[CTcard]

BC seems to be conflating the issue of whether college athletes are really employees or not with that of ownership of NIL rights.

That is because they are conflated legally.

https://en.wikipedia.org/wiki/O%27Bannon_v._NCAA

O'Bannon v. NCAA was originally a NIL case, with Ed O'Bannon arguing that the NCAA rule banning him from receiving money from EA Sports for the use of his image and likeness in a videogame was a violation of the Sherman anti-trust act.  So far, so good, but the remedy from the judge in the case was that the longstanding practice of not paying athletes was illegal, not just NIL.

On August 8, 2014, Wilken ruled that the NCAA's long-held practice of barring payments to athletes violated antitrust laws.[19] She ordered that schools should be allowed to offer full cost-of-attendance scholarships to athletes, covering cost-of-living expenses that were not currently part of NCAA scholarships. Wilken also ruled that college be permitted to place as much as $5,000 into a trust for each athlete per year of eligibility.[20]

While the USSC denied certiorari of the NCAA's appeal, in its aftermath Wilken heard NCAA v. Alston, which was a consolidated case in which Wilken ruled that the NCAA could not limit aid to cost-of-attendance aid.  This case made it all the way to the USSC, which ruled, unanimously, against the NCAA in the spring.

Formally, the Supreme Court has only ruled in Alston, and the decision was relatively narrow.  However, the groundwork seems to have been pretty cleanly laid for courts to determine that both limitations to payments for NIL and barring direct payments to athletes for their labor will prove to be violations of the Sherman antitrust act.  I will be interested to see whether this is taken to its logical legal conclusion, which is that not only can the NCAA not restrain trade, but that schools are subject to employment rules, including minimum wage, etc.  My guess is that this will finally get decided when former athletes file suit alleging wage theft and misclassification.

BC

While there is a connection in the court cases, there isn't really in the latest NCAA decision. In fact, allowing free rein on individuals selling their NIL is currently an effort to fend off having athletes declared employees.

As a non-expert in employment law, some aspects of both of Wilken's rulings struck me as odd - though I did not investigate carefully and may misunderstand the essence of those rulings.

In the first, she said it is illegal for the NCAA to bar payments to athletes across the board. Her proposed remedy was essentially adding a fairly small sweetener to the current scholarship situation - also uniform across the board. Personally, I do not see a qualitative difference between the NCAA mandating the limits of scholarships for all and the court mandating a slightly higher scholarship for all. [Well, not quite, given that nominally the scholarship is only for educational purposes and the extra trust fund presumably has unrestricted use. That seems like an extremely minor difference in practice.]

In the second, Wilken stated that the NCAA could not limit the educational benefits that colleges could offer as part of a scholarship. Articles written about this decision meant the NCAA could still limit payments outside of educational benefits but also that conferences could make such limits where the NCAA could not. That seems illogical enough to me that I assume the decision simply did not comment upon non-educational related compensation nor about what conferences could or could not do.

In the end, it seems to me that it could be legally possible for a university to sponsor an amateur athletic team that competes against teams from other universities that follow the same rules - perhaps regardless of how much revenue the enterprise ends up bringing in. It seems legally not possible that universities could restrict students from owning, and selling, their own NIL unless those students are employees who bargain away such rights in exchange for compensation (salary) - regardless of the effect upon fair competition.

---

Finally, at what level does Stanford have enough ethical concerns to pull out?

I don't think that Stanford will have much choice. Without any kind of governing bodies that can control the compensation of athletes, college sports will just fall apart. It will fall apart even in the SEC when the lower tier schools realize they have absolutely no change of being even respectable anymore. Right now, every team has at least the hope they can get a good coach and recruit some guys that are loyal to Good Old U of ..., but when some other teams can just offer what it takes to buy those guys out, you have no shot. On top of that, the fans will realize the guys playing the game are mercenaries with no loyalty to the school at all. Right now, there can be at least the hope/illusion that the name on the front of the jersey matters. Wit no externally mandated financial leveling of the playing field, that will no longer be true. The students will soon realize the guys playing the game are not "one of us". Eventually, even in the SEC, the fans will too. At that point, why watch and why care?

But I disagree that Stanford pulling out of football and hoops in this "pay the athletes" environment - if it expands/devolves in the manner many think it will - will engender the same kind outrage/opposition that the 11-sports cut did.  That's because any college educated kid - even the avid sports fan - can see that what they're trying to save does not resemble the "college athletics" they supported and loved for years.  That's essentially what Goose said, and I agree.

I fear you both have a naively optimistic view of the connection to reality of the average sports fan. I suspect most sports fans care more about how college sports teams represent the superiority of their state, their region, their tribe, far more than they care about any particular ideal of college sports. Those winning just want to win; those not winning fantasize they will be in the winner's chair as soon as their team's AD gets that bug out of his/her rear end and hires a real coach - or properly pays players - or whatever is the complaint of the moment.

Of course I don't know the future or what Stanford would ultimately do. In fact I doubt those in a position to control things at Stanford have any real idea of what Stanford would ultimately do. It does seem to me that the average Stanford sports fan would be more concerned by these developments than most, but don't know if that turns the table.

[CTcard]

BC seems to be conflating the issue of whether college athletes are really employees or not with that of ownership of NIL rights.

That is because they are conflated legally.

https://en.wikipedia.org/wiki/O%27Bannon_v._NCAA

O'Bannon v. NCAA was originally a NIL case, with Ed O'Bannon arguing that the NCAA rule banning him from receiving money from EA Sports for the use of his image and likeness in a videogame was a violation of the Sherman anti-trust act.  So far, so good, but the remedy from the judge in the case was that the longstanding practice of not paying athletes was illegal, not just NIL.

