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NCAA Gets Blown Out in Major Supreme Court Antitrust Decision

The unanimous ruling could pave the way for greatly expanded compensation for college athletes.

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The NCAA didn't just lose in today's Supreme Court decision in NCAA v. Alston. They got completely blown out. The Court unanimously ruled against them in a major antitrust decision that could end up paving the way for greatly expanded compensation for college athletes. Neither liberal nor conservative justices gave much credence to the NCAA's position that they are a special kind of organization that should not be subject to conventional antitrust restrictions. They showed even less love for the pretense that the NCAA cartel is justified by the needed to protect high-minded ideals of "amateurism."

As Eugene Volokh points out, the one concurring opinion in the case—that of Justice Brett Kavanaugh—highlights the ways in which the ruling has damaging implications for the NCAA that go beyond the specifics of the case.

Below are some key excerpts from Justice Neil Gorsuch's opinion for the Court.

First, Gorsuch emphasizes that NCAA sports is a massive commercial enterprise, which makes it hard to argue that it is merely a nonprofit entity upholding educational ideals and high-minded conceptions of amateurism:

Over the decades, the NCAA has become a sprawling enterprise. Its membership comprises about 1,100 colleges and universities, organized into three divisions… Division I teams are often the most popular and attract the most money and the most talented athletes…..

At the center of this thicket of associations and rules sits a massive business. The NCAA's current broadcast contract for the March Madness basketball tournament is worth $1.1 billion annually. See id., at 1077, n. 20. Its television deal for the FBS conference's College Football Playoff is worth approximately $470 million per year…. Beyond these sums, the Division I conferences earn substantial revenue from regular-season games. For example, the Southeastern Conference (SEC) "made more than $409 million in revenues from television contracts alone in 2017, with its total conference revenues exceeding $650 million that year." D. Ct. Op., at 1063. All these amounts have "increased consistently over the years." Ibid.

Those who run this enterprise profit in a different way than the student-athletes whose activities they oversee. The president of the NCAA earns nearly $4 million per year. Brief for Players Association of the National Football League et al. as Amici Curiae 17. Commissioners of the top conferences take home between $2 to $5 million. Ibid. College athletic directors average more than $1 million annually. Ibid. And annual salaries for top Division I college football coaches approach $11 million, with some of their assistants making more than $2.5 million….

The Court also emphasizes how the NCAA's rules limiting compensation for athletes are presumptively suspect under standard antitrust analysis, because they are a clear example of a monopolistic price-fixing cartel:

Before us, as through much of the litigation below, some of the issues most frequently debated in antitrust litigation are uncontested. The parties do not challenge the district court's definition of the relevant market. They do not contest that the NCAA enjoys monopoly (or, as it's called on the buyer side, monopsony) control in that labor market—such that it is capable of depressing wages below competitive levels and restricting the quantity of student-athlete labor. Nor does the NCAA dispute that its member schools compete fiercely for student-athletes but remain subject to NCAA-issued-and-enforced limits on what compensation they can offer. Put simply, this suit involves admitted horizontal price fixing in a market where the defendants exercise monopoly control.

Other significant matters are taken as given here too. No one disputes that the NCAA's restrictions in fact decrease the compensation that student-athletes receive compared to what a competitive market would yield. No one questions either that decreases in compensation also depress participation by student-athletes in the relevant labor market—so that price and quantity are both suppressed.

The NCAA accepts that its members collectively enjoy monopsony power in the market for student-athlete services, such that its restraints can (and in fact do) harm competition. See D. Ct. Op., at 1067. Unlike customers who would look elsewhere when a small van company raises its prices above market levels, the district court found (and the NCAA does not here contest) that student-athletes have nowhere else to sell their labor.

The Court goes on to reject the NCAA's argument that it should be exempted from standard antitrust "rule of reason" review because it is a joint venture:

Nor does the NCAA's status as a particular type of venture categorically exempt its restraints from ordinary rule of reason review. We do not doubt that some degree of co-ordination between competitors within sports leagues can be procompetitive. Without some agreement among rivals—on things like how many players may be on the field or the time allotted for play—the very competitions that consumers value would not be possible…. Accordingly, even a sports league with market power might see some agreements among its members win antitrust approval in the "'twinkling of an eye.'" American Needle, 560 U. S., at 203. But this insight does not always apply. That some restraints are necessary to create or maintain a league sport does not mean all "aspects of elaborate interleague cooperation are." Id., at 199, n. 7….

The NCAA's rules fixing wages for student-athletes fall on the far side of this line….

Finally, the justices also reject claims that the NCAA's rules are immune from scrutiny because they promote "amateurism":

The NCAA submits that a rule of reason analysis is inap­propriate for still another reason—because the NCAA and its member schools are not "commercial enterprises" and instead oversee intercollegiate athletics "as an integral part of the undergraduate experience." Brief for Petitioner in No. 20–512, at 31. The NCAA represents that it seeks to "maintain amateurism in college sports as part of serving [the] societally important non-commercial objective" of" higher education." Id., at 3….

The NCAA does not contest that its re­straints affect interstate trade and commerce and are thus subject to the Sherman Act. See D. Ct. Op., at 1066. The NCAA acknowledges that this Court already analyzed (and struck down) some of its restraints as anticompetitive in Board of Regents. And it admits, as it must, that the Court did all this only after observing that the Sherman Act had already been applied to other nonprofit organizations—and that "the economic significance of the NCAA's nonprofit character is questionable at best" given that "the NCAA and its member institutions are in fact organized to maximize revenues." 468 U. S., at 100–101, n. 22….

With this much agreed it is unclear exactly what the NCAA seeks. To the extent it means to propose a sort of judicially ordained immunity from the terms of the Sher­man Act for its restraints of trade—that we should overlook its restrictions because they happen to fall at the intersec­tion of higher education, sports, and money—we cannot agree. This Court has regularly refused materially identi­cal requests from litigants seeking special dispensation from the Sherman Act on the ground that their restraints of trade serve uniquely important social objectives beyond enhancing competition…

While the NCAA asks us to defer to its conception of amateurism, the district court found that the NCAA had not adopted any consistent definition. Id., at 1070. Instead, the court found, the NCAA's rules and re­strictions on compensation have shifted markedly overtime. Id., at 1071–1074. The court found, too, that the NCAA adopted these restrictions without any reference to "considerations of consumer demand," id., at 1100, and that some were "not necessary to preserve consumer demand," id., at 1075, 1080….

