Student-athletes 1, NCAA NIL?

SCOTUS suits up in lawsuit challenging definition of amateurism

The justices on the U.S. Supreme Court love them some sports. Brett Kavanaugh and his family regularly attend the NCAA Men’s Basketball Final Four (and may do so this weekend). Clarence Thomas and his wife Ginny are big-time Nebraska Cornhuskers fans. Amy Coney Barrett reportedly tailgates at Notre Dame football games. Elena Kagan often attends Princeton basketball games when the Tigers play near D.C. Sam Alito follows the Philadelphia Phillies; Sonia Sotomayor is a baseball fan as well. Coloradan Neil Gorsuch backs the Denver Broncos.

This current crop of jurists was well-suited to hear arguments this week in NCAA v. Alston, a lawsuit challenging limits on the “educational benefits” NCAA member colleges could pay scholarship athletes. The NCAA want to retain a cap, claiming the need to preserve amateurism. But the justices’ questions suggested the organization protests too much as it pockets billions of dollars in broadcast rights while the “talent” gets bupkis.

An NCAA loss, especially a narrow one, wouldn’t end college sports or enable scholarship athletes to make millions pitching car dealers and cell phone plans while they’re on campus. It would, though, undermine the organization’s hypocrisy about amateurism. And, almost certainly, jumpstart moves in Congress and state legislatures letting college athletes play while taking over-the-table jobs — just as any other college student can do.

From SCOTUSblog’s Amy Howe: 

The lawsuit, filed in 2014 by male and female Division I athletes, argued that the NCAA’s restrictions on eligibility and compensation violate federal antitrust laws because the restrictions prevent scholarship athletes from receiving fair-market compensation for their labor. 

The 9th Circuit Court of Appeals ruled for the students. Sort of. It said the NCAA couldn’t limit schools from paying for students’ “educational benefits” but could continue barring students from participating in sports if they were compensated for things unrelated to education.

Redefining “educational benefits” will be a fun and profitable pastime for lawyers everywhere who bill by the hour. Computers, some travel costs, and internships are allowed. But would a new definition include expense accounts? “Study” overseas? Travel costs for guests who attend games? Creativity welcome.

Thomas asked if indeed this would lead to a bidding war, with the big-money schools recruiting kids by offering a nice educational benefit package that, say, second-tier schools couldn’t. Sotomayor wondered if an NCAA loss would blur the distinctions between amateur and professional sports so much that fans wouldn’t be able to tell the difference. Fair points.

But Alito, sounding, as The Washington Post said, like a “union organizer,” was having none of it. The Athetic’s Chantel Jennings, quoting Alito:

(Along with his concerns about “cherry picking” from big-money schools, Thomas also was troubled with the NCAA’s role here.)

If SCOTUS narrowly upholds the 9th Circuit, the bidding wars will begin. Before this happens, though, Congress and state legislatures may step in.

A federal bill introduced in early February would let athletes maintain their eligibility and receive compensation for use of their “name, image, or likeness” by the NCAA or their school.

It also would let athletes organize to negotiate group marketing deals, say with video-game makers that want to use avatars representing actual players in their games.

This is more than some left-wing, reach-for-the-union-label cause. Two years ago, former 6th District U.S. Rep. Mark Walker, who’s running for the 2022 GOP U.S. Senate nomination, introduced a similar bill in the House. Walker’s bill didn’t pass. But it got so much attention that the NCAA set up working groups to figure out some type of NIL system. 

The process presumably was derailed by the COVID pandemic.

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The National Conference of State Legislatures also reports that at least 19 states are considering bills that would allow college athletes to receive compensation, either from “name, image, likeness” or by requiring schools to let scholarship athletes who are injured and can’t play keep their scholarships so long as they’re academically eligible.

In mid-March, N.C. Democratic state Sens. Paul Lowe, Natasha Murdock, and Wiley Nickel filed S.B. 324, enabling student compensation for name, image, or likeness.

As NCAA promos say, only 2% of scholarship athletes will play sports professionally. 

Those kids will do fine, no matter how SCOTUS rules.

I wonder about the young men and women who play at lower-profile schools or whose performance sells tickets but lack the talent to play professionally. Why shouldn’t they have the chance to represent local businesses or promote national brands in their college towns?

Who’s hurt by that?

The men’s basketball tournament alone generates nearly $800 million in TV revenue. College football bowl games and the championship playoff another $400 million. Yet the players see almost none of it.

If the NCAA loses this lawsuit, the next TV deals — which are vehicles for selling ads — may be less lucrative for the organization and the schools. But more of it will go to the people producing the entertainment. As it should.


Extra shots

Friend and former John Locke Foundation colleague Michael Lowrey kindly noted an oversight in yesterday’s newsletter about COVID vaccinations: Shots given through federal agencies, including the Department of Defense, the Bureau of Prisons, and the VA. The CDC doesn’t break down distribution by state, but the feds have given more than 6 million doses overall.

Nearly 700,000 veterans live in N.C., and more than 100,000 active-duty military personnel. Those getting vaccinated outside the state’s distribution network boost our numbers overall.

Looks like I picked the wrong week to write about sports

Oh, I mean this …

… unless it’s the biggest April Fool’s joke ever!