The SDMB NCAA thread

[mhendo]

Did anyone listen to last week’s oral arguments in NCAA v. Alston? I started a thread about this case back when the 9th Circuit ruled, but it generated basically no interest. I was going to start another one about the Supreme Court hearing, but figured that this thread was the place where any discussion of the arguments would be most likely to get attention.

Seth Waxman, the NCAA’s counsel, took a pretty good hammering from a number of justices, both liberal and conservative. It’s always dangerous to predict Supreme Court case outcomes, but if I were a betting man, I’d wager that the decision isn’t going to go great for the NCAA.

Of course, even if they lose this case, the devil will be very much in the details. It’s a complicated issue, and much will turn on exactly how the opinion is written, and the extent to which the court is willing to use the rule of reason to set limits (or not) to what the players may or may not get paid. If you want to hear a good, detailed debate and discussion about the legal issues in play here, I recommend the latest episode of the National Constitution Center’s We The People podcast. If you’re interested in the “rule of reason” that plays such an important role in anti-trust cases, I tried to explain it in my other thread, linked above.

Quite frankly, I think that the NCAA’s “amateurism” defense of its anti-competitive practices is, perhaps, one of the most ridiculous arguments I’ve heard, and if it weren’t for the amounts of money involved here, I’d be stunned that they could make it with a straight face. The funny thing is that this idea of using “amateurism” as part of a pro-competitive argument in an anti-trust case was basically handed to the NCAA in a case they lost (NCAA v. Board of Regents, University of Oklahoma [1984]) by a court that was commenting on the general nature of college sports, but that never actually claimed that the NCAA’s amateur status was the reason behind its legal decision.

There’s actually a really nice amicus brief (PDF) in this case, written by a group of historians, that basically dismantles the whole “amateurism” argument. They point out that “financial favors” have been part of college sports from the earliest intercollegiate sporting events in the United States, and argue that, “While some may consider the notion of amateurism charming or noble, it is a cynical fiction as far as top-tier college sports are concerned” (pp. 7-8). They and other amici also note that the end of amateurism has not exactly killed the public appetite for events like the Olympic Games.

They argue that “amateurism” is just a convenient fig-leaf used by administrators and NCAA executives who don’t want to pay the people who produce the entertainment.

The ultimate distinguishing feature of the NCAA’s
“product” is not some sharp demarcation whereby
professionals are paid while college athletes are not.
Both professionals and “amateurs” are paid in one
form or another. Rather, the difference is that college
athletes are involved in higher education and
professionals are not. Connection to education, not
the false concept of amateurism, is the key to the
different sports’ “products” on the market, not the
false pretense that college athletes are participating
only for mere love of sport rather than for career and
financial opportunity as well. Given this actual
differentiator of college sports, consumer demand for
college athletics will likely remain well after the term
“amateurism” is eliminated from the NCAA
Constitution and Bylaws, something the Olympics did
in the 1980s.

pp. 16-17.

As a non-American, I’d also point to rugby union as another example of a game has thrived as a professional sport, despite administrators who clung to amateurism for decades, arguing that paying the players would threaten the sport.

Leaving aside specific legal issues related to anti-trust law, I find it really hard to ignore the racial dimension in this case. NCAA executives and college administrators constitute a largely white group of people, profiting from the under-compensated labor of players who are disproportionately black. African Americans make up about half of the players in top football and basketball programs, meaning that blacks (about 12.5 percent of the US population) are represented at the most lucrative college sports at about four times their representation in the general population.

Not only that, but studies consistently show that black Americans support paying college athletes at considerably higher rates than white Americans. Moreover, a study published in 2017 found that “racial resentment was among the strongest predictors of white opinion on NCAA compensation policy.” That is, the study found that there was, among whites, a correlation between opposition to paying college athletes and prejudice against African Americans. I have the whole study, if anyone wants to read it.

While the justices didn’t really get into the racial issues in the oral arguments last week, quite a few of them raised the issue of exploitation more generally, and seemed to see amateurism as the sham that it is.

Clarence Thomas asked the NCAA lawyer, Seth Waxman, the following question:

You put a lot of weight on – focus on amateurism. Is there a similar – and – and you look at the limitations of the benefits or pay to players. But is there a similar focus on the compensation to coaches to maintain that distinction between amateur coaches, coaches in the amateur ranks, as opposed to coaches in the pro ranks?

