Your TL;DR Alston Reader
The Supreme Court released a 9-0 decision on the Alston vs NCAA case today, ruling against the NCAA. Fuller analysis will follow from actual law-talking guys that will get linked in a UV in a few days. Here's the vibe:
The court was not only unanimous but explicitly and uncompromisingly rejected the NCAA's rationales for amateurism. In the main opinion:
Justice Neil Gorsuch wrote for the court that the NCAA sought "immunity from the normal operation of the antitrust laws,'' which the court declined to grant.
They also offhandedly blew up NCAA v. Board of Regents as a relevant precedent.
Kavanaugh issued a concurrence that exists to encourage people to give him a piñata he can apply a sledgehammer to:
Kavanaugh: pic.twitter.com/o2kKaAVZhT
— Timothy Burke (@bubbaprog) June 21, 2021
Elsewhere he explicitly states that "the NCAA's remaining compensation restrictions also raise serious questions under the antitrust laws." This is as comprehensive a defeat as possible on the merits.
[After THE JUMP: some more law talkin']
But what this doesn't do is open the floodgates immediately. The original case was handled by Claudia Wilkin, and the milquetoast remedy she proposed still stands. The rules specifically at issue are "the rules restricting the education-related benefits that student-athletes may receive, such as post-eligibility scholarships." So free laptops and other stuff but still minimal ability to pay those men (and women) their money.
This is the first pebble sliding down the mountain, though:
If a broader appeal were to go up, the NCAA is pretty much hosed. The right wing of the court sees an obvious restraint on trade that's objectionable on market principles, and the left wing of the court sees blatant inequality. The NCAA has no quarter.
— WWF Hall of Famer Ivan Bologna (@PV_GIA) June 21, 2021
A case directly aimed at all compensation restrictions is inevitable, and it seems equally inevitable that the Supreme Court will detonate NCAA amateurism whenever it has the opportunity to.
As for Michigan's part in this, I don't think it'll take much pushing for Michigan to jump in enthusiastically with the money cannon. We've had some encouraging comments from Warde Manuel about NIL and regent Jordan Acker posted this today:
I’m in the process of reviewing and understanding this morning’s Alston decision. What is incredible to me is how the NCAA house of cards collapsed so fast. Good riddance to the old system. Time for something new and fair for student athletes.
— Jordan Acker (@JordanAckerMI) June 21, 2021
I am not detecting any reticence on the part of the institution to point the money cannon.
Straight fire in Kavanaugh's concurrence:
"The NCAA ... 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."
The NCAA should have seen this coming. They have overplayed their hand from the start. If they would have paid a flat fee to players years ago they could have avoided a lot of these arguments that were clearly going to loss in court. This has always been a PR battle of the perceived and actual unfairness of a system that makes billions a year yet the individuals providing the labor get nothing.
As much as it would have cost to implement they could have still controlled the narrative and to a certain degree the price tag. Because of their greed they have lost all control. The NCAA essentially asked for this and now they have it. One thing you learn in law school is "bad arguments make bad law." If you want to take up a bad position on appeal, be prepared to get a horrible precedent. I don't know how this will change college sports, and I anticipate there will be some unintended consequences. But a more fair system for the students that are actually generating the profits seems like a likely and better outcome. Also, potentially the end of the NCAA?
There is no "end of the NCAA." The schools will always band together to coordinate championships and rules and whatever else. In some medium-term future it might not be called the NCAA but it will still be the exact same thing.
I agree. I was speaking to the current NCAA structure. I certainly agree there will be some organization to oversee national championships and set baseline rules. However, I would anticipate that the power conference would be much more involved in setting the rules, and punishing ruler breakers. Eventually this ruling (and others to follow) in theory are going to get rid of a huge part of compliance in recruiting. If you get rid of the compensation rules then you are down to arguing over "dead periods", "cream cheese" and "stretching"
“Hard cases make bad law.” I think that’s the saying you are thinking of. This wasn’t a hard case, it was a fat, arrogant organization claiming the rules of 1930 should apply in a 2021 world where coaches make millions, the bureaucracy is stuffed with high paying jobs, football and basketball generate over a billion dollars annually, athletes are compelled to devote ever more time to their sports, and they get . . . scholarships, period.
