{"id":2765,"date":"2020-08-31T16:56:27","date_gmt":"2020-08-31T20:56:27","guid":{"rendered":"https:\/\/journals.law.harvard.edu\/jsel\/?p=2765"},"modified":"2023-07-25T11:41:17","modified_gmt":"2023-07-25T15:41:17","slug":"the-nil-in-amateurisms-coffin-how-the-ncaas-policy-reversal-shows-once-again-that-compensating-student-athletes-wont-hurt-college-sports","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/jsel\/2020\/08\/the-nil-in-amateurisms-coffin-how-the-ncaas-policy-reversal-shows-once-again-that-compensating-student-athletes-wont-hurt-college-sports\/","title":{"rendered":"The NIL in Amateurism\u2019s Coffin: How the NCAA\u2019s Policy Reversal Shows Once Again That Compensating Student-Athletes Won\u2019t Hurt College Sports"},"content":{"rendered":"

Jeffrey L. Kessler and David L. Greenspan<\/em><\/p>\n

Jeffrey L. Kessler<\/strong> is Co-Executive Chairman of Winston & Strawn LLP and Co-Chair of the firm\u2019s sports law practice.\u00a0 One of the world\u2019s leading antitrust, sports law, and trial lawyers, Jeffrey has litigated some of the most famous sports-antitrust cases in history, including<\/em>\u00a0McNeil v. NFL,<\/em> the landmark antitrust jury trial which led to the establishment of free agency in the National Football League, and\u00a0<\/em>Brady v. NFL, which led to the end of the 2011 NFL lockout. Jeffrey is co-lead class counsel in the landmark NCAA Grant-in-Aid Cap Antitrust Litigation in which the Ninth Circuit Court of Appeals unanimously affirmed a trial court decision striking down NCAA and conference restrictions on education-related compensation and benefits that can be provided to student-athletes.<\/em><\/p>\n

David L. Greenspan<\/strong> is a Partner of Winston & Strawn LLP and Chair of the firm\u2019s college sports sub-practice.\u00a0 An accomplished antitrust, sports, and commercial litigator, David has represented clients in complex commercial disputes at both the trial and appellate court levels, as well as before arbitration panels and government agencies. David was a driving force behind plaintiffs\u2019 victory in the NCAA Grant-in-Aid Cap Antitrust Litigation, securing a landmark ruling against the NCAA in a years-long suit that, for the first time, directly challenged the NCAA\u2019s ban on student-athlete compensation.<\/em><\/p>\n

The authors would like to thank Aaron M. Steeg for his contributions in preparing this article for publication.<\/em><\/p>\n

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In Aesop\u2019s fable \u201cThe Boy Who Cried Wolf,\u201d a young shepherd repeatedly cries for help from the town\u2019s villagers to protect his flock from an attacking wolf.\u00a0 But each time the villagers run to the boy\u2019s aid, they find him doubled-over in laughter with no wolf in sight.\u00a0 Like the shepherd guarding his flock, the NCAA\u2014which has long aggrandized itself as the guardian of \u201ca revered tradition of amateurism in college sports\u201d[1]<\/a>\u2014has repeatedly cried for Congress and federal courts to protect collegiate athletics from the threat of supposedly ruinous competition.[2]<\/a>\u00a0 But with no actual threat to consumer demand in sight, the NCAA and its members have continued laughing all the way to their banks.\u00a0 Eventually, the villagers in Aesop\u2019s story learned to ignore the false cries for help.\u00a0 It is time for Congress and the courts to do the same.<\/p>\n

The Board That Cried Wolf<\/span><\/p>\n

The NCAA has long decried increases in market competition or enhanced benefits for student-athletes as the death knell of college sports.\u00a0 In 1984, for example, the NCAA argued to the Supreme Court in Board of Regents <\/em>that allowing schools to freely compete in selling their broadcast rights would \u201cundermine college sports\u201d because consumers would \u201cturn to other sources for entertainment.\u201d[3]<\/a>\u00a0 Ironically\u2014but unsurprisingly\u2014the NCAA\u2019s eventual antitrust defeat paved the way for the explosion in college football broadcasts that today provides enormous benefits to consumers and generates billions of dollars each year for the NCAA and its members.[4]<\/a> \u00a0\u00a0In 1998, the NCAA argued, in Law<\/em>, that allowing schools to freely compete in compensating assistant basketball coaches would \u201cplace[] in grave doubt the future of competitive intercollegiate athletics.\u201d[5]<\/a>\u00a0 The NCAA was again found guilty of illegal restraints of trade.[6]<\/a>\u00a0 Competition for assistant basketball coaches is now unrestrained, many of these assistants earn millions per year, and college basketball is more popular than ever.[7]<\/a><\/p>\n