On August 8, 2014, Wilken ruled that the NCAA's long-held practice of barring payments to athletes violated antitrust laws.[19] She ordered that schools should be allowed to offer full cost-of-attendance scholarships to athletes, covering cost-of-living expenses that were not currently part of NCAA scholarships. Wilken also ruled that college be permitted to place as much as $5,000 into a trust for each athlete per year of eligibility.[20]

While the USSC denied certiorari of the NCAA's appeal, in its aftermath Wilken heard NCAA v. Alston, which was a consolidated case in which Wilken ruled that the NCAA could not limit aid to cost-of-attendance aid.  This case made it all the way to the USSC, which ruled, unanimously, against the NCAA in the spring.

Formally, the Supreme Court has only ruled in Alston, and the decision was relatively narrow.  However, the groundwork seems to have been pretty cleanly laid for courts to determine that both limitations to payments for NIL and barring direct payments to athletes for their labor will prove to be violations of the Sherman antitrust act.  I will be interested to see whether this is taken to its logical legal conclusion, which is that not only can the NCAA not restrain trade, but that schools are subject to employment rules, including minimum wage, etc.  My guess is that this will finally get decided when former athletes file suit alleging wage theft and misclassification.

BC

While there is a connection in the court cases, there isn't really in the latest NCAA decision. In fact, allowing free rein on individuals selling their NIL is currently an effort to fend off having athletes declared employees.

As a non-expert in employment law, some aspects of both of Wilken's rulings struck me as odd - though I did not investigate carefully and may misunderstand the essence of those rulings.

In the first, she said it is illegal for the NCAA to bar payments to athletes across the board. Her proposed remedy was essentially adding a fairly small sweetener to the current scholarship situation - also uniform across the board. Personally, I do not see a qualitative difference between the NCAA mandating the limits of scholarships for all and the court mandating a slightly higher scholarship for all. [Well, not quite, given that nominally the scholarship is only for educational purposes and the extra trust fund presumably has unrestricted use. That seems like an extremely minor difference in practice.]

In the second, Wilken stated that the NCAA could not limit the educational benefits that colleges could offer as part of a scholarship. Articles written about this decision meant the NCAA could still limit payments outside of educational benefits but also that conferences could make such limits where the NCAA could not. That seems illogical enough to me that I assume the decision simply did not comment upon non-educational related compensation nor about what conferences could or could not do.

In the end, it seems to me that it could be legally possible for a university to sponsor an amateur athletic team that competes against teams from other universities that follow the same rules - perhaps regardless of how much revenue the enterprise ends up bringing in. It seems legally not possible that universities could restrict students from owning, and selling, their own NIL unless those students are employees who bargain away such rights in exchange for compensation (salary) - regardless of the effect upon fair competition.

---

Finally, at what level does Stanford have enough ethical concerns to pull out?

I don't think that Stanford will have much choice. Without any kind of governing bodies that can control the compensation of athletes, college sports will just fall apart. It will fall apart even in the SEC when the lower tier schools realize they have absolutely no change of being even respectable anymore. Right now, every team has at least the hope they can get a good coach and recruit some guys that are loyal to Good Old U of ..., but when some other teams can just offer what it takes to buy those guys out, you have no shot. On top of that, the fans will realize the guys playing the game are mercenaries with no loyalty to the school at all. Right now, there can be at least the hope/illusion that the name on the front of the jersey matters. Wit no externally mandated financial leveling of the playing field, that will no longer be true. The students will soon realize the guys playing the game are not "one of us". Eventually, even in the SEC, the fans will too. At that point, why watch and why care?

But I disagree that Stanford pulling out of football and hoops in this "pay the athletes" environment - if it expands/devolves in the manner many think it will - will engender the same kind outrage/opposition that the 11-sports cut did.  That's because any college educated kid - even the avid sports fan - can see that what they're trying to save does not resemble the "college athletics" they supported and loved for years.  That's essentially what Goose said, and I agree.

I fear you both have a naively optimistic view of the connection to reality of the average sports fan. I suspect most sports fans care more about how college sports teams represent the superiority of their state, their region, their tribe, far more than they care about any particular ideal of college sports. Those winning just want to win; those not winning fantasize they will be in the winner's chair as soon as their team's AD gets that bug out of his/her rear end and hires a real coach - or properly pays players - or whatever is the complaint of the moment.

Of course I don't know the future or what Stanford would ultimately do. In fact I doubt those in a position to control things at Stanford have any real idea of what Stanford would ultimately do. It does seem to me that the average Stanford sports fan would be more concerned by these developments than most, but don't know if that turns the table.

[teejers1]

I fear you both have a naively optimistic view of the connection to reality of the average sports fan. I suspect most sports fans care more about how college sports teams represent the superiority of their state, their region, their tribe, far more than they care about any particular ideal of college sports. Those winning just want to win; those not winning fantasize they will be in the winner's chair as soon as their team's AD gets that bug out of his/her rear end and hires a real coach - or properly pays players - or whatever is the complaint of the moment.

Of course I don't know the future or what Stanford would ultimately do. In fact I doubt those in a position to control things at Stanford have any real idea of what Stanford would ultimately do. It does seem to me that the average Stanford sports fan would be more concerned by these developments than most, but don't know if that turns the table.

I'm not talking about "average sports fan."  I'm talking about average Stanford sports fan.  And even more importantly, Stanford University administrators who will need to examine the role of paid athletes on campus vis a vis the mission of the university.

Maybe they determine paid athletes is consistent with the mission of Stanford University.  I just don't see it . . .

[teejers1]

I fear you both have a naively optimistic view of the connection to reality of the average sports fan. I suspect most sports fans care more about how college sports teams represent the superiority of their state, their region, their tribe, far more than they care about any particular ideal of college sports. Those winning just want to win; those not winning fantasize they will be in the winner's chair as soon as their team's AD gets that bug out of his/her rear end and hires a real coach - or properly pays players - or whatever is the complaint of the moment.

Of course I don't know the future or what Stanford would ultimately do. In fact I doubt those in a position to control things at Stanford have any real idea of what Stanford would ultimately do. It does seem to me that the average Stanford sports fan would be more concerned by these developments than most, but don't know if that turns the table.

I'm not talking about "average sports fan."  I'm talking about average Stanford sports fan.  And even more importantly, Stanford University administrators who will need to examine the role of paid athletes on campus vis a vis the mission of the university.

