NCAA faces reckoning in Supreme Court, Congress

The argument about how college athletes should be compensated has basically been around as long as college sports themselves. As far back as the 1920s, there were well-publicized concerns about the commercialization of athletics, how a university’s priorities could be bastardized by big-time sports and schools paying players under the table.

We’ve literally been doing this for the last 100 years.

But the tone of the next 100 could very well be shaped by what happens in 2021.

Wednesday’s decision by the Supreme Court to hear an antitrust case challenging the NCAA’s ability to limit compensation for college athletes, combined with the ongoing congressional push to pass a national law dealing with name, image and likeness rights, positions the coming year as perhaps the most consequential in history for NCAA policy.

Simply put, with these parallel issues being considered by two branches of the federal government, many of the prominent questions about the rights of college athletes and the NCAA’s ability to make its own rules that have festered for the last several decades could be settled for the next several.

The collegiate model, as it were, is about to go on trial.

It’s about time.

When you cut through the propaganda that comes from the NCAA about the importance of preserving amateurism and the doctrinaire rhetoric of those who believe college sports should operate as a completely free market with no restrictions whatsoever, the people who work on the ground level of college sports just want an answer about the kind of system they’re going to operate under.

Some administrators are leery about what the name, image and likeness world is going to look like and genuinely fearful about what college sports will become if players get paid. Others don’t see things changing dramatically no matter what the courts or Congress say. Whatever the rules of the game end up being, they’ll abide by them. But the legal fighting and the speculation needs to end.

That could finally happen in 2021, and yet there are still so many moving parts to the discussion that it’s hard to really project whether the NCAA will come out on the other side as a dramatically different kind of organization.

The NCAA likely views the Supreme Court’s decision to hear its appeal as a positive, particularly with a 6-3 conservative majority that would appear on paper to be less friendly to “labor” in the context of a traditional antitrust case. But given the unique nature of the NCAA and college sports, trying to fit this specific case into an ideological box may not be that simple.

“The track record of conservative courts, whether it’s at the appellate level, at the Supreme Court level, has not been kind to antitrust plaintiffs and to labor,” said Gabe Feldman, director of the Tulane Sports Law Program and Tulane University’s associate provost for NCAA compliance. “So it certainly could be a factor, but sports often have a way of overriding the conservative-liberal line and sometimes carry more weight than traditional labor-management or conservative-liberal lines that are typically drawn.”

In fact, we’ve already seen that trend with some of the state laws that have been passed over the last 15 months on name, image and likeness rights and some of the ideas floating through various congressional committees. On both the left and the right, there have been harsh critics of how the NCAA wants to limit the ability of athletes to profit off their name, image and likeness.

What a final bill looks like, how much say the NCAA will have over what kinds of deals athletes can make and whether it is granted an antitrust exemption to prevent future lawsuits is unclear. Time is running out to get a bill passed through the current lame duck Congress, and in January a new administration under President-elect Biden will be taking office.

One person working with several schools on name, image and likeness issues, who spoke to USA TODAY Sports on the condition of anonymity because they were not authorized to speak publicly, pointed to the Jan. 5 Senate run-off elections in Georgia as a factor in what kind of law might get passed. If Democrats win both seats, creating a 50-50 tie in the Senate, there’s an expectation of a “more wide-ranging bill” covering athletes’ rights and limiting NCAA power, the person said.

But what the end result looks like is speculation. What matters now is that a resolution on some of these big issues is finally within sight.

Over the last decade, the NCAA’s grip on amateurism has steadily been loosened by the courts and public opinion. But even in the NCAA’s losses, like the Alston case that the Supreme Court agreed to hear, it was only a partial loss. While the Ninth Circuit said the NCAA couldn’t limit education-related benefits like payments for academic performance, it didn’t exactly blow up the model.

In a sense, the NCAA pushing that ruling to the Supreme Court is a risk. After the ruling is in and Congress does its work, the NCAA could look very different. Lots of benefits and rights for athletes that were fought for over many years could be granted. Or the system could end up just as regressive as it is now.

Either way, by the end of next year, the argument could be over for at least a generation.