The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Antitrust

"The NCAA Is Not Above the Law": Justice Kavanaugh Criticizes "Price-Fixing Labor" in College Sports

"Hospitals cannot agree to cap nurses' income in order to create a 'purer' form of helping the sick. News organizations cannot join forces to curtail pay to reporters to preserve a 'tradition' of public-minded journalism."

|

An interesting and, I expect, important broad concurrence by Justice Kavanaugh in today's NCAA v. Alston (itself a narrow unanimous decision). I'm not an expert on antitrust law, but this struck me as worth passing along; I'd be glad to also pass along contrary views:

The NCAA has long restricted the compensation and benefits that student athletes may receive. And with surprising success, the NCAA has long shielded its compensation rules from ordinary antitrust scrutiny. Today, however, the Court holds that the NCAA has violated the antitrust laws. The Court's decision marks an important and overdue course correction, and I join the Court's excellent opinion in full.

But this case involves only a narrow subset of the NCAA's compensation rules—namely, the rules restricting the education-related benefits that student athletes may receive, such as post-eligibility scholarships at graduate or vocational schools. The rest of the NCAA's compensation rules are not at issue here and therefore remain on the books. Those remaining compensation rules generally restrict student athletes from receiving compensation or benefits from their colleges for playing sports. And those rules have also historically restricted student athletes from receiving money from endorsement deals and the like.

I add this concurring opinion to underscore that the NCAA's remaining compensation rules also raise serious questions under the antitrust laws. Three points warrant emphasis.

First, the Court does not address the legality of the NCAA's remaining compensation rules. As the Court says, "the student-athletes do not renew their across-the-board challenge to the NCAA's compensation restrictions. Accordingly, we do not pass on the rules that remain in place or the district court's judgment upholding them. Our review is confined to those restrictions now enjoined."

Second, 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. The Court makes clear that the decades-old "stray comments" about college sports and amateurism made in National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85 (1984), were dicta and have no bearing on whether the NCAA's current compensation rules are lawful. And the Court stresses that the NCAA is not otherwise entitled to an exemption from the antitrust laws. As a result, absent legislation or a negotiated agreement between the NCAA and the student athletes, the NCAA's remaining compensation rules should be subject to ordinary rule of reason scrutiny.

Third, 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.

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." Hospitals cannot agree to cap nurses' income in order to create a "purer" form of helping the sick. News organizations cannot join forces to curtail pay to reporters to preserve a "tradition" of public-minded journalism. Movie studios cannot collude to slash benefits to camera crews to kindle a "spirit of amateurism" in Hollywood.

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 sixand 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.

Everyone agrees that the NCAA can require student athletes 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. In particular, it is highly questionable whether the NCAA and its member colleges can justify not paying student athletes a fair share of the revenues on the circular theory that the defining characteristic of college sports is that the colleges do not pay student athletes. And if that asserted justification is unavailing, it is not clear how the NCAA can legally defend its remaining compensation rules.

If it turns out that some or all of the NCAA's remaining compensation rules violate the antitrust laws, some difficult policy and practical questions would undoubtedly ensue. Among them: How would paying greater compensation to student athletes affect non-revenue-raising sports? Could student athletes in some sports but not others receive compensation? How would any compensation regime comply with Title IX? If paying student athletes requires something like a salary cap in some sports in order to preserve competitive balance, how would that cap be administered? And given that there are now about 180,000 Division I student athletes, what is a financially sustainable way of fairly compensating some or all of those student athletes?

Of course, those difficult questions could be resolved in ways other than litigation. Legislation would be one option. Or colleges and student athletes could potentially engage in collective bargaining (or seek some other negotiated agreement) to provide student athletes a fairer share of the revenues that they generate for their colleges, akin to how professional football and basketball players have negotiated for a share of league revenues. Regardless of how those issues ultimately would be resolved, however, the NCAA's current compensation regime raises serious questions under the antitrust laws.

To be sure, the NCAA and its member colleges maintain important traditions that have become part of the fabric of America—game days in Tuscaloosa and South Bend; the packed gyms in Storrs and Durham; the women's and men's lacrosse championships on Memorial Day weekend; track and field meets in Eugene; the spring softball and baseball World Series in Oklahoma City and Omaha; the list goes on.

But those traditions alone cannot justify the NCAA's decision to build a massive money-raising enterprise on the backs of student athletes who are not fairly compensated. Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.

NEXT: Is the Chief in Charge?

Antitrust Sports

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

Please to post comments

143 responses to “"The NCAA Is Not Above the Law": Justice Kavanaugh Criticizes "Price-Fixing Labor" in College Sports

  1. Kavanaugh is exactly right.

    Let’s have a beer.

    1. This decision is a partial correction of a hideous lawyer mistake. This was reverse rent seeking by white slavers. Take the value of rare, highly skilled labor, pay nothing. That has a name, slavery.

      1. All the lawyer granted, government privileges of these Commie college organizations should be attacked, and cancelled, especially those of the colleges. Today, they are not doing education. They are treason indoctrination camps. Cancel them.

        1. seek mental heath assistance, you are babbling

          1. Stale KGB response, lawyer filth.

          2. They are indoctrination camps. The most you can claim is they are indoctrination camps for, finally, once and for all, the bestest, correctest reasons for all eternity, finally the perfection of humankind is realized!!11!1.

            Please admit it.

    2. How, exactly, are college athletes, amateur athletes, employees of the NCAAs?
      The Supreme Court kills another key American institution. Amateur Sports.
      Trump’s biggest failure, his Court appointees.

      1. They are de facto employees of their respective universities.

        1. No.

          Their status is actually the same as law students — they are aspiring to become professional football, basketball, or hockey players.

          The only difference is that the law students are paying for the exposure and credential which the NCAA athletes are getting for free. And that’s why I think that this decision will be the death knell of the law school/ABA monopoly on legal practice.

          1. The athletes have the same status in that they are also students. Aspirations are irrelevant. NCAA athletes aren’t getting in for free, they are “working” for the university/NCAA. Call it a work study program but if they cut or get injured, they lose their scholarships and are fired from the work study program. Games and practice take priority over their studies, tests, everything academic. Functionally they’re more employees than they are customers of the university.