Maybe they determine paid athletes is consistent with the mission of Stanford University.  I just don't see it . . .

[CTcard]

I'm not talking about "average sports fan."  I'm talking about average Stanford sports fan.  And even more importantly, Stanford University administrators who will need to examine the role of paid athletes on campus vis a vis the mission of the university.


Maybe they determine paid athletes is consistent with the mission of Stanford University.  I just don't see it . . .

My "average sports fan" comments were more in response to Goose's comments about "even SEC fans".

The Stanford administrators thing is interesting. Most university administrators with that kind of influence don't have long-time connections to the university they serve and are a long ways removed from any direct involvement in academic pursuits - if they ever had any. There's much less of that at Stanford (and other top private schools). Maybe that will lead to the stated mission actually meaning something.

[CTcard]

I'm not talking about "average sports fan."  I'm talking about average Stanford sports fan.  And even more importantly, Stanford University administrators who will need to examine the role of paid athletes on campus vis a vis the mission of the university.


Maybe they determine paid athletes is consistent with the mission of Stanford University.  I just don't see it . . .

My "average sports fan" comments were more in response to Goose's comments about "even SEC fans".

The Stanford administrators thing is interesting. Most university administrators with that kind of influence don't have long-time connections to the university they serve and are a long ways removed from any direct involvement in academic pursuits - if they ever had any. There's much less of that at Stanford (and other top private schools). Maybe that will lead to the stated mission actually meaning something.

[Goose]

I fear you both have a naively optimistic view of the connection to reality of the average sports fan. I suspect most sports fans care more about how college sports teams represent the superiority of their state, their region, their tribe, far more than they care about any particular ideal of college sports. Those winning just want to win; those not winning fantasize they will be in the winner's chair as soon as their team's AD gets that bug out of his/her rear end and hires a real coach - or properly pays players - or whatever is the complaint of the moment.


Of course I don't know the future or what Stanford would ultimately do. In fact I doubt those in a position to control things at Stanford have any real idea of what Stanford would ultimately do. It does seem to me that the average Stanford sports fan would be more concerned by these developments than most, but don't know if that turns the table.

I agree that most "average" college sports fans care about their team representing their superiority by winning. Obviously, there are many programs that seldom win, but the fans at least believe that it is possible. What will change in the "brave new world" is that the average fan will eventually have to confront the fact their team's success is directly tied to the ability to pay. Right now, there is the fiction that there is more or less a level playing field. People do get put on probation/receive sanctions, although not with the frequency probably warranted. That will be gone. It will be demonstrably and painfully true the field isn't level, and everybody will know it. Foe example, Reggie Bush's parents will get a car to go with the new house, and everybody else will just have to live with it. Maybe Nike can convince him to transfer to Oregon for a few mil a year. It may take a few years for the rabid SEC fans to realize it, but they will.
There will be some interesting re-alignments where teams that were no good but have big available donors become perennially good. Other teams that were good will no longer be because they can't afford it. What will finally tear it for many fans is when some SEC also-ran starts to make a run and then suddenly their best player drops out of school to make a million dollars a year working for an Alabama alum. That will happen, make no mistake. So, I think I can say that one can have a pretty low estimate of the average fans awareness and still be almost certain that a 2x4 between the eyes will get noticed. This won't be pretty if nothing is done.

[Goose]

I fear you both have a naively optimistic view of the connection to reality of the average sports fan. I suspect most sports fans care more about how college sports teams represent the superiority of their state, their region, their tribe, far more than they care about any particular ideal of college sports. Those winning just want to win; those not winning fantasize they will be in the winner's chair as soon as their team's AD gets that bug out of his/her rear end and hires a real coach - or properly pays players - or whatever is the complaint of the moment.


Of course I don't know the future or what Stanford would ultimately do. In fact I doubt those in a position to control things at Stanford have any real idea of what Stanford would ultimately do. It does seem to me that the average Stanford sports fan would be more concerned by these developments than most, but don't know if that turns the table.

I agree that most "average" college sports fans care about their team representing their superiority by winning. Obviously, there are many programs that seldom win, but the fans at least believe that it is possible. What will change in the "brave new world" is that the average fan will eventually have to confront the fact their team's success is directly tied to the ability to pay. Right now, there is the fiction that there is more or less a level playing field. People do get put on probation/receive sanctions, although not with the frequency probably warranted. That will be gone. It will be demonstrably and painfully true the field isn't level, and everybody will know it. Foe example, Reggie Bush's parents will get a car to go with the new house, and everybody else will just have to live with it. Maybe Nike can convince him to transfer to Oregon for a few mil a year. It may take a few years for the rabid SEC fans to realize it, but they will.
There will be some interesting re-alignments where teams that were no good but have big available donors become perennially good. Other teams that were good will no longer be because they can't afford it. What will finally tear it for many fans is when some SEC also-ran starts to make a run and then suddenly their best player drops out of school to make a million dollars a year working for an Alabama alum. That will happen, make no mistake. So, I think I can say that one can have a pretty low estimate of the average fans awareness and still be almost certain that a 2x4 between the eyes will get noticed. This won't be pretty if nothing is done.

[baymeadows3408]

The fact that some wealthy donors would rather throw brobdingnagian sums of money at athletes in order to win football games instead of donating to the university's academic programs or scholarship funds is unfortunate but not surprising.

[baymeadows3408]

The fact that some wealthy donors would rather throw brobdingnagian sums of money at athletes in order to win football games instead of donating to the university's academic programs or scholarship funds is unfortunate but not surprising.

[Softball Fan]

For all its faults the NCAA was the glue that kept college sports together on a national basis.  Now many sports journalists are predicting the total downfall of the NCAA.

If that happens here is another Pandora's box to look out for.  The NCAA has requirements for high school GPA and test scores to be eligible for college sports.  Those requirements have been temporarily waived due to Covid.

Without NCAA guidance will some football factories accept high school dropouts?  Will some schools accept 16 and 17 year old kids and craft a four year plus cirriculum of "remedial" courses?

