HL 142 – A Unanimous SCOTUS Takes a Crack at Reparations in the NCAA Antitrust Case and Whiffs

July 12, 2021

Home | Blog | HL 142 – A Unanimous SCOTUS Takes a Crack at Reparations in the NCAA Antitrust Case and Whiffs

It was said that bosses in Soviet Union industries pretended to pay workers who pretended to work.  Similarly, during this millennium and much of the last century, the roughly 130 NCAA Division I-A schools pretended their major sports athletes were “student-athletes” and most of those players went along with the pretense.  In recent decades, the NCAA, always an accomplice in this fiction, has pushed back some.  In part because of a fit of conscience, but mostly to avoid the Soviet’s fate and protect the major sports money machine. 

Most NCAA Division I-A (FBS) football players and I-A basketball players neither get a formal education comparable to that of their non-athlete peers nor after graduating (or not) get even a “cup of coffee” in the NFL, NBA or WNBA, let alone a career.  Major sports I-A athletes increasingly have resisted the economic imbalance in the student-athlete pretense and pushed for explicit compensation during their college athletic careers.  That is pay beyond the time honored basic five athletic scholarship comprised of tuition, room, board, fees and some cash (for “laundry” says SCOTUS).  While bending under pressure to allow for “education-related” compensation beyond that, the NCAA set limits on things like paid internships.

The association also purported to outright ban most pure pay for play compensation.  Since the NCAA is an agreement among more than 1000 competing schools (including those 130 in I-A) it is a walking antitrust conspiracy.  But all antitrust agreements and monopolies are not illegal, only those that “unreasonably” restrain trade.  Thus, antitrust litigation to determine the reasonableness of NCAA’s rules ensued.

It was brought by I-A players in a lawsuit against the NCAA decided by a federal district court in 2019.  It ruled for the players against NCAA’s restrictions on education-related compensation but upheld the association’s near ban on explicit pay for play, accepting NCAA’s assertion that it was preserving the “amateur” status of college sports.  A circuit court agreed and last month a unanimous SCOTUS also agreed with District Judge Claudia Wilken’s Solomonic 2019 ruling.

Jim Thorpe

The 9-0 SCOTUS decision and a concurring opinion from Justice Kavanagh (that injudiciously promised that in the next case he will also vote to strike down the NCAA’s pay for play restrictions), reaffirmed antitrust’s role as Magna Carta of American free enterprise – and that’s good.  And good also the Court’s implicit criticism of the I-A schools for exploiting their athletes in terms of money and other types of compensation.  But from the right (Alito and Thomas) to the left (Sotomayor and Kagan) and in between, all 9 justices became accomplices to much worse exploitation and damage suffered by most I-A football and basketball players.  They will graduate (or not) with education deficits that far outstrip the added compensation that the SCOTUS ruling will lead to – monetary and otherwise.  They have badly hampered the NCAA’s modest desire and substantial tools to address the big injustice embodied in the student-athlete pretense; that I-A players are receiving a formal education comparable to their non-athlete schoolmates.

Justice Gorsuch began the Court’s unanimous decision with a lengthy recitation of the long history of college sports as a profit center for big schools (mostly football until recently).  To a point today where TV rights for basketball’s March Madness is above $1 billion each year and many college coaches get $ multimillion annual compensation.  But, despite today’s big numbers – not much has changed in the overall big time college sports picture from 1984, when SCOTUS rendered its last major decision in this area, NCAA v. Board of Regents of Univ. of Okla.  It was that decision, which at once the current Court paid lip service to, then criticized but in truth effectively overruled.

Gunnar Myrdal

So, what’s changed since 1984?  The racial reckoning has come, changing many attitudes and approaches to coming to terms with The American Dilemma.  The unanimous opinion and Kavanagh’s concurrence register appropriate recognition and change in attitude about the fact that a large percentage of the exploited I-A football and basketball players are African-American.  But the remedial approach is not only wrongheaded but counterproductive.  The Court has opened the door and indeed forced I-A schools to pay undergraduate athletes in an endless variety of ways but with many still graduating (or not) with the same separate and unequal educations.

The fact that the Court virtually abandons its previous application of antitrust to the business of college sports and NCAA’s regulatory regime, is its attempt at a specialized regime of reparations.  Something like the informal reparations regime that has come about and prevails in American theatre and cinema.  See HL 73 and HL 80.  Whether it is Evanston, Illinois, Hollywood, Broadway or SCOTUS, in this case dealing with the NCAA’s walking antitrust conspiracy, these quarter-measures and half-assed informal reparation regimes do little to help and often make things worse – as this one will.

Better to do real reparations.  But that’s a post for another day.

1 Comment

  1. Nicholas Rostow

    This is superb Constantine, making lots of points those of us who have worked at football teams with universities attached know all too well.


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