U.S. Supreme Court: NCAA v. Alston (2021)

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Today we will examine Antitrust Law insofar as it pertains to NCAA v. Alston, which is presently being heard by the U.S. Supreme Court.

Those of you with no interest in Antitrust Law are advised to discontinue reading this post. Those of you with an interest in NCAA v. Alston are advised to familiarize yourselves with the following background information summarized in three Wikipedia articles.

NCAA v. Board of Regents of the University of Oklahoma (1984) - Wikipedia

NCAA v. Board of Regents of the University of Oklahoma, 468 U.S. 85 (1984), was a case in which the Supreme Court of the United States held that the National Collegiate Athletic Association (NCAA) television plan violated the Sherman and Clayton Antitrust Acts, which were designed to prohibit group actions that restrained open competition and trade.

The NCAA was an organization that regulated college athletics, and membership was voluntary, although NCAA schools were not allowed to play against non-NCAA teams. The case dealt with television rights to college football games, which were controlled by the NCAA and limited the appearance of university teams in each season. The NCAA believed that their control of television rights protected live attendance, which was disputed by a number of colleges.

These larger colleges formed the College Football Association to negotiate television contracts, until the NCAA advised the colleges that they would be banned from all NCAA competitions, not just in football. The Board of Regents of the University of Oklahoma and the University of Georgia Athletic Association sued to force the NCAA to stop the practice. The Supreme Court held that the NCAA's actions were a restraint of trade and ruled for the universities.

O'Bannon v. NCAA (2014) - Wikipedia

O'Bannon v. NCAA is an antitrust class action lawsuit filed against the National Collegiate Athletic Association (NCAA). The lawsuit, which former UCLA basketball player Ed O'Bannon filed on behalf of the NCAA's Division I football and men's basketball players, challenges the organization's use of the images of its former student athletes for commercial purposes. The suit argues that upon graduation, a former student athlete should become entitled to financial compensation for NCAA's commercial uses of their image. The NCAA maintains that paying its athletes would be a violation of its concept of amateurism in sports. At stake are "billions of dollars in television revenues and licensing fees."

On August 8, 2014, District Judge Claudia Wilken found for O'Bannon, holding that the NCAA's rules and bylaws operate as an unreasonable restraint of trade, in violation of antitrust law. The Court said it would separately enter an injunction regarding the specific violations found. In September, 2015, the Ninth Circuit Court of Appeals affirmed, in part, and reversed, in part, the District Court's ruling. In March 2016, O'Bannon's lawyers appealed the case to the Supreme Court of the United States. The Supreme Court denied certiorari on October 3, 2016.

NCAA v. Alston (2021) – Wikipedia

Subsequent to O'Bannon, a number of additional lawsuits challenging the NCAA's restrictions on educational compensation for athletes were raised, led by Shawne Alston and Justine Hartman.

The cases were combined into NCAA v. Alston at the Northern District Court of California. Judge Wilken, also overseeing this case, issued her decision in March 2019, ruling against the NCAA that their restrictions on "non-cash education-related benefits" violated antitrust law under the Sherman Act and required the NCAA to allow for certain types of academic benefits beyond the previously-established full scholarships from O'Bannon, such as for "computers, science equipment, musical instruments and other tangible items not included in the cost of attendance calculation but nonetheless related to the pursuit of academic studies". The ruling barred the NCAA from preventing athletes from receiving "post-eligibility scholarships to complete undergraduate or graduate degrees at any school; scholarships to attend vocational school; tutoring; expenses related to studying abroad that are not included in the cost of attendance calculation; and paid post-eligibility internships". Wilken's ruling also established that the conferences within the NCAA may set other allowances. The NCAA may still limit cash or cash-equivalent awards for academic purposes under the ruling. Wilken rationalized her ruling bases on the large differences in compensation that the NCAA receives from the student athletes' performance to what the students themselves receive.

Supreme Court

The upheld decision went into effect in August 2020, though the NCAA had sought an emergency request to hold the injunction prior to that. The NCAA along with the American Athletic Conference filed petitions to the Supreme Court in October 2020 to hear their appeal. Both asked the Court to review the Ninth Circuit's decision, arguing that the decision created a new definition of items that could be "related to education" which could be abused by colleges and sponsors to create effective "pay for play" programs in all but name, such as a hypothetical US$500,000-a-semester "internship" with Nike that the NCAA described as "the antithesis of amateurism". The Supreme Court granted certiorari to both petitions in December 2020, consolidating the two petitions into NCAA v. Alston which is expected to be heard in 2021.

The NCAA, under fire over amateurism, takes its fight to the Supreme Court - Rick Maese, The Washington Post - March 30, 2021

On Wednesday March 31, nine Supreme Court justices will consider whether the NCAA even has the authority to enforce a rule book that has long placed hard limits on whether college athletes can be paid.