Which brings us to 2015, when the NCAA contended, in O\u2019Bannon, \u00a0<\/em>that allowing student-athletes to be compensated for their name, image, and likeness (NIL) rights would be \u201cno less anathema to amateurism than paying football players $100 per sack.\u201d[8]<\/a> \u00a0The courts rejected this plea for antitrust protection too, and again condemned the NCAA\u2019s rules as antitrust violations.[9]<\/a> \u00a0Now, only five years removed from its dire warnings about the consequences of permitting any NIL compensation to student-athletes, the NCAA and the Power Five Conferences\u2014under the pressure of legislation from the states[10]<\/a>\u2014have announced their support for<\/em> NIL payments to college athletes.[11]<\/a>\u00a0 And they have concluded that such payments will not cause any damage to consumer demand.[12]<\/a><\/p>\n

The NCAA\u2019s whiplash-inducing about-face on NIL compensation is just the latest re-write of its definition of amateurism\u2014one which federal courts have rightly found to be \u00a0\u201cmalleable\u201d[13]<\/a> and \u201c[in]coherent.\u201d[14]<\/a> \u00a0Indeed, the \u201cfrequent[,] . . . significant and contradictory\u201d changes to the NCAA\u2019s \u201cdefinition of amateurism\u201d[15]<\/a> leads to one inescapable conclusion: that \u201camateurism\u201d is not a \u201ccore principle\u201d of the NCAA but rather a pretextual tool<\/em> that the NCAA and its members use to control their costs and maximize their profits.<\/p>\n

This truth about what motivates the NCAA\u2019s compensation restraints was most recently laid bare in the NCAA Athletic Grant-in-Aid Antitrust Litigation<\/em>.\u00a0 There, the NCAA and the Power Five Conferences opposed student-athletes earning \u201cone penny more\u201d in education-related benefits such as academic awards, tutoring or computer equipment, claiming that such additional benefits would (once again) destroy consumer demand for college sports.[16]<\/a>\u00a0 But at trial, the NCAA executive in charge of legislating these rules testified that in his thirty years as an NCAA executive, he did not recall a single instance in which the NCAA considered consumer demand when making its compensation and benefit rules.[17]<\/a>\u00a0 So, what did <\/em>the NCAA membership consider in enacting its compensation restraints? \u201cCost considerations.\u201d[18]<\/a>\u00a0 Both the district court and the Ninth Circuit have held these restrictions on education-related benefits to be unlawful.<\/p>\n

Conclusion<\/span><\/p>\n

To invoke another fable, it is time for the world to recognize that the NCAA is the emperor with no clothes.\u00a0 NCAA restrictions on compensation to student-athletes are not necessary to preserve consumer demand or any purported principle of amateurism.\u00a0 And NIL compensation should be permitted for all college athletes\u2014without Congress granting the NCAA any new antitrust exemption. \u00a0It comes as little surprise that the NCAA\u2019s and Power Five Conferences\u2019 current support for NIL compensation goes only as far as third parties<\/em>\u2014not colleges and the Conferences themselves\u2014making such payments to student-athletes.\u00a0 This new conception of \u201camateurism\u201d may be the most revealing version of the NCAA\u2019s true motivations yet: to the NCAA, \u201camateurism\u201d no longer means that student-athletes should not be compensated, it just means that the NCAA and its constituents should not foot the bill.<\/p>\n

History has shown time-and-time again why the NCAA\u2019s repeated requests for judicial and legislative antitrust immunity must be rejected.\u00a0 The only difference between the NCAA\u2019s shrill warnings and \u201cThe Boy Who Cried Wolf\u201d is the ending.\u00a0 In Aesop\u2019s fable, the wolf eventually did appear and slaughtered the shepherd\u2019s flock.\u00a0 Here, there is simply no wolf.<\/p>\n

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[1]<\/a> E.g.<\/em>, Petition for Writ of Certiorari at 4, NCAA v. O\u2019Bannon<\/em>, No. 15-1388 (U.S. May 13, 2016), 2016 WL 2866087; Defendants\u2019 Joint Opening Brief at 8, In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig.<\/em>, 958 F.3d 1239 (9th Cir. 2020) (No. 19-15566), 2019 WL 3992706.<\/p>\n

[2]<\/a> E.g.<\/em>, In re NCAA Athletic Grant-In-Aid Cap Antitrust Litig.<\/em>, 375 F. Supp. 3d 1058 (N.D. Cal. 2019); O\u2019Bannon v. NCAA<\/em>, 7 F. Supp. 3d 955 (N.D. Cal. 2014); Law v. NCAA<\/em>, 902 F. Supp. 1394 (D. Kan. 1995); Bd. of Regents v. NCAA<\/em>, 546 F. Supp. 1276 (W.D. Okla. 1982).\u00a0 See also <\/em>Exhibit B to Plaintiffs\u2019 Opposition to Defendants-Appellants\u2019 Motion to Stay Issuance of the Mandate, Grant-In-Aid Cap Antitrust Litig.<\/em>, 958 F.3d 1239 (No. 19-15566), ECF 139-1 (Letter from Power Five Commissioners to Congressional Leadership).<\/p>\n