      2. They’re not. They’re employees of NCAA members.

    3. Unfortunately he is indeed right. Amateur sports is a kind of guild arrangement designed not to be lucrative, as most guilds are, but to create a kind of producer sovereignty, which, while it may allow for consumers (spectators), isn’t serving them primarily, but rather the desires of the participants. In most amateur sports organizations, if there’s a cash flow, it’s from the participants — paying dues for the expenses of the club, facilities, and events. If they have spectator appeal, some may defray their expenses by charging a gate.

      The NCAA specifically (not so much the other, much lower profile governing bodies for intercollegiate sports) is an anomaly. It came into existence at a time when American football already had enormous spectator appeal, and almost exclusively so at the intercollegiate level. The NCAA was part of a compromise to allow intercollegiate football to continue to go on, rather than being banned for safety reasons, but it was generally acknowledged as a brake on the game, and expected by many to gradually phase it out completely. Within a quarter century, however, the NCAA had been coopted, and switched to the role of promoter of not only football but other intercollegiate sports.

      It was something of a fluke that American football had such an amateur-dominated enterprise while at the same time having become such a big time money making affair, and that it was connected with colleges. NCAA pretty much had no choice but to go along with this paradox while at the same time clamping down on the game generally. Since then in its switch to promotion, it (which is to say its constituent colleges) has been pretty much stuck. The other governing bodies for intercollegiate sports for the most part aren’t presiding over money-making operations, so they’ve never had to face this paradox.

      Antitrust law is completely unsuited to amateur sports that make a large amount of money from spectators. It would seem that unless Congress wants to legislate an exemption, the only way for intercollegiate sports to survive as such is to stop making money. Amateurs don’t want to compete with professionals. Admissions tickets to popular events will have to be rationed by lottery, and TV rights given away as news events.

      1. Antitrust law is completely unsuited to amateur sports that make a large amount of money from spectators.

        Antitrust law was never meant to outlaw amateur sports or to mandate that the athletes be allowed to accept payment. This isn’t nullified when there are excess revenues from the sport that are spent on maintaining other sports that don’t produce revenue or used to subsidize the entire university community and to expand academic infrastructure.

  2. Why did the students drop the rest of their appeal to SCOTUS in the first place?

  3. O boy, prof. Blackman will not like that virtue signalling…

    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.

    From a competition law perspective, the only wrinkle here is that this is price fixing of an input price. Where that happens, it is usually more tricky to articulate the consumer harm, since the predicted effect of such price fixing is lower prices for consumers, not higher. But then the courts might be persuaded that labour is no ordinary input, and leave it at that…

    (The alternative approach for dealing with purchasing cartels is to argue – and show – that collusion on the inputs side weakens competition on the sell side. But I’m not sure if that would work here, given that colleges still compete quite heavily to attract the most talented players, as far as I’m aware.)

    1. It’s not virtue signaling. It’s a conservative calling out a liberal organization for its rank hypocrisy. Much like a conservative criticizing liberals in a white suburban town for zoning rules that disproportionately keep out blacks.

      1. Yes, that well-known liberal organisation the [checks notes] NCAA. Let me guess, you think the NRA is also a liberal organisation?

          1. You think the NCAA is liberal because it is in favour of people being able to vote? Wow…

            1. Well, part of the modern conservative orthodoxy is apparently that it should be hard for people to vote.

              1. These “true conservatives” are being painted into an increasing small corner. Soon, Prof. Blackman will know everyone in the group by name.

              2. No, I think it should be very easy to vote. But not everyone 18 years old with a pulse should be eligible.

                1. Can we agree that you should have to HAVE a pulse to vote?

                  People born before Michigan even became a state voted in Detroit last November. (That’s 1837 — and one person who voted was born in 1824…)

                  1. People born before Michigan even became a state voted in Detroit last November. (That’s 1837 — and one person who voted was born in 1824…)

                    Liar.

                    1. My bad, the person was actually born in 1823…

                      No, he wasn’t. You’re just very gullible. “A database entry contained the number 1823” does not equal “This person was born in 1823.”

                  2. A person on a voter roll is not the same as a person who votes.

              3. “hard for people to vote.”
                this is language as a weapon in a partisan political battle.
                Voting practices have become increasingly irregular over the past two decades in ways that would be considered illegal in most industrialized democracies.
                Irregularities just open up ways to manipulate the electorate in practices such as vote harvesting.
                You want a three-day Election “Day’ to include a Sunday? You want voting on those days to run from 7 am to 9 pm? You want observes certified by all parties on the ballot to watch the votes and their counting? All okay. Real absentee voting by request with ballots delivered two weeks before election day? All fine.
                Voter ID at least once in the election chain? Why not.

                1. I disagree, Don.

                  Look. You expand voting opportunities – more early voting, more mail-in voting, more dropboxes, etc. It turns out that, contrary to some fantastical claims, this does not lead to any significant fraud.

                  This is more than an unsupported claim. Bear in mind that there were all sorts of people with major incentives to find fraud, and all sorts of people who would have liked to find it and were in position to do so – State AG’s, election administrators, private lawyers, DOJ. They didn’t find it. Now we have Italygate.

                  But what did happen was this. It turned out that the expanded voting opportunities helped Democratic voters much more than Republican voters, which produce some narrow D wins. With me so far?

                  Now Republican governors and legislators are vigorously reducing those opportunities – yes, making it harder for people to vote. And you want me to believe that their aim is uniformity or something, and not just lowering Democratic turnout?

                  Well, I don’t believe that.I don’t see how anyone can. I think they are trying to make it harder for some people, specifically urban dwellers and especially Black urban dwellers, to vote, because that will let them win elections with only minority support.

                  1. Again, don’t let semi-retarded 80 IQ blacks vote, and I won’t care if you have extra drop boxes in their neighborhoods.

                    1. PLONK!

                    2. I’ll be happy if they only vote ONCE and that the ballot drop boxes aren’t being stuffed.

                      One man, ONE vote. Not one hundred….