The court will hear arguments in NCAA v. Alston, a long-running antitrust case that’s poised to bolster or possibly abolish the legal claim that the organization has for years relied on to defend its authority and restrict players from receiving compensation. The justices will convene via teleconference to consider a lower-court ruling that would allow colleges to offer academic-related perks to Division I football and basketball players, including scholarships for graduate degrees, paid postgraduate internships and computers and other types of equipment related to education.

The NCAA lost its last major showdown at the Supreme Court nearly 40 years ago: NCAA v. Board of Regents of the University of Oklahoma (1984). But it came away from that case with a valuable concession that the NCAA was unlike other businesses and “needs ample latitude” to maintain “a revered tradition of amateurism in college sports.”

That Supreme Court opinion has served as the NCAA’s trump card for years in batting down legal challenges, and it was mentioned 66 times in the NCAA’s recent 62-page brief and another 22 times in its follow-up brief. Lawyers representing the NCAA say Board of Regents makes clear that the court has already bestowed on the NCAA the ability to determine who’s eligible to play college sports. Those representing the players will argue the citation is overstated, misused and not applicable.

The slippery slope argument is surely a big reason the NCAA asked the Supreme Court to hear the case, but its motives are even more nuanced. The NCAA’s amateurism model is under attack, and the Alston case will probably do one of two things: It can solidify the NCAA’s standing, eliminating ambiguity left by the Board of Regents opinion, and make clear the organization — not the courts — will settle future eligibility questions. Or the justices can clarify key antitrust issues and create avenues for athletes to receive extra benefits and some education-related compensation.

Which path the justices take could go a long way in determining the future of amateurism in college sports.

Roots in a Loss

The Board of Regents decision that the NCAA leans on so heavily came in a case the organization lost.

In the early 1980s, the NCAA controlled television rights for college football games. Its member schools, wanting their share of the associated revenue, sued. The case reached the Supreme Court, where justices said the NCAA’s handling of broadcast contracts violated federal antitrust laws. The decision paved the way for schools and conferences to negotiate their own lucrative TV deals.

Patrick Bradford, a New York-based antitrust attorney, said the NCAA and the conferences applied undue weight in their filings to the amateurism comments from the Board of Regents opinion in an effort to inflate its standing.

“No real antitrust lawyer thinks that this court or any court is going to be bound by those descriptives,” said Bradford, who filed an amicus brief to the Supreme Court on behalf of a group of Black antitrust lawyers also supporting the lower court’s decision. Bradford said the NCAA is trying to “shoehorn” the court’s 1984 support for amateurism into this case.

“The NCAA wants the Supreme Court to rule that, going forward, any rules that it makes related to amateurism basically get immunity, complete deference so that courts can’t review the judgment of the NCAA,” Bradford said. “That’s what they really want.”

The impact of ‘pay-for-play’

Appealing to the Supreme Court, though, amounted to a major gamble by the NCAA, Balsam said. The NCAA runs the risk of seeing its mostly reliable Board of Regents opinion rendered moot and eclipsed by an updated ruling, weakening its standing in future challenges. Whatever the Supreme Court decides, it won’t end the debate on paying college athletes as much as it will provide some legal guidance as state and federal governments continue to wrestle with a legal framework.

For the sake of brevity and avoidance of Copyright violation, I have deliberately excluded a number of additional important points made by AP writer Rick Maese in his very lengthy and very informative Washington Post article. The entire article is well worth reading.
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Below are links to additional lengthy articles that are worth reading - if you’re interested in this very important topic:

Supreme Court questions validity of amateurism in NCAA's business model - Dan Murphy, ESPN – March 31, 2021

The justices of the Supreme Court of the United States questioned whether amateurism is an essential part of the NCAA's business model Wednesday during a landmark hearing for the future of college sports while also expressing concerns about starting a slippery slope of judicial rulings that could lead to the destruction of an American tradition.

The Supreme Court heard more than 90 minutes of oral arguments Wednesday morning in the NCAA v. Alston case, the first time the nation's highest court has weighed in on the business of college sports in nearly four decades.

The question in front of the court is whether the NCAA deserves special relief from normal antitrust rules in order to protect its educational mission and preserve a tradition of amateurism in college sports. The court is expected to make a ruling sometime in late spring or early summer.

A federal district court judge decided in her ruling in the Alston case in 2020 that the limits NCAA member schools mutually agree to place on what each school can provide to its athletes in compensation are illegal. The judge's ruling opens the door for athletes to receive unlimited benefits as long as they are related in some way to education. That includes items such as classroom equipment, study abroad travel, funding for post-graduation internships and cash payments for academic achievements. The NCAA appealed the judge's ruling, arguing that the loose guidelines of education-related benefits could be exploited in a way that will blur the lines between college sports and professional leagues.

