The clock has been ticking for the NFL. The alarm is now going off.
Monday’s narrow ruling from the U.S. Supreme Court and broad warning in a concurring opinion from Justice Brett Kavanaugh puts the NCAA on notice. Any restriction on the ability of individuals to get compensated, directly or indirectly, will come under attack.
The easiest move for the NCAA will be to abandon all restrictions regarding athletes separately profiting from their names, images, and likenesses. The right move, for decades, has been to do it. The reasoning articulated by the Supreme Court makes it clear that the NCAA has no reason (and never had one) to slam the door on the ability of athletes to generate revenue for themselves -- especially if the revenue isn’t coming from the coffers of the colleges.
Via Dennis Dodd of CBSSports.com, the NCAA Council will meet today and tomorrow regarding the NIL issue, barely a week before laws become effective in multiple states allowing players to market their names, images, and likenesses. As Dodd explains it, the NCAA has hoped for federal legislation that would create uniform rules and, more importantly, provide the NCAA with protection against antitrust lawsuits. With Congress unable to get a law passed before July 1, the NCAA has to decide whether to maintain a rule that CLEARLY violates antitrust laws by clumsily preserving the amateur status of athletes and, in turn, price-fixing its labor force.
Already, a nationwide class should immediately should be filed attacking the NCAA’s anti-NIL rules. The liability becomes even more obvious if/when multiple states allow athletes to make money from their names, images, and likenesses as of July 1 -- and the world of college sports keeps spinning.
Remember, the NCAA’s best argument for refusing to allow players to make money is that the fans supposedly want their college athletes to be unpaid. The fair-minded fans don’t care; even if they did, Justice Kavanaugh showed how stupid that argument is with his passage from his concurring opinion: “The NCAA’s business model would be flatly illegal in almost any other industry in America. All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that ‘customers prefer’ to eat food from low-paid cooks. Law firms cannot conspire to cabin lawyers’ salaries in the name of providing legal services out of a ‘love of the law.’ Hospitals cannot agree to cap nurses’ income in order to create a ‘purer’ form of helping the sick. News organizations cannot join forces to curtail pay to reporters to preserve a ‘tradition’ of public-minded journalism. Movie studios cannot collude to slash benefits to camera crews to kindle a ‘spirit of amateurism’ in Hollywood.”
And the NCAA can no longer avoid sharing its billions in revenue with those who earn it by creating blanket rules that block not only payments from the universities but also any other money that an athlete can make by virtue of being an athlete.
Here’s hoping the antitrust lawsuit on past NIL prohibition gets filed today -- if it hasn’t already been filed. Here’s hoping that it’s just the beginning. The NCAA, the universities, and their highest-paid employees have continued to rake in millions at the expense of the players despite a clear and obvious violation of the antitrust laws. It’s time for the reckoning. It’s time for an accounting. It’s time to make it right, both looking forward and backward, at least as far as the statutes of limitations will allow.