In other words, the Court was utterly unpersuaded by claims that promoting "amateurism" gives the NCAA exemption from normal antitrust scrutiny, especially when the NCAA's conception of what amateurism requires seems to shift over time, in self-serving ways. The theory that "amateurism" is whatever the NCAA says it is gets no love from the Court.

While Justice Gorsuch carefully emphasizes that today's ruling only applies to education-related compensation for student athletes, it's hard to deny that the same reasoning applies to NCAA restrictions on other types of compensation for student athletes, as well. At the very least, ordinary "rule of reason" analysis now applies to the latter, no less than the former. And it will not be easy for the NCAA to show that its cartel system is actually "procompetitive," given its own admission that members schools have a monopoly in the relevant market.

There is a small ray of hope for the NCAA in the Court's statement that there may be reason to uphold restrictions on forms of compensation that "blur the distinction be­tween college and professional sports and thus impair de­mand." But to prevail on that basis, the NCAA would have to show that such payments really do reduce demand, and thus are necessary to enhance the quality of product, as understood by consumers. I suspect that, in this day and age, most college sports fans don't actually care whether the players for their favorite team get paid or not. They might even be happy to see such payments occur, if it means the school gets better players.

However, I admit there may be an angle I am overlooking here. This issue is sure to be litigated in the future. We will see whether the NCAA can use it to prop up its otherwise collapsing position.

The concurring opinion by Justice Brett Kavanaugh emphasizes that "although the Court does not weigh in on the ultimate legality of the NCAA's remaining compensation rules,the Court's decision establishes how any such rules should be analyzed going forward. After today's decision, the NCAA's remaining compensation rules should receive ordinary "rule of reason" scrutiny under the antitrust laws." He also points out that "there are serious questions whether the NCAA's remaining compensation rules can pass muster under ordinary rule of reason scrutiny. Under the rule of reason, the NCAA must supply a legally valid procompetitive justification for its remaining compensation rules. As I see it, however, the NCAA may lack such a justification."

He goes on to summarize the flaws in the NCAA's rationale for its restrictions:

The NCAA acknowledges that it controls the market for college athletes. The NCAA concedes that its compensation rules set the price of student athlete labor at a below-market rate. And the NCAA recognizes that student athletes currently have no meaningful ability to negotiate with the NCAA over the compensation rules.

The NCAA nonetheless asserts that its compensation rules are procompetitive because those rules help define the product of college sports. Specifically, the NCAA says that colleges may decline to pay student athletes because the defining feature of college sports, according to the NCAA, is that the student athletes are not paid.

In my view, that argument is circular and unpersuasive. 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. 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. Law firms cannot conspire to cabin lawyers' salaries in the name of providing legal services out of a "love of the law…"

Price-fixing labor is price-fixing labor. And price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work….

Businesses like the NCAA cannot avoid the consequences of price-fixing labor by incorporating price-fixed labor into the definition of the product. Or to put it in more doctrinal terms, a monopsony cannot launder its price-fixing of labor by calling it product definition.

The bottom line is that the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year. Those enormous sums of money flow to seemingly everyone except the student athletes. College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries. Colleges build lavish new facilities. But the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing.

For now, this is just one justice's opinion, and therefore not binding precedent. But I think it's hard to deny that Kavanaugh is right about the implications of the majority opinion for other NCAA compensation restrictions.

Even if NCAA restrictions on paying student athletes are abolished, many college sports will be largely unaffected. Sports like rugby, lacrosse, and wrestling are likely to see few or no changes. Because athletes in these sports produce little or no revenue or publicity for their schools, the latter will have little, if any, incentive to compete for them by increasing compensation. But there may well be big changes for revenue-producing sports, particularly the big ones, like Division I football and basketball.

Absent the NCAA cartel, competitive pressure would likely incentivize schools to pay athletes a much higher percentage of the proceeds from these sports. For all the high-minded talk of amateurism and educational principles, that's what this litigation is really about.

In line with many economists and law and economics scholars, I have long advocated the abolition of NCAA restrictions on athlete compensation. See here, here, and here, and links to earlier pieces by economists David Henderson and Nobel Prize-winner Gary Becker. It's worth noting that these NCAA restrictions are not just a private cartel, but one backed by federal government policy denying certification to schools that refuse to obey NCAA rules restricting compensation for student athletes.

Today's decision dealt the NCAA cartel a serious blow. It remains to be seen whether the wound turns out to be fatal.

 

 

 

NEXT: Today's Interesting SCOTUS Line-Ups and What They Do (or Don't) Reveal

Sports Antitrust

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102 responses to “NCAA Gets Blown Out in Major Supreme Court Antitrust Decision

  1. Let the NCAA die.

    1. Not even close it will get even more monopolistic.

      Here’s what I predict, there will be a nationwide college athletic union that voted in by NCAA athletes as a whole. Men’s, Womens, Track, Swimming, etc., which will then negotiate a revenue sharing arrangement with the NCAA to distribute the revenue across all sports and genders.

      So in addition to 11 million dollar football coaches and 4 million dollar NCAA officials, we will also have 5 million dollar union officials, and the athletes will get a marginal improvement in scholarships and stipends.

      Collectively bargained wages and benefits are immune from anti-trust regulations. And unions are allowed to have exclusive bargaining rights even in right to work states.

      1. Ah, a masterful distopian vision of the future

      2. This is about the only way to have uniform rules across all schools. Professional Sports of all types came to this conclusion long ago. This will allow a compensation cap preventing the schools with the richest boosters from buying the titles. The schools with a lot of money won’t like it but the schools with limited money will force it. In the profitable sports we may see a realignment as poorer schools are unable to compete.

  2. It’s not the decision which is surprising. It sounds good to me.

    What’s surprising is why this wasn’t obvious to the courts long before today? Did nobody litigate this previously, or what?

    1. Presumably it takes longer to litigate this than your average college sports career, so a case like this only comes along once someone goes through the effort of putting a class action together.

  3. As I understand it, amateur athletes are those who play sports in their spare time – but from what I understand, these particular athletes give their focus to their sport, and maybe in their spare time they study some classes at the university they’re at.