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Antitrust law is the key to making the NCAA pay student-athletes - Sandeep Vaheesan, The Washington Post - April 1, 2021

The courts have long protected the NCAA. A new Supreme Court case might change that.

Simply put, the courts preserved the NCAA’s collusive system because fans purportedly value it. In essence, the courts catered to the viewing public’s supposed desire to watch athletes who do not receive fair competitive pay — a taste for exploitation that has a clear racial element. In research published in 2015, most Black sports fans supported paying players, while only about 20 percent of White fans favored this change. Notably, White viewers who expressed the strongest anti-Black racism were the most opposed to colleges paying players.

The exploitation itself is racialized, too. In 2020, nearly half of players in football and women’s basketball and more than 55 percent of players in men’s basketball were Black. In contrast, the highly paid coaching and athletic director ranks were mostly White. The historian Taylor Branch analogized the system of compensation and control in college basketball and football to plantation slavery and colonialism.

Wednesday’s 90-minute oral argument in Alston seemed to favor the players. Several justices noted the exploitative character of the NCAA and expressed skepticism about the justifications offered by the NCAA’s lawyer, Seth Waxman, who served as solicitor general in the Clinton administration. Justice Clarence Thomas asked why the NCAA collusively limits the pay of players, but not coaches. He wondered if there is any principled distinction between the two classes.

Justices Samuel A. Alito Jr. and Brett M. Kavanaugh, meanwhile, homed in on the huge sums of money generated by college basketball and football and the paltry compensation to players, sounding unpersuaded by the NCAA’s repeated invocation of “amateurism.” Justices Neil M. Gorsuch and Elena Kagan noted the wage-fixing of NCAA members, with Gorsuch adding the NCAA has “monopsony control over the labor market.” In comparison, the justices’ questioning of the players’ counsel focused on the feasibility of remedies for the NCAA. Justice Stephen G. Breyer, adopting the most pro-NCAA posture over the 90 minutes, feared that a victory for the players could initiate the unraveling of the entire NCAA system.

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How the Alston Case Will Kill the NCAA - Aron Solomon, BoxScoreNews – April 1, 2021

On Wednesday morning, NCAA v. Alston was argued in front of the Supreme Court. By all accounts, it was not a great morning for the NCAA.

This could be not only a landmark antitrust case, it may pull some foundational chunks out of the structure of the NCAA that could eventually kill off what those who advocate for the rights of student-athletes see as an increasingly antiquated and often odious organization.

At its core, Alston is an antitrust challenge. It is primarily about whether colleges are able to limit competition. There is a very strong argument that this is precisely what colleges are doing, through the vehicle of the NCAA, in limiting compensation for college student-athletes. In essence, the NCAA and their platform allows all of these colleges to work together to limit their compensation to tuition and room and board.

The NCAA may really be pushing their luck by bringing this case on appeal from the Ninth Circuit to the Supreme Court. If the Supreme Court sends the case back down to the trial court, this is where the real opportunity for change exists, far beyond the scope of the initial trial court ruling.

The NCAA is truly shooting themselves in their own foot by fighting what would essentially be a modernization of how student athletes can be compensated. But this has been the hallmark of the NCAA for longer than we can remember, the idea that a form of indentured servitude is the way to have student athletes live in college. And the colleges have been happy and active participants in this entire process.

Alston opens for what is now an unlikely door but will soon be more deeply examined - real, meaningful compensation for student-athletes in sports that generate revenue for the businesses (the colleges). This all goes back to current absurdity of college coaches earning millions of dollars per year while NCAA athletes regularly complain about not having enough food. In that light, Alston surfaces issues that are long overdue for examination.

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National Collegiate Athletic Association v. Alston – SCOTUSblog – Case tracking with links to additional related articles.
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While the U.S. Supreme Court is deliberating the legal aspects of NCAA v. Alston, concerning among other things, the compensation that college student-athletes are legally entitled to under existing Antitrust law, Congress has proposed radical new legislation concerning the same. On February 4, 2021, Senator Chris Murphy (D-Conn.) and Representative Lori Trahan (D-Mass.) proposed the College Athlete Economic Freedom Act.
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Inside the Landmark College Athletes Bill of Rights Being Introduced in Congress - Ross Dellenger, SI.com - December 17, 2020

The groundbreaking legislation would, among other things, greatly expand on NCAA athletes' name, image and likeness rights. But it could face an uphill climb to becoming law.

The most recent legislation that U.S. senator Cory Booker (D-N.J.) plans to introduce in Congress is an ambitious and sweeping bill that could change college athletics forever—as well as open the door for the return of NCAA Football, the Electronic Arts college game that mesmerized gamers until legal disputes over its use of player likeness suspended production in 2014.