I'm admittedly getting ahead of things, but it would be interesting to see how the death of the amateurism model was reconciled with Title IX. I imagine that Title IX would keep a good number of D1 schools from from directly paying high dollar figures to players.
That's actually a good point. I have no idea what the answer might be but it will be interesting to find out.
I think the quotas we see should be done as well. Men not being able to get scholarships because there aren't enough women should be a thing of the past.
This seems like a straw man argument.
There are plenty of women and athletic females attending universities who could play as D-1/D-2 etc. athletes. The majority of college students are female. The "not enough women" argument is specious.
The choice is to have an equal number of athletic scholarships for mens/womens or to not do so.
That's a great point and a wild card. If the money cannon is to be distributed equitably, does that mean some sports get dropped? Fewer men's and women's non-revenue sports mean more money for the football and basketball, where the return can be much bigger.
Briefly looking at the finances of athletic departments, even before athletes are paid, there are 40 or so AD's that make money. Will athlete pay be donor funded? Or do we see the end of conferences and have 25 -30 profitable teams (that can afford to pay players market rates) broken into 2-4 elite conferences?
It's going to be interesting for sure. Seems like NIL is a better out for the colleges. Then they can provide equal scholarships while the market can determine which students make more money through NIL...
You raise a good question about the consolidation of conferences. I am not sure how much room there is for the college football powers of the world to dominate recruiting any more than they already do. But if there is any room, the Michigans and Alabamas of the world being able to directly pay their players, say, $20,000 year would presumably make the recruiting gap even bigger. As I said below, the NIL rights would produce more money for some players than pay from schools would. But it would be extremely hard for School A to beat School B for a recruit when School B can offer a guarantee of $20,000/year and School A can only offer a much lower amount (or nothing at all).
Yeah, I think there needs to be some kind of what I call 'generous stipend' program, that helps keep the current shape of college athletics. Under this program - the schools could pay the players for each semester they played on the team. But they would all get the same amount. And the P5 conferences would all have to pay the same amount. I think it would be a total mess if high school recruits and college players essentially become free agents on the hunt for million dollar contracts. And the rest of the NCAA is fucked if the top teams - who already dominate the sport - can just lavish (more and now legal) money on their players. Not only would non-rev sports get dropped but a lot of lower D-1 football programs would get dropped because they won't be able to compete. College football needs to come out of this more equitable, not less.
If the money cannon is to be distributed equitably, does that mean some sports get dropped?
Yes. The main reason I've been so much against pointing the money cannon at football and basketball players is that men's soccer, tennis, track, wrestling, baseball, lacrosse, hockey, golf, etc..... programs will get dropped like hot potatoes. Most football and basketball players are fairly compensated with a full scholarship, free coaching, and all the benefits. A handful are getting screwed, for a certain definition of screwed. I'm OK with that if it means that other programs can exist. But Title IX is a political minefield and therefore unfixable, and there's a limit to how much money can be spent on women's programs just on practical terms, and so men's non-revenue programs are going to get slammed.
I agree - non-revenue sports are in for a beating. However, they have been propped up for a long time by revenue sports.
In the end, I think non-revenue sports are going to be shut down with the survivors remaining in more of the amateur model, however NIL offers additional revenue opportunity while they are competing at their highest career stage (with the exception of those making a professional career or the Olympics). Of course Dave Brandon's non-revenue sports athletic palaces are going to be harder to pay for operationally, but hey, the facilities exist and are modernized for a good while.
There will also be a widening gap between the haves and have nots in football.
This is realistically how it should be though, unless we go back to one game a year on TV plus a bowl game.
There probably would be Title IX implications for the schools but not for Stephen Ross or Joe Simon or whoever else wants to exchange money for goods and services.
I believe that's right--as long as the money wasn't funneled through the schools--and the NIL compensation of some players would likely dwarf what they would get in pay from the schools themselves.
My amateur legal reasoning as to one way that payments for NIL could go directly to the players without violating Title IX would be that Title IX says: "No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance".
