Supreme Court Can End the College Sports Charade

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The Supreme Court on Wednesday agreed to hear oral arguments in a case involving the National Collegiate Athletic Association for the third time in its history. The case will go a long way toward deciding whether college athletes can ever be paid for playing a sport. With so much at stake, I’m hoping against hope that it will turn out better than the last two times.

To quickly recap: The first time was the so-called Regents case  in 1984. The court ruled 7 to 2 that the NCAA’s control of football television rights was an antitrust violation and that member universities and conferences had the right to make their own TV deals. One of the dissenters was Byron “Whizzer” White, the only justice who had ever been an All-American football player.

White feared that, freed from the NCAA’s limits on televising football games, universities would become greedy for the money football could generate and that revenue-maximization would become their core value. That, of course, is exactly what happened: The Regents case bears much responsibility for turning college sports into a multibillion-dollar business.

The second case, heard four years later, pitted Jerry Tarkanian, the legendary basketball coach for the University of Nevada, Las Vegas, against the NCAA. “Tark the Shark” spent the better part of two decades suing the association, which had branded him a cheat and had handed down an unheard-of punishment: a two-year suspension from coaching.

In court, Tarkanian argued that the NCAA had deprived him of due process — indeed, he was scarcely allowed to defend himself during its investigation. But by a 5-to-4 vote, the Supreme Court said that the NCAA was not obliged to provide due process. In ruling for the NCAA, the court gave the association free rein to punish players and coaches — even destroy careers — based on hearsay, lies and even the overt biases of NCAA investigators. Guess who one of the dissenters was? White, who thought it was important that the NCAA treat the players and coaches it investigated fairly. Thanks to the Supreme Court, it never has.

The case that the Supreme Court will consider this term, the National Collegiate Athletic Association v. Alston, is the latest effort to have the judiciary declare that the NCAA’s amateurism rules — which, of course, prevent universities from paying college athletes — violate the nation’s antitrust laws. To people like me, who have been calling for players to be paid for years — and who are offended at how their free labor enriches everyone else in College Sports Inc. — it seems plain as day that they do.

In economic terms, the NCAA isn’t so much an association as it is a cartel. It has developed a 400-page rule book whose primary purpose is to ensure that money does not find its way into players’ pockets. It claims that it is doing so to prevent players from being exploited — which is laughable — and to make sure that education comes first — equally laughable. In its legal briefs, the NCAA contends that amateurism is the special sauce that separates college sports from pro sports, and that if players were paid, college athletics would lose their appeal.

Since 2009, lawyers have filed class-action suits aimed at getting the courts to declare amateurism illegal. And you know what? They’ve actually succeeded. In 2014, a district court judge, Claudia Wilken, ruled in the first such case, O’Bannon v. NCAA, that the NCAA’s amateurism rules were an unreasonable restraint of trade — i.e., an antitrust violation. The U.S. Court of Appeals for the Ninth Circuit upheld her ruling.

Despite ruling against the NCAA, both Wilken and the Ninth Circuit allowed only a few small changes on the margin. For the most part, even though they said amateurism violated antitrust law, they allowed the existing rules to stand. Why? I can only surmise, but my guess is that the judges were fearful of making a ruling that would upend the way college sports has been governed since the 1950s.

The Alston case that the Supreme Court will hear had a somewhat better result for the plaintiffs. Once again, Wilken and the Ninth Circuit found that amateurism violated antitrust law — and once again, they said that players could not be paid directly for playing sports. However, this time they allowed compensation for anything related to education — a new computer, say, or an internship.

For the plaintiffs’ lawyers, this wasn’t everything they wanted, but it was much better than the O’Bannon result. Athletic departments were likely to find ways to get money to players for “education.” Plus, a number of states were passing laws to allow college athletes to accept money for their “name, image and likeness.” The NCAA notwithstanding, it seemed as if amateurism would no longer mean players had to be broke all the time.

Which is why the NCAA appealed to the Supreme Court. In its brief, it trotted out all its old arguments about amateurism being the sine qua non of college sports. Ultimately, the NCAA wants the Supreme Court to decree that its amateurism rules are legal after all.

Among the network of pay-the-players advocates, there was a lot of doom and gloom after the news broke that the court would hear the case. The plaintiffs’ lawyers have put on a brave face, but what choice did they have? “We look forward to the Supreme Court confirming the rulings below that the NCAA isn’t exempt from the nation’s antitrust laws,” said Steve Berman, the lawyer who brought the Alston case.

But let’s face it: It’s a decidedly conservative court, and the right has generally been sympathetic to the NCAA’s position. Just getting the Supreme Court to hear the case is a victory of sorts for the NCAA. (The court declined to hear the O’Bannon case.) Besides, as I mentioned earlier, judges are leery of making a ruling that would radically change how college sports is run. I’m not especially optimistic about the result.

Then again, maybe the third time will be the charm. The charade has gone on far too long, as has the exploitation of college athletes.

Its full title was National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma.

White played halfback at the University of Colorado.

Most of the information about the Regents and Tarkanian cases comes from the 2016 book I wrote with Ben Strauss, “Indentured: The Inside Story of the Rebellion Against the NCAA.”

Under the Constitution, only government institutions are required to provide due process protections. Tarkanian’s lawyers argued that because the NCAA was acting in concert with UNLV — a state-run institution — it was a “state actor” that had to give the same due process as a government agency.

The lead plaintiff is Shawne Alston, a former West Virginia running back.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Joe Nocera is a Bloomberg Opinion columnist covering business. He has written business columns for Esquire, GQ and the New York Times, and is the former editorial director of Fortune. His latest project is the Bloomberg-Wondery podcast "The Shrink Next Door."

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