Booker’s College Athletes Bill of Rights guarantees NCAA players monetary compensation, long-term health care, lifetime educational scholarships and even revenue sharing. It would virtually dissolve national letters of intent, bar coaches and administrators from influencing an athlete’s academic decisions, and create a medical trust fund.

And finally, the bill would lift all restrictions and penalties that prevent athletes from attending the school of their choice, including transfer penalties and those tied to national letters of intent, documents that when signed bind a player to a certain school. In January, the NCAA is expected to eliminate the one-year sit-out penalty required of an athlete transferring from one Division I school to another. In the latest version of the proposal, an athlete can transfer once without penalty.

Booker believes athletes should be able to transfer an unlimited amount.

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Bill Offers New College Sports Model: Give Athletes a Cut of the Profits - Billy Witz, The New York Times - December 17, 2020

The legislation, introduced by Senator Cory Booker, could allow college football players and men’s basketball players to receive six-figure paychecks.

As the N.C.A.A.’s amateurism model — the one that has turned college sports into a billion-dollar industry — has been increasingly under assault in courtrooms and legislative halls, Senator Cory Booker on Thursday produced the most ambitious swing at it yet. He put forth a multipronged bill with a provocative element: It would give every athlete in a handful of revenue-generating sports a share of profits.

The proposal, called the College Athletes Bill of Rights, would also provide lifetime scholarships, government oversight of health and safety standards, public reporting of booster donations, unrestricted transfers and create a commission with subpoena power to ensure compliance.

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Democrats introduce most progressive plan yet to help college athletes earn money - Rick Maese, The Washington Post - February 4, 2021

A bill introduced in Congress on Thursday is perhaps the most progressive proposal yet to allow college athletes to earn money from endorsements, stripping the NCAA of much of its authority on the issue and allowing college athletes to seek representation and band together to secure group licensing deals.

The bill comes just a few weeks after the NCAA delayed a vote that would have helped pave the way for athletes to pursue moneymaking opportunities from use of their name, image or likeness (NIL).

Called the College Athlete Economic Freedom Act, the legislation was proposed by Sen. Chris Murphy (D-Conn.) and Rep. Lori Trahan (D-Mass.). It calls for fewer limitations or restrictions than most other state and federal proposals, potentially allowing athletes much more flexibility than rule changes recently considered by the NCAA.

“Big time college athletics look no different than professional leagues, and it’s time for us to stop denying the right of college athletes to make money off their talents,” Murphy said in a statement. “It’s simple: this is about restoring athletes’ ownership over the use of their own names and likeness. They own their brand, not their school or the NCAA.”

The new bill explicitly states that the NCAA, conferences and schools have no power to restrict or limit athletes’ rights to profit off their NIL, either individually or as a group, and there’s no cap on the amount of money athletes can earn. It would allow athletes to use sports agents to help negotiate agreements and use a “collective representative to facilitate group licensing agreements or provide representation for college athletes,” again prohibiting any interference from schools, conferences or the NCAA. And it threatens penalties or legal action if any of those entities meddle with an athlete pursuing NIL opportunities.

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The proposed legislation is being tracked on the following two websites. Note that S.238 is the Senate’s designation for the College Athlete Economic Freedom Act, while H.R. 850 is the House of Representatives’ designation for same. When the Act was introduced on February 4, 2021, both the Senate and House of Representatives versions were identical. However, it is anticipated that Senators will, in due course, make amendments to S.238, while the Representatives will likely make different amendments to H.R. 850, which will require reconciliation before the Act is voted upon.

S.238 - College Athlete Economic Freedom Act - 117th Congress (2021-2022) – CONGRESS.GOV

H.R. 850: College Athlete Economic Freedom Act - 117th Congress (2021-2022) – GovTrack
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AP survey: ADs fear sharing revenue with college athletes – The Associated Press - April 1, 2021

Back in January, two Democratic senators introduced federal legislation called the College Athlete Bill of Rights.

Among a long list of reforms, there was one item that jumped out as a potential game-changer to college sports: Schools would be required to share 50% of their profit with athletes from revenue-generating sports after accounting for cost of scholarships.

In an Associated Press survey sent to 357 Division I athletic directors, 69% said they would strongly oppose ''being required to give college athletes a share of university revenue derived from sports.'' Another 19.6% said they somewhat oppose sharing athletic department revenue with athletes.

Almost 77% of athletic directors said many fewer schools would be competitive in sports if schools had to share revenue with athletes and another 13% said somewhat fewer schools would be competitive.

''What little revenue 95% of institutions realize through revenue sports, goes toward supporting other sports,'' one respondent said. ''Paying those 5% of students will devastate the other teams that rely on that revenue to survive....''