[3]<\/a> Brief for Petitioner at 21, 25, NCAA v. Bd. of Regents<\/em>, 468 U.S. 85 (1984) (No. 83-271), 1983 WL 919058.<\/p>\n

[4]<\/a> See Grant-In-Aid Cap Antitrust Litig.<\/em>, 375 F. Supp. 3d at 1063.<\/p>\n

[5]<\/a> Petition for Writ of Certiorari at 29, NCAA v. Law<\/em>, No. 97-2004 (U.S. June 11, 1998), 1998 WL 34112335.<\/p>\n

[6]<\/a> Law<\/em>, 902 F. Supp. at 1410, aff\u2019d<\/em>, 134 F.3d 1010 (10th Cir. 1998), cert. denied<\/em>, 525 U.S. 822 (1998).<\/p>\n

[7]<\/a> See, e.g.<\/em>, March Madness: The 2019 NCAA tournament scores across all platforms<\/em>, NCAA.org (Apr. 9, 2019), https:\/\/www.ncaa.com\/news\/basketball-men\/article\/2019-04-09\/march-madness-2019-ncaa-tournament-scores-across-all (showing 20% increase in viewership for Men\u2019s National Championship Game compared to previous year).<\/p>\n

[8]<\/a> Brief for NCAA at 57, O\u2019Bannon <\/em>v. NCAA<\/em>, 802 F.3d 1049 (9th Cir. 2015) (No. 14-17068), ECF 13-1.<\/p>\n

[9]<\/a> O\u2019Bannon<\/em>, 7 F. Supp. 3d at 1007, aff\u2019d in relevant part<\/em>, 802 F.3d 1049 (9th Cir. 2015), cert. denied<\/em>, 137 S. Ct. 277 (2016).<\/p>\n

[10]<\/a> See, e.g.<\/em>, Cal. Educ. Code \u00a7 67456 (effective Jan. 1, 2023); Fla. Stat. \u00a7 1006.74 (effective July 1, 2021).<\/p>\n

[11]<\/a> See<\/em> Letter from Power Five Commissioners to Congressional Leadership, supra<\/em> note 2.<\/p>\n

[12]<\/a> See Board of Governors starts process to enhance name, image and likeness opportunities<\/em>, NCAA.org (Oct. 29, 2019), http:\/\/www.ncaa.org\/about\/resources\/media-center\/news\/board-governors-starts-process-enhance-name-image-and-likeness-opportunities (concluding that NIL compensation for student-athletes is still \u201cconsistent with the collegiate model\u201d).<\/p>\n

[13]<\/a> O’Bannon<\/em>, 802 F.3d at 1058.<\/p>\n

[14]<\/a> Grant-In-Aid Cap Antitrust Litig.<\/em>, 375 F. Supp. 3d at 1074.<\/p>\n

[15]<\/a> O’Bannon<\/em>, 802 F.3d at 1058.<\/p>\n

[16]<\/a> See, e.g.<\/em>, Memorandum of Points and Authorities in Support of Plaintiffs\u2019 Motion for Summary Judgment at 22, Grant-In-Aid Cap Antitrust Litig.<\/em>, 375 F. Supp. 3d 1058 (No. 14-md-02541), 2017 WL 3525667; Grant-In-Aid Cap Antitrust Litig.<\/em>, 958 F.3d at 1258.<\/p>\n

[17]<\/a> Grant-In-Aid Cap Antitrust Litig.<\/em>, 375 F. Supp. 3d at 1080.<\/p>\n

[18]<\/a> See <\/em>Plaintiffs\u2019 Opposition to Motion to Stay Issuance of the Mandate at 16, Grant-In-Aid Cap Antitrust Litig.<\/em>, 958 F.3d 1239 (No. 19-15566), ECF 139-1 (quoting testimony of Kevin Lennon).<\/p>\n","protected":false},"excerpt":{"rendered":"

Jeffrey L. Kessler and David L. Greenspan Jeffrey L. Kessler is Co-Executive Chairman of Winston & Strawn LLP and Co-Chair of the firm\u2019s sports law practice.\u00a0 One of the world\u2019s leading antitrust, sports law, and trial lawyers, Jeffrey has litigated some of the most famous sports-antitrust cases in history, including\u00a0McNeil v. NFL, the landmark antitrust 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