.

That case effectively collapsed the NCAA's exclusive ability to artificially restrict the compensation that schools could earn from sports. The new ruling similarly collapses (or at least severely curtails) the NCAA's exclusive ability to artificially restrict the compensation that athletes receive for playing sports.

Kavanaugh's concurrence invites future litigation that will get to the heart of the NCAA's prohibitions on compensating student-athletes, says Ilya Shapiro, director of the center for constitutional studies at the Cato Institue, a libertarian think tank.

"Today's case likely ushers in compensation of 'amateur' athletes in all but name," Shapiro writes.

The NCAA seems to realize as much. When asking the Supreme Court to review the NCAA v. Alston case, the NCAA argued that the lower court's ruling in Alston's favor "will fundamentally transform the century-old institution of NCAA sports, blurring the traditional line between college and professional athletes" if allowed to stand.

Today, the Supreme Court unanimously affirmed it. Tradition has its place, but it is a terrible justification for refusing to pay your workforce.

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  1. The court’s unanimous ruling … deals only with whether schools can give student-athletes education-related benefits, such as providing free laptops or access to internships as a condition of playing sports.

    Huh? Nothing about whether schools can give student-athletes sports-related benefits, such as providing free uniforms or access to showers as a condition of playing?

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    2. I’m guessing that you’re trying to be funny but the serious answer is that the parties to this particular lawsuit had already narrowed the questions before the court to just education-related benefits.

      That particular legal choice seems mistaken after this unanimous decision but it made sense earlier in the case when the outcome was less certain.

  2. “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.”

    What’s a full scholarship worth?

    1. Not sure at ivy league, but in public schools you’re looking at $200K tuition books room and board.

      Frankly pay the fuckers and stop pretending they aren’t in the minor leagues of the NFL and NBA.

      1. I think giving them money is fine. Scholarship athletes don’t pay room and board. Also, Public Universities don’t cost $50,000 per year.

        1. Out of state sticker price they do. But no, nobody actually pays that. More like half that.

        2. If we allow that the NCAA schools are running minor leagues for the NFL and NBA, it brings up the question if that is something public universities should be doing.

          1. I suspect that is exactly the next step. With actual compensation, many of the young star athletes will get very good pay. Most states have no problem with their highest paid government employee being a football/basketball coach. But will those same states accept the notion that the highest-paid government employee is an athlete? Hmm.

      2. And stop pretending the players are students.

        As long as we tolerate the pretense of pro university sports (and it will take more than the Supreme Court to tear that away from big universities and their alums) we should admit that the primary purpose of major sport athletes is to win games and make money for the host institute (along with the media and NCAA). So just give the players the same professional status as faculty.

        1. And stop pretending the players are students.

          Yeah, the NCAA’s mask fell off entirely when it decided that athletes trading memorabilia for tattoos was an intolerable offense, while systematic institutional academic fraud to maintain athlete eligibility was an irrelevancy.

    2. For basket-weaving or neuroscience?

    3. What’s a full scholarship worth?

      No much in these cases. Any player who has a full-ride scholarship at any big name school has one job-play that sport. Picking up an engineering degree along the way just ain’t gonna happen.

      1. Yet is does all the time

        1. +1
          Most don’t go pro and many do get useful degrees.

          1. Yes, many get degrees in engineering, sciences, and other real disciplines, but most are getting communications / psych degrees.

            I went to a division III school that explicitly did not give athletic scholarships. We had lots of athletes in engineering.

          2. My observation as a student tutor of Div. 1 student-athletes is that a clear negative correlation exists between the academic rigor required by the athlete’s selected major and their individual prospects for a lucrative playing career after college. Those who aren’t going to play for a living after college (most) tend to buckle down and try. Meanwhile the future pros tend towards General Studies.

          3. I went to a top tier university with a big lacrosse program that shall remain nameless. I waited tables at a local bar/restaurant and overheard a conversation among a table of lax coaches at the university where they were trying to figure out what to do with their top-ranked defenseman who was now a junior and had taken all of the courses that he had any hope of passing there. They were trying to figure out what to do since they couldn’t create 20 easy courses just for this guy’s sake. As I recall, he didn’t make it into his senior year. I knew the guy. He was way too stupid to be at that or probably any other university.