            2. If you don’t think the modern “make it easy to vote” movement has leftist political undertones, I don’t know what to tell you.

            3. We know the NCAA is a Left wing organization because ever time there’s a Left wing shibboleth at state, the NCAA is supportive of it

              We know you’re a lying left wing pile of garbage because you pretend that support for vote fraud is just about “wanting people to be able to vote”

              1. “Lying” and “left wing” are synonymous.

        1. The NCAA is to higher “education” what the KKK was to Democrats: a means to maintain slave labor. Trying the separate the two is an exercise in pedantry. The beneficiaries of this slave labor are colleges and universities – generally bastions of liberal thought and declarations – and Kavanaugh is calling them out on it.

          I’m surprised that Justice Thomas did not join in this concurrence.

          1. Well, the main beneficiaries of this “slave labor” are the coaches and other staff. I’m not sure what they have in common with the educational staff of the college, other than that the same person may or may not sign their pay checks.

            1. even with the enormous [relatively] salaries of the coaches and the staff, the revenue to the college are high. “The 20 most profitable college football programs made an eye-popping $925 million combined after expenses.” source: https://www.athleticscholarships.net/profitable-college-football-programs.htm

    2. Not virtue signaling: preparing the battlespace for the next stage of allowing all types of compensation for student-athletes. This points out a sore point for the more liberal justices to keep in mind the next time.

    3. Is it necessary in monopsony cases to show consumer harm? Some courts have found that harm in the input market is sufficient.

      1. From this decision:

        “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. See 12 P. Areeda & H. Hovenkamp, Antitrust Law ¶2011b, p. 134 (4th ed. 2019) (Areeda & Hovenkamp). Nor does the NCAA suggest that, to prevail, the plaintiff student-athletes must show that its restraints harm competition in the seller-side (or consumer facing) market as well as in its buyer-side (or labor) market. See, e.g., Mandeville Island Farms, Inc. v. American Crystal Sugar Co., 334 U. S. 219, 235 (1948); Weyerhaeuser Co. v. Ross-Simmons Hardwood Lumber Co., 549 U. S. 312, 321 (2007); 2A Areeda & Hovenkamp ¶352c, pp. 288–289 (2014); 12 id., ¶2011a, at 132–134.”

        1. Thank you! That’s what I came here for, some serious antitrust law wonkery.

          I didn’t check those precedents. My comment was simply based on the logic of hardcore Bork/Chicago School, where the impact on consumers (i.e. consumer welfare) is all that matters. That is not, at least in theory, the same as the Lina Khan caricature that only price matters, but it does make purchasing cartels a tricky thing to tackle.

          Having now quickly checked the precedents, Mandeville Islands Farms is on point, but is of a vintage that doesn’t usually survive in the Supreme Court these days. In Weyerhaeuser v. Ross-Simmons Hardwood Lumber the exercise of buyer power led to competitors exiting the market, which in turn leads to a clear theory of downstream harm. In this case I don’t think anyone is saying that the NCAA’s compensation policies resulted in fewer NCAA sports teams.

    4. Theoretically, at least, the harm to consumers (spectators) is that they’re seeing the product of amateurs rather than professionals. Presumably if the colleges were free to negotiate any kind of compensation for the players, they would get a better deal and put out a more attractive product. Ideally for the actual money-making events, the colleges would get rid of the student-athletes and hire independent professionals to represent them as players.

      None of this, of course, makes any kind of common sense, but it’s what economics would dictate.

      1. Theoretically, at least, the harm to consumers (spectators) is that they’re seeing the product of amateurs rather than professionals.

        No. You overlook the fact that the popularity of college sports has to do with the connection with an academic tradition, the fact that the players are student amateurs, etc. College basketball has a D-League, which is their minor league. The players there are much better than the players at most colleges but who wants to watch D-League games? Nobody. So being an amateur is an attraction, not a “harm” to consumers and paying players does not automatically make people want to watch.

        1. I don’t think that’s true of the majority of fans of intercollegiate sports. A sizable chunk, yes, and the majority in the case of those college sports teams that don’t make money. Like for instance the audience for football at SUNY Maritime College, where there’s no admission charge. But huge stadiums don’t fill up with students, alumni, and their friends, and they’re not much of a consideration for TV advertisers.

          That’s how intercollegiate sports took off in the USA: first with rowing, then with football, with audiences who had no connection to the institutions. It was, look at these crazy college kids!

  4. One wonders when the day will arrive when prostitutes get to enjoin marriage laws for restraint of trade.

    Not everything in life is an inherently commercial activity.

    1. No, but if you think NCAA sports isn’t a commercial activity, I have a bridge you might like to buy.

      1. The NCAA in 1981 tried to restrict how commercial they were becoming by limiting the total number of televised intercollegiate football games and the number of games that any one college could televise. In 1984 the Supreme Court shot this down in NCAA v. Board of Regents of Univ. of Okla., saying, “Oh no, you can’t limit the amount of money that’s involved in this enterprise.” Now they say, “Oh, look, this has become big business. We have to treat you like a big business now.”

        1. I’m sure the NCAA, like all sports, was once not a commercial activity. But it sure is now.

          1. If you’re referring to the sports themselves, that’s not true. The NCAA came in to regulate football, and football had already been a money maker at a number of colleges. NCAA itself, however, was not a money maker then, as most consortia aren’t, being organized for the convenience of its member institutions. Only later did NCAA start organizing money-making events of its own. So if that’s what you mean, yes.

        2. The NCAA in 1981 tried to restrict how commercial they were becoming by limiting the total number of televised intercollegiate football games and the number of games that any one college could televise.

          Was that the reason, or were they trying to keep of control of TV broadcasts by not letting the big name schools sell broadcast rights independently of the NCAA?

          My impression is that it was the latter.

          1. Well, by limiting the number of games any one school could televise each year they limited the amount of revenue that each school earned. Apart from revenue I don’t see why the NCAA would want to “keep control of TV broadcasts” or how such a limitation could work to the financial benefit of the NCAA. The schools claimed that they were trying to reduce the adverse effect of live television upon football game attendance.

