BY HANK REICHMAN

Regular readers of this blog would be likely to assume, quite correctly, that I am not an admirer of U.S. Supreme Court Justice Brett Kavanaugh.  But I’ve got to hand it to Mr. “I Like Beer.”  His concurring opinion in the NCAA case, decided this week, got my attention and wins my approval, even applause.

The case involved a challenge to the NCAA’s restrictions on the ability of colleges and universities to provide financial and other assistance to athletes.  In a unanimous ruling the high court affirmed the decision of a California U.S. District Court judge (who, by the way, happens to be a long-time friend of mine) that while the NCAA could limit undergraduate athletic scholarships and other compensation related to athletic performance — that portion of the district court ruling was not challenged in the appeal filed with the Supreme Court — the justices also found unlawful certain NCAA rules limiting the education-related benefits schools may make available to student-athletes.

Writing for the court, Justice Neil Gorsuch (also not one of my faves) went into a detailed discussion of anti-trust law and its application to this case, which, while no doubt legally quite sound, made for pretty bland reading, distinguished for me mainly by the fact that its historical section made extensive use of writings by another old friend of mine (since high school), Professor Andrew Zimbalist.  But then I read Kavanaugh’s concurrence.  I certainly hope that those commentators who have suggested that, while his opinion won the formal endorsement of no other justice, it does perhaps indicate a broader willingness on the court to go further in challenging the NCAA’s monopoly than the specifics of this case allowed, are correct.  Indeed, Kavanaugh threw down a gauntlet before the NCAA’s monopoly, which, in my opinion, was long overdue.

Here’s some of what Justice Kavanaugh wrote:

The NCAA acknowledges that it controls the market for college athletes. The NCAA concedes that its compensation rules set the price of student athlete labor at a below-market rate.  And the NCAA recognizes that student athletes currently have no meaningful ability to negotiate with the NCAA over the compensation rules.

The NCAA nonetheless 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. . . .

The bottom line is that the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year.  Those enormous sums of money flow to seemingly everyone except the student athletes.  College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries.  Colleges build lavish new facilities.  But the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing.

Everyone agrees that the NCAA can require student athletes to be enrolled students in good standing.  But the NCAA’s business model of using unpaid student athletes to generate billions of dollars in revenue for the colleges raises serious questions under the antitrust laws.  In particular, it is highly questionable whether the NCAA and its member colleges can justify not paying student athletes a fair share of the revenues on the circular theory that the defining characteristic of college sports is that the colleges do not pay student athletes.  And if that asserted justification is unavailing, it is not clear how the NCAA can legally defend its remaining compensation rules. . . .

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.

Hear! Hear!  The NCAA monopoly, especially (in fact, mainly) in big-time college sports, has long been a glaring scandal (see, for example, Annie Adams, “Game Over for the NCAA,” on this blog).

But what would happen if the NCAA’s rules were completely overturned?  Kavanaugh addressed this question:

If it turns out that some or all of the NCAA’s remaining compensation rules violate the antitrust laws, some difficult policy and practical questions would undoubtedly ensue.  Among them: How would paying greater compensation to student athletes affect non-revenue-raising sports?  Could student athletes in some sports but not others receive compensation?  How would any compensation regime comply with Title IX?  If paying student athletes requires something like a salary cap in some sports in order to preserve competitive balance, how would that cap be administered?  And given that there are now about 180,000 Division I student athletes, what is a financially sustainable way of fairly compensating some or all of those student athletes?

Of course, those difficult questions could be resolved in ways other than litigation.  Legislation would be one option.  Or colleges and student athletes could potentially engage in collective bargaining (or seek some other negotiated agreement) to provide student athletes a fairer share of the revenues that they generate for their colleges, akin to how professional football and basketball players have negotiated for a share of league revenues.

Since its founding in 1999, the Drake Group, whose mission is “to defend academic integrity in higher education from the corrosive aspects of commercialized college sports,” has been campaigning in support of various proposals that would more fairly regulate the NCAA.  In March, Professor Zimbalist, now the group’s president-elect, and Drake board member Julie Sommers, published a blistering survey of the NCAA’s failed legal strategy, which would culminate in this week’s Supreme Court decision, that concluded, “The NCAA has run out of timeouts.  It is time for the NCAA to acknowledge it’s game over in the courts, and for Congress to fix this broken system in a way that is fair for everyone.”