        2. “All the time…”

          Yeah, no. There’s a reason SI—back when people read it—did an article on Don Davey, starting defensive end for U. Wisconsin, and studying towards a degree in Mech.E. (You can tell it was a long tome ago, because he’s listed as…get this…6’5″, 237. Jesus, he wouldn’t make LB for them these days.)

          https://vault.si.com/vault/1988/09/05/college-football-1988-gee-its-great-to-be-a-badger-spend-a-week-with-wisconsin-lineman-don-davey-and-youll-understand-what-it-means-to-be-a-true-scholar-athlete

          1. Well, if it matters to your argument, here are some actual numbers:
            Graduation rate: 86% in DI, 71% in DII and 87% in DIII.
            Percentage who go pro: 2% (but I think that includes all three divisions)

            1. But that is for those athletes who don’t lose their scholarships due to injury correct? The ones that do make it to the end without getting cut.

          2. I don’t know about “all the time” but I do know of a more recent example in Tyler Shatley who got a degree in Civil Engineering from Clemson and has played for the Jaguars for the last 8 years (he’s a local boy and I like to brag on him).

    4. Yeah, no kidding.

  3. >>a lot more college sports on TV and a lot more television revenue for schools and conferences.

    ya and the whole thing went fucking sideways and now there are literally three football teams with a chance of winning anything every year and the basketball tournament has been ruined. NCAA blows.

    also Justice Brett is apparently still pissed nobody wanted him out of high school for lacrosse

    1. And how much do the peons who put flowers on the rose bowl floats get paid? INJUSTICE!!!!!

  4. Next challenge…time-limited physician board certification as a condition of employment or insurance participation.

  5. {For example, Kavanaugh wrote, restaurants could not agree to refuse to pay their cooks under the theory that consumers would prefer to eat food prepared by amateur chefs. Likewise, law firms would not be allowed to ban compensation for their attorneys under the premise that lawyers were working “out of a ‘love of the law.'” }

    Why not? So long as no one is FORCED to work for free, then it’s a voluntary arrangement.

    Who is FORCED to be an NCAA athlete? No one I’m aware of.

    Now, all those who VOLUNTARILY agree to work for free for whatever reason tickles their fancy, let them do it…

    1. With the chef example they can work for free, but they can be paid. With the NCAA you can work for room and board, but the schools used to be able to sell you likeness and name on clothing and video games without compensation. Scholarship athletes aren’t allowed to earn money outside of what the school provides. Greg Anthony was a UNLV player in the later 80s/early 90s wasn’t allowed to give up his scholarship so he could sell his artwork.

    2. The issue is that the NCAA, as a condition of being part of the NCAA, forces the schools to agree not to pay the students. The students have no alternative other then the NCAA for competitive college sports. That is what the anti-trust laws are meant to prevent.

    3. Why not?

      Because a court doesn’t whether an arrangement is in conformance with libertarian principle, but whether it’s in arrangement with US law.

      1. Er, “in conformance with US law.”

    4. Also, the chief output of a chef is not how they score against others. How are you going to have amateur competition if you can’t limit it to amateurs?

      1. The same way German football can have tens of thousands of teams in thousands of leagues. Most of those are amateur because there is no significant media contract for that league and attendance/tickets only covers other costs. But all of those athletes can aspire to playing in a league where there is some media contract or other revenue stream that can produce an income for the athlete. At the highest level league, they can get rich playing the sport – though as is almost always the case, the highest-paid athletes earn more selling shoes/etc than they do playing their sport.

      2. Oh – and as an aside – competition is in the purview of a LEAGUE not a team. eg

        New York Yankees play no baseball games without MLB determining the schedule, limiting what other teams will play, etc. It is why it is the league’s rules (in this case the NCAA) that control playing opportunity for athletes even if teams are the ones who pay players.

    5. The NBA and the NFL rules essentially require prospective players to play for an NCAA school for one to three years.

      1. Kevin Garnett, Kobe Bryant, and LeBron James could not be reached for comment.

  6. “The Supreme Court has delivered a unanimous smackdown to the National Collegiate Athletic Association (NCAA) for its rules banning schools from compensating college athletes.”

    Bullshit.

