How did the NCAA get away with it this long?

The Supreme Court rejected the NCAA’s argument that it needs the freedom to restrict compensation for student-athletes to distinguish college sports from professional sports. (Christian Petersen/Getty Images)

The U.S. Supreme Court’s recent 40-page opinion in the National Collegiate Athletic Association antitrust case left one burning question unanswered: How in the world did the NCAA get away with it for so long?

The NCAA’s website says: “The National Collegiate Athletic Association is a member-led organization dedicated to the well-being and lifelong success of college athletes.”

How dedicated, you ask?

“The NCAA’s current broadcast contract for the March Madness basketball tournament is worth $1.1 billion annually. Its television deal for the FBS conference’s College Football Playoff is worth approximately $470 million per year.” The Southeastern Conference alone had “revenues exceeding $650 million” in 2017.

That’s a lot of dedication.

Those quotes are from the unanimous opinion authored by Justice Neil Gorsuch, who also notes that the president of the NCAA – and surely everyone knows who that is? – “earns nearly $4 million per year,” though oddly he doesn’t put quotation marks around “earns.”

The money is actually earned by the athletes, of course. The NCAA’s members employ about 180,000 without paying an honest, negotiated, above-board salary to any one of them.

The word “cartel” is frequently used to designate sinister, deadly organizations originating in Colombia or Mexico. OPEC is another infamous cartel. But the NCAA easily meets the first definition offered by Cornell University’s Legal Information Institute: “A cartel is a group of independent corporations or other entities that join together to fix prices.”

The NCAA fixes the prices its members pay for labor. It enforces that price-fixing arrangement with sanctions, which when imposed are always big news on the sports page, because they often have a dramatic effect on competition.

In other words, the NCAA has long placed a higher priority on enforcing its price-fixing arrangement than on competition between its members.

As Justice Brett Kavanaugh writes in a separate concurring opinion, “The NCAA’s business model would be flatly illegal in almost any other business in America.”

The justices are usually careful to comment only on the precise issues raised by the particular case before them. Kavanaugh, however, pretty much tells the lower court judges handling the inevitable future onslaught of cases how he wants them to rule.

But his main points are inarguable. Indeed, the NCAA didn’t argue against them. He writes: “The NCAA acknowledges that it controls the market for college athletes. The NCAA concedes that its compensation rules set the price of student athlete labor at a below-market rate. And the NCAA recognizes that student athletes currently have no meaningful ability to negotiate with the NCAA over the compensation rules.”

The NCAA claimed, in its defense, that “amateurism” was part of the appeal its product holds for sports consumers. But the district judge who heard the evidence found the NCAA “had not adopted any consistent definition” of amateurism. “Instead, the court found, the NCAA’s rules and restrictions have shifted markedly over time.”

And, of course, NCAA scholarship athletes are paid. They just receive payment in forms other than straight-up salaries.

The NCAA’s reliance on the ideal of amateurism, Kavanaugh writes, is like hospitals agreeing “to cap nurses’ income in order to create a ‘purer’ form of helping the sick” or news organizations banding together to limit reporters’ salaries “to preserve a ‘tradition’ of public-minded journalism.” Wouldn’t Tucker Carlson be more popular if everyone knew he was doing it for the love of the sport?

I think a more pointed comparison might be to Hollywood producers getting together to block the professional advancement of talented young actresses unless they, you know, play the game.

The NCAA, like a more effective Harvey Weinstein, has long been a gatekeeper, blocking the career path for ambitious and talented young people who seek to follow their dreams.

Weinstein, like other Hollywood predators before him, demanded sex. The NCAA demands labor at below market rates. Different strokes for different folks.

The Supreme Court’s decision, known as NCAA v. Alston, is technically limited to “NCAA rules limiting the education-related benefits schools may offer student-athletes – such as rules that prohibit schools from offering graduate or vocational school scholarships” or “payments for tutoring.”

The sheer meanness of such restrictions made them fat targets. But the decision will doubtless have effects extending far beyond its limited scope, as Kavanaugh’s concurrence previews.

Various factors came together to help the NCAA get away with its blatantly illegal operation for as long as it did. Many Americans have strong sentimental ties to college sports, though I admit that preppy Kavanaugh’s reference to that cherished American tradition of “lacrosse championships on Memorial Day weekend” left me baffled.

Oh, well. Next Memorial Day I’ll try to remember to put on Tom Lehrer’s “Fight Fiercely, Harvard.”

Joel Jacobsen is an author who in 2015 retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at legal.column.tips@gmail.com.

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