The schools / athletic departments could argue that the scholarship grants meet the intention of Title IX (educational programs and activity receiving Federal financial assistance) and the NIL moneys are "private economic activity". So I would imagine that any smart school would setup a private not-for-profit that handles all student NIL activity so as to create that firewall between the education activities and the commercial activities. The NIL are separate from the educational activity, hence no violation of Title 9. Kavanaugh's concurrence suggests that he (and likely the majority) would look at NIL moneys as fair compensation for their individual marketing value which is purely commercial and any attempt to have a common revenue pool from NIL activities that would be shared equally among all players would be seen as further attempt to suppress fair compensation.
You could counter that maybe it's similar to restaurant owners who have policies of pooling tips among staff instead of individual staff, but I don't think the current SCOTUS majority would buy off on. In any case, there's likely going to be more political pressure on federal lawmakers to codify something under a new Title IX revision instead of just leaving it to regulators and independent state legislatures.
The ruling today only relates to FBS and Division I men’s and women’s basketball. So the intersection with Title IX is relatively small for the schools in question. If a Division I basketball program wants to provide additional financial incentives for tutoring or post-graduation internships to a handful of the male students on its basketball roster, it will have to do so equally for the women.
Currently the staff of the men's basketball team makes substantially more than the equivalent staff of the women's basketball team. This is true ~everywhere and apparently it does not implicate Title IX.
If players are employees earning a market rate for their employment, does Title IX even apply? It's one thing to say the school needs to pay the same amount on scholarships for men and women when college sports are an "amateur educational opportunity". But when they are school employees just getting a cut of the earnings from the work they perform?
I think as long as it is couched as an equitable share of earnings, it would pass muster... as in, if the TV contract from Men's BBall is X, and the contract for Women's BBall is Y, then if the men get A% of X, the women must also get A% of Y.
This is amazing and I want to have a party to celebrate it. The NCAA is finally starting to get their just desserts.
Hope this leads to rapid change and makes it legal to compete for the best recruits. If it does, say good-bye to the hegemony we have in CFB.
I think the only change this is going to bring about is to get the money in the open and get a looksee from IRS. If a school is paying money now, why should they stop? Unless the original source was ill-gotten. If a school decides to start paying now, aren't they too late to the party anyway?
It would be interesting to see how things shake out.
So much of the discourse around paying players has gotten bogged down for years in "how are you going to do it?" "Oh figuring this out is just going to be impossible"
One of the really refreshing things about the court's ruling after years and years of this shit was the resounding message "Who gives a shit if it's hard?" The NCAA has spent years making "paying the players" out to be the Gordian Knot and then in comes the Supreme Court ruling 9-0 that "tough titty, figure it out" and "you better do it right or we'll kick your shit in again."
After years of everyone who wanted things to change being forced to do pages and pages of planning to convince people to do the right thing, now it's the assholes who have to do an honest day's work for their salary for the first time in their lives.
The exact same thing happened with Title IX. The schools had literal centuries to figure out how not to be sexist, but did nothing because they weren’t forced to act, right up until the day they were.
They’ll figure it out once amateurism is completely blown up, because they’ll have to.
Couldn't have happened to a nicer cartel.
You know, in this incredibly politically polarized era, it’s nice to see liberals and conservatives agree on something: that the NCAA sucks balls.
Not sure what this means structurally in terms of how the money gets to the student athletes, but I imagine that as this economic system develops there will arise a Players Association and CBA. Measures will then be negotiated by the "owners" (the universities) to mitigate the "money cannon" and there will inevitably be some form of "salary cap" in place to save these owners from themselves (and from the "big markets") like all of the US pro sports leagues. But until then, at least Michigan will have the firepower to keep up with the Yankees of college football.
I'd imagine there will be several "associations" to start and many of them will eventually fold. Going to be like herding cats - too many stakeholders involved with different interests (e.g. stars vs. lesser players, socioeconomic classes, revenue vs. non-revenue sports, etc.). One issue with a Player's Association is the limited timeframe. "Student-athletes" tend to only have 4-5 years of eligibility. Sitting out one of those seasons, particularly the junior/senior seasons, is going to be a tough ask.