What might such a fix look like?  In August, 2020, U.S. Senators Cory Booker, Richard Blumenthal, Christopher Murphy, Kirsten Gillibrand, Ron Wyden, Mazie Hirono, and Kamala Harris issued a “College Athletes Bill of Rights” statement that sought to advance justice and opportunity for college athletes and promised future legislation to realize their position.  They were quickly joined by Senators Bernie Sanders, Chris Van Hollen, and Brian Schatz.  In September, the Drake Group proposed a College Athletes Rights and Protection Act (CARPA) to accomplish the promises made in the “College Athletes Bill of Rights.” 

The Drake Group’s proposed bill would condition receipt of funding under the Higher Education Act of 1965 ($130 billion annually in federal loans and grants in 2019) on meeting these mandates:

• Granting full outside employment and name, image, and license (NIL) rights for enrolled college athletes overseen by an independent NIL Commission, rather than the NCAA;
• Establishing a private National College Athlete Medical Trust Fund with an independent Board of Directors charged with implementing a long-term athlete disability insurance program that addresses the latent medical cost impact of brain trauma or other athletics injuries that do not manifest before the end of enrolled athlete basic athletic injury insurance policy coverage;
• Allowing athletes and institutions to enter into licensing arrangements with third parties conditioned on proceeds being donated to the National College Athlete Medical Trust Fund and further funding the trust with assessments derived from gross annual media rights fees from national collegiate championships, conference championships, regular season and special events;
• Requiring national athletic governance associations to adopt and enforce consensus statements on standards of health care and coaches’ codes of conduct as membership obligations and to initiate investigations of athlete deaths by independent panels of medical experts;
• Guaranteeing athletic scholarships for five years or until graduation, whichever occurs first;
• Permitting college athletes to transfer to other institutions without athletic participation ineligibility;
• Closing the loopholes in rules that limit the athletics-related time demands of coaches and creating limits on classes missed to ensure college athletes have the time to study and for adequate sleep;
• Requiring tenured faculty oversight and transparent reporting of college athlete educational outcomes;
• Providing a governance association athlete welfare advocate at no cost to the athlete to provide legal advice on the application of association rules and due process rights;
• Requiring that thirty percent of any national association’s independent governing board of directors be former athletes appointed by currently enrolled athletes;
• Prohibiting excessive employee compensation and construction of lavish athletes-only facilities; and
• Requiring annual reports to Congress electronically available to the general public.

Further, CARPA proposes that a Congressional Commission be established to complete a comprehensive two-year study of higher education integrity issues not addressed by the proposed bill.

This seems like a very reasonable and desirable proposal — as an AAUP activist I especially welcome the call for faculty oversight.  I hope Congress will consider it.  In light of Kavanaugh’s opinion, it may well be a rare issue on which some level of bipartisan agreement might be achievable.

As for Kavanaugh’s other suggestion, that solutions to the problems created by the NCAA’s failures might be achieved via collective bargaining, in May two members of the U.S. Senate and three members of the House  introduced legislation that would make college athletes at public schools employees of the schools and give them the right to collectively bargain.  The bill would amend the National Labor Relations Act so that any college athlete who is receiving an athletic scholarship would be considered an employee.  It would give athletes the option of organizing into multi-school bargaining units that would be allowed to negotiate wages and other working conditions with several schools within the same conference.  The bill is being led in the Senate by Sens. Murphy, and Sanders. The House sponsors are Jamaal Bowman, D-N.Y.; Andy Levin, D-Mich.; and Lori Trahan, D-Mass.

In 2015, the NLRB ruled unanimously not to accept jurisdiction over a petition to unionize Northwestern University’s scholarship football players, ending a multi-year unionization effort.  The board did not rule on whether players are university employees, as NLRB regional director Peter Sung Ohr had determined in March 2014, when he said they were entitled to organize.  Instead, the board cited its charge under the National Labor Relations Act to create stable and predictable labor environments in various industries.  It said that allowing the Northwestern players to bargain with the university would not promote stability in a college football labor environment because the board has no jurisdiction over public schools, which make up the vast majority of the Big Ten Conference, the NCAA’s Football Bowl Subdivision.

The bill introduced in May would deal with the board’s approach in that situation.  It would amend the National Labor Relations Act to state that the board “shall exercise jurisdiction” over colleges and college-athlete employees in “all collective bargaining matters … including any representation matter, such as recognizing or establishing a bargaining unit” for the athletes.  The bill also includes language that would maintain the current tax status of athletics scholarships and related benefits. In addition, athletes’ eligibility for financial aid would not be impacted.

I wonder whether in the wake of this week’s Supreme Court ruling the climate for these sorts of proposals will improve.  I hope so.