    What would the ancient Greeks think? Never mind, those athletes went around stark naked, and in America, not even the women’s beach volleyball players do that.

    1. I should say *especially* not the…you know what, I’ll just drop that line of thought.

    2. “not even the women’s beach volleyball players do that.”

      They’re damned close. I think they are essentially the minimum fabric required to keep things stationary and keep sand out of places.

      1. I’ve played beach volleyball, and *nothing* keeps sand out of places.

        1. They could raise a lot more revenue by airing video of the post-game shower.

  4. Well, the colleges have functioned as the ‘farm team’ for football and basketball forever. Only baseball actually has a training program for their employees.

    1. The NBA does now, a player chose to go to the G League straight from high school. Considering only one generational talent since the 1980s won a championship with his original team (Tim Duncan because the Spurs were a consistent 50 win team whose HOFer got injured)…I can’t believe the NBA wouldn’t want players to be at least 21 before they are drafted??

      1. And Tim Duncan was the only one that played 4 years of college basketball. So #1 picks that everyone knew would be the best player on championship teams are Shaq who played 2 years and LeBron who played 0 and Anthony Davis who played 1 year and Zion who played 1 year. So going by history Zion will most likely win a championship as a Knick or Laker while the secondary market team develops him like with the others.

      2. You can make money from athletes even if they don’t win championships.

        1. But you lose those players in the NBA unless the management agrees to work with the superstar to build a championship team around himself

  5. “Sports like rugby, lacrosse, and wrestling are likely to see few or no changes. Because athletes in these sports produce little or no revenue or publicity for their schools, the latter will have little, if any, incentive to compete for them by increasing compensation. But there may well be big changes for revenue-producing sports, particularly the big ones, like Division I football and basketball.”

    Division I football and basketball subsidizes rugby, lacrosse, and wrestling at a lot of schools. If expenses go up in football and basketball, subsidies for rugby, lacrosse, and wrestling will go down.

    Even a libertarian can figure out what happens next.

    1. The problem with that argument is that football and basketball factories have already been slashing their non-revenue sports. They don’t actually tell the truth about their cross-subsidization.

      1. The trend will get worse.

        “They don’t actually tell the truth about their cross-subsidization.”

        Not following.

        1. Non-revenue sports can easily fit into a school’s overall budget. Indeed, Division II and III schools where all sports are non-revenue, manage to have lots of sports.

          A big reason you have non-revenue sports is to attract students. Having a wrestling team may be the thing that gets a smart kid who wants to wrestle to choose your school. It’s not some offshoot of a profitable football team. In fact, most of the revenue that football generates in a football factory school either goes to administrators and coaches or goes back into football.

          So colleges are going to continue to have non-revenue sports. That’s a canard.

          1. “That’s a canard.”

            No, its your opinion. Plenty of evidence that it does impact other sports.

            1. There’s actually zero evidence that it impacts other sports, because we haven’t paid any athletes yet.

              1. I meant plenty of evidence that football provides money for other sports.

                1. There really isn’t. Lots of schools which do not have revenue football programs nonetheless fund plenty of sports.

                  1. Bob is claiming that Division 1 schools paying football and basket ball players will reduce the amounts made available for other sports. That Division II / III schools have money for other sports does not refute his argument.

                    As you say, no evidence so far…

                  2. So, what would happen if there was a sudden revenue shortfall? For example, if college football programs couldn’t fund other sports

                    Luckily we have a case example for that, for what happens when there’s a sudden funding shortfall. Lots of sports get cut. Including at D1 schools.

                    https://theconversation.com/colleges-are-eliminating-sports-teams-and-runners-and-golfers-are-paying-more-of-a-price-than-football-or-basketball-players-148965

                    1. That article suggests that the funding problem was due to Covid, which had nothing to do, obviously, with paying football players. Further, it doesn’t tell us what else has gotten cut.

                      The big fallacy here is this. Paying players will make the revenue sports more expensive, reducing their profitability, and probably requiring some expense cutting at the school. All OK.

                      But there is no reason at all that those budget cuts have to come at the expense of other sports. That’s an arbitrary decision that some schools might make, but they could also cut elsewhere just as well. Maybe some of those multi-million dollar coaching salaries could come down, for example.

                      Regardless, despite what seems to repeated endlessly, the cost-cutting needed does not have to be restricted to reducing non-revenue sports.

                    2. What it meant was there was a funding shortfall. And sports got cut.

                      The source of the funding shortfall isn’t really relevant to what happens if there is a funding shortfall.

                    3. The source of the funding shortfall isn’t really relevant to what happens if there is a funding shortfall.

                      Correct. This is my point. That the funding shortfall originates in the football program doesn’t mean you have to cut non-revenue sports. Maybe you can cut landscaping, or administrative expenses, instead.

                      Look at it the other way. If you have a funding shortfall because not enough students show up, or fund-raising falters, you might cut non-revenue sports, or you might cut something else.

                      Money is fungible. What you cut is, or should be, independent of the source of the shortfall.

                    4. Money is fungible…to an extent.

                      When Covid hit, we can see what was cut. Non-revenue sports. But how did universities lose money when Covid hit? One way was the lack of gate receipts from the football and basketball games.

                      A second point to consider is that often universities treat the budgets of different departments separately. So, if the athletic department brings in more money, they allow them to spend more on athletics. And if they bring in less money, their budget is cut.

                      So consider…Athletics departments brought in less money due to COVID…and cut sports. Or the Athletics Departments could be required to shell out millions to football players and basketball players … and other costs would need to be reduced…

                    5. When Covid hit, we can see what was cut. Non-revenue sports.

                      But we don’t know what else was cut. The article didn’t say. Maybe those cuts were part of broader budget cuts across the university.

                      There’s a big difference between “non-revenue sports were cut,” and “non-revenue sports were the only cut,” or even the main ones.

                      We also don’t know the size of the revenue losses involved.

      2. They have been slashing their non-revenue sports to comply with Title IX — and the wild card in this is what will a player payroll do to Title IX compliance…

        1. Paying players is irrelevant to Title IX. As long as a program brings in more money, that’s a valid reason to pay its laborers more. See Stanley v. USC.