    The supreme court’s decision only concerned (and was basically an affirmation of an appeals court decision that was an affirmation of a district court’s) the NCAA’s prohibition of education-related benefits only. While there was some discussion of the general application of the Sherman Anti-trust act to the NCAA, the rejection was largely based on the fact that the court did not think that said benefits would work to effectively destroy the amateur character of college athletics or end any real distinction with professional sport. Given that allowing compensation of college athletes on any and all basis (presumably what is the libertarian position) would certainly do just that, much of the excitement around this is due to the fact much of the media simply don’t like how the NCAA operates and thus believes it must be illegal.
    While Kavanaugh’s concurring opinion does, indeed, make a case suggesting going significantly further, there’s a reason it is not the published one. His specific ideas are shown to differ from the other eight by his act of publishing separately, even though concurring with the basic opinion.

    1. It’s possible others on the court agreed with Brett too – it might not be a solo opinion.

  7. “”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.” ”

    So Kavanaugh makes clear that he supports a fair market and NOT a free market.
    Of course what constitutes “fair” is likely to be determined by the state.

    1. It’s poorly worded. This issue is what they are agreeing NOT to allow. That being any sort of fair market deciding compensation.

      It’s anticompetitive collusion.

  8. “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate”

    That’s not true, there are plenty of places where people aren’t paid a fair market rate. Fair does not always mean higher, it means what the employee is worth
    1 public schools, a fair rate to the teachers and admins would be far lower than it is now
    2. Female professional sports. The NBA subsidizes the wnba, and the US woman’s national team should be paid the Sam as a male jv high school team, because they compleate at the same level.

    1. Interns?

  9. So drop the scholarships, free services & housing, start charging them for excess course days for make-up tests and so on. Then give them a salary to pay for all those services back and ruthlessly sue any of them doing advertising in school colors. The “making money off my name” argument goes both ways.

    It will be a few bad years for the NCAA but it’s not like events will be normal for a few years yet given the COVID responses so far.

    Final thought: the Olympics have given up on strict amateur status so why should the NCAA hold on.

    1. I’ve enjoyed college football most of my life. Even more so as an alumnus. If my school ceased to be a farm team for the NFL i would still watch and still cheer them on.

      Not sure if everyone else would, but I’m willing to find out.

  10. Does this mean Reason now has to pay all those interns?

    1. I believe their internships have a stipend attached.

  11. “The NCAA is not above the law”

    The NFL, on the other hand, …

  12. Why is this article so poorly edited?

  13. After 8 months at Duke, Zion Williamson signed a $75 million contract with Nike plus a 3 year $30 million (guaranteed) salary with the New Orleans Pelicans. For basketball players, one and done at a Division I college results in million dollar contracts with both teams and manufacturers. Top colleges like Duke, UCLA, UNC…should require their b-ballers to pay, say, 10% of their initial pro salaries for the exposure.

    1. “Top colleges like…UCLA”

      Haven’t been watching much college basketball lately?

    2. Top colleges like Duke, UCLA, UNC…should require their b-ballers to pay, say, 10% of their initial pro salaries for the exposure.

      Ummm, no. At every point a player has a different coach or different trainer, they learn things they didn’t know, while hanging onto other things from past experiences.

      What about others? Some people, you won’t believe this, but some people come in with zero engineer training, but leave college with the ability to be an engineer. Do they owe 10%? What about internships where participants are selected by teachers. 10% there? Or is this restricted to only athletes?

      In your world 10% of each should be reserved at every step in life so when you move forward in life, you can always pay your fine for not having been there when you started a prior job. Seriously think about it…. stealing future earnings would be a tremendously asshole move.

  14. So are all amateur sports leagues going to be outlawed eventually? Will the U.S. amateur golf championship will be mandated to let in touring pro golfers? Can journeymen pro athletes be allowed to enroll in college and compete against real students to work on their games to revitalize their careers? Can any voluntary sports association be allowed to enact any eligibility rules without government oversight?

    Look, the NCAA is a voluntary federation of sports playing colleges. It does not have a monopoly on sports or colleges and no athlete is forced to contract with any of its members. Any young athlete is free to go straight to the pros (or semi pros) if they think they have the talent. If they are barred from playing by some arbitrary union contract waiting period, then their gripe is with the pro leagues’ and/or their unions. Let the NCAA make their own rules and buzz off if you don’t like it.

