NCAA must now ensure fair payday for college athletes
The U.S. Supreme Court has served notice to the NCAA that it "is not above the law" and that business as usual is ending.
The justices, in a 9-0 majority ruling and a concurring opinion from Associate Justice Brett Kavanaugh, said that the collegiate sports governing body could not restrict student-athletes' education-related benefits, such as computers, graduate scholarships and overseas study. While the ruling was narrow in strict terms, the unanimous vote and the rhetoric of the opinions suggest that the justices would be inclined to rule in favor of students on bigger questions, such as seeking compensation for use of their name, image or likeness.
What that means is that student-athletes could get a cut from such things as jersey sales bearing their name, social media and other endorsements, and personal appearances.
For example:
"Price-fixing labor is price-fixing labor," Kavanaugh wrote. "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," he wrote. "And under ordinary principles of antitrust law, it is not evident why college sports should be any different."
The language will encourage those who want athletes to get a share of the money generated by college sports, mainly from top football programs.
"It would not be a surprise to see future plaintiffs including direct quotes from his opinion," said Michael A. Carrier, a professor at Rutgers Law School.
The free labor of college football players enables coaches and athletic directors to be paid millions. It supports other sports at schools, and in that way subsidizes Olympic development and other elements of the amazingly lucrative American sports ecosystem. For example, nearly all players on the U.S. women's soccer team attended top-level schools whose coaches' salaries are covered by strong football and/or basketball programs.
TV networks that cut deals with the NCAA and athletic conferences are watching with an eye toward new opportunities — which are likely to favor the most successful schools and leave the others running even harder to catch up.
Under current NCAA policy, students cannot be paid, and the scholarship money colleges can offer is capped at the cost of attending the school. The NCAA is struggling to come up with a name, image, likeness policy as several states, including Nebraska, have passed laws establishing their own rules.
We do believe it is only fair for, say, Adrian Martinez or Lexi Sun to be able to make money on jerseys, endorsements and appearances. Nebraska quarterbacks and volleyball players are good examples of athletes whose peak of popularity and marketability comes during college, when they help float the entire Athletic Department.
The NCAA wants Congress to set rules. And we would all like Congress to be able to function, but in this case, the NCAA can't get away with trying to pass the buck.
It would like to avoid further litigation, but that's just not going to happen in modern America. So rather than waiting for a court ruling that could throw out current restrictions without setting new rules, setting up a hodgepodge of rules under various state laws and individual university policies, the NCAA must take responsibility.
The NCAA is considered likely, for the short term, to issue only broad guidelines and let schools police themselves and try to keep things in the "spirit" of the rules. Athletes may be able to go out and drum up their own side deals, but brand building is a lot of work.
The University of Nebraska-Lincoln is ahead of the game in terms of setting up a structure to help its athletes — which will become essential for schools that want to be competitive at a high level.
And that points to both the need for a uniform policy and potential downsides.
Schools lagging in athletic success and exposure will be at an even greater recruiting disadvantage. They will be under tremendous pressure to set up marketing programs for their athletes. Some may drop football — putting at risk other sports and particularly women's sports, which benefit from Title IX's requirement that schools offer an equal number of scholarships to women as men.
The transfer portal, already puncturing the traditional feel of college sports by allowing easy movement from school to school, will be even fuller as student-athletes shop around for better deals.
To be as fair as possible and to minimize the inevitable effect on competitive imbalance, the NCAA must adopt a comprehensive approach and move into the future.