The US Supreme Court rarely does anything that generates a comment here. These rants deal with matters that are beneath the level of societal import at which the Justices engage. However, for the second time in about 3 years, the Supreme Court has ruled on a “sports case” in such a way as to pave the way for change.
Three years ago, the Court struck down PASPA and opened up sports betting opportunities in any State that wished to have such an activity and legislated its regulation. Any sports fan who has been paying even passing attention realizes the impact of that ruling. Last week, the Court ruled on a case known as NCAA v. Alston. Based on the analyses I have read by people far more schooled in legal matters, Alston opens the doors for sweeping changes in the way college athletics are governed and administered in the US. I will not pretend to know more than they do; so, let me offer up what I see as possible consequences of the ruling in NCAA v. Alston.
First off, it is important to note that the decision last week was a 9-0 decision. Justices from across the philosophical spectrum of the Court all agreed that Alston was the winner here. That unanimity could be important should any future case come to the Court where Alston would be a relevant precedent. Having said that, the way I read the Court decision is that it is sharply focused. It seems to me that the Court only said – unanimously – that the Federal anti-trust laws apply to the NCAA just as they do to business entities. This decision does not demand that the NCAA begin to pay college athletes starting tomorrow or anything nearly so “cataclysmic”; but it sure does seem to leave the door ajar for a challenge to the hallowed concept of “amateurism” that the NCAA clings to.
What Alston specifically will allow – because these were the bases of the original suit against the NCAA – is for collegiate athletes to receive “education-related items” as part of their “compensation” for attending a school and playing their sport. Moreover, the value of those “education-related items” cannot be capped by the NCAA who argued that without caps there would be recruiting advantages for certain schools thereby tilting the playing fields. [Aside: As if such disparities do not exist now…] The “education-related items” in this context mean things like:
- Paid internships – – in addition to unpaid ones
- Post-graduate employment opportunities
- Post-graduate educational opportunities
When I look at that list – and even if I mentally add a few things of similar standing to that list – I have to ask myself how and why this case was litigated all the way to the Supreme Court. The mavens at the NCAA expended the energy and the legal fees to take a case involving internships and laptops to the Supreme Court. That means they thought it was more important to do that than it would have been to work on meaningful reform of their rules, regulations and relationships with their “student-athletes”. Can it be that no one in the entire organization stood up on his/her hind legs and said something equivalent to:
- What the Hell are we doing here?
There are lots of advocates out there who believe that college athletes need to be paid and that there is plenty of money to pay them handsomely. There is plenty of momentum in that direction; intercollegiate athletics will be quite different twenty years from now. So, let me pump the brakes here for a moment. I want to look at college athletics in light of the decision in Alston with which I agree completely and what might happen down the road.
College athletes are already paid for their services. Please, do not allow activists in that area to pretend they are not. Anyone can argue that they are not paid sufficiently or proportional to the revenue they create, but please remember that they are paid for their services. College athletes get:
- Free tuition
- Free room and board
- Free tutoring
- Enhanced medical “coverage”
- “Cost-of-attendance” stipends
The general student body does not get those things and those things are plenty valuable. College athletes do not get the cash equivalent of those things – nor are they given the option to convert them to a cash payment – but they receive things that are of value. Moreover, college athletes get these “benefits” which have value and pay no tax on that value. Obviously, the total value of that sort of stuff will vary from school to school so it is difficult to come up with an estimated value; my guess is that package is worth about $125K if an average student tried to purchase it on the open market.
Those who argue that college athletes need to be paid for their services are actually arguing that they should be paid more than they are currently being paid – – but that rhetoric is not nearly as compelling or powerful than alleging that the college athletes are toiling on the fields and courts as unpaid serfs. Balderdash…!
The issue of NIL – – athletes’ Name/Image/Likeness – is about to blow up in the face of the NCAA and the way the NCAA seems to be trying to address it is to ask Congress to give it immunity from being sued for anything past or present that relates to NIL.
- Memo to NCAA: Be careful what you wish for. If Congress gives you that immunity, you will necessarily have to answer to the Congress on lots of other issues and that cure could well be worse than the current disease.