          1. Dilan,
            Can you explain? My first thought, after hearing of today’s court decision, was to think of its possible impact on women’s sports in colleges. Plus a ton of other issues. If a university can show that women’s basketball (for example) gets 1/10th the attendance of men’s basketball, is it okay to pay those female student-athletes 1/10th of what the men are paid? Or does there need to be some sex-based equality in pay? What if your female team is one of the very best, but no one wants to attend or watch it on TV? Or, the individual university can’t know this, because the TV deal is so poor for this women’s sport? (I’m thinking men’s vs women’s USA international soccer teams.) Or, is it okay to pay your 3 star male athletes on your football team a lot of money, and pay none of the other players? As student-athletes vie for the best payday; do they need to do that negotiating themselves? Or is it now legal to have a registered agent while still a college athlete?

            All of this can and will be resolved, of course. But I do believe it is the end of an era…whether for good or for bad, only time will tell.

            1. A few points:

              1. If athletes are paid, they will be employees or independent contractors. There’s no issue of equal education funding, because the team will be a professional sports team full of employees.

              2. Stanley v. USC is the key precedent here. It holds that you don’t have to pay your women’s coach the same as your men’s coach. You can evaluate which coach brings in more money. Indeed, even in educational programs, a college does not have to pay a female professor the same as a male professor, if one brings in more grant money than the other.

              3. As for how it will work in practice, I suspect if colleges want the most valuable players to play for them, they will need to offer them premium salaries, although perhaps the endorsement money will be enough.

              Bear in mind, the gender equity thing is already handled in other sports. There’s no law that says if you own a WNBA and an NBA team, you have to pay your players the same. Indeed, US Soccer has been criticized for paying men’s and women’s players differently, but unless the women’s team proves it brings in more money and gets less compensation, it isn’t going to win its claim.

              1. But as a recipient of Federal funding, the universities must comply with Title IX as defined by the ED-OCR bureaucrats.

                IMHO, it will be gross dollar to dollar equity that is demanded.

                1. I was with Ed on this issue…education seems to be different than the general marketplace. Title IX (plus whatever state equality laws that might come into play).

                  This is an area of law I don’t practice in, and know very little about. I guess we’ll all see how it shakes out. (As a huge UCLA sports fan, I am assuming that my beloved school will get its ass handed to it by rival USC, which is private, and *very* well-funded, so I’m assuming that athletes looking for an in-school payday will pick SC over UCLA on that basis.) 🙁

                  1. For various and sundry reasons, I have always rooted for UCLA to beat the Trojans in football.

                  2. The pros have salary caps as a way to equalize wealth disparities of team owners.

                    I agree that it is almost impossible to see how this washes out.
                    The ruling uses the term of educational enhancements as being limitless. Never mentions a salary?
                    Title IX also will be a factor in this. Men sports have been eliminated over the last 20 years or so, to “balance” the number of male/female athletes served. Seems like eliminating men’s sports was a little per-mature. All they needed to do is have the athletes on the men’s team to identify as females, and all is magically “solved”

                  3. “athletes looking for an in-school payday will pick SC over UCLA on that basis.”
                    Perhaps but they’d end up at an inferior university

                    1. The difference between USC and UCLA is pretty minimal.

                      https://www.univstats.com/comparison/university-of-southern-california-vs-university-of-california-los-angeles/

                      If Princeton offered you $300K a year and $10 million in startup costs, and Harvard only offered $120K a year and $2 million in startup costs, which would you pick…

              2. If we’re reading the same case, the court in Stanley v. USC did not rely on the defendants’ argument that the men’s coach brought in more money. The highly experienced man was entitled to be paid more than the less experienced woman.

            2. “If a university can show that women’s basketball (for example) gets 1/10th the attendance of men’s basketball, is it okay to pay those female student-athletes 1/10th of what the men are paid”

              Actually, it’s worse than that. Because the women’s sports need to cover costs. And they generally…don’t.

              So, then women’s basketball players would have to be paying more to the college to have the honor of playing, while the men’s basketball players would get paid.

            3. “The Title IX regulations specify that if a recipient awards athletic financial assistance, it must provide reasonable opportunities for such awards for members of each sex in substantial proportion to the number of students of each sex participating in interscholastic or intercollegiate athletics. “

              See: https://www2.ed.gov/about/offices/list/ocr/frontpage/pro-students/issues/sex-issue04.html

              I can’t see OCR dropping that — even if Congress told them to….

              1. I can’t see OCR dropping that — even if Congress told them to….

                Well, of course not.

                Title IX as written by Congress prohibits programs that deny men the chance to participate on the basis of their sex. Title IX as defined by the ED-OCR bureaucrats mandates programs that deny men the opportunity to participate on the basis of their sex.

                1. True, but I was more thinking about how ED-OCR (particularly Region I) totally ignored what Congress said in the amended ADA.

    2. I don’t think they are subsidizing non-revenue sports out of the kindness of their hearts.

      Those sports, like other subsidized campus activities, are something students want. They would cut them now if they didn’t think they had value.

      1. They would cut them now if they didn’t think they had value.
        You confuse cost with value.
        High school football is a huge money suck. Yet they keep building stadiums that surpass lots of small collage stadiums.
        Obviously football cost far less than the value they produce.

        1. You confuse cost with value.

          No. I don’t.

          What I am saying is they would cut those programs now if they thought they didn’t justify the cost.

          Now, in an era of university cost-cutting these programs may be reduced, but not necessarily. Not like there aren’t other places to save money.

      2. Well, students or alumni/donors. Personally I am mystified why US High Schools or Colleges have sports teams, but if it keeps the punters happy who am I to object?

    3. Bob from Ohio

      Even a libertarian can figure out what happens next.

      Why should a libertarian care? I know of no libertarian principle that considers it essential or even important to subsidized rugby, lacrosse or wrestling at schools. They can go the way of competitive ballroom dance at schools. Where it exists, it’s usually a club organized by a student organization — just the same as any other non-sports club. Some other sports are also just clubs at various schools.

      Obviously, students who love a particular activity also love it to be subsidized so they don’t have to pay their own way or figure out fund-raisers. But I see no libertarian principle why any particular sport needs to feed off the profitability of football and basketball especially not at the expense of not-paying the students who generate the revenue.

      If students want the particular club, there’s no reason these particular sports can’t operate on that same basis.

