The NCAA is not above the law
June 21st, 2021
These words closed Justice Kavanaugh's concurring opinion in today's U.S. Supreme Court decision that affirmed the Ninth Circuit's ruling in favor of Alston and other former athletes. In April, we discussed why the Supreme Court was unlikely to fully disrupt the NCAA's crumbling amateurism. The Court made abundantly clear in the second paragraph that today's opinion was confined to education-related benefits. The case presented the question of whether "NCAA’s rules violate §1 of the Sherman Act, which prohibits “contract[s], combination[s], or conspirac[ies] in restraint of trade or commerce.” The NCAA's enjoyment of monopsony control in the relevant market is about to come to an end in less than two weeks. Several states across the country have passed laws allowing athletes to exercise their right of publicity and test their labor value on the free market liberated from the false cloak of amateur status. The Court is well aware of this timing and their opinion release timing is no coincidence.
The opinion was unanimous because no matter the justices political leanings -- there is no argument that the NCAA somehow deserves antitrust exemption. Today's opinion axed the precedent of NCAA v. Board of Regents of the University of Oklahoma, relied upon by the NCAA since 1984 -- "Given the sensitivity of antitrust analysis to market realities-and how much has changed in this market- we think it would be particularly unwise to treat an aside in Regents as more than that." While this opinion does not exceed Judge Wilken's academic-related compensation remedy, it does send a clear message to the NCAA: do not come back here with this argument on broader questions. The conservative majority of this Court will not stand for the NCAA's proposed restraint on trade and the free market. Meanwhile, the Court's minority sees obvious inequality and an unpaid labor force.
Six states have NIL laws set to go into effect on July 1. The NCAA Council will meet this week seeking to establish NIL rules to propose to its Board of Governors before July 1. Congress has already said they will not have legislation in place prior to July 1.