Just as in the case of Alston and especially considering the decision last week in that case, the NCAA is at least a 20-1 underdog to win a case giving them authority over NIL rights should they choose once again to expend the legal costs of pursuing such a matter. If such a matter went to court, I would characterize the NCAA as a modern-day Sisyphus pushing that rock up the hill only to have it roll back down the hill so he can try again tomorrow. There is a fundamental flaw in my analogy here and I recognize it:
- Sisyphus was in this predicament because the gods compelled him to be there.
- The NCAA would be doing this by choice.
Ergo, my only conclusion would be that the NCAA is collectively so stupid that the following applies to everyone there:
- The only thing they can learn from past mistakes is how to make bigger and more painful mistakes in the future.
The issue of NIL will probably not be an unvarnished win for college athletes, however. Consider that NIL rights had been available to Trevor Lawrence for all his years as the QB at Clemson when just about everyone had projected him to be the #1 pick in the NFL Draft all the way back in his freshman year. He could have made lots of money over those three seasons licensing and monetizing his name, image and likeness.
Now consider an imaginary woman who is the star of Clemson’s lacrosse team… [Aside: I do not know if Clemson even fields a lacrosse team; this is a metaphor.] This woman – – call her Suzy Flabeetz, the twin sister of Joe – – is not going to get nearly the same number of opportunities to license her NIL as Trevor Lawrence would nor would Ms. Flabeetz be paid at the same licensing rate as Lawrence. If you want to chalk that up to inherent sexism in American society, have at it. The fact remains that fewer people are going to pay less money to the star athlete on the women’s lacrosse team than they will for the star QB on the football team. Maybe those roles will be reversed over the next 100 years, but they are not going to be reversed next week just because college athletes can now control their name, imaging and license rights.
There are many different categories of laws. There are laws of science that cannot be “overturned”. Astronomers deal with Newton’s Laws and Kepler’s Laws; anyone working in fields related to electrochemistry must come to grips with Faraday’s Law; electricians have no choice but to accept Ohm’s Law. Then there are laws that result from legislative bodies – or autocrats – which are subsequently enforced by other human beings and interpreted by courts. That is the sort of thing that results in NCAA v. Alston and/or Brown v. Board of Education. And then there are “Laws” that do not have similar stature or standing.
- Mention Murphy’s Law to anyone; they know it; they have seen it in action.
- Mention the Peter Principle to anyone; they know it; they have seen it in action.
- Mention Parkinson’s Law to a program manager; he/she deals with it daily.
There is the potential here for the application of The Law of Unintended Consequences. I need not delve into the depths of that law; everyone knows it exists and how it can insert itself into various issues and conflicts. So, how might it apply here…?
In a consenting opinion, Justice Kavanaugh seemed to write that the athletes in minor sports should be able to bargain collectively over benefits that would apply to specific minor sports teams. Collective bargaining has been around for a long time, and it has a strong standing in American jurisprudence. However, this is where “Unintended Consequences” might tumble down:
- Business entities collectively bargain with organizations that represent employees of that business entity. General Motors bargains with the United Auto Workers who provide GM with people to build their cars. GM does not collectively bargain with the folks who provide and maintain the coffee machines and the vending machines in the break rooms of their factories. The people providing that service are not GM employees.
- If the NCAA collectively bargains with some or all its “student-athletes”, they begin to take on the flavor of employees of either the NCAA or the schools represented by the NCAA. For the purposes here, the only important point is that athletes could morph into employees.
- When employees are compensated for their labor/services, those employees pay federal, State and Local income taxes on that compensation. Scholarships and fellowships that provide for things other than tuition and course-related expenses are supposed to be reported as income on the Federal tax return. The instructions for Form 1040 say explicitly, “…amounts used for room, board and travel must be reported on Line 1.”
- Suddenly, athletes will need to hire tax accountants to handle their filings. Absent that, they might run afoul of the tax laws and the NCAA will surely have an eligibility standard ready to be implemented for “tax cheats”.
The Supreme Court did sports fans a great service three years ago in throwing out PASPA and then again last week in its unanimous ruling in Alston. My only cautionary note here is that we should not expect monumental changes in the landscape of college athletics overnight. Change will come, and change will be significant; but now is the time for a reassessment of where we are and what various paths forward might do to the fabric of college sports.
Let me close this rant today with an observation about sports by the English writer, George Orwell:
“Serious sport has nothing to do with fair play. It is bound up with hatred, jealousy, boastfulness, disregard of all rules and sadistic pleasure in witnessing violence: in other words it is war minus the shooting.”
But don’t get me wrong, I love sports………