  6. You could say it was a …
    *dons sunglasses*
    … slamdunk.

    1. Very apropos, given the visual metaphors that sparkle throughout the opinion.
      For my own part, though, I’m pleased to see that SCOTUS has finally adopted the compact and sensible style I’ve consistently used since the ’80’s in citing federal appellate court decisions: (CA#), instead of the bulky and cumbersome (Xth Cir.) mode.

  7. “Law firms cannot conspire to cabin lawyers’ salaries in the name of providing legal services out of a “love of the law…”
    Price-fixing labor is price-fixing labor. And price-fixing labor is ordinarily a textbook antitrust problem because it extinguishes the free market in which individuals can otherwise obtain fair compensation for their work….”

    I see this as problematic for the ABA and the law school cartel.

    A century ago, the ABA openly stated that it sought to impose a law school mandate so as to reduce the number of lawyers practicing and hence increase their wages. And the same “love of the law” would apply to law students forced to spend three years learning (and paying to learn) things which they have no desire to learn and will never use.

    People will say that the ABA monopoly is invulnerable — a few years ago, I would have said the same thing about the NCAA monopoly — and education is my field….

    1. Various “professional groups” have with different rationalizations tried to enforce schemes to prevent “unethical” competition and client stealing behavior. TO the best of my knowledge there have all been struck down and D0J has sued several groups into consent decrees.

    2. The ABA does not have any monopoly on anything. The ABA does not determine how many lawyers are practicing.

  8. “This issue is sure to be litigated in the future.”

    Words to warm a lawyer’s heart.

  9. As long as member schools continue to support the NCAA and prevent players from earning a living in college, nothing will change. The college system is just minor leagues for the NFL, who by the way abscond with billions from cities which tax people for the pleasure of a stadium and local team. I have quit watching all of it.

    1. While I agree with you about publicly financed stadiums we should note that in an awful lot of cases the financing is supported by the voters.

      Of course, it’s sold with a lot of lies.

      1. Actually, only occasionally do the voters support it, and often politicians do everything they can to not bring the plans before the voters.

        The reality is a lot of voters aren’t sports fans at all, and even the ones that are know that they won’t get the fancy luxury box tickets like the politicians will.

    2. I support banning of any public subsidy to any professional sport team.

      For much of it’s history MLB managed to survive without subsidies. In fact some economic analysis show that public subsidies largely go to increased player salaries.

      Can anyone with a straight face say players would stop playing if they only made $15,000,000/year instead of $30,000,000? Probably more marginal players would opt not to stay in sports, but many marginal players opt to play minor league baseball for a change at the Majors.

  10. It seems “obvious” that the NCAA could organize professional divisions and amateur divisions, much as they do now.

    Then the fans could choose to watch amateur football, or good football. Players could choose to play first, or study first.

    1. If you’re going to do that, why not divest the professional divisions and make the whole circus completely separate from higher education?

      1. That would make sense, but the schools don’t want to lose their cash cow. They will cling tenaciously to D1 football and basketball.

        1. The idea is that if you divest something the buyer should pay you the present value of future profits. The more of a cash cow something is, the more you can sell it for.

  11. At least half of a typical law student’s three-year education is, rightly, spent learning the basics that will give him the essential competence to determine what his professional focus may be, and how he will use it, whether he initially wants to or not. Something about “informed choice,” I’m told, as well as the thorough grounding in a profession which goes – without stretching – back to antiquity.
    And for that I’ll rely upon the education and experience of a JD over that of an Ed.D. any day.

    1. Which law school did John Marshall graduate from?
      Or John Adams? Or Cicero?

      1. Question questions proved nothing at all.
        But it is nice that you remember the cognomen of Marcus Tulius

  12. The general problem is this.

    Are they students…or are they employees? Because the distinction makes a difference. A very large one. That could end “college” sports as we know it.

    If, as proposed, you pay the athletes, some will be getting a sizable salary. More than $100,000 a year for some is easily doable. And at that point, they really are employees, being paid to entertain the campus by playing sports.

    Additionally, at this point, you’ve destroyed the NCAA’s monopoly ability to ensure some consistant standards, like maintaining students as amateur athletes, who don’t get paid. Their ability to maintain other standards via their monopoly power would likewise be destroyed. Why should athlete-employees only have 4 years of eligibility? Why should they need to wait a year between transferring schools? Why should they have to pass their classes? Or even take them? None of this is relevant to their employment to play sports for the university. They’re being PAID to play sports.

    At this point, you have a number of colleges who simply pay professional athletes big bucks in order to win. Maybe Tom Brady goes to play for Alabama (OK, that’s probably overstating things). But Tim Tebow playing for Miami for $100K a year? Why not? Why couldn’t he? Isn’t the NCAA just using its monopoly power in order to prevent it?

    And at this point, you just have a new professional sports league, roughly associated with colleges. But we know how new professional football leagues have done….

    1. It’s actually worse than that because they will probably unionize — as the graduate teaching assistants have on many campi. The UAW started this 30 years ago, and for reasons I don’t understand, it is easier to do this at a public university than a private one. Here’s an article on this: https://www.sciencemag.org/careers/2019/09/grad-student-unions-dealt-blow-proposed-new-rule-says-students-aren-t-employees

      As to Tim Tebow playing for Miami, the other interesting issue will be the four years of undergraduate athletic eligibility — those currently are NCAA rules but they predate the NCAA — and the reason why state schools had such solid football teams in the 1950s was that the players were all WWII veterans in their late 20s.

      A while back there was talk of “Spaceman’ Bill Lee, a retired Red Sox pitcher, playing on the Hampshire College team. I don’t know what became of that.

    2. Why should athlete-employees only have 4 years of eligibility? Why should they need to wait a year between transferring schools? Why should they have to pass their classes? Or even take them? None of this is relevant to their employment to play sports for the university. They’re being PAID to play sports.

      Because they agreed to the contract they signed.

      1. Why should athlete-employees only have 4 years of eligibility? Why should they need to wait a year between transferring schools? Why should they have to pass their classes? Or even take them? None of this is relevant to their employment to play sports for the university. They’re being PAID to play sports.

        That sort of rule might be relevant to the product of “college” football vs. professional. Requiring them to actually be college students is one heck of a lot more relevant to the distinction between “college” and “pro” than requiring them to not be paid.