            1. Again, I’m going on vague impressions, but I thought the problem was that schools like Notre Dame wanted to be able to broadcast their own games apart from the NCAA TV schedule. The NCAA feared that the Notre Dames would siphon off the viewers and the money from the NCAA and keep it.

              1. Well, the facts are described in the first few pages of the Supreme Court opinion. Apparently, Penn televised all of its home games from 1940-1950. In 1951 the NCAA realized that suddenly everyone had a TV and they created a “Television Committee” to study it, which reached the conclusion that “”television does have an adverse effect on college football attendance, and, unless brought under some control, threatens to seriously harm the nation’s overall athletic and physical system.” They began a series of four-year plans, under which the appearances of each school would be limited, with the following as the stated purpose:

                The purposes of this Plan shall be to reduce, insofar as possible, the adverse effects of live television upon football game attendance and, in turn, upon the athletic and related educational programs dependent upon the proceeds therefrom; to spread football television participation among as many colleges as practicable; to reflect properly the image of universities as educational institutions; to promote college football through the use of television, to advance the overall interests of intercollegiate athletics, and to provide college football television to the public to the extent compatible with these other objectives.

                Penn objected but gave in when the NCAA said that if they played outside the plan they would not be in good standing and schools scheduled to play at Penn said that in that case they would not play.

                In 1979 the College Football Association (CFA), representing the interests of five major conferences, started complaining that they should have a greater say in the television policy. In 1981 they negotiated their own deal with NBC, which gave them more money than they had been receiving and allowed them to play more televised games. That was when it was taken to court.

                So you’re right, in that it was the big schools who didn’t like the limits on appearances and who thought that since they were responsible for generating more revenue they should receive a larger cut than the others. They won in the Supreme Court, which opened the floodgates of revenue to the big schools, in the pursuit of which it then made economic sense to be willing to pay extravagant salaries to coaches, etc.

        3. The NCAA in 1981 tried to restrict how commercial they were becoming by limiting the total number of televised intercollegiate football games and the number of games that any one college could televise.

          If the NCAA really had wanted to restrict how commercial they were, they could have refused to accept television money at all, provided most of the game tickets for free or at cost to current students, and run these sports as non-revenue and non-profit.

          The fundamental problem isn’t that you can’t run amateur sports. It’s that in amateur sports, the principle of amateurism has to govern ALL the participants. Nobody should be making bank. Not the administrators, not the coaches, not the schools.

          If you decide, instead, that you want to take tons of money from television networks and rich donors and sponsors, well, now you are running a professional sport. Give that money to your workers, the players.

          1. By the way, I am much more radical on this than just the NCAA. I think high school teams whose games are on ESPN, and Little League World Series participants, and National Spelling Bee finalists should ALL be paid at market value based on the revenue they generate.

            Again, the principle is that an activity where someone else is making a ton but the laborers aren’t isn’t “amateur”; it’s a plantation.

            1. Again, the principle is that an activity where someone else is making a ton but the laborers aren’t isn’t “amateur”; it’s a plantation.

              Would you say that the national amateur golf tournament, which runs commercials, should be required to admit professional players?

              1. That’s not the way I would frame the issue.

                If the national amateur golf tournament took off in popularity and started generating a significant surplus beyond its legitimate expenses, it should have to either distribute that money to the players or decline it.

                Now fortunately, in the real world, this doesn’t happen, because there’s a professional tour that generates the big bucks and the amateurs do not. But if it did, the point in which other people start making big bucks is the point where it loses amateur status.

                1. it should have to either distribute that money to the players or decline it.

                  Can you articulate the principle that requires this result? What if the golfers said, “We’re amateur and we like it that way. We don’t want to be paid”?

                  1. They can either not play on television or not take a rights fee for the telecast (or take only enough money to pay for the administration of their sport).

                    1. They can either not play on television or not take a rights fee for the telecast (or take only enough money to pay for the administration of their sport).

                      Yes, I know that’s the result you’re advocating. I’m asking for the principle of justice that requires this result.

                2. They could raise the money for charity.

                  But there is a significant difference between an amateur golf association and NCAA athletics: there is are alternative pro leagues at several different levels so the amateur league isn’t anything close to a monopoly that leaves the players without an alternative to get paid.

              2. A large proportion of the players in the national amateur golf championship consists of college athletes.

                If these athletes are paid, I supposed that will have to change.

                1. If these athletes are paid, I supposed that will have to change.

                  If the desire to have an amateur sport is not sufficient and what is needed is a procompetitive justification then it would seem that amateur sports will be a thing of the past, even if the particular sport does not generate huge revenues.

                  1. That’s not true. There will continue to be amateur bowling leagues, amateur basketball down at your local gym, amateur slow pitch and fast pitch softball, and plenty of amateur college sports like lacrosse and crew.

                    1. Would you say that if the bowling league does not have revenues greatly in excess of its expenses then the league is justified in telling a particular bowler that he may not accept any payment for his bowling?

                    2. You underestimate if you think only that. There are amateur clubs for American football in the USA. They’re outnumbered by amateur rugby, but of course there’s that too. The point about amateur sports is that you don’t know about them, and they’re just fine with that.

                      Not a single amateur sport will disappear (except from TV) even if the entire present intercollegiate sports structure does.

              3. Is most of their income from TV, or from entry fees?

                1. Is most of their income from TV, or from entry fees?

                  What difference does it make? Are you saying that it’s OK to form an athletic league limited to amateurs, unless it receives more revenue from TV than from entry fees or unless it produces revenues in excess of expenses, in which case it must allow professionals to play?

                  1. Just looking at it from the perspective of antitrust law and this decision, looks like the answer is “yes”, if it’s a large enough event or has rules or practices arrived at in collusion with others. It’s not the legal environment I chose, but it looks like that’s the rationale. It would seem to go for music competitions too, so it’s not limited to sports. Not limited to competitions either, probably true for theater as well. The only thing that saves most such enterprises from the wrath of antitrust law is that they’re far too small to be considered significantly in restraint of trade in any way; the participants have many other independent choices.

            2. “in amateur sports, the principle of amateurism has to govern ALL the participants. Nobody should be making bank…”

              Tell that to the IOC.

