Hey, NCAA, This is Still Your Fault

March Madness 2019 could be the last of its kind, as student-athletes inch closer to victory in their class action antitrust lawsuit against the NCAA . . . and it’s about time.

March Madness 2018 was characterized by scandal and redemption.  Last year at this time, the shortcomings of NCAA Division I men’s basketball were fully on display.  An FBI investigation into the pay-for-play underbelly of college basketball led the U.S. Attorney’s Office for the Southern District of New York to indict, among others four Power Five assistant coaches, for fraud and bribery, based on alleged cash payouts to recruits.  Perennial contenders Duke, UNC, Kentucky, Kansas, and Michigan State were also tied to the scandal.  Then, in the biggest bombshell of the season, ESPN reported that Arizona Head Coach Sean Miller was directly linked to a $100,000 payment to secure blue chip recruit and now overall #1 NBA draft pick Deandre Ayton to play for his Wildcats.

Luckily for the NCAA, a few Cinderellas stepped in to save the show.  For the first time in NCAA history, a 16-seed beat a 1-seed when the UMBC Bulldogs ousted UVA in the first round–“A Big Win for the Little Guys.”  In that same round, our UB Bulls beat Miller’s Wildcats to earn the program’s first NCAA Tournament win in school history–apparently “$100,000 Can’t Buy a Cinderella.”  But arguably the biggest Cinderella of them all didn’t even play basketball–she was a 98-year-old nun.  Over the course of the tournament, the nation became enamored with Sister Jean, whose Loyola Ramblers punched their ticket to the Final Four (even though the Loyola Chaplain herself predicted they would lose in the Sweet 16).

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Sister Jean Dolores Schmidt at last year’s NCAA Tournament (Photo Credit: si.com)

Last year, the NCAA so desperately needed these Cinderellas stories the NCAA to save face in light of its scandals, but it did not deserve them all the same.  In a further attempt to feign reform, the NCAA assembled a committee, headed by former Secretary of State Condoleeza Rice, to reform college basketball.  While certain proposed reforms seemed positive, the sum of the Committee’s recommendations carried the potential to positively impact college basketball only if the NCAA was going to enforce it’s own rules–the same reason the NCAA was in this mess in the first place.

I wrote an article at this time last year entitled “Hey, NCAA, This is Your Fault.”  I explained that the NCAA was a governing body unwilling and thus incapable of punishing its most egregious offenders because it depended on these schools to drive its multi-billion-dollar revenue streams.  Ultimately, if the NCAA wanted to rid college basketball of its bad actors, it had a choice: double down on amateurism and actually enforce its rules as they currently exist, or embrace payments to student-athletes. 

“The NCAA has refused to even acknowledge the realities of big-time college sports for decades and now it is all coming to a head. The kids are going to get paid one way or another: there is too much money out there and it is the logical consequence of the system the NCAA itself built. Reform makes indictments and FBI investigations go away. Coaches, shoe reps and agents are not criminals, and they should not be treated as such.”

Thus, I reasoned that this scandal proved it was time for the NCAA’s sham amateurism model to end–it was time to pay the student-athletes.  Moreover, if the NCAA wasn’t willing to pay the student-athletes, then the Supreme Court’s 1984 holding in NCAA v. Board of Regents that enabled the institution to operate as a legal cartel under federal antitrust law no longer deserved this protection.  It is not the FBI or the Department of Justice’s job to enforce the NCAA’s rules–it’s the NCAA’s.

Accordingly, I argued that “reform also means recognizing the flaws in the system and admitting the NCAA was wrong–two things [NCAA President Mark] Emmert has consistently shown he will not do.  Instead, with the underbelly of college basketball exposed, Emmert, as always, is looking to pass the buck and place responsibility elsewhere.  In the end, he should look in the mirror.”

We were lucky enough to have this article retweeted by Jay Bilas, which generated significant discussion on social media, in the law school classroom, and added to the national discourse on the topic.  (Thank you again, Jay, for putting this sports law blog on the map.)  In addition to this article, a number of polls have surfaced showing that more people than ever before favor student-athlete compensation.  This number will only increase, especially if the NCAA remains adamant that its system is infallible.

What is more important, however, is where this conversation stands approaching this year’s March Madness.  While the NCAA is experiencing nowhere near the amount of bad PR this year, that can change at the drop of the hat if Judge Claudia Wilken issues a decision in the current class action antitrust case brought against the NCAA before the tournament starts.

At issue for Judge Wilken in In re NCAA Grant-in-Aid Cap Antitrust Litigation (a.k.a. Alston or Jenkins) is the biggest issue of them all: can the NCAA continue to justify not paying student-athletes under federal antitrust law?  If her decision even mildly resembles her decision in O’Bannon v. NCAA, (where she held the NCAA illegally restrained trade by preventing student-athletes from receiving scholarships up to their reasonable cost of attendance), the student-athletes will win this case.  It will get appealed, and appealed again to the United States Supreme Court, but given the billion dollar revenues it reported last year and continued infractions by its most prominent institutions, the NCAA’s system as we know it should be in for major change.

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Federal District Court Judge Claudia Wilken (Official Portrait)

Therefore, no matter the story-line of this year’s March Madness, remember that it was the NCAA that created its billion-dollar industry, and it is the NCAA that refuses to consider compensating the athletes that drive its business model.  Simply recognizing the faults in its model, reforming these faults, punishing bad actors, and sharing the wealth could save the NCAA from itself.  At this point, however, the institution is long past the point of no return.

If the NCAA won’t fix itself, hopefully the courts will.

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