''College sports revenues have exploded exponentially in the last 15 years, but none of that money has gone to the actual players. To act like the sky will fall if athletes receive a fair share of the money their labor produces is downright disingenuous and fails to acknowledge the major civil rights inequities inherent in the industry,'' Senator Chris Murphy (D-Conn.) said in a statement to the AP.

Much of the spending at all levels goes into coaching salaries. Skyrocketing salaries at the top of college sports - with football assistants at Power Five schools commonly drawing $1 million per year pay checks - have raised the market for coaches at all levels and even in other sports.

To get around antitrust laws would take an act of Congress. The NCAA is already looking for help from federal lawmakers to set national standards for NIL compensation for college athletes. Most of the bills put forth so far have been limited to NIL, but the College Athlete Bill of Rights was a reminder that once Congress gets involved it can be difficult to put limits on how much.

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[DudeAnon]

I listened to the supreme court hearing this week. Judges were pretty critical of the NCAA. It was pretty odd to hear that the NCAAs whole argument depended on the claim that people would no longer be interested in college athletics if the players were being paid. I know some people have that opinion but I just cannot relate in anyway.

[Fieldhouse Flyer]

I listened to the supreme court hearing this week. Judges were pretty critical of the NCAA.

It was pretty odd to hear that the NCAAs whole argument depended on the claim that people would no longer be interested in college athletics if the players were being paid.

You, Dan Wetzel, and millions of college basketball fans are all on the same page:

NCAA v. Alston: Supreme Court not impressed with old arguments, but how will it rule? - Dan Wetzel, Yahoo! - March 31, 2021

Attempting to predict a U.S. Supreme Court decision based on the tone and tenacity of the questions that justices ask attorneys during oral arguments has proven to be a fruitless exercise since, well, about 1789. It’s always best to assume nothing. So who knows what the nine current justices will decide in NCAA v. Alston — a case that boils down to, in the most general of descriptions, whether college athletes can be paid above and beyond their currently allotted scholarship.

A decision won’t be rendered for months, likely sometime in June.

That said, the morning couldn’t have been too pleasant for NCAA attorney Seth Waxman, who got waxed by a slew of justices during Wednesday’s 90-minute session.

Liberals, conservatives and everyone in between sounded extremely skeptical as they listened to the NCAA's defense of amateurism, which was full of time-honored and eye roll-inducing tropes from Waxman such as: “If you allow [athletes] to be paid, they will be spending even more time on their athletics and even less time on academics.”

The NCAA's essential argument is that fans of college sports like that the players aren’t paid and therefore allowing them to be paid would adversely impact the popularity and profitability of the enterprise. Basically, we should continue to do this because we’ve always done this and it’s worked well for us and some people like it.

The justices hated that.

As bold as the justices were in systematically picking apart Waxman’s arguments, they also expressed a hesitancy to make a ruling that might blow college athletics into something unrecognizable.

Somewhat understandably, no one seems to want to look back and realize that their decision — even if it’s the right thing to do and rooted in law — somehow caused a ripple effect that killed off March Madness, or even a bunch of non-revenue sports somewhere.

“How do we know we aren’t destroying the game as it is?” Justice Sonia Sotomayor asked.

Now the future is in the hands of nine justices who are likely more focused on the “Rule of Reason” and the Sherman Antitrust Act than whether or not paying players will really impact recruiting. (Here’s a solid prediction: It’ll do the opposite of what the NCAA says and actually spread the talent out more, not less.)

At the same time, state houses, courtrooms, and even the United States Congress are hashing through name, image and likeness issues.

Basically, the NCAA did nothing for so long, it's handed the steering wheel over to politicians, lobbyists, and jurists. They just punted it all away. It’s a disastrous way to run a business. Yet here we are, their lawyer getting so scalded by Supreme Court justices that the NCAA’s chief hope for victory is that the court is too scared to act.

“Antitrust laws should not be a cover for exploitation of the student-athletes,” Justice Kavanaugh said. Sure. But will anyone do anything about it?

One issue I have not yet seen addressed in print is the concurrency and overlap of NCAA v. Alston and the S.238/H.R.850: College Athlete Economic Freedom Act. I hope and expect that Congress will delay progress on S.238/H.R.850 until June or later – after the Supreme Court delivers its written judgement on NCAA v. Alston. It’s always best to avoid the situation whereby the legislative branch of government is changing Antitrust Law at the same time that the judicial branch of the government is interpreting it.
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[DeltaV]

The biggest issue I think with all of this, I think, is that the NCAA has to make policy that covers ALL athletes. Not just the football players at Alabama and Clemson, and Kentucky (and others) constantly rotating cast of one and done's. The top tiers of College football, to a lesser extent basketball, are the minor leagues of their respective sports. Is that right? Is that within what higher education should be? Probably not, but its the situation we live in; and legit minor leagues generally struggle. However, these 'minor league' players are getting the exposure as being a part of something bigger (a university system and their alumni) that they didn't build, but was built by countless people, plenty of which weren't even athletes.

