We live in a very polarized society today, which isn’t news to anyone. That polarization has extended all the way to the Supreme Court, where each appointment has come with very close scrutiny and every decision the justices have made analyzed to the point where you think you know how they’ll rule on a case before it’s even argued. This type of polarization and scrutiny leads every case being a split decision it seems like.
So it’s nice to know that there is one thing that can cut through this polarization: the NCAA.
In a 9-0 decision on Monday, the Supreme Court agreed with a lower court decision that they violated antitrust law by limiting how athletes can be compensated for education-related benefits. Neil Gorsuch, a justice on the conservative side, wrote the opinion for the court.
The news has spawned a lot of hysteria among outlets, thinking that this means that athletes immediately will be able to get name, image and likeness money, money from contracts, and so on.
Let’s just hold up a second and actually talk about what this means.
What Happens Now
It’s important to note that this particular ruling is only about benefits related to education. The worry from the NCAA mostly had been that schools would use this provision to try and “slide” in extra benefits and create an unfair advantage quickly moving things away from the amateur model that the NCAA hopes to protect. The thing is, though, different universities located in different areas of the country have different costs of living and different requirements for their students. Trying to tell a school that to preserve amateurism they can’t make sure the athlete gets all of their educational needs through a scholarship while the music major could was just wrong in the eyes of the Court.
The Supreme Court has the ability to go as wide or as narrow in their decisions as they want, but the trend lately in decisions has been to try and slice as much of a narrow agreement as possible in order to send a message. Thus, while several justices may have wanted to completely knock down the compensation model of the NCAA, Gorsuch made it clear in the opinion that since this case was only about the educational benefits, that’s all they’ll address with this decision.
Does this mean Name, Image, and Likeness is going to happen immediately? No. This lawsuit was essentially a first step to forcing the NCAA down that path, getting president set in order to knock down the rest later on. Specifically, it’s setting a limit to the NCAA’s perceived anti-trust exemption first outlined by Justice John Paul Stevens in 1985. In that case, Stevens said that the NCAA gets “ample latitude” to skirt around anti-trust rules in order to preserve amateurism. This specifically sets that the NCAA doesn’t enjoy a full exemption, and now that the precedent has been set, further cases can come.
Why the NCAA and Membership should be afraid
Sometimes when a majority of the justices want to be a little more far-reaching but the number differs from the narrow scope of a ruling, the opinion will tell you that. In this case there were two opinions, both written by justices considered on the conservative side of the spectrum, including one by Brett Kavanaugh that basically told the NCAA “you’re going to lose future cases.”
Oh you want to see it in legalese? OK, From that ESPN piece:
The NCAA is not above the law,” Kavanaugh wrote. “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.
As mentioned above, the key on this case wasn’t so much about the educational expenses, but getting on record that the NCAA doesn’t have an anti-trust exemption. Now that this precedent is on record, further lawsuits actually challenging the right of athletes to make money while at school can proceed. As Michael McCann noted, lawsuits already in the pipeline are being reset based on this ruling:
Life comes at you fast when you lose U.S. Supreme Court rulings and you're in the middle of other litigations on possibly related matters: https://t.co/TjxhHPIb7U— Michael McCann (@McCannSportsLaw) June 21, 2021
In short, if you didn’t see it before, Name, Image, and Likeness is coming to college sports. The Supreme Court has laid down the gauntlet saying that not paying athletes under the term of “amateur athletics” isn’t going to be able to continue, and the NCAA needs to figure out a way to get athletes paid. If not, the Court is going to end up being forced to rule on it, and that is likely to end up costing the NCAA and its member institutions way more than if they can come to an agreement with Congress.
The NCAA seems to realize this, as evidenced by their statement:
“Even though the decision does not directly address name, image and likeness, the NCAA remains committed to supporting NIL benefits for student-athletes,” NCAA president Mark Emmert said in a statement. “Additionally, we remain committed to working with Congress to chart a path forward, which is a point the Supreme Court expressly stated in its ruling.
The NCAA has taken a beating in hearings in Congress as well, essentially being chastised for not coming up with something and begging the US Government for help, but the sheer makeup of the NCAA made that inevitable. It’s easy to dunk on Emmert and the Association, and we have, but the fact is they are but a representative body of several hundred institutions, all with different budgets and goals. If they can’t agree to a system of paying their athletes, then trying to keep the status quo as long as possible was really their only option.
Still, you should dunk on the NCAA. The fact is they are the ones who appealed this decision to the Court, rather than lift the cap on something as innocuous education expenses. Thanks to their appeal and the poor performance in the oral arguments, they now have a precedent by a Supreme Court that every lawsuit they’ll fight from here on out will cite. If the goal was to try and stretch for time to get a cohesive NIL process, they didn’t exactly go about it the way they should have.
In short, the old model we’ve gotten used to is going to change. It’s not a matter of if, but when and how.