              1. A lot of Olympic sports are now professional, and the optics you describe actually a big reason why that change eventually happened.

                1. I suspect he means that the IOC does not pay the athletes to perform in the Olympics, despite the fact that for most of them, it is the only time anyone will ever be paying to watch them perform.

          2. Nobody should be making bank. Not the administrators, not the coaches, not the schools.

            It was something they were trying for the 1982-1985 seasons, so it was experimental. But colleges have expenses associated with their sports programs, including the programs that do not generate revenue, and raising the money to pay those expenses doesn’t violate anybody’s idea of amateurism.

            1. 1. Colleges’ LEGITIMATE expenses for their revenue sports programs are far lower than the revenue sports bring in.

              2. Colleges, right now, are cutting non-revenue sports. Colleges that make boatloads of money off football and basketball are cutting non-revenue sports. Why? Because administrators are liars who only use non-revenue sports as a crutch to justify their own theft of millions of dollars from Black football and basketball players.

              The reality is, you can run the non-revenue sports as academic programs, just like club and intermural sports. And then the revenue sports can be run as the professional sports they are. The people who would lose out would be the administrators, who have no talent and should not be making millions of dollars off other people who do have talent.

              1. 1. Colleges’ LEGITIMATE expenses for their revenue sports programs are far lower than the revenue sports bring in.

                We were talking about the case where the NCAA limits the number of games than can be televised. Suppose they limited the revenue to the amount necessary to fund the sports programs? Would you still say that “Nobody should be making bank”?

                1. If we created a mythical world where athletic administrators were paid typical academic salaries, the NCAA did not accept any more money than was necessary to put on, sanction, and regulate college sports, sponsorship was limited to in-kind gifts such as equipment and the tickets were distributed for free or at cost to students and not to donors, you could then start making arguments about amateurism. I don’t think anything in the antitrust or any other laws prohibits a truly amateur sports structure.

                  But you seem to think the NCAA creating artificial scarcity in television revenue (which it did to make money and maintain control of the revenue) was something that it wasn’t. The NCAA, as it has existed since the start, is a scheme to steal money from and enslave talented athletes.

                  1. No, as it existed from the start, the NCAA was a scheme to discourage and eventually abolish intercollegiate football. They were on their way to phasing it out in the initial years of the NCAA. Most of their member schools had already abolished the winter and spring portions of their seasons, and NCAA got the remainder to do so. Meanwhile they ratcheted down the number of games their school teams were allowed to play per fall. If they’d continued on the trajectory in the second quarter century of NCAA’s existence that they’d established in the first, they would’ve stopped playing football entirely before 1960.

                    Instead NCAA reversed course, started promoting instead of discouraging, and added other sports. They even glommed onto intercollegiate sports that’d been organized by other bodies such as AIWA, and took part in squeezing the AAU out of adult athletics.

                    So what you wrote may rightfully be said of the NCAA only starting in the 1930s, not since its start.

                    1. No, as it existed from the start, the NCAA was a scheme to discourage and eventually abolish intercollegiate football.

                      What is your source for this?

                    2. My source is a lot of reading on the early history of college football, as in the Journal of Sports History. I can’t lay my hands on it right now, but I digested the analysis of others I read.

                      Observers then and in retrospect differ as to how serious was Theodore Roosevelt’s threat to abolish college football. However, it looks like it had enough force that the collegians were pretty well forced to accept the NCAA’s hegemony rather than possibly even a harsher scheme or abolition. There was some intrigue and swindle in the transition, leaving less football-friendly people on the board, but the outcome was likely anyway.

                      If you look at the number of games allowed per season by NCAA, you can just do the math, project the line from the first ~25 years, and it hits 0 about when I said, or maybe earlier. It was hoped by some that they might even more quickly get football down to a kind of ceremonial thing once a year — very much like the intramural events that’d preceded it at Dartmouth and elsewhere. But then you look past ~1930 and the number of games allowed goes upward from the bottom it hit.

                    3. They’ve still never gotten back to anywhere near the really heavy schedules some of the big football schools used to play. One year NYU played 21 games, and around that time Columbia played 18. When they started, there was no such thing as football season, it was whenever they wanted in the calendar: winter, spring, summer, or fall. But by the time the NCAA came in, it’d settled down to a season that at least started in the fall.

                      Amazing as it may seem, baseball used to play during more of the year than it does now. Thanksgiving Day was the traditional end of baseball season, but if they had an extended thaw during winter they’d come out even then too.

                      The tradition of football’s starting in the fall apparently came from the British Isles, where fields became available once the crops were harvested. It had little to do with the academic calendar.

            2. Seriously, the only reason the colleges should have sports programs to begin with is to keep the students healthy. Any team associated with a school should be more in the nature of a club.

              Some of these universities are practically sports franchises that incidentally provide educations.

              Well, this is not my ideal world. That’s for sure.

              1. Seriously, the only reason the colleges should have sports programs to begin with is to keep the students healthy.

                That wouldn’t exclude the notion of charging gate receipts or for advertising sufficient to fund the enterprise.

              2. Brett — look at the MIT model.

        4. The purpose wasn’t to limit the commercial nature. It was to protect gate receipts and to increase parity to improve the product. Both were, and the NCAA agreed, commercial purposes.

          1. The purpose wasn’t to limit the commercial nature. It was to protect gate receipts and to increase parity to improve the product.

            This is all done to improve the product. But what is the “product”? According to the Court:

            Moreover, the NCAA seeks to market a particular brand of football — college football. The identification of this “product” with an academic tradition differentiates college football from and makes it more popular than professional sports to which it might otherwise be comparable, such as, for example, minor league baseball. In order to preserve the character and quality of the “product,” athletes must not be paid, must be required to attend class, and the like.

            The Court decided that rules that restrict output do not preserve the “product,” but the dissent disagreed:

            In short, “[t]he restraints upon Oklahoma and Georgia and other colleges and universities with excellent football programs insure that they confine those programs within the principles of amateurism, so that intercollegiate athletics supplement, rather than inhibit, educational achievement.”