[Softball Fan]

For all its faults the NCAA was the glue that kept college sports together on a national basis.  Now many sports journalists are predicting the total downfall of the NCAA.

If that happens here is another Pandora's box to look out for.  The NCAA has requirements for high school GPA and test scores to be eligible for college sports.  Those requirements have been temporarily waived due to Covid.

Without NCAA guidance will some football factories accept high school dropouts?  Will some schools accept 16 and 17 year old kids and craft a four year plus cirriculum of "remedial" courses?

[Spiny_Norman]

For all its faults the NCAA was the glue that kept college sports together on a national basis.  Now many sports journalists are predicting the total downfall of the NCAA.

If that happens here is another Pandora's box to look out for.  The NCAA has requirements for high school GPA and test scores to be eligible for college sports.  Those requirements have been temporarily waived due to Covid.

Without NCAA guidance will some football factories accept high school dropouts?  Will some schools accept 16 and 17 year old kids and craft a four year plus cirriculum of "remedial" courses?

The void left by the NCAA will be filled by conferences. A lot will be determined by which conferences agree to work together and how they work together.

[Spiny_Norman]

For all its faults the NCAA was the glue that kept college sports together on a national basis.  Now many sports journalists are predicting the total downfall of the NCAA.

If that happens here is another Pandora's box to look out for.  The NCAA has requirements for high school GPA and test scores to be eligible for college sports.  Those requirements have been temporarily waived due to Covid.

Without NCAA guidance will some football factories accept high school dropouts?  Will some schools accept 16 and 17 year old kids and craft a four year plus cirriculum of "remedial" courses?

The void left by the NCAA will be filled by conferences. A lot will be determined by which conferences agree to work together and how they work together.

[Goose]

For all its faults the NCAA was the glue that kept college sports together on a national basis.  Now many sports journalists are predicting the total downfall of the NCAA.

If that happens here is another Pandora's box to look out for.  The NCAA has requirements for high school GPA and test scores to be eligible for college sports.  Those requirements have been temporarily waived due to Covid.

Without NCAA guidance will some football factories accept high school dropouts?  Will some schools accept 16 and 17 year old kids and craft a four year plus cirriculum of "remedial" courses?

The void left by the NCAA will be filled by conferences. A lot will be determined by which conferences agree to work together and how they work together.

I don't think so. The conferences have exactly the same legal problems the NCAA did. The schools can't collude together (form conferences) to restrain trade. It is just a smaller collusion, but still a combination in restraint of trade.

[Goose]

For all its faults the NCAA was the glue that kept college sports together on a national basis.  Now many sports journalists are predicting the total downfall of the NCAA.

If that happens here is another Pandora's box to look out for.  The NCAA has requirements for high school GPA and test scores to be eligible for college sports.  Those requirements have been temporarily waived due to Covid.

Without NCAA guidance will some football factories accept high school dropouts?  Will some schools accept 16 and 17 year old kids and craft a four year plus cirriculum of "remedial" courses?

The void left by the NCAA will be filled by conferences. A lot will be determined by which conferences agree to work together and how they work together.

I don't think so. The conferences have exactly the same legal problems the NCAA did. The schools can't collude together (form conferences) to restrain trade. It is just a smaller collusion, but still a combination in restraint of trade.

[BostonCard]

For all its faults the NCAA was the glue that kept college sports together on a national basis.  Now many sports journalists are predicting the total downfall of the NCAA.

If that happens here is another Pandora's box to look out for.  The NCAA has requirements for high school GPA and test scores to be eligible for college sports.  Those requirements have been temporarily waived due to Covid.

Without NCAA guidance will some football factories accept high school dropouts?  Will some schools accept 16 and 17 year old kids and craft a four year plus cirriculum of "remedial" courses?

The void left by the NCAA will be filled by conferences. A lot will be determined by which conferences agree to work together and how they work together.

I don't think so. The conferences have exactly the same legal problems the NCAA did. The schools can't collude together (form conferences) to restrain trade. It is just a smaller collusion, but still a combination in restraint of trade.

The existence of multiple conferences with different rules might offer some leeway to argue that players have the choice to transfer to a more permissive conference where they might be able to earn more money.

It’s hard to know where this will all lead.  We have had some lawsuits that have clearly told us that the system as it had existed was illegal, but we haven’t yet tested the bounds of that, and we don’t know how the system might evolve to fit within the law better.  The Supreme Court’s ruling hinted that there is more to come, but was still pretty narrow.  They (especially Kavenough) hinted that there could be more to come, but it is notable that the majority still chose to go with a narrow ruling.

BC

[BostonCard]

For all its faults the NCAA was the glue that kept college sports together on a national basis.  Now many sports journalists are predicting the total downfall of the NCAA.

If that happens here is another Pandora's box to look out for.  The NCAA has requirements for high school GPA and test scores to be eligible for college sports.  Those requirements have been temporarily waived due to Covid.

Without NCAA guidance will some football factories accept high school dropouts?  Will some schools accept 16 and 17 year old kids and craft a four year plus cirriculum of "remedial" courses?

The void left by the NCAA will be filled by conferences. A lot will be determined by which conferences agree to work together and how they work together.

I don't think so. The conferences have exactly the same legal problems the NCAA did. The schools can't collude together (form conferences) to restrain trade. It is just a smaller collusion, but still a combination in restraint of trade.

The existence of multiple conferences with different rules might offer some leeway to argue that players have the choice to transfer to a more permissive conference where they might be able to earn more money.

It’s hard to know where this will all lead.  We have had some lawsuits that have clearly told us that the system as it had existed was illegal, but we haven’t yet tested the bounds of that, and we don’t know how the system might evolve to fit within the law better.  The Supreme Court’s ruling hinted that there is more to come, but was still pretty narrow.  They (especially Kavenough) hinted that there could be more to come, but it is notable that the majority still chose to go with a narrow ruling.

BC

[Goose]

The existence of multiple conferences with different rules might offer some leeway to argue that players have the choice to transfer to a more permissive conference where they might be able to earn more money.

