Kavanaugh, in his concurring opinion in Alston vs. the NCAA, seems to consider college football programs a conventional business,
and he describes the players as "labor" and "workers." I don't see how anyone can draw those conclusions. College football is a business--but certainly not a conventional one. The programs don't issue stock to private investors or the public; they don't own other businesses; the earnings are directed to funding all the other programs but capital improvements, administrative costs, etc. College sports programs are unique entities.
And the players are certainly not workers. They're not practicing 8 hours a day but rather 2 maybe three hours. The are /students/--not workers. The student/college thing has gotten completely lost in all this money-grubbing by today's players, as has the fact that their four-year scholarships---tuition, room, food, health care, tutoring, counseling---has a very high monetary value. Anybody getting scholarship money is in fact getting PAID, and anybody on full scholarship like football and basketball players are getting paid a LOT---something you never hear from the gimme free money crowd.
Kavanaugh and Harvard Buiness Reivew get int anti-trust legalese with respect to college and pro football that I"m not qualified to address, but he does seem to think that not paying players is "anti-competitive" and restraint of trade. How he or others comes to these notions, or what exactly he means, I don't know. It's stated in the Harvard Biz Review that college football could be subject to anti-trust Sherman Act provisions--but not pro football clubs. That seems counter-intuitive to me, but I'm not an anti-trust expert, of course.
It's worth noting that in 1984 the NCAA won a similar case in the Supreme Court, but some of the justices today seem to have different views--and while //precedent// has always supposed to be a big deal with SCOTUS issues, today's conservative SCOTUS justices have shown a lack of respect for precedent.
The SCOTUS judges do seem to agree that college football //should// be distinct from professional football--but if you play players it most certainly won't be distinct any more. Kavanaugh contends that CF would still be distinct because the players would be in school. Nonsense. The fundamental distinction between amateur and pro is whether one is paid to play or not. If you are being paid, you are essentially professional. Indeed, there are already some college football and basketball players who are /now/ making more money with NIL than some pro basketball and football players. And can you imagine that $hit that a number of CF players will get into if they start getting good money for playing in addition to their scholarships and NIL? Good lord, they aren't going to be up late studying calculus.
Lots of privately owned businesses don't issue stock and reinvest back in their business. Technically, the NCAA and the ADs it organizes would be classified as non-profits but non-profits still pay their workers.
The NFL's exemption to anti-trust laws is due to an arbitrary act of Congress and it may not last forever:
That’s because back in the early 1960s, Congress gave the league an exemption to federal antitrust laws, permitting all of the individual teams to act as a single entity when negotiating TV contracts. By bargaining together, the owners have been able to land dramatically more lucrative broadcasting deals. At the time it was drafted, the antitrust exemption very well may have been a benefit to the public, because it required that broadcasters air every team’s games in their home markets, says antitrust economist Andy Schwarz. But subsequent advances in technology, Schwarz says, have made it “an obsolete exemption.”
Getting paid and getting paid market market value are different things. The argument is that the NCAA is restricting competition by artificially constraining players capacity to test their market value. The fact that NILs have become so huge proves that there was a market.
Does anyone confuse the NFL for the XFL? Both leagues pay their players but are seen as very different entities. So, people can keep the NFL and the NCAA straight even if players are getting endorsement $.
To your last point, yep so its best not to play the slaves or they might get into mischief!!! I mean amateurism has certainly kept college athletes from violating any laws or being less than super studious, right?
I am no fan of this conservative SC court but here I think they made the right call.
The NCAA is making huge amounts of money of its marquee college athletes and they use their names, image, and likeliness to build audiences for college game, march madness and everything else that drives the huge TV contracts.
The athletes position is why not let us make some $ from our own NIL. You seem to be hanging on to some stereotypes that college athletes are just lollygagging around campus. But getting to be a D1 generally involves a tremendous amount of work and sacrifice. The time demands are significant and go way beyond formal practice times; there is travel, they are expected to do extra work in the weight room and in the field/gym on their own time, etc. etc. Universities are not using average students as revenue generators and cash cows nor making them publicly accountable for performance failures (and targets for social media abuse).
And the old rules were insanely restrictive. Remember when the starting QB for OSU who was banned for selling some of his Rose bowl memorabilia? I mean seriously, it was his stuff. Why not let him make some $ from it? As pointed out by other posters, a lot of these kids hail from impoverished backgrounds and want to help out their families.
I really can't figure why this NIL issue is such a moral outrage for you. If a college athlete has some company sponsor them for $ while they are on scholarship, it is hard to see this circumstance as being the downfall of Western civilization.
Much like the very low % of college athletes that go pro, the # of Caleb Williams type players who say that can make as much by staying an extra year in college is really quite small (and those star players have always been taken care of -- news flash, Johnny Manziel and Reggie Bush were not pure amateurs!!!!).
On the flipside, NILs can really benefit solid college athletes who never sign a pro contract or get cut after a year or so. For the vast majority, the window on their competitive athletic careers are very small.
harvardlawreview.org