I'd ask everyone here a question: do you watch your school because of the players? Or because of the school? I was raised as a Nova fan, and I was a Nova athlete back when we didn't even make the NIT. I don't watch because I have a particular affinity for JRE, or Josh Hart, or Scottie Reynolds, or Randy Foye. I watch because I have an affinity for my school. I also cheer when I see a Villanova engineer does something cool. However, I also agree with the argument that the NCAA holding the rights to your likeness indefinitely is a bit BS. I highly doubt the NCAA, or Villanova, is going to want to keep the image of me in a speedo as some special memento of athleticism (the pictures of me upside down doing a keg stand would probably be more valuable...especially in said speedo), but I shouldn't have to sign away those images of me just to do something I enjoy. And why couldn't I advertise to parents of 8 year olds desperate to get their kids college scholarships that I can give lessons or coach as a college swimmer? I did that a year later, once I was out of college (not that there was a line of parents throwing money at me), it didn't change anything.

The best comparison is probably to our existing minor league system, baseball. Rising stars still make peanuts until they make the big leagues (and usually for a few seasons afterwards until their initial contract expires). If a college football star believes he deserves to make huge money, let him try to do that as a member of some Birmingham/Columbus/Austin minor league football team. Basketball players, if they want, can go play in the G league or Europe/Asia. However, in support of the athletes, allow them to keep the rights to their image.

[DudeAnon]

The biggest issue I think with all of this, I think, is that the NCAA has to make policy that covers ALL athletes. Not just the football players at Alabama and Clemson, and Kentucky (and others) constantly rotating cast of one and done's. The top tiers of College football, to a lesser extent basketball, are the minor leagues of their respective sports. Is that right? Is that within what higher education should be? Probably not, but its the situation we live in; and legit minor leagues generally struggle. However, these 'minor league' players are getting the exposure as being a part of something bigger (a university system and their alumni) that they didn't build, but was built by countless people, plenty of which weren't even athletes.

I'd ask everyone here a question: do you watch your school because of the players? Or because of the school? I was raised as a Nova fan, and I was a Nova athlete back when we didn't even make the NIT. I don't watch because I have a particular affinity for JRE, or Josh Hart, or Scottie Reynolds, or Randy Foye. I watch because I have an affinity for my school. I also cheer when I see a Villanova engineer does something cool. However, I also agree with the argument that the NCAA holding the rights to your likeness indefinitely is a bit BS. I highly doubt the NCAA, or Villanova, is going to want to keep the image of me in a speedo as some special memento of athleticism (the pictures of me upside down doing a keg stand would probably be more valuable...especially in said speedo), but I shouldn't have to sign away those images of me just to do something I enjoy. And why couldn't I advertise to parents of 8 year olds desperate to get their kids college scholarships that I can give lessons or coach as a college swimmer? I did that a year later, once I was out of college (not that there was a line of parents throwing money at me), it didn't change anything.

The best comparison is probably to our existing minor league system, baseball. Rising stars still make peanuts until they make the big leagues (and usually for a few seasons afterwards until their initial contract expires). If a college football star believes he deserves to make huge money, let him try to do that as a member of some Birmingham/Columbus/Austin minor league football team. Basketball players, if they want, can go play in the G league or Europe/Asia. However, in support of the athletes, allow them to keep the rights to their image.

If I wake up tomorrow and all the revenue generating aspects of college sports (tv contracts, ticket sales, endorsements etc.) all disappeared. I would still enjoy the game as much as I do now. Xavier basketball is a family tradition for me. But the fact is that the revenue generating aspects do exist and it has benefitted everybody but the players. As long as the money is being brought in, I see nothing wrong with the players (who are as equally responsible as the coaches) getting a cut.

[Fieldhouse Flyer]

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College Athlete Economic Freedom Act would require NCAA allow players their name, image, likeness rights - GovTrackInsider.com – April 4, 2021

Should the NCAA allow players to profit more off their talents?

Context

Most college basketball players don’t end up playing professionally, as 98.4 percent of college football players and 98.8 percent of men’s college basketball players don’t. In those cases, and for sports where there is no real professional league to speak of, college players never earn anything more than the monetary value of their scholarships.

This, even though the highest-paid public employee in most states is a college football or basketball coach with salaries commonly in the millions, and National Collegiate Athletic Association (NCAA) president Mark Emmert earned $2.7 million in 2018. Indeed, the NCAA earned $519 million in 2020, even with most competitions cancelled due to the COVID-19 pandemic, and $1.18 billion in pandemic-free 2019.

While many believe that the players should be paid an actual salary, if that’s not going to happen immediately, many say the next best thing would be for players to maintain “name, image, and likeness” rights. This would allow players to earn money while still in college from things like signing endorsement deals, appearing in commercials, or getting paid to run training camps for kids.