I am sure that argument can be made, but it is moot. Attempting to restrain trade is illegal even if you don't universally succeed. For that matter, the NCAA could have argued you don't need to be a member of the NCAA, which is absolutely true. However, if you are not, finding credible opponents is tough.

It’s hard to know where this will all lead.  We have had some lawsuits that have clearly told us that the system as it had existed was illegal, but we haven’t yet tested the bounds of that, and we don’t know how the system might evolve to fit within the law better.  The Supreme Court’s ruling hinted that there is more to come, but was still pretty narrow.  They (especially Kavenough) hinted that there could be more to come, but it is notable that the majority still chose to go with a narrow ruling.



BC

I think it is pretty clear what the court is saying. The current sports governance system is and always was illegal. They are slow-rolling it as much as possible (narrow interpretations to limit precedents as much as possible) to give congress and the schools a chance to figure out what legislation would work and would be constitutional. Nothing says the NCAA can't be given an anti-trust exemption (for example). In the current political climate however, probably not happening.

[Goose]

The existence of multiple conferences with different rules might offer some leeway to argue that players have the choice to transfer to a more permissive conference where they might be able to earn more money.

I am sure that argument can be made, but it is moot. Attempting to restrain trade is illegal even if you don't universally succeed. For that matter, the NCAA could have argued you don't need to be a member of the NCAA, which is absolutely true. However, if you are not, finding credible opponents is tough.

It’s hard to know where this will all lead.  We have had some lawsuits that have clearly told us that the system as it had existed was illegal, but we haven’t yet tested the bounds of that, and we don’t know how the system might evolve to fit within the law better.  The Supreme Court’s ruling hinted that there is more to come, but was still pretty narrow.  They (especially Kavenough) hinted that there could be more to come, but it is notable that the majority still chose to go with a narrow ruling.



BC

I think it is pretty clear what the court is saying. The current sports governance system is and always was illegal. They are slow-rolling it as much as possible (narrow interpretations to limit precedents as much as possible) to give congress and the schools a chance to figure out what legislation would work and would be constitutional. Nothing says the NCAA can't be given an anti-trust exemption (for example). In the current political climate however, probably not happening.

[OutsiderFan]

This piece from The Athletic was written for The Cardboard.

https://theathletic.com/2696130/2021/07/...ed_article

[OutsiderFan]

This piece from The Athletic was written for The Cardboard.

https://theathletic.com/2696130/2021/07/...ed_article

[BostonCard]

I think it is pretty clear what the court is saying. The current sports governance system is and always was illegal. They are slow-rolling it as much as possible (narrow interpretations to limit precedents as much as possible) to give congress and the schools a chance to figure out what legislation would work and would be constitutional. Nothing says the NCAA can't be given an anti-trust exemption (for example). In the current political climate however, probably not happening.

I agree with the highlighted statement, but the legal landscape has changed, as the decision noted.  The court noted that a lot of things have changed substantially since 1984, when the majority opinion in NCAA v. Board of Regents of the University of Oklahoma found that:

not all restraints of trade were unreasonable, and that only an unreasonable restraint was prohibited by the Sherman Antitrust Act. Stevens noted that a league governing body was necessary for sporting events to take place and determined that the rule of reason, not per se rules applied to the case.

I think that a NIL case back in the mid-eighties might have been decided in favor of the NCAA.  It certainly would not have been unanimous (the case was decided 7-2 with White and Rehnquist, who felt the NCAA's restrictions were reasonable.

There is a fundamental difference between competitive sports and other forms of entertainment.  Disney doesn't need to put out the latest Star Wars movie in order for Universal to put out a new Bond movie.  Because you need two teams on the field to play a football game, some degree of coordination between teams is necessary, and setting up leagues/conferences in order to coordinate is widely accepted; we aren't going to go back to the days of teams barnstorming around.  Moreover, it is generally accepted (and the NCAA v. Board of Regents agreed) that leagues have an interest in maintaining competitive balance (just that in that particular case, the interest in competitive balance did not justify restricting television deals).  Rules to maintain competitive balance are anti-competitive in any other interest, but I wouldn't count on the Supreme Court (even this one) striking them down on a per se basis.

However, as monopoly power is coming under increased scrutiny generally, and courts are starting to show increased skepticism of leagues assertion of their monopoly power, I think you are right that a number of arrangements will start to be examined (including, for example, the NFL's exclusive license with DirectTV).  I think the most egregious actions by sports leagues will be struck down (except in baseball, which enjoys an anti-trust exemption), and power will generally be devolved from leagues to individual teams.  Consequently, I think players/employees will benefit.  However, I don't think we are on a path to where sports leagues are dissolved by the courts as a violation of anti-trust regulation.

BC

[BostonCard]

I think it is pretty clear what the court is saying. The current sports governance system is and always was illegal. They are slow-rolling it as much as possible (narrow interpretations to limit precedents as much as possible) to give congress and the schools a chance to figure out what legislation would work and would be constitutional. Nothing says the NCAA can't be given an anti-trust exemption (for example). In the current political climate however, probably not happening.

I agree with the highlighted statement, but the legal landscape has changed, as the decision noted.  The court noted that a lot of things have changed substantially since 1984, when the majority opinion in NCAA v. Board of Regents of the University of Oklahoma found that:

not all restraints of trade were unreasonable, and that only an unreasonable restraint was prohibited by the Sherman Antitrust Act. Stevens noted that a league governing body was necessary for sporting events to take place and determined that the rule of reason, not per se rules applied to the case.

I think that a NIL case back in the mid-eighties might have been decided in favor of the NCAA.  It certainly would not have been unanimous (the case was decided 7-2 with White and Rehnquist, who felt the NCAA's restrictions were reasonable.