        Requirements like stating a minimum number of credits/calendar year, progress toward timely graduation, minimum gpa, make sure the degrees aren’t some sort of “fake” or “athlete only” degree etc do create a distinction that makes a college athlete a college athlete for that college.

        Not paying athletes isn’t what makes them “college” students. My sister worked in the university library and got paid. She is no a law librarian. No one thought to not pay her because working in the library was training or a future job.

        1. It might be…then again.

          Many people take more than 4 years to get through college. Are you going to say the 5th year (and 6th year) students aren’t college students? Why shouldn’t a 6th year student be able to play football? Other people go to college part time. Aren’t they college students too?

          If you’ve got a full time job paying you $100,000 a year, and you go to college part time at night for a single class, aren’t you a college student? And if you’re a paid athlete at a college being paid $100,000 a year, and you take a single class at night, aren’t you still a college student? If you fail your class and have to retake it, aren’t you still a college student?

          1. Many people take more than 4 years to get through college.

            I didn’t say the rule has to be 4 years. I said “progress toward timely graduation”.
            I’m an engineer. Many students in engineering take 5 years for their BS even when enrolled full time. Their progress toward graduation is still timely even if the schools post a suggested time table to graduate in 4 years. I think the assessment for whether progress is timely should be made relative to the time it takes non-athletes to finish. (This could also force departments to ‘fess up and let students know the real amount of time it takes to graduate.)

            Why shouldn’t a 6th year student be able to play football?

            Indeed. I think they should be able to provided being in school for 6 years represents timely progress. I don’t know what rule the NCAA might adopt. But my view is that they should reflect students being students. Universities often have rules for kicking people out if they aren’t progressing.

            If you fail your class and have to retake it, aren’t you still a college student?

            If you fail too many or don’t take enough courses, you end up on “academic probation” and can be kicked out. These rules apply to non-athletes and ought to apply equally to athletes.
            If normal rules for academic progress don’t apply to you, you probably kinda sort of aren’t a student.

            And if you’re a paid athlete at a college being paid $100,000 a year, and you take a single class at night, aren’t you still a college student?

            In some sense. But I don’t think it makes any difference to what the NCAA might be allowed to do.

            Based on the ruling, I don’t see why the NCAA couldn’t limit competitive sports to full time students with some minimum GPA and meeting the schools requirements for progress to graduation. That could be justified as making a distinction between “college” and “pro”. It’s not based on salary or pay to students. It’s limiting to some sort of definition of “student”.
            Mine you, the NCAA may not have wanted to make this rule because they don’t actually care if students make progress to graduation. They only wanted to not pay them. But that doesn’t mean this ruling is barring them from having rules that make these sports limited to fulltime students making progress toward graduation.

            1. “”And if you’re a paid athlete at a college being paid $100,000 a year, and you take a single class at night, aren’t you still a college student?”

              “In some sense. But I don’t think it makes any difference to what the NCAA might be allowed to do. Based on the ruling, I don’t see why the NCAA couldn’t limit competitive sports to full time students with some minimum GPA and meeting the schools requirements for progress to graduation.””

              So, we’re not talking about this particular ruling, but about the concept that the NCAA mandate on college sports players not being paid for their athletic activities should be overturned. And the way it’s overturned is because it is an “illegal” use of the NCAA’s monopoly power.

              The problem with that logic, is it equally applies to the other rulings as above. The NCAA using their monopoly power to enforce standards of being a “college student.” And people objecting to it. More importantly, once you start paying the players sizable salaries (Say $100,000 a year), they don’t want to leave. They want to stay in “college” as long as possible to keep collecting that salary.

              Let’s use Tim Tebow as an example. He couldn’t cut it in the NFL. Equally however, he could clearly cut it at the University of Florida as a quarterback. Why shouldn’t he stay at the University of Florida, as long as possible, collecting that $100,000 salary, year after year, after year, doing the bare minimum towards “progress” towards his degree (or his second degree…or his third degree…) until he’s 40 years old. That makes complete logical sense from his perspective. And it makes sense from the perspective of the University of Florida’s football program.

              1. So, we’re not talking about this particular ruling, but about the concept that the NCAA mandate on college sports players not being paid for their athletic activities should be overturned.

                That’s what I assumed since you talked about students being paid actual money which is outside this ruling.

                The problem with that logic, is it equally applies to the other rulings as above. The NCAA using their monopoly power to enforce standards of being a “college student.”

                As far as I can see, SCOTUS affirmed a ruling that allows the NCAA to maintain a distinction between ‘pro’ and ‘college’.
                Gorsuch wrote

                “. At the same time, however, the district court did find that one particular aspect of the NCAA’s com-pensation limits “may have some effect in preserving con-sumer demand.” Id., at 1082. Specifically, the court found that rules aimed at ensuring “student-athletes do not re-ceive unlimited payments unrelated to education” could play some role in product differentiation with professional sports and thus help sustain consumer demand for college athletics. Id., at 1083”

                and further

                “The court enjoined only restraints on ed-ucation-related benefits—such as those limiting scholar-ships for graduate school, payments for tutoring, and thelike. The court did so, moreover, only after finding that re-laxing these restrictions would not blur the distinction be-tween college and professional sports and thus impair de-mand—and only after finding that this course represented a significantly (not marginally) less restrictive means ofachieving the same procompetitive benefits as the NCAA’scurrent rules. D. Ct. Op., at 1104–1105.”

                The NCAA specifically can make rules that differentiate between “pro” and “college” athletics provided it does help sustain consumer demand in college athletics.
                But the rule can’t merely be “we don’t pay students at all” nor can it be “we forbid any specific sort of payment related to education. That leaves open other rules.
                I don’t see anything that precludes them from making a rules that require students to be full time and on track to graduation. That makes a meaningful distinction between “college” and “pro”.

                1. You’re arguing both sides here simultaneously.

                  The Gorsuch statement at Id., at 1083 is specifically about paying college athletes to play sports, and that limiting paying college athletes to pay sports may be acceptable to differentiate college and pro sports.

                  But if you take the view (as many commenters here have) that college athletes should be paid to play sports, and the NCAA’s ban on that is unjust, and it should be overturned, then the Gorsuch logic no longer applies. Because it’s the very case example he used that gets overturned.