What the legislation does

The College Athlete Economic Freedom Act would allow college athletes their name, image, and likeness rights. It would do so by expliciting preventing any individual college, conference (such as the Big 12 or SEC, to name two of the more famous conferences), or organization (targeting the NCAA) from restricting such rights. The House version was introduced on February 4, 2021 as H.R.850 by Rep. Lori Trahan (D-MA). The Senate version was introduced the same day as S.238 by Sen. Chris Murphy (D-CT).

What supporters say

What opponents say

Odds of passage

California’s equivalent passed unanimously: 73–0 in the state House and 39–0 in the state Senate. It’s unclear if those dynamics would be precisely replicated at the federal level, but it bodes well for the measure’s chances if it’s brought to a floor vote.

On the other hand, the House version has not yet attracted any cosponsors, and neither has the Senate version. It awaits a vote in either the House Judiciary or Energy and Commerce Committee, as well as the Senate Commerce, Science, and Transportation Committee.

Sen. Jerry Moran (R-KS) also released the similar S.414 - Amateur Athletes Protection and Compensation Act (2021) a few weeks later, which also has not yet attracted any cosponsors.

S.414 - Amateur Athletes Protection and Compensation Act - 117th Congress (2021-2022) – CONGRESS.GOV

UPDATE: Sixth Federal NIL Bill Proposed By Kansas Senator Jerry Moran - JDSUPRA.com - March 2, 2021

The S.414 - Amateur Athletes Protection and Compensation Act (2021) (Protection Act), the sixth federal proposal governing student-athlete name, image, and likeness (NIL) rights, has been introduced U.S. Senator Jerry Moran (R-KS). Senator Moran’s legislation combines aspects of prior partisan legislation proposed by both Republican and Democratic legislators.

The Protection Act follows portions of Senator Murphy’s (D-CT) recently proposed federal College Athlete Economic Freedom Act, and joins other proposals by Senators Booker (D-NJ) and Blumenthal (D-CT), Senator Wicker (R-MS), Senator Rubio (R-FL), and the bi-partisan bill introduced by Representatives Gonzalez (R-OH) and Cleaver (D-MO.). These federal proposals have followed a wave of state-level NIL legislation, which has already resulted in six states passing NIL laws and twenty nine other states currently considering specific NIL legislation.
Senator Moran’s bill also preempts varying state NIL laws and protects the NCAA from liability from former athletes retroactively seeking compensation. However, it does not grant the NCAA antitrust protection from legal entanglements tied to NIL. Finally,

“the bill is careful to ensure student athletes are not considered “employees” of their institution, an important point for the NCAA as it seeks to preserve its amateurism model and avoid any potential that student-athletes could unionize.”

The bill also establishes the Amateur Intercollegiate Athletics Corporation (AIAC) to create and enforce rules related to NIL, while also creating a formal certification process for agents. AIAC members would include college athletes, athletic administrators, and experts in the college sports field. Five of the fifteen member AIAC board of directors would have to be current or former college athletes.

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[Fieldhouse Flyer]

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Here are two more articles that are well worth a read.

7 Reasons The NCAA Is Likely To Lose Its Supreme Court Case - Marc Edelman [Professor of Law], Forbes – April 5, 2021

Last Wednesday, the U.S. Supreme Court heard oral arguments in NCAA v. Alston, a case that will determine whether the National Collegiate Athletic Association can cap educational benefits that college sports programs may provide to their athletes. Although the Supreme Court is not expected to publish its opinion until May, there are at least seven reasons the NCAA is very likely to lose, perhaps even unanimously.

First, as a matter of substance, the NCAA is asking the Supreme Court to ...

Finally, in many Supreme Court cases, subtle differences in public-policy preferences will lead judges to view desirable outcomes differently from one another. But here, the core ideology of both left-leaning justices and right-leaning justices would seem to strongly favor a ruling in favor of the players. Left-leaning justices might focus more on how the NCAA’s restraints on athlete compensation harm labor interests and disproportionately disadvantage minority and low-income individuals. Right-leaning justices might focus more on how the NCAA seeks to replace free-market principles and economic analysis with bright-line rules. But both sets of ideological principles land in the same place—that the NCAA restraints on athlete compensation are hugely problematic and defy free-market principles. Thus, judges on all ends of the political aisle will likely have ample reason to strike down these particular restraints.

The Student-Athlete Compensation Saga: NCAA v. Alston heard before U.S. Supreme Court – LinkLaters - April 9, 2021

The height of college basketball’s “March Madness” provided a fitting backdrop as on March 31st the U.S. Supreme Court heard arguments over whether current limits on the compensation of college athletes are consistent with U.S. antitrust law.