There is a fundamental difference between competitive sports and other forms of entertainment.  Disney doesn't need to put out the latest Star Wars movie in order for Universal to put out a new Bond movie.  Because you need two teams on the field to play a football game, some degree of coordination between teams is necessary, and setting up leagues/conferences in order to coordinate is widely accepted; we aren't going to go back to the days of teams barnstorming around.  Moreover, it is generally accepted (and the NCAA v. Board of Regents agreed) that leagues have an interest in maintaining competitive balance (just that in that particular case, the interest in competitive balance did not justify restricting television deals).  Rules to maintain competitive balance are anti-competitive in any other interest, but I wouldn't count on the Supreme Court (even this one) striking them down on a per se basis.

However, as monopoly power is coming under increased scrutiny generally, and courts are starting to show increased skepticism of leagues assertion of their monopoly power, I think you are right that a number of arrangements will start to be examined (including, for example, the NFL's exclusive license with DirectTV).  I think the most egregious actions by sports leagues will be struck down (except in baseball, which enjoys an anti-trust exemption), and power will generally be devolved from leagues to individual teams.  Consequently, I think players/employees will benefit.  However, I don't think we are on a path to where sports leagues are dissolved by the courts as a violation of anti-trust regulation.

BC

[CTcard]

However, I don't think we are on a path to where sports leagues are dissolved by the courts as a violation of anti-trust regulation.

BC

For most pro leagues, most of the anti-trust issues in dealing with employees go away with a collectively bargained union contract.

The rhetoric of several court decisions (from Wilken, and Kavanaugh's concurring opinion at the SC) would seem to imply that amateur sports leagues that bring in significant revenue aren't allowed. However, the remedies proposed seem to be much closer to small tweaks of the existing system than anything that would match the rhetoric.

[CTcard]

However, I don't think we are on a path to where sports leagues are dissolved by the courts as a violation of anti-trust regulation.

BC

For most pro leagues, most of the anti-trust issues in dealing with employees go away with a collectively bargained union contract.

The rhetoric of several court decisions (from Wilken, and Kavanaugh's concurring opinion at the SC) would seem to imply that amateur sports leagues that bring in significant revenue aren't allowed. However, the remedies proposed seem to be much closer to small tweaks of the existing system than anything that would match the rhetoric.

[Goose]

not all restraints of trade were unreasonable, and that only an unreasonable restraint was prohibited by the Sherman Antitrust Act. Stevens noted that a league governing body was necessary for sporting events to take place and determined that the rule of reason, not per se rules applied to the case.

I think that a NIL case back in the mid-eighties might have been decided in favor of the NCAA.  It certainly would not have been unanimous (the case was decided 7-2 with White and Rehnquist, who felt the NCAA's restrictions were reasonable.



There is a fundamental difference between competitive sports and other forms of entertainment.  Disney doesn't need to put out the latest Star Wars movie in order for Universal to put out a new Bond movie.  Because you need two teams on the field to play a football game, some degree of coordination between teams is necessary, and setting up leagues/conferences in order to coordinate is widely accepted; we aren't going to go back to the days of teams barnstorming around.  Moreover, it is generally accepted (and the NCAA v. Board of Regents agreed) that leagues have an interest in maintaining competitive balance (just that in that particular case, the interest in competitive balance did not justify restricting television deals).  Rules to maintain competitive balance are anti-competitive in any other interest, but I wouldn't count on the Supreme Court (even this one) striking them down on a per se basis.

However, as monopoly power is coming under increased scrutiny generally, and courts are starting to show increased skepticism of leagues assertion of their monopoly power, I think you are right that a number of arrangements will start to be examined (including, for example, the NFL's exclusive license with DirectTV).  I think the most egregious actions by sports leagues will be struck down (except in baseball, which enjoys an anti-trust exemption), and power will generally be devolved from leagues to individual teams.  Consequently, I think players/employees will benefit.  However, I don't think we are on a path to where sports leagues are dissolved by the courts as a violation of anti-trust regulation.





BC

BC, once again you have provided a well-researched and to the point post. It is obvious that Scalia was not on the court in 1984. If he were, he would have undoubtedly issued a scathing dissent. Nothing says congress can pass only "reasonable" laws. The laws they pass may be unreasonable, or may have unintended consequences. What Phogge thinks is reasonable Winflop may think is not. Laws can't rely on fuzzy, unclear principles because it makes them impossible to follow. Equally importantly, Congress has clearly shown by giving MLB an anti-trust exemption that Congress believes such an exemption is necessary for sports leagues to comply with the law. Therefore, the law means exactly what it says, I think that is the message that Kavanaugh is sending. This court isn't going to try and parse what is "reasonable". They are going to apply the law as written interpreted as literally as possible. If the affected parties don't want that, said parties need to lobby Congress and get explicit legislation saying what the  regulatory bodies can and can't do. In the past, the court may have tried to resolve the issues on a case by case basis by "legislating from the bench". This court isn't going to do that So, IMHO if the amateur athletic regulatory bodies, like the NCAA and the conferences want to have any power, they are going to have to get Congress to give it to them. Rules to maintain competitive balance are OK under the present system. This interest of the regulatory bodies is recognized. However, restricting commerce to accomplish this is goal is contrary to law, and the court isn't going to parse around that fact anymore. I think the court is saying "Don't count on us to fix this. It is up to Congress. If that doesn't happen, we will strike down any enforcement by regulatory bodies that restrains trade, so don't go there." The court won't dissolve these bodies per se, but they will be toothless and unable to conduct any "commerce related" activities.

From that point of view, the power will devolve to the individual teams. It is suggested that will benefit the players. I think in general it will not, because the TV goose that was laying golden eggs now has to deal with a hundred or so different entities, most of which have little or no audience appeal. The playing field was kept somewhat level by the teams banding together and contracting together. That won't be possible without new legislation. Therefore a few big football colleges will benefit. Everybody else get nothing or next to nothing. I think the damage to college athletics will far outweigh the benefits a few players/employees receive. That is why I dearly hope we can get some legislation to preserve amateur sports.

[Goose]

not all restraints of trade were unreasonable, and that only an unreasonable restraint was prohibited by the Sherman Antitrust Act. Stevens noted that a league governing body was necessary for sporting events to take place and determined that the rule of reason, not per se rules applied to the case.

