Law vs. Ethics #2: The Supreme Court Unanimously Says Colleges Can Use Tuition To Run A Professional Sports Business

In NCAA v. Alston, handed down yesterday, a unanimous Supreme Court ruled that the National Collegiate Athletic Association (NCAA) violated the rights of student athletes and the Sherman Antitrust Act by restraining colleges from compensating student athletes. Justice Gorsuch wrote the opinion, upholding the U.S. Court of Appeals for the 9th Circuit. Justice Brett Kavanaugh wrote a concurrence.

The decision was a slam dunk for the players. Gorsuch vivisected the NCAA argument that its compensation rules should not be subject to a “rule of reason” analysis because it is a joint venture to offer consumers the unique product of intercollegiate athletic competition. The NCAA has monopoly power in the market, Gorsuch explained, so it deserves no such deference. The NCAA’s argument that it should be exempt because it offers societally important non-commercial benefits is ridiculous on its face, and Gorsuch explained why.

Justice Kavanaugh’s concurring opinion went further:

“The NCAA couches its arguments for not paying student athletes in innocuous labels. But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America…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. Price-fixing labor is price-fixing labor….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. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.”

Sportswriters have been lobbying for student athletes to be paid for many years, and I’m sure they will be rejoicing. However, this is an example of a decision that is guaranteed to make an unethical situation in colleges far worse, and colleges, which are rotting from the inside already, hardly need more ethical decay. Though hard cases make bad law, as the saying goes, this ruling proves that easy cases can make an ethics train wreck worse.

What does big time sports programs at colleges bring to education, which was once the primary mission of such institutions? (Now it’s leftist indoctrination, but never mind.) The rationalization was always that first, the student athletes involved were primarily students, and thus the programs provided a route for mostly “athletes of color’ to get a degree that they otherwise could neither afford nor achieve. That was a cover-story, of course, as anyone who has spent much time listening to pro football and pro basketball stars try to talk, with notable exceptions, knows. High profile student athletes barely studied, and were usually passed through courses until they either graduated after failing to be drafted, or left without a degree. Second, the programs were deemed necessary to bring funds to the institutions, as values-challenged alumni gave more money to a school when it won championships and TV networks passed out millions for big game programming.

Now, thanks to the SCOTUS decision, student athletes will choose their schools not according to prestige (and certainly not by academic excellence), but by what school will write the biggest checks. They will be employees, and the facade that they are just part-time , extra-curricular athletes will be, finally, unsustainable. Athletic programs will be, openly, what they always were for football and basketball: professional minor league systems for the NFL and the NBA. Presumably those two financial juggernauts will pick up the majority of the tab for athlete salaries; if not, a revolt by non-athlete students in those schools will be inevitable. Why should the uniformly inflated tuition they (or their parents) have to pay, and the crushing student loans they are burdened with to pay them, be inflated further to run a professional sports operation?

They shouldn’t. Indeed, it is no more reasonable or ethical for universities and colleges to have profit-making professional sports sidelines than to produce action movies or manufacture smart phones.

Maybe the chaos this sea-change will cause will result in less emphasis on sports in higher education, and the end of such distortions as the highest-paid instructors at some universities being the football coaches. Maybe—I doubt it, but you never know what will come out of chaos. It is overwhelmingly more likely that the resolution of this ethics train wreck will be venal, corrupting, and ugly.

But legal!

13 thoughts on “Law vs. Ethics #2: The Supreme Court Unanimously Says Colleges Can Use Tuition To Run A Professional Sports Business

  1. Maybe
    When players get paid they can pay their tuition and fees ensuring they have some skin in the game and can be fired from the team for not meeting academic standards.
    Employers pay premium wages to increase the opportunity costs of non performance or inadequate performance

  2. I went to school in the Colonial League, which later became the Patriot League, who are considered the last student athletes. Even that league finally folded on the idea, although they resisted offering football scholarships until 2012. Going from 9-2 and 10-1 seasons to 3-8 and 2-9 just isn’t that appealing. If you want to go someplace all-academic, that’s what places like Bowdoin, Williams, Swarthmore, and the University of Chicago are for. I wish I could say I still cared much. I’m glad I don’t have any kids to send away to college now and come back as young Bernie Sanderses or Antifa vandals.

