Updated June 21, 2021 at 5:45 PM ET
Faced with the prospect of reshaping college athletics, the U.S. Supreme Court issued a narrow but potentially transformative ruling Monday in a case that pitted college athletes against the National Collegiate Athletic Association.
At issue in the case were NCAA rules that limit educational benefits for college players as part of their scholarships.
The athletes maintained that the NCAA has, in effect, been operating a system that is a classic restraint of competition — in short, a system that violates the nation's antitrust laws. The NCAA countered that its rules are largely exempt from antitrust laws because they are aimed at preserving amateurism in college sports and because the rules "widen choices for consumers by distinguishing college sports from professional sports."
On Monday, however, a unanimous court ruled that the NCAA rules are not reasonably necessary to distinguish between college and professional sports.
Writing for the court, Justice Neil Gorsuch said that the NCAA "seeks immunity from the normal operation of the antitrust laws," an immunity which Gorsuch said is justified neither by the antitrust law nor the previous opinions of the Supreme Court. Noting that big-time NCAA sports have turned into a multibillion-dollar business, Gorsuch said that a couple of sentences from a 1984 opinion did not declare then or now that there is some sort of immunity based on the concept of amateurism.
In a blistering concurring opinion, Justice Brett Kavanaugh added that the sports traditions near and dear to alumni and others "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," he said, adding: "The NCAA is not above the law."
"This is a modest loss for the NCAA," said professor Gabe Feldman, director of the sports law program at Tulane University. But it "potentially opens the door for a massive loss and a complete changing of the amateurism model and the limits on compensation to college athletes."
So what is likely to happen now that colleges and universities recruiting student athletes can offer all manner of educational benefits?
"This is a victory for students," declared Oliver Luck, a former top NCAA official, a former NFL player and the father of three former college athletes. "The substantive decision in this case would allow a university or conference to provide benefits that cannot be capped by the NCAA as long as they are tethered to education."
He thinks that the rules for what can and cannot be offered are likely to be institutional. "If you're a star gymnast and you're 17 years old and choosing between three different schools, those schools theoretically could offer you all sorts of academically related benefits," said Luck. "A year abroad, internships. They could pay for your law school or medical school if you decided to."
But other sports law experts think that the individual Division I conferences might take over the job of making the rules for what benefits recruiters can offer. The super-rich Power Five conferences, for instance, could continue to spend hundreds of millions of dollars annually, leaving the more modestly funded conferences to compete at a lower level.
Amy Perko, CEO of the independent Knight Commission on Athletic Education, notes that having the conferences each establish their own limits on educational compensation would mean that there would be competition among the conferences, and an athlete who doesn't like the benefits that are offered in one conference might sign up with a school in a different conference.
But Len Elmore, a former NBA and college basketball star, and a lawyer who teaches sports law at Columbia University, worries about an arms race in college recruitment that would defeat the quid-pro-quo that inspired athletic scholarships — namely, that the athletes get a free education they could not otherwise afford, graduating without debt.
Elmore, co-chair of the independent Knight Commission, would like to see the rules for collegiate athletics more broadly changed, with TV revenue being much more widely disbursed. Noting that the Knight Commission just released a report on racial equity, he said if the commission's recommendations were put into effect, "we would balance the experience of Black athletes upon whose backs the revenue generating sports are balanced."
Walter Harrison — a former chairman of the NCAA board of governors, former president of Hartford University and also a member of the Knight Commission — worries about an arms race in recruiting too. He is especially worried about the big-time football teams that are eligible for the playoffs.
"Big-time football ought to be something unto itself," Harrison said. "They ought to be separated entirely from the rest of the NCAA because the money flowing into that sport is just different."
That would allow the other conferences to do their own thing, he says, though there would certainly be problems that would have to be worked out — for instance, in basketball, accommodation would have to be made for schools like Villanova and Georgetown that are often contenders in big tournaments, but don't play football at the top level.
College football and basketball are in a world of trouble these days, with athletes viewed as exploited at the same time schools pay millions of dollars to coaches and spend hundreds of millions on palatial training centers, arenas and stadiums.
Although many NCAA rules were not an issue in this case, they are increasingly an issue for the public. Take, for instance, the NCAA rules that bar athletes from earning money from their "name, image and likeness." The NIL, as it is known, has become so unpopular that in the majority of states, legislatures either are considering or have already passed laws that ban these NIL restrictions. Indeed, the first batch of those laws will go into effect July 1.
Behind the scenes in Congress, the NCAA has been scrambling to come up with a consensus on legislation that would allow athletes to control, or at least make money off their own names, images and likenesses.
The Knight Commission's Perko says she believes that change alone will "transform" college athletics, and not just for players who are big stars. "In the modern world we live in, and that these young people live in," she observes, lesser athletes will be able to "monetize" their names via social media.
Following the Supreme Court's opinion announcement on Monday, Jeffrey Kessler, lead counsel for the athletes, called the court's decision "historic," saying it could have a meaningful impact on the vast majority of athletes, who will never join the pros.
"Hopefully, it will also swing the doors open to further change, so that we can finally see a fair and competitive compensation system in which these incredible players get to benefit from the economic fruits of their labors and pursue their educational objectives," he said. "Only then will the NCAA truthfully be able to say it is devoted to the welfare of the student athletes."
While Monday's decision preserves the lower court ruling, it also reaffirms the NCAA's authority to adopt reasonable rules and repeatedly notes that the NCAA remains free to articulate what are and are not truly educational benefits, consistent with the NCAA's mission to support student-athletes.
"Even though the decision does not directly address name, image and likeness, the NCAA remains committed to supporting NIL benefits for student-athletes," said NCAA President Mark Emmert in a statement. "Additionally, we remain committed to working with Congress to chart a path forward, which is a point the Supreme Court expressly stated in its ruling."
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