I think that a NIL case back in the mid-eighties might have been decided in favor of the NCAA.  It certainly would not have been unanimous (the case was decided 7-2 with White and Rehnquist, who felt the NCAA's restrictions were reasonable.



There is a fundamental difference between competitive sports and other forms of entertainment.  Disney doesn't need to put out the latest Star Wars movie in order for Universal to put out a new Bond movie.  Because you need two teams on the field to play a football game, some degree of coordination between teams is necessary, and setting up leagues/conferences in order to coordinate is widely accepted; we aren't going to go back to the days of teams barnstorming around.  Moreover, it is generally accepted (and the NCAA v. Board of Regents agreed) that leagues have an interest in maintaining competitive balance (just that in that particular case, the interest in competitive balance did not justify restricting television deals).  Rules to maintain competitive balance are anti-competitive in any other interest, but I wouldn't count on the Supreme Court (even this one) striking them down on a per se basis.

However, as monopoly power is coming under increased scrutiny generally, and courts are starting to show increased skepticism of leagues assertion of their monopoly power, I think you are right that a number of arrangements will start to be examined (including, for example, the NFL's exclusive license with DirectTV).  I think the most egregious actions by sports leagues will be struck down (except in baseball, which enjoys an anti-trust exemption), and power will generally be devolved from leagues to individual teams.  Consequently, I think players/employees will benefit.  However, I don't think we are on a path to where sports leagues are dissolved by the courts as a violation of anti-trust regulation.





BC

BC, once again you have provided a well-researched and to the point post. It is obvious that Scalia was not on the court in 1984. If he were, he would have undoubtedly issued a scathing dissent. Nothing says congress can pass only "reasonable" laws. The laws they pass may be unreasonable, or may have unintended consequences. What Phogge thinks is reasonable Winflop may think is not. Laws can't rely on fuzzy, unclear principles because it makes them impossible to follow. Equally importantly, Congress has clearly shown by giving MLB an anti-trust exemption that Congress believes such an exemption is necessary for sports leagues to comply with the law. Therefore, the law means exactly what it says, I think that is the message that Kavanaugh is sending. This court isn't going to try and parse what is "reasonable". They are going to apply the law as written interpreted as literally as possible. If the affected parties don't want that, said parties need to lobby Congress and get explicit legislation saying what the  regulatory bodies can and can't do. In the past, the court may have tried to resolve the issues on a case by case basis by "legislating from the bench". This court isn't going to do that So, IMHO if the amateur athletic regulatory bodies, like the NCAA and the conferences want to have any power, they are going to have to get Congress to give it to them. Rules to maintain competitive balance are OK under the present system. This interest of the regulatory bodies is recognized. However, restricting commerce to accomplish this is goal is contrary to law, and the court isn't going to parse around that fact anymore. I think the court is saying "Don't count on us to fix this. It is up to Congress. If that doesn't happen, we will strike down any enforcement by regulatory bodies that restrains trade, so don't go there." The court won't dissolve these bodies per se, but they will be toothless and unable to conduct any "commerce related" activities.

From that point of view, the power will devolve to the individual teams. It is suggested that will benefit the players. I think in general it will not, because the TV goose that was laying golden eggs now has to deal with a hundred or so different entities, most of which have little or no audience appeal. The playing field was kept somewhat level by the teams banding together and contracting together. That won't be possible without new legislation. Therefore a few big football colleges will benefit. Everybody else get nothing or next to nothing. I think the damage to college athletics will far outweigh the benefits a few players/employees receive. That is why I dearly hope we can get some legislation to preserve amateur sports.

[BostonCard]

However, I don't think we are on a path to where sports leagues are dissolved by the courts as a violation of anti-trust regulation.

BC

For most pro leagues, most of the anti-trust issues in dealing with employees go away with a collectively bargained union contract.

The rhetoric of several court decisions (from Wilken, and Kavanaugh's concurring opinion at the SC) would seem to imply that amateur sports leagues that bring in significant revenue aren't allowed. However, the remedies proposed seem to be much closer to small tweaks of the existing system than anything that would match the rhetoric.

I think this is a good take.  The question is why.  Is it inherent (little “c”) conservatism by the judiciary, not wanting to make a mess by issuing the sweeping relief that appears warranted given their findings?  Or is it that they really don’t want to follow their reasoning to the logical conclusion, and want to look like they are doing something without actually doing so?

I think time will tell.

BC

[BostonCard]

However, I don't think we are on a path to where sports leagues are dissolved by the courts as a violation of anti-trust regulation.

BC

For most pro leagues, most of the anti-trust issues in dealing with employees go away with a collectively bargained union contract.

The rhetoric of several court decisions (from Wilken, and Kavanaugh's concurring opinion at the SC) would seem to imply that amateur sports leagues that bring in significant revenue aren't allowed. However, the remedies proposed seem to be much closer to small tweaks of the existing system than anything that would match the rhetoric.

I think this is a good take.  The question is why.  Is it inherent (little “c”) conservatism by the judiciary, not wanting to make a mess by issuing the sweeping relief that appears warranted given their findings?  Or is it that they really don’t want to follow their reasoning to the logical conclusion, and want to look like they are doing something without actually doing so?

I think time will tell.

BC

[Goose]

However, I don't think we are on a path to where sports leagues are dissolved by the courts as a violation of anti-trust regulation.

BC

For most pro leagues, most of the anti-trust issues in dealing with employees go away with a collectively bargained union contract.

To a degree. The problem is that the NFL (for example) is not the employer. The individual teams are. This leaves all kinds of open questions about the CBA. As long as the players and teams agree not to litigate any of them, everything is fine. If anybody ever does file a suit and try to litigate exactly what it all means it is unclear what would happen. It is a kind of MAD that up to now has worked.

Not employment related, but the Al Davis to LA suit and the NBA absorbing the ABA were both perilous for the leagues. Everybody was dancing on pins to avoid creating the motivation to go the anti-trust route. The leagues knew that if it went that way, they were screwed. There were two anti-trust suits involved in the NBA ABA merger. The NBA was basically petrified those suits would go forward and they would lose. The owners of the ABA teams that went out of existence still got paid their share of the deal. Wouldn't have happened except for anti-trust fears.