            Whichever way you look at it, the effect of the television restriction that was in place was a greatly reduced emphasis on television revenue and a more even distribution of those revenues among NCAA schools. The same incentive wasn’t there for the big schools to pay extravagant salaries to coaches, nor did that make economic sense when much less money was at stake for the big schools.

            1. The case was wrongly decided on other grounds. There was no anti consumer component (which should be required). But the argument against the NCAA was spot on. You can’t define your product as requiring violation of antitrust to avoid antitrust.

              1. You can’t define your product as requiring violation of antitrust to avoid antitrust.

                On the other, the Sherman Act does not apply with identical force indiscriminately to all organizations, no matter what their purpose. As the dissent in NCAA v Board of Regents (‘Wizzer’ White) said,

                “…it is important to remember that the Sherman Act “is aimed primarily at combinations having commercial objectives and is applied only to a very limited extent to organizations . . . which normally have other objectives.” Klor’s, Inc. v. Broadway-Hale Stores …The fact that a restraint operates on nonprofit educational institutions as distinguished from business entities is as “relevant in determining whether that particular restraint violates the Sherman Act” as is the fact that a restraint affects a profession, rather than a business. Goldfarb v. Virginia State Bar…The legitimate noneconomic goals of colleges and universities should not be ignored in analyzing restraints imposed by associations of such institutions on their members, and these noneconomic goals “may require that a particular practice, which could properly be viewed as a violation of the Sherman Act in another context, be treated differently.” Goldfarb v. Virginia State Bar…

                The bottom line is that by treating college football in the 1980’s as primarily an economic concern the Supreme Court forced the NCAA to allow college football to become a huge moneymaking enterprise, which is now as a result poised to lose its ability to insist on amateurism because it is awash in football money that people say justice requires be shared with the players.

                1. “The bottom line is that by treating college football in the 1980’s as primarily an economic concern…”

                  The dissent was written by a college football hall of famer. It’s understandable he had a different perspective. In any event, you’re eliding what actually happened. The NCAA, when presented with a rival organization (CFA) negotiating a TV contract with NBC, threatened to interfere with the very-much economic concern the NCAA had in maximizing its own television contract with ABC or CBS. To undercut this problem, the NCAA threatened its members that were also in the CFA with sanctions. The idea that this was not a profit-motivated price-fixing scheme is ludicrous. The NCAA was engaged in ordinary protectionism against a competitor.

                  Televised college football was an “economic concern” long before NCAA v. U. of Oklahoma. The NCAA’s contract with NBC in 1952 was worth the equivalent of over $10M today.

                  1. The idea that this was not a profit-motivated price-fixing scheme is ludicrous.

                    In the first place the effect of the rules that the NCAA had put in place was to reduce the overall profit to colleges (the NCAA’s employers), so calling it “profit-motivated” is somewhat incongruous. Furthermore, any restriction on payment to athletes in an amateur sports league can equally be termed a “profit-motivated price-fixing scheme.” Are you opposed to amateur sports leagues?

                    Televised college football was an “economic concern” long before NCAA v. U. of Oklahoma.

                    Suffice it to say that there was drastically more money to be had after that case, especially for the big boys.

                    1. “In the first place the effect of the rules that the NCAA had put in place was to reduce the overall profit to colleges (the NCAA’s employers), so calling it “profit-motivated” is somewhat incongruous.”

                      Price-fixing schemes often have this form. If there are hundreds of small NCAA schools that generate revenue exclusively through gate receipts at football games, but they feel threatened by a small minority (dozens) of schools who generate revenue and interest in televised games to the detriment of gate receipts, the smaller schools would organize to depress television revenues to save their own gate receipts. This is what the CFA alleged the NCAA (and in particular its broad member base) was engaged in. The CFA’s members knew they could make more money if there was not a horizontal restraint, because consumer preferences were in favor of putting more money in the hands of CFA’s members than in all NCAA members, at least in the absence of a price-fixing scheme.

                      (I will concede that this particular price-fixing scheme was not theoretically possible given that the product is not the sort that is subject to monopolist pricing if you reduce supply. But SCOTUS misunderstood who the “consumer” was, and antitrust law long abandoned an exclusive commitment to consumer protection. That’s me arguing about what the law should be; the law is NCAA v. Univ. of Oklahoma.)

                      “Furthermore, any restriction on payment to athletes in an amateur sports league can equally be termed a “profit-motivated price-fixing scheme.” Are you opposed to amateur sports leagues?”

                      You keep asking this asinine question. The NCAA is not about “amateur sports”. The phrase student-athlete is an invented concept that NCAA members created to protect themselves from worker compensation laws. For decades the member schools have been loudly flaunting amateurism with only occasional reprimand from the NCAA. The amateurism rules are not in place to preserve the product of amateur sports. The NCAA is a cartel that exists to protect its members. You’re being monumentally naive when you pretend that this has something to do with amateurism.

                      Setting that aside, just because one thing can be termed a profit-motivating price-fixing scheme doesn’t mean anyone can prove an antitrust violation for it. There’s no reason to think that a poorly enforced arbitrary limit on academic compensation’s failure to survive the rule of reason means any amateurism-protecting rule will likewise fail. If you want to sell student athletics, you can’t do it if the people playing aren’t students. So rules to enforce only participation by students may well survive antitrust scrutiny.

                      “Suffice it to say that there was drastically more money to be had after that case, especially for the big boys.”

                      Yes, of course. A fact that proves the CFA was right that the NCAA’s restraint was actually and actively depressing the market of televised college football. NCAA v. Univ. of Okla. certainly looks justified in hindsight.

      2. Of course it is an commercial activity. That is why coaches are often the highest paid university employee.

    2. College sports are a multi-billion dollar industry, that is why college coaches often make more than Governors. Everybody makes a profit but the players

  5. I am somewhat sympathetic to the notion that there should be, if compensation is allowed, some kind of salary cap or redistribution to preserve competitive balance. Sports leagues where competitors do make money, like the NBA, have these, so I am vary of courts simply deciding what the rules should be for that. Furthermore, for the same reasons I dont think the analogy is perfect.