College sports in the U.S. generated approximately $18.9 billion in 2019. The National Collegiate Athletic Association (the NCAA) is the governing body responsible for regulating student-athletes and organising athletic programs at colleges and universities across the U.S. Under NCAA rules, student-athletes are considered “amateurs” and schools may offer scholarships for student-athletes up to the full value of the cost of attendance. However, the NCAA does not allow for any type of additional compensation to be paid to these athletes.

U.S. Antitrust Law Tests the Limits of “Amateurism”

The Oral Argument

Here’s what to watch for from the sidelines:

• If the Court rules in favor of Alston, will college athletics slide down the slippery slope? This case potentially opens the door to ongoing legal battles over the compensation paid to student-athletes. The courts could ultimately become responsible for setting compensation and, as Justice Breyer fears, play an ever-increasing role in deciding how amateur sports are run.

• How will the Court’s opinion affect the future of college athletics? This opinion could have serious implications for the future of non-revenue sports, college recruiting, and the inherent inequity between various conferences within the NCAA. In addition, this decision could potentially deepen the current gender divide in a number of NCAA sports (an issue that has been highlighted in recent weeks following the disparities brought to light between the hospitalities provided in the Men’s and Women’s March Madness tournaments).

• What are the implications for U.S. antitrust law? Some of the justices appeared sceptical of the NCAA’s argument concerning the differentiated and procompetitive product offered by amateur athletics. Could the court issue a broad ruling that rejects this core justification for the NCAA’s restraints on compensation (among others)? The case also raises significant doctrinal questions concerning the appropriate application of the “rule of reason,” particularly as applied to joint ventures in markets with unique characteristics (e.g., the NCAA’s monopsony power in the market for student-athletes). It will be interesting to see what the Court chooses to address in its forthcoming opinion, expected later this year.

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[Fieldhouse Flyer]

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Supreme Court of the United States - Wikipedia

Precedent - Wikipedia

A precedent is a principle or rule established in a previous legal case that is either binding on or persuasive without going to courts for a court or other tribunal when deciding subsequent cases with similar issues or facts. Legal systems place great value on deciding cases according to consistent principled rules, so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained.

The principle by which judges are bound to precedents is known as stare decisis (a Latin phrase with the literal meaning of "to stand in the-things-that-have-been-decided").

The case cited in the following CNN opinion article has nothing to do with basketball, but everything to do with the U.S. Supreme Court. The article also serves as a timely reminder that predicting the outcome of a Supreme Court adjudication can be very tricky.

Supreme Court's staggering deviation from precedent - Opinion by Elliot Williams, CNN Legal Analyst - April 23, 2021

Most stunning, however, is the manner in which the Supreme Court got there, by casting aside years of precedent with the stroke of a pen. Yesterday's decision was a frightening reminder of how easily the Court can speak out of both sides of its mouth: claiming fidelity to its own past decisions, while simultaneously gutting them.

Courts are governed by the doctrine of stare decisis, Latin for "to stand by things decided." In short, stare decisis is the fundamental doctrine that precedent matters, and that a court will stand by its rulings on issues previously brought before it. As the Supreme Court has said, stare decisis "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Such predictability is critical for helping the public understand what its rights are.

Put another way, in plain language, stare decisis isn't just a legal expression of if it ain't broke, don't fix it, but more like it ain't broke, and moreover, our role as its stewards demands that we ensure that it be respected and protected.

This basic backdrop makes the court's decision so perplexing. Justice Sonia Sotomayor was not having it, writing a withering dissent that accused the majority of turning its back on decades of precedent, and how the Court ought to follow its past decisions.

Justice Kavanaugh's opinion presents dozens of pages of justification for an outcome that is plainly out of line with the Court's past decisions. Certainly, the Court has a more conservative majority today than it did several years ago; Kavanaugh replaced a less reliably conservative Anthony Kennedy in 2018, and Amy Coney Barrett replaced Ruth Bader Ginsburg in 2020. Still, were the Court functioning properly, respect for precedent would trump ideology.

That a new conservative majority so quickly emboldened the Court to overturn longstanding precedent confirms what many in the public might believe about jurists -- that they are not bound by fidelity to the law alone, but are also political actors, deciding as they want.

In fact, the majority decision in the case gave Congress a great reason for expanding the size of the Supreme Court, as some have recently recommended. When a clear majority has signaled how willing it is to toss aside its own precedents with alarming haste, it is hard to argue, as some have, that adding more justices would be the thing that would politicize the Court beyond repair. It seems it is already there.

It is the Supreme Court's caprice, and the fragility of its precedents, that should give us all pause. Despite everything the Court might say about the power of precedent, they made clear this week that their past decisions only matter until they don't.

Also worth a look: National Collegiate Athletic Association v. Alston - Ballotpedia.org
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