                  1. Armchair,
                    I am merely pointing out that nothing in the case says the can’t have rules that distinguish their product from pro sports.

                    Kavanaugh writes

                    Everyone agrees that the NCAA can require student ath-letes to be enrolled students in good standing. But the NCAA’s business model of using unpaid student athletes to generate billions of dollars in revenue for the colleges raises serious questions under the antitrust laws.

                    I don’t know how you are reading this to suggest SCOTUS saying the rule can’t be “don’t pay them” translates into “you can’t even require them to be students in good standing”. Kavanaugh certainly thinks everyone thinks you could require them to be students in good standing. So if you think they don’t you are going to have to explain precisely why rather than just claiming it

                    1. “I am merely pointing out that nothing in the case says the can’t have rules that distinguish their product from pro sports.”

                      Not in this ruling. But in the implications that college players should be paid…. Absolutely.

                      The defining characteristic of a professional athlete is that they make a living off playing sports. They get wages and salaries from playing sports. The defining characteristic of professional sports is that it is composed of players who make a living playing sports.

                      Once you pay college players a salary, you turn, by definition, “college” football into a professional football program, with professional football players. It is literally how a professional sports league is defined. So you can’t differentiate it.

                    2. The defining characteristic of a professional athlete is that they make a living off playing sports.

                      The defining characteristic of “college” is the players are in college. As a practical matter requiring college football players to be in college vs. not requiring that would be a distinction of practical importance. It’s easily identified. You can’t make this practical distinction magically disappear by refusing to see it and only noticing similarities.

                    3. “The defining characteristic of college is that the players are in college”

                      Potentially. Think about a college professor. A college janitorial service. A college party. A college exam.

                      In each of these cases, the subject is “in college”….but not a student. They are paid by the college, or the item is at the college. But aren’t students.

                      So, you could easily have “college sports” where the players are paid by the college, and play their games at the college. That would make it “College Athletics”

      2. Just like they agreed not to be paid for playing sports in the contract.

        The only reason they signed such a contract, is because they didn’t have a choice. It was that or not play at all. The NCAA was a monopoly, there was no other option.

        Break the monopoly, or the power to enforce such actions and….

    3. “Their ability to maintain other standards via their monopoly power would likewise be destroyed.”

      Not necessarily. Why do you think a rule that says NCAA members cannot conspire not to pay players, or cannot conspire to prevent participants from even being paid by third-parties, would necessarily prohibit the NCAA from maintaining academic eligibility, limiting the total years of eligibility, etc.? Certainly some of these rules will have been enforced so haphazardly by the NCAA that they will be hard to defend in court, but not all of them.

  13. Be interesting to see how far the push goes to share the wealth between the star players and their less talented brethren…

    A fair number of college athletes sacrifice their education hoping for a huge payday if they turn pro. How many K7-12 students will now do the same hoping they can get a good payday in college even though turning pro was never an option?

    It’s easy enough to think that most student athletes wouldn’t be so foolish, but I can tell you from raising a daughter through gymnastics – half the parents at any given gym spend years thinking their child has a shot at the US Olympic team even though the coaches (if honest) could disabuse them of that notion after five minutes’ observation.

    1. ” How many K7-12 students will now do the same hoping they can get a good payday in college even though turning pro was never an option?”

      A lot already do.

    2. Be interesting to see how far the push goes to share the wealth between the star players and their less talented brethren…

      Sharing at a lower rate might provide the less talented a better economic signal of their true prospects for future wealth. Right now the less talented may tend to delude themselves about their athletic career prospects since they get the same level of economic reward.

  14. This would be less of an issue if the average college hoops or football player wasn’t functionally retarded and has no real possibility of absorbing anything from any academics.

  15. What’s the biggest risk here? The “professionalization” of “college” football and basketball.

    Here’s the deal. College football and basketball pretty clearly act as developmental leagues for the NFL and NBA respectively. Young prospects are given the opportunity to compete against other young prospects, better learn the game, refine their skills, and more. All while getting a college education, room, and board, basically for free in many cases. The colleges in turn, act as a way for alumni and students to enjoy the games and bring in an invested audience.

    But what happens if you professionalize college football and basketball? If you pay the players a salary? Make schools compete for players. They can switch schools to whoever gives them the best offer? Or play as long as they want? And maybe take just 1 class at night to “be part” of the college.

    The real risk there is that people turn off the games. They’re not really interested in seeing a developmental professional league, where the players come and go, and there’s no affiliation. They’re interested in their college. And if there’s no “investment” by the players, potentially that turns into no “investment” by the public.

    And so, “college” football and basketball turn into basically minor league football and basketball…like minor league baseball. Now minor league baseball is fine…but they aren’t paid very much. In fact, in AAA baseball, they’re paid an average of $15,000 a year. So, if you turn college football and baskeball into minor league professional leagues…..and if you have the same pay rates…..those players who were previously getting free tuition, room, and board, valued $73,000 a year in some places….now are getting just $15,000 a year.

    1. So, if you turn college football and baskeball into minor league professional leagues…..and if you have the same pay rates…..those players who were previously getting free tuition, room, and board, valued $73,000 a year in some places….now are getting just $15,000 a year.

      I think you are conflating retail cost with value. The value of a college degree to someone who actually does end up in the pros is negligible.

      I think you are also assuming the ruling says the NCAA can’t enforce any rules. In fact it left open the possibility that it might be able to have rules that create a “college”-“pro” distinction. Rules requiring full time enrollment, minimum GPA, progress toward graduation could make that distinction.

      Now that may not be the rule the NCAA prefers. And it may be that alumni don’t actually give to figs about kids graduating. But those rules are the kind that can distinguish between this being college students vs. hired guns.

      1. Again…once the judgement is made that the NCAA can’t enforce rules against college students being paid to play sports. Because that’s the big one. The rest of the “enforcements” are out the window.

        1. Saying “Again” doesn’t make your claim true nor even relevant. You are throwing in lots of activities that aren’t about pay and suggesting the NCAA can’t make rules a about those activities.
          I have not and never said they could make rule about pay. But they will be able to make rules about things that are not pay. For example: these

          Or play as long as they want? And maybe take just 1 class at night to “be part” of the college.

