Tracking the Death of Amateurism

Shut out by the Supreme Court and forced to allow name, image, and likeness rights, the NCAA just keeps losing

My apologies for forcing you to briefly stare at Brett Kavanaugh’s face on a Monday morning, but it’s necessary context as we sift through the rubble of what used to be the foundation of the National Collegiate Athletic Association.

As you’re no doubt aware, last Monday the Supreme Court released their decision in NCAA v. Alston . . . and it was a 9-0 ruling against the NCAA.

That the NCAA lost wasn’t particularly a shock - the NCAA has been losing court cases left and right over the past decade, squandering millions upon millions of dollars made selling advertisements to your eyeballs like a basketball team that keeps intentionally fouling when they’re losing by 16 points in the final minute.

But a 9-0 shut out that included a concurring opinion that amounted to a scathing indictment of the NCAA labor model from, of all people, Brett Kavanaugh?! The same Brett Kavanaugh with a long history of pro-management, anti-labor rulings?!

I guess this technically wasn’t a worst case scenario for the NCAA, because the actual ruling focused narrowly on the matter at hand. But the ruling generally and Kavanaugh’s concurring opinion specifically is a giant neon sign that says ‘IF YOU SUE THE NCAA YOU WILL WIN!’ to every future NCAA athlete.

If you were to ask me to quote one excerpt from the entire decision that sums up the entire saga of the NCAA, I’ll give you this:

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.

As college sports die-hards, I think we all suffer from a sort of myopia because the amateur model is something that we’re entirely used to. It’s a poorly sewed part of the fabric of the sports we love, and so we tend to think it’s normal. But every single time the NCAA goes into a court of law and people who are not die-hard college sports fans review the actual facts of amateurism, they invariably have the same reaction: The entire system is an affront to labor law in this country.

So, um, what’s next?

Well, here’s what the Supreme Court ruling specifically changes:

At issue are limitations on how schools and conferences reimburse or pay athletes for computer costs, study abroad programs, internship opportunities, scholarships to attend vocational schools and other academic-related expenses. The Supreme Court’s decision was technically limited to the question raised and considered by U.S. District Court Judge Claudia Wilken and the Ninth Circuit Court of Appeals of whether the NCAA can restrict these education-related benefits for student-athletes.

In its unanimous decision, the Supreme Court affirmed the Ninth Circuit decision, invalidating “amateurism” rules limiting education-related benefits.

Previously, the NCAA restricted all kinds of hypothetical compensation, and those rules are now all thrown out, allowing individual schools to decide for themselves if and how to compensate their athletes. Tomorrow, Cal could announce that they’re giving every single football player a laptop to help them study while on road trips, and the NCAA can’t say no.

But as mentioned above, NCAA v. Alston also opens the doors for lawsuits challenging other NCAA regulations, and as it turns out those lawsuits are very much already in progress:

The NCAA’s legal problems regarding its limits on compensation for college athletes continued Thursday, when a federal judge denied its request to dismiss a lawsuit that not only challenges any limits on athletes’ ability to make money from their name, image and likeness, but also brings into play the prospect of athletes getting money from college sports TV rights fees.

And of course the NCAA isn’t just getting bodied by the courts. As we’ve tracked over the last year, they’re also watching their business model get banned by state and potentially federal legislators. As the judicial and legislative branches take turns whacking the NCAA piñata back and forth, college sport’s governing body is trying one last shot at appeasement - actually allowing Name, Image and Likeness rights!

In essence, the action would be an interim waiver of existing NCAA rules that prohibit NIL benefits.

CBS Sports obtained an internal NCAA document titled "Proposed Alternative Rules Amendment." Though that document -- slightly more than a page long -- is still going through edits, it details the NCAA's strategy. 

  • An athlete will not be penalized for profiting from their name, image and likes in states that have NIL regulations.

  • Schools shall post on their websites "written policy governing NIL" prohibiting payments from boosters "in exchange for athletic performance or attendance" at that school.

Starting July 1, athletes will be able to enter endorsement contracts, provided that the money isn’t coming from somebody who meets the NCAA’s definition of a booster. I fully expect that even the booster limitation will be tried in court and the NCAA will probably lose, but I’m hardly surprised that the NCAA tried to draw the line somewhere.

Meanwhile, Cal’s athletes are no dummies, and are wisely jumping on the opportunity to monetize their talents

I’m not going to say that I’ll support any product endorsed by Kuony Deng, (eating Taco Bell when I’m in Berkeley just feels blasphemous) but any company that wants to put a little spending money in his pocket just might catch my attention.

If you glance around the college sports world, you’ll see signs of chaos and panic:

I’d like to think that Cal is a bit more prepared, seeing as they have had a full 21 months since Gavin Newsome signed SB 206 into law to grant athletes NIL rights. But who knows! Be prepared for confusion and chaos unless and until the federal government can pass some kind of national legislation to govern college sports. Just don’t hold your breath on that.