Hey, NCAA, Time’s Up

On the eve of the Final Four—the biggest moneymaker in college sports—there has never been a time when student-athlete compensation has been more in the public spotlight, as the NCAA’s lucrative governance model has come under intense scrutiny. And rightfully so. Where the NCAA, its conferences, schools, coaches, administrators and even Sister Jean, can permissibly reap the financial rewards of the tournament, its players cannot—at least without being implicated in an FBI investigation. Nevertheless, 2018 may be one of the last years this “amateurism” model riddled with hypocrisy is allowed to stand. This week alone, two major events in the battle for pay-for-play prove that the tide is turning against the NCAA . . . and quickly.

First, California Assemblyman Chris Holden introduced a bill in the California Assembly entitled the College Athletes’ Civil Rights Act of 2018, which would “allow college athletes to self-organize, create the possibility of the ‘Olympic Model’ for college athletes such as commercial sponsorship, and help protect college athletes from abuses by agents, shoe company executives, college coaches, trainers, and other athletic staff.”[1] If enacted, the Act would be the first piece of legislation in the country that provides statutory support for student-athlete compensation. This Act would only be controlling in California and NCAA member institutions would still violate NCAA rules if they began to pay players. However, if the athletes successfully unionize and challenge the NCAA’s amateurism standards under the law, it could tee up a legal battle in jurisdictions that have proven to be sympathetic to student-athletes.

This is especially true in California, where in the same week Chris Holden introduced his bill, Judge Claudia Wilken dismissed the NCAA’s motion for summary judgment in In re: NCAA Athletic Grant-In-Aid Cap Antitrust Litigation (4:14-cv-02758), a class action antitrust lawsuit brought on behalf of Division I Football and Basketball players, which seeks to enjoin the NCAA from limiting grant-in-aid awards to cost of attendance. This lawsuit is the consolidation of Alston v. NCAA (a suit for the difference in student-athlete grant-in-aid compensation after O’Bannon raised that compensation to cost of attendance) and Jenkins v. NCAA (seeking an injunction to outlaw grant-in-aid caps at cost of attendance).[2]

In dismissing the NCAA’s motion for summary judgment, Judge Wilken, the same judge who decided O’Bannon, found the student-athlete plaintiffs proved a clear anticompetitive effect of scholarship caps: “Plaintiffs have produced undisputed evidence that greater compensation and benefits would be offered in the recruitment of student-athletes absent the challenged rules, meeting their burden for summary adjudication on this question.” As such, the NCAA has a heavy burden to carry at trial to rebut that its restrictions on grant-in-aid do not violate federal antitrust law.

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March Madness is a time when so many Americans gather to cheer on their alma maters, embrace Cinderellas and celebrate what makes college athletics special. While this year’s tournament has provided its fair share of good PR for the NCAA in the form of UMBC, the first sixteen seed to ever beat a one seed, and Sister Jean’s Final Four Loyola Ramblers, the FBI investigation still lingers. While pay-for-play has become the NCAA’s worst kept secret, in the 2017-18 season the American public has been forced to come to terms with the fact that some of the NCAA’s amateurs are not actually amateurs. The question is no longer IF a superstar in the tournament is being paid, but HOW MUCH (because apparently 6 figures is not out of the question).

So, as the final three games of the 2017-18 college basketball season are broadcast across the world this weekend, one question remains: how long will the NCAA defend the amateur element of its governance structure? The case for student-athlete compensation is only getting stronger as the California legislature, federal district courts and numerous commentators have proposed alternatives to permit student-athletes to get their fair share. While it would be no surprise for the NCAA to fight tooth and nail to defend itself, at what point does the organization risk alienating a huge chunk of its fan base by clinging to standards set in the 1980s before the advent of billion-dollar television deals?

That day has already come. It is just a matter of time before the courts, the legislature or even the NCAA’s organizations decide this system is no longer worth the hassle. Chris Holden is the first; he won’t be the last. This is Claudia Wilken’s second crack at the NCAA. Rumors of the Power 5 breaking off in football and basketball are creeping into conversation and the fact that the FBI has become the NCAA’s police force further proves how big of a farce NCAA governance actually is. If the NCAA won’t enforce its own rules, what is to stop legislators, judges or powerful athletics departments from deeming the organization unfit for duty and stripping it of its power?

Therefore, NCAA, you have reached a crossroads. The choice is simple: modernize and pay to preempt mandated change, or double down on amateurism and pray that legislators, courts and your own members will continue to let you govern your broken system.

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[1] Press Release, Assembly Member Holden Introduces Legislation to Protect College Athletes from Harmful NCAA Policies, Assembly member Chris Holden: District 41 (Mar. 28, 2018), https://a41.asmdc.org/press-releases/20180328-assemblymember-holden-introduces-legislation-protect-college-athletes.

[2] Steve Silver, NCAA Loses Summary Judgment, Must Now Defend Amateurism Scam At Trial in Monumental Antitrust Case, Above the Law: The Legal Blitz (Mar. 30, 2018, 1:08 PM), https://abovethelaw.com/2018/03/ncaa-loses-summary-judgment-must-now-defend-amateurism-scam-at-trial-in-monumental-antitrust-case/?rf=1.

Photo Credit: The Sporting News 

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