Student athletes or independent contractors? Supreme Court moves the goalposts on the NCAA

After its unanimous Supreme Court loss this week in NCAA v. Alston, it would be understandable if the National Collegiate Athletic Association’s Board of Governors wanted to pull a Hutchins. In 1939, Robert Maynard Hutchins, then-president of the University of Chicago, banned football entirely after years of the university being a dominant school in the sport. When asked if he ever personally wanted to engage in sports, Hutchins reportedly responded: “Whenever I feel like exercise, I lie down until the feeling passes.”

It was a story that I and many other students at the university embraced as sports-challenged, socially dysfunctional nerds. However, even for those of us who love watching sports, Hutchins remains like a pesky academic angel on our shoulders calling us to account. Hutchins not only viewed such programs as having no intellectual value but as presenting a threat to the academic integrity of universities. He insisted that “football has the same relation to education that bullfighting has to agriculture.” Of course, bulls do not get BAs, and it has long been clear that the educational advancement of these students is secondary to their competitive achievements. In 2014, a University of North Carolina professor found that as many as ten percent of the school’s football and basketball players could not read above a third-grade level. Compensation will only make college sports more like a business and student athletes more like the cost of doing business.

Hutchins’s lament is still heard by many academics over what is viewed as the corrupting influence of sports on higher education. Football and other big sports teams can cost tens of millions for a school. They are a big business cloaked in mortarboards and tassels. According to the Wall Street Journal, The University of Texas’s football program is worth $1 billion alone. The highest paid university employee at many schools is not the president but the football and basketball coaches. In 2017, the 129 schools in the NCAA’s Football Bowl Subdivision spent a combined $1.43 billion on compensation for coaches. That year, these schools spent a combined $8.05 billion on just their football programs.

That could get a lot worse.

The decision in Alston was, on one level, a modest change. The case was brought by athletes who played Division I football and basketball and who sought benefits beyond just tuition, board, and books. Writing for the court, Justice Neil Gorsuch upheld lower courts in saying that athletes could receive broader benefits related to their education. However, like tackles, there are opinions and then there are opinions.

Gorsuch insisted college sports is a “massive business” and “those who run this enterprise profit in a different way than the student-athletes whose activities they oversee.” Then came the horse collar tackle. In his concurrence, Justice Brett Kavanaugh declared “The NCAA’s business model would be flatly illegal in almost any other industry in America. Price-fixing labor is price-fixing labor.”

Justice Kavanaugh then went further and seemed to invite a massive antitrust challenge, declaring that “nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate … The NCAA is not above the law.”

If you put a new caption on those words, you would have a ready-made antitrust case.

What was most striking in the Alston case was the open skepticism over the role of the NCAA in comparison to the last major review from the Court. In 1984 in NCAA v. Board of Regents of the University of Oklahoma, the Supreme Court ruled that restrictions on television coverage of college football games were unlawful, but Justice John Paul Stevens stressed that “the NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports.” He stated that “There can be no question but that it needs ample latitude to play that role, or that the preservation of the student-athlete in higher education adds richness and diversity to intercollegiate athletics and is entirely consistent with the goals of” the antitrust laws.

Now the NCAA is being portrayed by Kavanaugh as somewhere between a sweatshop operator and a robber baron. Even Gorsuch stressed that much has changed in college sports since 1984 and it is now a multibillion-dollar industry with hoarded wealth.

Some on the court are clearly not ready to return to the go-go period when college stars could find a luxury car waiting in their driveway. Gorsuch stressed that “Under the current decree, the NCAA is free to forbid in-kind benefits unrelated to a student’s actual education; nothing stops it from enforcing a ‘no Lamborghini’ rule.”

The question is what comes next. If laptops and study abroad opportunities can now be funded, how about recreational items or other travel opportunities offered to athletes to relieve stress? Kavanaugh would clearly go further, noting “there are serious questions whether the NCAA’s remaining compensation rules can pass muster.”

The elimination of limits on compensation for student athletes could create a free-for-all.

In professional sports, there are salary caps, but they are imposed per team. Such a system would put schools in a bidding competition for each player. Instead of 32 NFL teams, there are 130 Division 1 football teams alone — not counting other sports.

Even modest direct compensation could create other problems. For example, men’s football and basketball teams still generate far more viewership and revenue than women’s teams. If a free market controls, male athletes would likely be paid far more than female athletes. Likewise, looser rules could open up lucrative collateral guarantees for employment or “externships” from loyal alumni working with such programs.

Alston highlights the fact that universities still have not come to grips with our reliance on college sports. With billions in revenue, that reliance has become an addiction. The ruling could force schools to offer greater financial rewards, but that could make actual education even less of a priority for these students.

It is the realization of Hutchins’ fears when he observed that “in many colleges, it is possible for a boy to win 12 letters without learning how to write one.”

Unless we maintain the amateur status of our student athletes, schools will become mere glorified farm teams for corporate sports. Increasing forms of compensation may prove more equitable but it is unlikely to prove more educational.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.