The U.S. Supreme Court’s unanimous ruling Monday that NCAA rules have unlawfully kept colleges from competing for athletic talent was unsurprising. It upheld lower court decisions and seemed the next logical step in the march toward compensation for college athletes.
The bigger question remains how to keep college sports from becoming the type of competitive big business that distorts the notion of a student-athlete and harms the academic missions of universities.
That is a more difficult and troubling issue to solve.
The court’s ruling was appropriately narrow. But then, the case presented to it was narrow. The justices upheld a lower court decision that limited player compensation to educational materials, things such as computers or eventual graduate school or vocational school expenses and internships. Non-educational things, such as salaries, were not part of the case.
And yet they are about to become an issue. In only a few weeks, laws will take effect in six states allowing student-athletes to be paid for endorsements and from their influencer status on social media. Congress has talked of setting national standards to supersede these laws, but so far it has not produced any legislation.
Among the issues is what control to give schools over their brand and image? Republican Utah Sen. Mike Lee rightly pointed out there could be products a university finds objectionable. Does a student-athlete representing the university have a right to make the choice independent of that university?
“For example, my alma mater, Brigham Young University, would have some opinions about which products its athletes might endorse and from what source they’d be coming, whether they might be endorsing products that are inconsistent with the university’s religious mission,” Lee said during a Senate Commerce, Science and Transportation Committee hearing.
Allowing full monetary compensation could have a disturbing effect on the time-honored notion of college athletics, diverting even more of an institution’s resources toward sports and away from academics.
The NCAA has yet to address this unfolding situation. Congress has yet to address and solve it universally. Having policies that match principles — and the law — is critical to maintaining fairness for individuals and schools, and to maintaining some level of competitive fairness (imperfect though it is) in sports.
Monday’s ruling may signal that tougher days are ahead for the NCAA.
Justice Brett Kavanaugh, in a stinging concurring opinion, indicated that he, at least, is tiring of the notion of amateurism in college athletics and may be open to the idea of pushing schools even closer to an outright pay-for-play model.
“The NCAA’s business model would be flatly illegal in almost any other industry in America,” he wrote. “All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that ‘customers prefer’ to eat food from low-paid cooks.
“Law firms cannot conspire to cabin lawyers’ salaries in the name of providing legal services out of a ‘love of the law.’ Hospitals cannot agree to cap nurses’ income in order to create a ‘purer’ form of helping the sick. News organizations cannot join forces to curtail pay to reporters to preserve a ‘tradition’ of public-minded journalism. Movie studios cannot collude to slash benefits to camera crews to kindle a ‘spirit of amateurism’ in Hollywood.”
Gabe Feldman, the director of the sports law program at Tulane University, told The New York Times that Kavanaugh’s opinion might signal a pathway toward eventually striking down all prohibitions on compensation as violations of antitrust laws.
As various reports have shown through the years, including one by USA Today in 2018, many schools run deficits in their sports budgets that have to be made up through student fees or cuts elsewhere on campus. Imagine what would happen to expenses if schools had to offer huge compensation packages to lure players.
It may be too late for NCAA officials to argue with a straight face that college amateurism is pure or that athletes, who also risk serious injury, should give up all rights to compensation for the greater glory of their schools.
However, while the court’s narrow ruling this week is a cautious step forward for athletes, a full-fledged pay-to-play system would not be healthy for academics. The ultimate solution may be to create a system of athletics quite different from the one with which Americans, and millions of proud alumni, are accustomed.
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