    1. Yeah, that’s a good point. Where’s the line?
      I was a D3 swimmer in college; one of the best experiences of my life.
      My participation on the team actually cost the school money – transportation, equipment, food, etc.
      Even with no scholarship, the school was giving me a great opportunity, not taking advantage of me.
      If forced to pay athletes like me, those opportunities would just disappear.

      1. There’s nothing in this ruling about forcing any given school to pay athletes. Rather, it’s saying schools cannot, as a matter of antitrust law as written by Congress, jointly form an agreement to limit compensation of athletes.

        It is extremely well-established that wage-fixing agreements are generally illegal under US antitrust law, and there’s no way in hell that the NCAA rules on athlete compensation amount to anything but a wage-fixing agreement between the schools (which is why the USSC ruled 9-0). The rules are therefore illegal under US antitrust law. Indeed, they are not merely illegal, but felonies punishable by prison terms, if the DoJ were interested in putting people in prison for it.

        1. So, basically all amateur sports, from little league on up, are illegal?

    2. Will the U.S. amateur golf championship will be mandated to let in touring pro golfers?

      The governing body for golf is the USGA. They hold the US Amateurs. The US Mid-Amateurs (for players of post-college age who have regained amateur status). The US Open. And via the PGA, all the professional championships including the seniors tour and women’s tours.

      Any governing body for a sport can handle the full range of activities and competition for the sport. The only thing they can’t handle is different rules for the sport itself – which gets handled by calling it a different sport. eg – If one decides to use a frisbee instead of clubs to advance on a golf course, the sport would be called frisbee golf and said players would not be eligible to play in the non-frisbee golf competition.

      The reason this is a created problem for baseball, basketball, football in the US is because those sports do not have a real governing body separate from the professional teams. Without a governing body, the entire sport – and thus all the opportunities for athletes – are controlled by those professional teams directly or indirectly.

      In this case, the only reason the NCAA can get away with not paying players is because the NBA and NFL require a timestamp of players through the NCAA system and those players get blacklisted if they don’t comply.

      1. Again, Kevin Garnett and LeBron James could not be reached for comment.

        1. You morons think that is even an exception?

          It is the NBA NOT the Cleveland Cavaliers who decide on the eligibility of players through the draft. It is the NBA who decides on the penalty (to either the player or the team or both) should teams do something ‘entrepreneurial’ re acquiring player talent. It is the NBA and NCAA, in collusion, that decide what sorts of post-HS athletic experience is allowed in the event the player is not of the talent level to be able to make the NBA roster limit (also limited in collusion between the NBA and the NBPA). The last time professional sports allowed anything entrepreneurial re player acquisition, the player was Eddie Gaedel

  15. Wow, this really feels like a straight-up emotional ruling from the SCOTUS.
    As others have mentioned, no one is forced to be an athlete.
    And what about the free education?
    If schools really, really want to pay athletes, why not create an alternative to the NCAA that does allow payments? Then they could all reclaim their American Indian nicknames, too.
    Now, I do understand the beef with licensing names and images. I think each individual should retain the right to control the use of his/her image and name, even if that means getting endorsement deals.

    1. No, this is a straight-up legal ruling from the Supreme Court, based on the actual law instead of free-floating appeals to “should” like “no one is forced to be an athlete” or “what about the free education”.

      The legal ruling is not that the athletes are entitled to pay. It’s that US laws prohibit forming a cartel to prohibit paying them.

      If you want to complain that the antitrust statutes enacted by Congress are improper and based on pure emotion, feel free. The court is duty-bound to expound the law as it is, not as it should be.

    2. There are many alternatives to the NCAA in organizing intercollegiate competition. But don’t you think it significant that all of them have approximately the same rules regarding amateurism? It’s a pretty simple concept.

  16. Whether this particular decision makes much difference, I don’t really know.
    But I suspect a couple decades from now, we won’t have college sports anymore.
    I think we’ll go the way of the rest of the world, which is that students just play on club teams.
    The elite athletes don’t go to college at all.

    1. Probably so. The anomaly is in the USA by historic accident, and it is an economically inefficient arrangement — but it is a voluntary one, and voluntary arrangements by large numbers of people are exactly what antitrust law is directed against.

      So unless Congress gives amateur sports organizations an antitrust exemption, things will eventually get to be like the more efficient, but less libertarian, way they are in the rest of the world.