  3. I still like my idea of schools spinning off their sports programs into for profit subsidiaries. The players will all simply be employees, minor leaguers. The dopey alums and other mentally and emotionally challenged fans can continue to root for their teams. Schools can go into for profit enterprises. They do for profit research and develop patents. Faculty experts consult. Why not run a minor league basketball or football team that entertains university people? At least the charade will be over. And these bereft black kids will get a decent salary before they’re sent packing back to wherever they were fished out of by voracious recruiters.

    • Liz Warren used to do outside legal work while on the faculty at Harvard. Don’t they all? Alan Dershowitz did, right? (Shouldn’t schools get a part of the fees those people earn while on faculties?)

  4. The irony of this is that years ago the SMU football program was suspended for paying players to come and play football.

    It was how small schools could compete on the field under the “rules” of the time.

    Now that the gloves are off, expect to see small market D1 schools fall of the map. I think that probably includes my beloved UA (bear down!
    We didn’t get much national exposure even so ).

    From a national broadcasting perspective, I think things will get crazy. In a bad way.

    All the “smaller” 2a schools, D2 and D3 will probably not be impacted, they don’t get the best recruits, don’t have nationally televised games, etc.

    Some guys are taken from small schools, but most are taken from the big programs.

    The money issue will be like the rest of pro sports, the select few make the money.

    I don’t know about sports scholarships for small schools, I believe they all do that, so there will still be opportunities for inner city kids to get scholarships, but they’ll be more student athlete than the big programs.

    What it might do is let kids at the big programs know that if they’re not getting paid now, they probably aren’t going to the NFL/NBA, and maybe they’ll study?

      • The funny thing is, Bob, all the programs will try to fix the salaries paid to players. They’ll try to just peel off a little bit of the dough and give it to the players and the universities and the coaches and the ADs will keep right on going. Until they get sued for price fixing. It’s going to be really, really entertaining to watch.

        • Yeah, the NCAA beast is a large one, I think you’re on to something.

          But players and their parents will hold out for top bidder, and suspect it will devolve to what 1st round draft picks were to the NFL before they capped it.

          A lot more colleges, though, and they can transfer now, so it’ll be harder to cap the top guys.

          It’s gonna be a real noodle to wrestle, and I suspect we’ll see tragedies about young/ irresponsible people who’ve been taken advantage of by the system after they’ve burned through their millions and their once bright futures now smoldering.

      • Well, that hurts a little, and occasionally the devil gets his due. In the pantheon of time, however, we’re ahead. Take your solace where you may, sir. 🙂

  5. Maybe the college coaches will get pay cuts to make them ‘competitive’ with the free market now. College coaches at the best programs make far more than those in the ‘pros’ because the players don’t have to be paid. A top-ranked college football coach was making $10 million/year when he retired. That is $10 million in taxpayer education dollars spent on 1 coach. Why? Because there is so much money in the system and it has to go somewhere. Why is anyone upset that this ruling will probably lead to fewer college sports? Why is anyone upset that unpaid labor will now be paid? Complaining about this is like complaining if China announces they will stop forced and slave labor and pay workers a fair wage and allow them to work or quit voluntarily. Yes, the Nikes and iPhones will cost more if that happens, but complaining about it is in bad form at the least.

  6. I might be way off base, because I know something between absolutely nothing and very little about college level sport… But I’ve always assumed that college ball was lucrative. Nevermind the whole “school pride angle” where schools use their teams in fundraising drives for alumni. Correct me if I’m wrong, but aren’t college sports a net gain on college income statements in and of themselves? In essence, isn’t college ball currently subsidizing, to some extent, tuition?

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