Players Associations strength trends with the average career length of the players involved (e.g. if you can expect to have an 8-year career, then sitting out one would be a loss of 12.5% of expected lifetime earnings. But if you expect to have a 4-year career, then that's a loss of 25%). We can see this dynamic play out when looking at the NBA vs. NFL's respective player associations and their level of success. Another factor is the number of participants as it's easier to align small groups and take cooperative/coordinated action.
One way I see this developing is to have a series of associations that more directly capture discrete groups (e.g. one for P5 football, one for D1 non-revenue, one for high-major basketball, etc.). I'm not sure who will organize these associations - going to be difficult for students to do this. Maybe some new confederacy of conferences?
Net/net - going to be interested to see how this plays out but I predict that there's going to take about a decade until things settle.
to quote spencer hall (from a piece that brian re-tweeted earlier today):
This is a system that willfully commits one of the greatest insults possible: making someone poorer, then claiming that poverty as a necessary, virtuous, and good thing.
That's a lie, and anyone who's even been broke for a short time knows it. Pay them. Pay them what you owe them. Pay them because the worst American tradition is taking things that aren't yours and calling it destiny or virtue or principle. Pay them because there is no nobility in keeping someone a dollar poorer than they have to be in exchange for honest work. Pay them because any system that deliberately makes people poorer is one of designed cruelty, even at this relatively small scale. Pay them their goddamn money.
it's here, and it's brilliant:
The true unifier of the right/left: shitting on the NCAA
I understand why people think this is a Title IX minefield but I don't think it is. This ruling is incredibly limited. Now in the future, we may get a more broad ruling that says everything the NCAA is doing to limit compensation is illegal. But for now, that's not the case.
All the new ruling says is that the NCAA can't stop schools from providing compensation for education related expenses. The original district court ruling which was upheld today by SCOTUS says that the NCAA may fix the aggregate limit on awards schools may give for 'academic or graduation' achievement no lower than its aggregate limit on parallel athletic awards. And what is that limit? The current rate for that compensation is . . . $5,980. Not exactly a windfall. So the NCAA is still free to cap compensation related to education but it can't make that cap anything below $5,980. So in terms of Title IX, schools may have to essentially double their "compensation" to $11,960 (which could be a very big deal to a lot of schools) but it's not going to be some astronomical number.
The ruling specifically states the NCAA is free to regulate what they view as legitimate academic related achievement. "So, once more, if the NCAA believes certain criteria are needed to ensure that academic awards are legitimately related to education, it is presently free to propose such rules—and individual conferences may adopt even stricter ones."
Sexists have used everything to shit on Title IX since its inception.
The notion that we have to be sexist just to make things simpler for bureaucrats is every bit as horseshit as the NCAA’s amateurism case that just got eviscerated.
if your going to run "amateur" sports as a business they need to make money to survive
women's sports don't make money, other than football and basketball (sometimes hockey) men's sports don't either.
if the football team is going to pay it's players and draws 100,000 fans/game + TV revenue and women's field hockey is paying their players the same $ amount and draws 50 fans/game that's a fair and profitable model?
do football players feel cheated since they are the ones all the fans want to see and they are making the same as a FH goalie no one knows?
I get it, the players are the stars (for the popular sports) and want their so called "cut" but they don't want to really be growns ups and pay taxes on those $$s
I am not detecting any reticence on the part of the institution to point the money cannon.
Good, because you know OSU won't either and if we can't beat them now, there's no way we will beat them if they start out right paying players (and we don't). We need to pay them and we need to expand (and get into) the playoffs to give kids a reason not to stockpile at places like OSU, Clemson, & Bama. The current system doesn't give enough kids a reason. Right now no one can compete consistently with those three and that makes for a boring college football season. It's been rinse and repeat for the last 5-10 years and it's getting increasingly more predictable every year as the rosters get more and more stacked on fewer and fewer teams. CFB needs change. UM needs change.
Clemson does not have the money cannon that schools like Michigan, OSU, Texas, Texas A&M, Georgia, PSU have. Hell, Alabama is probably behind all the listed schools. I imagine it won't take long for the power to be redistributed away from Clemson and Alabama and over to the bigger money schools.
Maybe I don't understand this well enough. Is this a dumb take?
