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.