    A salary cap for nursing would be obviously anti-competitive, a salary cap for sports might increase the overall size of the pie instead of decreasing it by making it more interesting to watch.

    But I think Kavanaugh recognizes those concerns. Judges shouldn’t decide everything.

    The ruling here is an excellent start.

    1. Those salary caps are typically negotiated between the league and the players’ unions. (As Kavanaugh mentions.) I think NCAA athletes would be more than happy to sign up for a system like that.

      1. At U California, graduate teaching assistants are in the Teamsters Union. I don’t see why the college athletes should not have similar unionized bargaining power

      2. This points up part of the problem. How exactly are you going to compensate the athletes? Will it be essentially a free market, where the top athletes command top dollar? That has the potential to completely destroy competition in college sports (and they are currently doing a decent job at destroying it without comp issues). Or will you have a revenue sharing model where the teams pool their revenues (good luck with that) and the players get paid on some sort of scale.

        1. There will be a scholarship athletes union, that will take charge of the revenue distribute it among equitable grounds, and keep it from being free market.

          But I’m not quite sure what would happen if say the University of Alabama college scholarship athletes decided to decertify the national union, and then set up there own local independent bargaining unit, dominated by say the football and basketball ball program.

          Then again Congress could decide legislation is needed and God knows what they would come up with.

    2. I am somewhat sympathetic to the notion that there should be, if compensation is allowed, some kind of salary cap or redistribution to preserve competitive balance.

      But most of their income will come from endorsements, which is not capped. The NCAA has already given the go ahead for this, which has raised the issue of athletes being influenced in their school choice by endorsement deals put together by wealthy alumni.

    3. I think they’re on a legal slippery slope on which there are only two possible stopping points. One would be for Congress to amend the antitrust laws, and then who knows what the rules might become? The other would be that varsity sports end, all becoming amateur club sports; at a brief intermediate stage I think we might well see colleges license their names to professional sportspeople to represent them in competition, but after a short while that’d be seen as as silly as it is.

      I’m of two minds about this. On one hand I’m against antitrust law, and cheer anything that weakens it. But on the other I recognize that big time college sports is an uneconomic fluke peculiar to the USA, and that we’d be served better by having the serious athletes go to college, if at all, only after their pro careers or part time in the off-season, and leave intercollegiate sports to student clubs among other amateur sports clubs for adults. Plus, we should have more minor league and semi-pro spectator sports.

  6. Under the rule of reason, the NCAA must supply a legally valid procompetitive justification for its remaining compensation rules.

    Is there a procompetitive justification for requiring student-athletes to attend and pass real classes? I understand that many do not but this is kept hidden from the NCAA. Can it come out of the closet now? Schools like Duke have heretofore be hampered in their recruitment by being limited to the pool of students who have graduated from high school and who can actually do college-level work. But it would definitely be procompetitive if colleges could recruit students who can’t even do high school level work. Perhaps we could just give them grade-school classes to attend at college.

    1. I was certainly entertained to discover that a College might want to pay an athlete with “post-eligibility scholarships at graduate or
      vocational schools.” That speaks volumes about the education these athletes are assumed to receive during their eligibility.

      1. Well, then drop the pretense and let them attend vocational school in college. And drop the rule that they must be treated the same as the non-student-athletes. Colleges can’t let the regular students take non-academic classes.

      2. Some actually do. Typically, they aren’t the ones who are going to be going pro. Many college athletes do actually want to get degrees in education so they can coach sports themselves or business so that they can make a living after throwing a ball no longer supports them.

        Just because there is a number of athletes (especially at the top teams) who eat drink and breathe their sport to the detriment of all else doesn’t mean that there are others who do not.

    2. I think class attendance issues are orthogonal to the point here. If the NCAA paid its athletes fairly at their market value through a collectively bargained contract, and that contract included academic requirements, I can’t imagine any court striking it down. That’s not the world we live in, though.

    3. The requirement that students enrolled in college be academically eligible is not a compensation rule.

      1. The Sherman Act says:

        Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal.

        Don’t academic eligibility requirements keep certain athletes from being able to compete, and doesn’t that restrain trade?

        1. Every contract is a restraint on trade. The Sherman Act doesn’t prohibit every contract. It’s broadest enforcement is for certain types of restraints, like price fixing.

          1. It’s broadest enforcement is for certain types of restraints, like price fixing.

            And it was not intended to outlaw sports competition limited to participants who were amateur and did not earn anything from the sport.

            1. I don’t think the Sherman Act is going to prevent colleges from requiring that student athletes remain academically eligible. The rule that they not get paid is coming down. You can’t just define your product as one in which you don’t pay anybody. I can’t dance around the Sherman Act by defining my widget company as one engaged in price-fixing along with my competitors to prevent new market entrants.

              1. The rule that they not get paid is coming down.

                If the Sherman Act didn’t outlaw amateur sports leagues then how does the rule that athletes not be paid come down?

                1. The NCAA’s rule is so poorly enforced and managed that they won’t be able to defend it against antitrust challenges. Just like they couldn’t defend even moderate limitations on academic compensation. As far as cartels go, the NCAA is peculiarly amateurish, pun intended. Another organization may have better luck.

  7. I sort of lean towards not paying players and instead see that they receive tremendous benefits.

    National exposure
    Excellent coaching/training
    – with easy segues to the Olympics or pro leagues
    College exposure, education, and in some cases graduation

    1. They’ll get all of those whether they get paid or not. And they bring in lots and lots of revenue. So pay them.

      1. Or at least give the schools the option to pay them.

        1. and let the free market decide the value of the compensation that players receive. Maybe the exposure, etc, is enough, maybe not.

      2. ” So pay them.”
        Exactly!

    2. I sort of lean towards not paying players and instead see that they receive tremendous benefits.

      “Procompetitive” refers to restrictions on competition that are necessary in order for there to be any competition at all, such as, for example, a draft. How can not paying players be justified as procompetitive?

      1. A draft is not necessary for there to be a product at all. It’s also a violation of existing antitrust laws. See: https://casetext.com/case/smith-v-pro-football-inc

        1. That case held that a draft that is “significantly more restrictive than necessary” is not pro-competitive. It did not hold that drafts per se are not pro-competitive.