For most of these schools, especially Michigan, the academic wing of the institution isnt going to be compensating players. It'll almost certainly be the athletic department. Athletic departments make their money from the TV contracts the conferences have. Without looking I'd guess the Big Ten and SEC TV deals are pretty similar.
Given the topic at hand I feel compelled to reiterate that any reluctance to pay student-athletes in the name of amateurism did have a valid argument if the NCAA actually worked to preserve amateurism.
If ADs worked to keep seats and swag affordable, and broadcast games over public airwaves, etc., then you’d be justified in not paying athletes, because there’s no money to go around anyway. They’d be real amateurs, perish the thought.
Instead we had the likes of Dave Brandon bragging about how much money he was raking in, and the B1G Commish bragging about TV revenue, and the NCAA coddling cheaters who were literally caught violating the very amateurism rules they insist are so precious to them.
You can’t monetize something to all hell and maggots and then claim you’re the divine guardian of its fiscal purity.
Well stated.
I understand it's going to be "hard" figuring out how to compensate athletes; for a school, but we're not quite there yet anyway. And, oh dear, the poor rich people who now have to figure out how to divvy up the millions and billions of dollars they've been raking in (and paying) to the actual product(ion).
Can someone translate what this decision (and momentum) means for Michigan football for example? Theoretically, of course.
Michigan has lots of money. If the gloves were actually off, Michigan could be the NY Yankees of college football.
What does the decision do for the paper bag distributors in Columbus, Tuscaloosa, Norman and LA?
Thanks.
Cool to see a Free Fenster logo on the front page of MGoBlog. I realize it’s just Jordan’s Twitter profile pic but I’ll take it.
What was left out but implied is that the NCAA must go to Congress if they wish to be exempt from anti-trust law. Wonder if they’ll make an attempt at this to coincide with NIL law too??
the thing I am not clear on is WHO is going to pay the athletes?
the NCAA out of their massive cuts of their events and tournaments?
or the schools, many who were struggling already and already underwater before the "pandemic" killed all of their money pool.
unintended consequence will no doubt mean more schools cutting unprofitable men's sports to meet payroll (women have to keep their sports under title IX and be treated equally even if none of their sports are profitable to run and have little fan interest)
should all the athletes be paid more than their education, room & Board? I can see that argument, I can also see that for schools that are already paying their athletes it's just a bit more of a bump in those players salaries.
Other than minor sports going away not sure much changes competitively
the same powerhouse schools will make smart decisions and continue to dominate "college" athletics.
Simple: whoever can afford to. And that is more people and institutions/departments than many would lead us to believe. So many ADs are pretending to be non-profit organizations and, well, they're not pretending, they're doing exactly what non-profits do: finding a way to clean themselves of the profit!
Young athletes across the country have been getting monetary compensation for attending institutions...for decades now.
I hope everyone applauding this realizes that there isn't a stitch of evidence that Michigan either wants to or can compete with the Ohios and the Clemsons and the Alabamas in a semipro world of salary caps, negotiated payments having nothing to do with school, bagmen, and all the rest. There's nothing about its culture or leadership that gives any indication that it wants to and the historical record is clear. As the college football world has become more and more that over the past 15-odd years, Michigan has become less and less competitive.
We can rest assured that there will be a serious faction at the university and within the alumni base that will think about things like deemphasizing and going something like Ivy League, rather than getting involved in a semipro world. Part of me actually favors the idea. I'm really into Michigan students playing sports for Michigan and you won't have that in the semipro world. There are plenty of places to go for pro sports and there's no reason to settle for the lesser version. I certainly won't.
And as much as people deny it and laugh and scoff at it, there really is something human to the idea of playing a sport for the love of the sport and playing a sport for a school for the love of playing a sport for a school. If there wasn't, there wouldn't be so much testimony about it and we wouldn't have people doing things like training their asses off to run the Boston Marathon for free.
And there's obviously all manner of evidence over the decades that alumni of schools and other fans love watching students playing for love of sport and school.
I'd much prefer cutting Jim Harbaugh's salary to $300,000 to throwing that all away, but I guess we can't have nice things. People had to be pigs and MBAs and try to monetize it all and so here we are. Better to eradicate the pigdom and I wish people focused more on that. There's a better way forward than where it's headed.
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