      1. Less libertarian? There is nothing ‘less libertarian’ about the way the rest of the world deals with team sports. The rest of the world deals with those the same way we in the US tend to deal with individual sports. Namely, you create a sports governing body. Which almost everywhere is just a non-profit with a wide membership – athletes, fans, munis with stadiums, team owners, club owners, media, etc. In Germany – that is 7 million members. They decide the rules of the sport itself and create the structure of the leagues and competition that satisfy their members.

        Fundamentally, the difference everywhere else is that the sport itself is the thing that is important. Here, we believe that – for team sports only, the property of the team is what is important and the sport itself is irrelevant and subordinate.

  17. Not sure what to make of this. Obviously colleges should be free to offer any kinds of compensation to their athletes. But also a voluntary association of college athletes should be free to put conditions on membership. If you want to compete as an NCAA certified athlete, in other words, it shouldn’t be illegal for the NCAA to forbid your participating institution from paying you a salary. If you want the salary you can compete without the certification. But then I suppose colleges are not allowed by the government to compete without that certification? I actually have no idea. Some more context is needed to evaluate this case.

    1. No, government has no say over whether a student is “certified” as you say by NCAA, or by any of the other bodies organizing intercollegiate competition, nor whether colleges are allowed to have sports competition.* (NCAA is the biggest and most prominent, but by no means the only such.)

      * Well, with one caveat. Historians disagree over how serious was the government threat (embodied by Theodore Roosevelt) to outlaw intercollegiate football when the NCAA was organized as a compromise. So if you think there’s a chance intercollegiate football would be prohibited by Congress or the states absent NCAA and/or other such governing bodies, then you could say there’s an implicit threat working. It wouldn’t be unprecedented, as we now have state boxing commissions governing pro boxing and other combat sports; for a long time they effectively gave pro boxing a monopoly by outlawing what’s now called mixed martial arts for money, and allowed pro wrestling only as long as it was obviously a noncompetitive exhibition.

  18. Treat them like the Pros they are and drop the pretense that they are “students.” Universities should hire football teams separate from their student base, unless the athletes separately qualify for admission on academic grounds.

    1. I’m sure that will be the transitional result for a while, until it’s just a licensing arrangement by which a pro sports club gets to use a college’s name. It won’t be long, though, before they realize that name isn’t worth much, and they’re just pro teams that were formerly associated with colleges.

  19. The NCAA is like the Chinese Communist Party. College Athletics would do fine without its continued existence.

  20. Voluntary agreement Tradition has its place, but it is a terrible justification for refusing to pay your workforce or any other action voluntarily agreed on.

    1. There are thousands of recreation leagues in this country where adults and children voluntary compete without compensation and readily submit to a central authority (commissioner, committee, board of directors) for organizing teams, entry fees, game rules, and player eligibility, etc. In America it’s known as “playing by the rules”.

  21. It’s hard to see how under US law amateur competition of any kind that makes money for its organizers stands up.

  22. When the NCAA was organized, it was widely expected to gradually abolish intercollegiate football. Other sports were just along for the ride. Instead the NCAA was co-opted to become the promotional body it is today.

  23. The biggest problem with college sports and athletic scholarship is that Title 9 was interpreted by federal courts (in the 1970s) to require colleges to provide females the same amount of athletic scholarships as males (the latter of which generate exponentially more revenue for colleges and and the NCAA than female sports).

    When I attended Penn State from 1975-80, Joe Paterno’s football team generated enough revenue to subsidize all other male and female sports at PSU. But since the court’s Title 9 ruling required PSU (and all other colleges) to provide the same number of female scholarships as men’s sports, women’s sports scholarships rapidly increased (even though every women’s sport was (and still is) a financial burden for PSU (and all other universities).

    I played on PSU’s men’s volleyball team (which placed 4th in the nation in 1976/77) without anyone on the team receiving a sports scholarship. Meanwhile, sports scholarships were given to virtually every women on PSU’s women’s volleyball team, which didn’t even have a winning season during the 1970s.

    Another impact of the Title 9 ruling was that many universities eliminated some men’s sports (that were money losers), notably wrestling and gymnastics, while greatly expanding women’s sports (which were and still are money losers).

  24. Now to stop the government from deploying gun-toting goons in bulletproof vests as weapons that intimidate innocent persons into paying taxes to support colleges and federal and State financial aid programs. Let’s have a (pun intended) level playing field.

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