          1. I’m not aware of any case upholding a draft on pro-competitive grounds. The NFL recognized they’d never be able to get a draft past antitrust laws, which is why they solved that problem with collective bargaining. But I’m willing to hear your proposal for a sufficiently not as restrictive as necessary draft that would further the goal that leagues have in group boycotts while also not running afoul of antitrust laws.

      2. “Competitive” in this case doesn’t refer to sports competition, but rather to economic competition for customers and/or suppliers.

    3. The issue is not whether they get some benefits from the current system.

      It’s whether they are entitled to sell their services for the best deal they can get.

      And all those alleged benefits can go away in a hurry if the scholarship is taken away, which it generally can be at the discretion of the coach.

    4. ” I sort of lean towards not paying players and instead see that they receive tremendous benefits. ”

      One could have advanced a similar argument about me, when I graduated from law school and prepared to join a big law firm (great training, exposure to valuable professional work, easy segue to other opportunities).

      Instead, I got three raises, a stipend, and a bonus between the time I accepted the employment offer and the day I reported for work. (It was a different time, when law firms aggressively competed for candidates.)

      Whatever system would be best or acceptable for NCAA athletes — the most valuable players, at least — the current system is not it.

    5. Apedad, I could concur, for the 10% or so that go professional after college.

      However, the vast majority are paid only in a college education, a sub-par college education that is sabotaged at every turn by the grueling training and playing schedules. Many are permanently injured during their college career, and many more are simply not good enough for the professional leagues. When they graduate, they have no chance of being paid professionally.

  8. The NCAA had many opportunities to develop a defensible system.

    So far as I can determine, it has not tried. Instead, it adopted a ‘let’s see how long we can hold up this sketchy dike, relying on stale and undeserved privilege’ approach. Those who choose that approach and lose tend to get — and deserve to get — swamped.

    I root for the players, not for the schools (or the athletic departments, or the coaches, or the boosters — all of whom have been rigging the system in their favor and against the players’ interests since I was a sports writer covering the system decades ago).

  9. You’d think a conservative would be less gleeful about killing amateur college sports.

    Not every school is Alabama, paying players won’t work for most colleges and certainly won’t be viable for any sports except for football and basketball. Sports will be dropped and rosters shrunk.

    The net effect will be far fewer “African American” from “lower-income backgrounds” getting an education.

    1. The schools and sports that can’t afford top athletes will continue to refrain from paying, perhaps offering scholarships and hoping that will suffice, with corresponding effect on the quality of teams (which, for many sports, won’t be much).

      The current system generates revenue from certain popular sports (basketball and football, mostly) and redistributes it to less popular — and often niche — sports (golf, tennis, wrestling, soccer, rowing, volleyball, bowling, water polo, skiing, lacrosse, hockey, gymnastics, etc.). The teams that do not generate revenue seem unlikely to become bidders for top gymnasts and rowers.

      Many football and basketball programs struggle financially, at least without creative accounting, although to some degree the accounting in this context is subjective. It is unlikely those teams will pay much.

      Some less-popular college sports teams may need to become more aggressive or creative with respect to generating funds from commercials, alumni, sponsorships, and the like, to offset loss of football and basketball revenue from football and basketball that heads toward the players responsible for that revenue.

    2. I think the “glee” is about allowing the free market to determine employee compensation. Which seems to be classic small L libertarianism.

      Whether it’s “conservative” or not is fairly meaningless, as the term “conservative” doesn’t seem to mean anything in the Trump era.

      1. Referring to Kav, not commentators here.

        1. “You’d think a conservative would be less gleeful about killing amateur college sports.”

          Why should conservatives be especially fond of “amateur” college sports? Because so many strong football programs are fielded by lower-quality southern schools located in backwater towns? Because religiously affiliated schools tend to benefit from the current system for college basketball teams?

          Or it is just the ‘exploit those athletes’ angle?

          Would more athletics programs resembling those of Harvard, Carnegie Mellon, Chicago, Columbia, and Case Western be good or bad?

          Would fewer football programs resembling those of Baylor, Alabama, Auburn, Oklahoma, Ohio State, and Florida State, and fewer basketball programs resembling those of Kentucky, Baylor, Memphis, Georgia, and North Carolina, be good or bad?

  10. Has anyone heard what Senator Tuberville thinks about all this? Such a mind!

  11. The thing that always bothered me about the NCAA was not the restrictions on paying athletes, but the restrictions on letting the athletes make money independently. It’s one thing to say that a school can’t give a student a salary to play football for them; it’s another to say that a student can’t play football because Nike or a local car dealership wants to pay the player for endorsements.

    1. It creates a go-around for the colleges directly paying the student athletes.

      Coach says “I can’t pay you…but if you come here, my buddy Joe will. It’ll be an “endorsement””.

      1. I know the purported rationale. I just don’t think it’s morally let alone legally justifiable.

        1. If you’re seeking to keep college sports non-professional….ie, a situation where the players don’t explicitly make a living off getting paid to play sports…it is needed.

          If you want to make college sports professional, where the players are paid a salary and it is literally their job to play sports, and their income depends on how well they play…

          Then that’s different.

          Personally, I think making “college” sports a professional sports organization is a bad idea.

        2. I just don’t think it’s morally … justifiable.

          Is it morally justifiable to have an amateur sports league which excludes athletes who have earned money from playing the sport? Take golf. According to the USGA rules: “An “amateur golfer,” whether he plays competitively or recreationally, is one who plays golf for the challenge it presents, not as a profession and not for financial gain. … The purpose of the Rules is to maintain the distinction between amateur and professional golf and to ensure that amateur golf, which is largely self-regulating with regard to the Rules of Golf and handicapping, is free from the pressures that may follow from uncontrolled sponsorship and financial incentive. Through appropriate limits and restrictions, the Rules are also intended to encourage amateur golfers to focus on the game’s challenges and inherent rewards, rather than any financial gain.”

          Is this rule morally justifiable?

    2. That’s been a common rule in amateur sports organizations around the world, because everybody quickly sees it as a way to make money off the sport while appearing not to.