[Goose]

Goose, how do you view Kavanaugh's concurring opinion in NCAA vs. Alston where he invited challenges to the NCAA's restrictions on other compensation?

although the Court does not weigh in on the ultimate legality of the NCAA’s remaining compensation rules, the Court’s decision establishes how any such rules should be analyzed going forward. After today’s decision, the NCAA’s remaining compensation rules should receive ordinary “rule of reason” scrutiny under the antitrust laws.

It seems that his words have chilled any attempt by the NCAA to enforce restrictions on NIL compensation. Kavanaugh's words also seem to have emboldened lower courts to uphold challenges to NCAA actions. The NCAA is losing or has lost on just about every case it has taken up. The NCAA might have more likelihood of success trying to stop the sun from rising in the east than pushing back against NIL compensation.

FWIW, I interpret Kavanaugh's statement literally. Ordinary "rule of reason" would mean that any NIL compensation that can be reasonably construed as "commerce" would be protected by anti-trust legislation. Paying somebody to attend a particular institution is perfectly legal. There is no law against it. However, the NCAA making a rule prohibiting athletes that receive such payments from participating in NCAA sports would not be a "restraint of trade" because such payments are not "trade". The "rule of reason" would be: Examine the transaction. If the payment  is actually "commercial" in nature, i.e exchange of services for commercial benefit, the NCAA cannot ban the individual for receiving it. If one of the entities involved is not engaged in "trade", as NIL collectives generally are not, the NCAA can ban the individual because no "trade" was restrained.

Note this interpretation does mean that a sports agent could sign an athlete to an exclusive "personal services" contract and then tell them to attend school X as part of the deal. However, the sports agent would have to show he was actually representing the athlete in the future and was trying to make money on the deal. Obviously this could be abused. Kavanaugh was IMO saying the "rule of reason" would be used to decide if the contract was actually what it was claimed to be.

I do agree that the concurrence is just one of nine and may not reflect the majority. IMO the NCAA isn't acting aggressively because they are scared to death of the "athletes are employee issues". Fighting against "non-commercial" NILs might possibly open up that issue.

[Goose]

Goose, how do you view Kavanaugh's concurring opinion in NCAA vs. Alston where he invited challenges to the NCAA's restrictions on other compensation?

although the Court does not weigh in on the ultimate legality of the NCAA’s remaining compensation rules, the Court’s decision establishes how any such rules should be analyzed going forward. After today’s decision, the NCAA’s remaining compensation rules should receive ordinary “rule of reason” scrutiny under the antitrust laws.

It seems that his words have chilled any attempt by the NCAA to enforce restrictions on NIL compensation. Kavanaugh's words also seem to have emboldened lower courts to uphold challenges to NCAA actions. The NCAA is losing or has lost on just about every case it has taken up. The NCAA might have more likelihood of success trying to stop the sun from rising in the east than pushing back against NIL compensation.

FWIW, I interpret Kavanaugh's statement literally. Ordinary "rule of reason" would mean that any NIL compensation that can be reasonably construed as "commerce" would be protected by anti-trust legislation. Paying somebody to attend a particular institution is perfectly legal. There is no law against it. However, the NCAA making a rule prohibiting athletes that receive such payments from participating in NCAA sports would not be a "restraint of trade" because such payments are not "trade". The "rule of reason" would be: Examine the transaction. If the payment  is actually "commercial" in nature, i.e exchange of services for commercial benefit, the NCAA cannot ban the individual for receiving it. If one of the entities involved is not engaged in "trade", as NIL collectives generally are not, the NCAA can ban the individual because no "trade" was restrained.

Note this interpretation does mean that a sports agent could sign an athlete to an exclusive "personal services" contract and then tell them to attend school X as part of the deal. However, the sports agent would have to show he was actually representing the athlete in the future and was trying to make money on the deal. Obviously this could be abused. Kavanaugh was IMO saying the "rule of reason" would be used to decide if the contract was actually what it was claimed to be.

I do agree that the concurrence is just one of nine and may not reflect the majority. IMO the NCAA isn't acting aggressively because they are scared to death of the "athletes are employee issues". Fighting against "non-commercial" NILs might possibly open up that issue.