          Those are rules about “what is a college student”, and not about pay. The ruling and it’s logic permit the NCAA to make rules about those things.

    2. 1. Young players would only play in the minors if they’re not good enough for the majors. To take a non-US example, Kacper Kozlowski just made his debut at the European Championships as the youngest ever player at a Euros tournament. He’s 17 years and 246 days old.

      2. Why should young players, regardless of whether they’re good enough to play in the majors, get subsidised education? The good ones can pay for their own education, and the rest deserves to be treated the same as everyone else.

    3. The biggest risk here is that you create a system of “haves” and “have nots.” Even among FBS programs, a private school with a large endowment will be able to pay a lot more to athletes than a school like Central Michigan where the expenses will also be scrutinized by the citizens who might not want their tax dollars allocated in that manner. What interest will there be nationwide if it is a few elite programs and a bunch of dreck? If you can only provide for certain expenses it levels the playing field like a salary cap would (basically the cap is the cost of expenses multiplied by the number of scholarships you can offer). Also, if a program unearths a hidden gem why should they lose him or her to an elite program who can afford to pay the player more? As is the transfer portal is ridiculously abused with exceptions being made for the elite programs (see Fields, Justin) and not for the less elite ones.

      1. Some state schools have huge Athletic Foundations that can fund a lot of stuff. Some are backed by powerful and rich allums like T Boone Pickens, or Phil Knight.

        1. Some, not all. The poorer schools should not turn into farm systems for schools with deeper pockets. Look at how the state of Alabama tried to shut down UAB’s football team because it was siphoning off too many players from Alabama and Auburn. Imagine a team without a big budget uncovers someone like Trey Lance. A major team with an almost unlimited financial backing has an injury at QB poaches Lance. The NCAA likely can’t do more to discourage transfers without violating antitrust laws (for example by making it a mandatory two year sit without exception unless you are transferring from FBS to FCS). Doing away with transfers without approval from the outgoing school is not going to go well because a school that is stingy with granting requests will likely lose out in recruiting. In order to have competitive balance you need some regulations in place.

    4. They’re not really interested in seeing a developmental professional league, where the players come and go, and there’s no affiliation. They’re interested in their college. And if there’s no “investment” by the players, potentially that turns into no “investment” by the public.

      But college players, especially star basketball players, do “come and go.” Did Duke fans not cheer for Zion Williamson? And even the four-year players aren’t there for that long. And of course professional athletes change teams much more often than they used to. As I think Seinfeld said, fans root for the laundry.

      And so, “college” football and basketball turn into basically minor league football and basketball…like minor league baseball.

      They are already that.

      Now minor league baseball is fine…but they aren’t paid very much. In fact, in AAA baseball, they’re paid an average of $15,000 a year.

      Some big differences:

      1. Baseball players get bonuses, often big ones, when they are drafted. For the first few picks these can be millions of dollars. Last year the teams paid over $300 million in draft bonuses.

      2. A player who shines in the minors gets promoted. If he shines at AAA the promotion is to the majors – no waiting for the end of the season or anything. (I read that when Willie Mays was promoted to the Giants from then-minor-league Minneapolis the Giants actually ran ads apologizing to Minneapolis fans. Mays was hitting .477 through 35 games in Minneapolis.)

      So, if you turn college football and baskeball into minor league professional leagues…..and if you have the same pay rates…..those players who were previously getting free tuition, room, and board, valued $73,000 a year in some places….now are getting just $15,000 a year.

      I rather imagine that player pay is going to be in addition to the scholarships, not in place of.

      1. 1. “But college players, especially star basketball players, do “come and go.” Did Duke fans not cheer for Zion Williamson?”

        They did. But he was a Duke player. He studied at Duke, lived at Duke, didn’t transfer in and out to get the best deal. Let’s use your Willie Mays example. Imagine it’s the start of March Madness…and Zion is “called up” to New Orleans. What does that do to the Duke fanbase? To know your best player, right before the playoffs, is just gone. Now repeat that several times. Every year, your best players get “called away” right before the playoffs…

        2. Some baseball players are paid million dollar bonuses. Most are not.

        3. “I rather imagine that player pay is going to be in addition to the scholarships, not in place of.”

        Why assume this? Those “million dollar bonuses” are going to have to come from somewhere. Odds are, it’s from the existing scholarships. A few players get very rich. Most get shafted.

        1. The problem with all or nothing is I don’t think you can build a winning team with just a few players, you need the whole team. It is possible for the NCAA to set a minimums well, maybe the current scholarship rules.

        2. Some baseball players are paid million dollar bonuses. Most are not.

          Even bottom draft picks can get six-figure bonuses.

          “I rather imagine that player pay is going to be in addition to the scholarships, not in place of.”

          Why assume this?

          Because the team needs more than one player? Besides the high school athlete who gets a huge bonus from a college is going to be a very rare bird.

          Drafted baseball players typically spend several years in the minors, learning the game. A fair percentage never see the majors. If they do they are locked into the major league team for six years. So you are looking at a 6-10 year commitment. The college athlete is locked in, if he is at all, for four years, and they come at the beginning of his career.

          It’s simply not the same thing.

          1. “Even bottom draft picks can get six-figure bonuses.”

            But they generally don’t. MLB drafts run over 40 rounds in a typical year (2020 wasn’t typical due to COVID). For a nice reference, here’s the Indians 2018 draft class.

            https://www.coveringthecorner.com/2018/6/11/17444874/indians-2018-draft-tracker-who-signed-how-much

            We can pretty clearly see that rounds 31-40, the entire bottom 25% of the draft class got exactly 0$ for a bonus.

  16. I don’t know where Eugene got this idea about the federal government denying some benefit to schools because they aren’t in the NCAA. Unfortunately the link to where he originally got that is broken, and switching it to reason.com as host doesn’t find it.

  17. “Sports like rugby, lacrosse, and wrestling are likely to see few or no changes.”
    So-called minor sports will likely feel the impact of future compensation rulings. The fact that they are not “revenue generating” is beside the point. Athletic boosters support these sports at their highest levels, and offering a super-star female lacrosse recruit, say, $5,000 a month is easily achievable for many of the lacrosse powerhouse colleges (e.g., North Carolina, Boston College, Syracuse, Florida, Stanford), if it is believed she will help produce a national championship.