Waxman noted that the NCAA previously has a rule limiting payment to coaches, but it was struck down. Thomas retorted:

Well, it just strikes me as odd that the coaches’ salaries have ballooned and they’re in the amateur ranks, as are the players.

Samuel Alito then started hammering away:

Mr. Waxman, let me put on the table some of what is said by those who challenge your idea of amateurism. The briefs that are supported – that are submitted in support of the Respondents paint a pretty stark picture, and they argue that colleges with powerhouse football and basketball programs are really exploiting the students that they recruit.

They have programs that bring in billions of dollars.

As Justice Thomas mentioned, the – this money funds enormous salaries for coaches and others in huge athletic departments. But the athletes themselves have a pretty hard life.

They face training requirements that leave little time or energy for study, constant pressure to put sports above study, pressure to drop out of hard majors and hard classes, really shockingly low graduation rates.

Only a tiny percentage ever go on to make any money in professional sports. So the argument is they are recruited, they’re used up, and then they’re cast aside without even a college degree.

So they say, how can this be defended in the name of amateurism?

Then Elena Kagan:

Mr. Waxman, the way you talk about amateurism, it – it sounds awfully high-minded.

But there’s another way to think about what’s going on here, and that’s that schools that are naturally competitors as to athletes have all gotten together in an organization, an organization that has undisputed market power, and they use that power to fix athletic salaries at extremely low levels, far lower than what the market would set if it were allowed to operate. So why shouldn’t we think of it in just that kind of way, that these are competitors, all getting together with total market power, fixing prices?

Kagan asked why there needs to be cooperation among the colleges on the cost of labor. Waxman replied by appealing to amateurism as the thing that differentiates college sports from pro sports:

Because the cost of labor in this unique instance is what is the differentiating feature that provides a procompetitive product.

Kagan then came back at him with evidence from the trial in the lower court:

– if that were true, Mr. Waxman, you would have an argument.

But, as I understand what the trial court did here, it basically took a lot of evidence as to that question, as to whether the lack of pay to play was anything that consumers wanted, and what it found was that consumers didn’t really care about that.

The – the – the other side’s experts found on the basis of survey evidence and so forth that payments of $10,000 or more would not affect demand. Your expert failed to show anything to the contrary.

Essentially, you’re saying that the differentiating feature is the lack of pay to play.

But the evidence in this trial suggested exactly the opposite.

And by the way, leaving aside actual evidence presented at trial, is there anyone at all in this conversation who really believes that tens of millions of Americans would just stop watching college football if the players started getting paid? Does anyone really believe that all of those stadiums would suddenly be empty every Saturday, or that people would turn off their TVs on Saturday afternoons?

Speaking of Saturdays, one thing that never seems to be brought up in the argument about competition in college sports, much to my surprise, is the scheduling. If college football is really competing with professional football, why isn’t the Texas/Oklahoma game, or the Ohio State/Michigan game, ever scheduled at 1.00 p.m. on a Sunday afternoon? After all, if college football claims to be actually competing with the NFL, why not schedule some games at the same time that the Cowboys are playing the Eagles, or the Packers are suiting up against the Bears?

Anyway, Brett Kavanaugh had a few things to say as well:

I want to pick up from Justice Kagan and Justice Gorsuch and identify some issues of concern to me as I look at this. I start from the idea that the antitrust laws should not be a cover for exploitation of the student-athletes, so that is a concern, a overarching concern here. I see your rhetoric and tradition and history argument being very similar to the arguments that were made for exempting baseball from the antitrust laws, Flood v. Kuhn, Federal – Federal Baseball, and that – that exemption has not been replicated in other sports in other cases. And then, in Regents, as Justice Kagan said, that really was from a different era, it – it was dicta, not sure it was fully considered dicta, and, in any event, from a different era. So then we get to regular antitrust law, rule of reason, and I just want to drill down on your asserted procompetitive justification and how you say the product is differentiated. It does seem, as Justice Kagan and Justice Gorsuch suggested, Justice Alito, that schools are conspiring with competitors, agreeing with competitors, I’ll say that, to pay no salaries to the workers who are making the schools billions of dollars on the theory that consumers want the schools to pay their workers nothing.

And that just seems entirely circular and even somewhat disturbing. And then, as Justice Kagan says, it’s not even factually supported in the record in this case.

It seems to blend back to the tradition argument, and all things circle back to this idea, well, it should just – just don’t worry about it, college athletics is different, just like baseball. So those are the concerns I have initially.

After all that, Waxman must have felt a bit like a running back after 40 carries.

[All oral argument quotes from here.]