The rhetoric of several court decisions (from Wilken, and Kavanaugh's concurring opinion at the SC) would seem to imply that amateur sports leagues that bring in significant revenue aren't allowed. However, the remedies proposed seem to be much closer to small tweaks of the existing system than anything that would match the rhetoric.

For now. The rulings is narrow, which gives all the stakeholders time to figure out what needs to be done and get Congress to do it. The concurring opinion basically says "You have been warned. Next time, it may be a sweeping judgement. You won't like it".

[Goose]

However, I don't think we are on a path to where sports leagues are dissolved by the courts as a violation of anti-trust regulation.

BC

For most pro leagues, most of the anti-trust issues in dealing with employees go away with a collectively bargained union contract.

To a degree. The problem is that the NFL (for example) is not the employer. The individual teams are. This leaves all kinds of open questions about the CBA. As long as the players and teams agree not to litigate any of them, everything is fine. If anybody ever does file a suit and try to litigate exactly what it all means it is unclear what would happen. It is a kind of MAD that up to now has worked.

Not employment related, but the Al Davis to LA suit and the NBA absorbing the ABA were both perilous for the leagues. Everybody was dancing on pins to avoid creating the motivation to go the anti-trust route. The leagues knew that if it went that way, they were screwed. There were two anti-trust suits involved in the NBA ABA merger. The NBA was basically petrified those suits would go forward and they would lose. The owners of the ABA teams that went out of existence still got paid their share of the deal. Wouldn't have happened except for anti-trust fears.

The rhetoric of several court decisions (from Wilken, and Kavanaugh's concurring opinion at the SC) would seem to imply that amateur sports leagues that bring in significant revenue aren't allowed. However, the remedies proposed seem to be much closer to small tweaks of the existing system than anything that would match the rhetoric.

For now. The rulings is narrow, which gives all the stakeholders time to figure out what needs to be done and get Congress to do it. The concurring opinion basically says "You have been warned. Next time, it may be a sweeping judgement. You won't like it".

[TrumpCard]

A counterpoint is that Rutgers is having its best recruiting year in ages.  I wonder whether it is benefitting from a perception that its players will get more NIL money due to playing in the NY media market.  I don't know what else has happened that might explain the improvement in recruiting, but I did note that the coach is not new and the team went 3-6 last year, so some of the obvious explanations are out.

[TrumpCard]

A counterpoint is that Rutgers is having its best recruiting year in ages.  I wonder whether it is benefitting from a perception that its players will get more NIL money due to playing in the NY media market.  I don't know what else has happened that might explain the improvement in recruiting, but I did note that the coach is not new and the team went 3-6 last year, so some of the obvious explanations are out.

[Giants]

A counterpoint is that Rutgers is having its best recruiting year in ages.  I wonder whether it is benefitting from a perception that its players will get more NIL money due to playing in the NY media market.  I don't know what else has happened that might explain the improvement in recruiting, but I did note that the coach is not new and the team went 3-6 last year, so some of the obvious explanations are out.

Greg Schiano is back and he is a recruiting machine.  This is his first full season of recruiting in his second time around with Rutgers.

[Giants]

A counterpoint is that Rutgers is having its best recruiting year in ages.  I wonder whether it is benefitting from a perception that its players will get more NIL money due to playing in the NY media market.  I don't know what else has happened that might explain the improvement in recruiting, but I did note that the coach is not new and the team went 3-6 last year, so some of the obvious explanations are out.

Greg Schiano is back and he is a recruiting machine.  This is his first full season of recruiting in his second time around with Rutgers.

[SamuelMcF]

A counterpoint is that Rutgers is having its best recruiting year in ages.  I wonder whether it is benefitting from a perception that its players will get more NIL money due to playing in the NY media market.  I don't know what else has happened that might explain the improvement in recruiting, but I did note that the coach is not new and the team went 3-6 last year, so some of the obvious explanations are out.

Greg Schiano is back and he is a recruiting machine.  This is his first full season of recruiting in his second time around with Rutgers.

Schiano is trying to do the same with New Jersey what Jimmy Johnson did so successfully in the 80's at Miami: keep the talent from the "state of Miami" (or in this case, New Jersey/NYC/Philly) home. There is plenty of talent in the area, and it helps that the young guys probably smell blood and early PT in the water due to the recent coaching/scheme change and associated transfers. 10 of their 15 commits are local.

[SamuelMcF]

A counterpoint is that Rutgers is having its best recruiting year in ages.  I wonder whether it is benefitting from a perception that its players will get more NIL money due to playing in the NY media market.  I don't know what else has happened that might explain the improvement in recruiting, but I did note that the coach is not new and the team went 3-6 last year, so some of the obvious explanations are out.

Greg Schiano is back and he is a recruiting machine.  This is his first full season of recruiting in his second time around with Rutgers.

Schiano is trying to do the same with New Jersey what Jimmy Johnson did so successfully in the 80's at Miami: keep the talent from the "state of Miami" (or in this case, New Jersey/NYC/Philly) home. There is plenty of talent in the area, and it helps that the young guys probably smell blood and early PT in the water due to the recent coaching/scheme change and associated transfers. 10 of their 15 commits are local.

[TreesAndBirds]

Coach Shaw may not be making friends in Alabama....
Seems the implication is that these deals arent a business decision based on value of athletes name etc, but rather a way to entice athletes to come to Alabama. Although indirectly maybe the same. The better Ala football does, the more tourism, excitement, etc, and the more the local business community benefits. 

https://www.al.com/alabamafootball/2021/...about.html

[TreesAndBirds]

Coach Shaw may not be making friends in Alabama....
Seems the implication is that these deals arent a business decision based on value of athletes name etc, but rather a way to entice athletes to come to Alabama. Although indirectly maybe the same. The better Ala football does, the more tourism, excitement, etc, and the more the local business community benefits. 

https://www.al.com/alabamafootball/2021/...about.html