We are clearly at a turning point in college athletics. Last week, a pivotal case on the rights of college athletes led to a beating of the NCAA by the nation’s highest court. And as of this Thursday, the Name, Picture and Likeness (NIL) rights for college athletes are upon us whether the NCAA likes it or not. Let’s examine.
One can count on two hands how often a sports-related case has reached the US Supreme Court, which is why sports and law business fans like me were stunned last week when It happened in a case about limitations on benefits for college athletes.
In a unanimous 9-0 decision, the Supreme Court upheld the lower court’s decision that the NCAA restrictions on “education-related benefits” for college athletes violated antitrust law. Judge Neil Gorsuch was the author of the majority opinion in favor of the plaintiffs, although it was a limited decision that dealt only with benefits related to education and not the broader issue of pay-per-play or other general problems with college athletes. And there was language the NCAA has since claimed as a “win” for itself: It was still free to set limits on benefits. not related to education.
While there was limited focus on the overall ruling, the case, as outlined below, appears to be a harbinger of the NCAA to come.
Kavanaugh cut deep
Trying to read the tea leaves of oral arguments with a Supreme Court case is a dangerous exercise, but in this case the cross-examination stayed true to form. Judge Brett Kavanaugh was clearly the most strident judge in his cross-examination of the NCAA attorney during the presentation of the case, and his concurring written opinion was a hammer blow to the organization.
Kavanaugh attacked the circular nature of the NCAA’s argument that unpaid athletes is a defining characteristic of college sports and drew clear analogies to how absurd the NCAA’s business model would be in other industries: highly violative of antitrust law. Here is one of his many devastating comments: “Nowhere else in America can companies 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. … The NCAA is not above the law. “
Justice Kavanaugh appeared to be inviting the next plaintiff – and there are already many out there – to “take” him to the Supreme Court, where he will be waiting to rule on an issue much bigger and broader than education-related benefits. Brett Kavanaugh, enemy of the NCAA. Who knows?
As noted above, this case does not Address the issue of pay-per-play that many have advocated for and that usually makes the headlines. Why, then, did the plaintiffs and super attorney Jeffrey Kessler not advocate for a broader change in this case, which we now know would have been welcomed by at least Judge Kavanaugh? Well, that decision seemed strategic; the plaintiffs wanted a “victory”, which they won, rather than risk losing on larger issues.
Even with the narrow decision, there will be repercussions from this decision immediately. We are not naive about what happens in the super competitive world of college athletics, especially without a clear definition of what “education related benefits” are. With ambiguity, as there is now, the definition of these benefits will be broadened. Who can tell if an athlete should have a $ 2,000 computer or a $ 10,000 computer? A $ 1,000 video monitor or a $ 20,000 video system that has high-quality conference streaming, which can also serve as a gaming device and home entertainment system? A $ 5,000 internship or a $ 50,000 internship? The NCAA can still enforce any “no Lamborghini” rule, as the court put it, but there are many steps between Spartan education-related benefits and a Lamborghini.
As for broader issues, their time is drawing near. A couple of days after the decision, there was a hearing on the case of Home vs. NCAA, a case in which the plaintiffs request that the NCAA not be allowed to impose NULL restrictions on athletes. The NCAA’s motion to dismiss that case was denied. And speaking of NIL …
The abdication of the NCAA from NIL
A new era of marketing and branding opportunities for college athletes is dawning Thursday, with the NCAA slowing down. As we continue to note, the NCAA’s change in the treatment of athletes seems motivated only by the two “L” words: litigation and legislation. And both have initiated changes in terms of name, image and likeness.
There were already six states, including Florida and Texas, with NIL legislation scheduled to go into effect on July 1. Schools in those states have been able to confidently inform their athletes about NIL opportunities, creating an immediate imbalance that was already being exploited in recruiting. The NCAA, persecuted by legislators as it has been persecuted by judges, had to act. And in many ways, the NCAA is ceding its authority in this area to the schools and conferences themselves, especially in states without NIL laws, as if to say, “We wanted to slow this down, but I guess it’s too late. You handle it! “
This is amazing to me. As someone who had been part of meeting planning around NIL, within my purview at Villanova and the Big East Conference, I am well aware that the NCAA has had task forces on this topic for over two years. . Thousands of hours have been spent building “guardrails,” his phrase, not mine, to ensure that NIL rights are not confused with “pay to play” and that school logos and marks are not used. . Now, while states and schools will incorporate some of those similar barriers, more than two years of work by many good and talented people at hundreds of universities is being set aside for a more decentralized process. The NCAA seems to be raising their hands, perhaps too nervous for the Alston decision to enact any policies restricting college athletes at this time.
A change in mindset towards agents
An important change that must happen immediately is this: The NCAA and its member schools must adopt a different attitude towards officers. Schools and coaches must now understand that agents (NIL agents) will be close to their players in a way that has faced so much resistance before. The presence of agents is not only now allowed, but is even encouraged.
Who qualifies as a NIL agent and how is it regulated? Well that’s a good question, with the only NCAA guidance so far that these agents cannot be agents seeking representation of athletes for their professional careers, only for NIL opportunities. Good luck enforcing that.
As I hear from them every day, I know that there are many young people trying to enter the agent business and that there are many barriers to representing athletes in their professional careers. Here, however, there is an opening that many are trying to use to make their way into that world. I have made videos for our Villanova athletes on what to look for and what not to look for in NIL agents. It could be the Wild West, but at the end of the day, the NCAA took care of this, wasting time as the legislation and litigation faded away.
Speaking of my role at Villanova and my involvement in the athletic department there, I admit that I have conflicting thoughts here. We have 650 athletes in 24 sports, only one of which, the one who won two of the last six NCAA men’s basketball championships, makes money. I know how fragile the college athletics ecosystem is beyond the outliers of the best college basketball and soccer programs. And I know that despite the perception of unlimited funding from promoters and donors, most sports are struggling to stay afloat. However, as a sports law scholar, I also know that fairness and “fairness” require more compensation for these athletes, regardless of the veil of amateurism. We have seen the model change in Olympic sports and we are also seeing it in college sports.
Clearly, we are in a transitional stage for the NCAA. A broader pay-per-play case may be looming, and the Supreme Court appears to be telegraphing attorneys and plaintiffs, with plenty of them circling to present another case. And now here are the NIL rights to monetize student-athlete brands.
Change is underway, and change is usually a good thing. Stay tuned.
More from Andrew Brandt:
• Mailing Bag: Aaron Rodgers, Julio Jones, Shots and More
• This is Aaron Rodgers; Adam Vinatieri was almost a packer
• A three-step solution to keep Aaron Rodgers as a packer in 2021
Eddie is an Australian news reporter with over 9 years in the industry and has published on Forbes and tech crunch.