Associate Justice Brett Kavanaugh did not have to write a thing.
The Supreme Court had already spoken, in 9-0 unanimity. It upheld a district court’s decision in NCAA v. Alston that barred the NCAA from limiting the money an athlete could receive from a college for education-related purposes.
It was another paper cut, another hatchet chop against the bloated business of intercollegiate athletics.
Then Kavanaugh brought the chainsaw.
He wrote a concurring opinion that immediately becomes the biggest threat to the NCAA’s swaying house. It moves college sports much closer to the world as it is, for everyone else.
Kavanaugh blows up the NCAA’s premise that its appeal is based on its “amateurism,” that fans would not fill stadiums in Baton Rouge and Ann Arbor if they suspected their favorite players were actually getting paid.
“The NCAA couches its arguments for not paying student-athletes in innocuous labels,” Kavanaugh writes. “But the labels cannot disguise the reality: 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. … Hospitals cannot agree to cap nurses’ income in order to create a ‘purer’ form of helping the sick.”
The amateur argument is blarney anyway. The upcoming Name, Image and Likeness standards, which will allow players to sign endorsement contracts – go down to Modern Chevrolet today and tell ’em Kedon Slovis sent ya! – make perfect sense to most fans, who are familiar with an environment in which a person gets paid for services rendered.
Now if Slovis starts throwing interceptions, maybe Modern Chevrolet might hire another spokesman. That, too, is free enterprise, which universities favor when it comes to paying presidents and football coaches, not as much for players who are required to lift weights at dawn, watch tape until midnight, maintain a serviceable GPA, and seek out drive-thru bargains for a 15-minute lunch.
“It is highly questionable whether the NCAA and its member colleges can justify not paying student athletes a fair share of the revenues on the circular theory that the defining characteristic of college sports is that the colleges do not pay student athletes,” Kavanaugh writes.
“The bottom line is that the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year. Those enormous sums of money flow to seemingly everyone except the student athletes. … Many of whom are African-American and from lower-income backgrounds, end up with little or nothing.”
Who knew Kavanaugh was so aware of inequities, or that he’d been reading the prevailing opinions of most sports pages over the past 30 years?
The Justice also recognized that the solution to this problem carries problems of its own, particularly in terms of paying 180,000 Division I athletes, and making sure the “power leagues” don’t use market economics to distance themselves further from the others.
He suggested that legislatures get involved, as they have in Florida and California. He also endorsed the idea of collective bargaining. Northwestern’s football players tried that, six years ago, but the National Labor Relations Board dismissed their effort.
Last month, Senators Bernie Sanders and Chris Murphy introduced the College Athletes Right to Organize Act, which will allow the formation of player unions. Hardly anyone expects it to pass because hardly anything does, and a similar measure in the House has not found a Republican co-sponsor.
However, Kavanaugh’s opinion and his passionate language might make the legislation more palatable.
Kavanaugh is not a sports hater. He calls the traditional football weekends “part of the fabric of America.” He just doesn’t believe that the fabric will be unraveled by the same economic practices that rule everything else.
If it means football programs might have to slog through life with three fewer “quality control analysts” and two fewer “recruiting specialists,” so be it.
He says “game days in Tuscaloosa and South Bend” and “track and field meets in Eugene” cannot justify “the NCAA’s decision to build a massive money-raising enterprise on the backs of student-athletes who are not fairly compensated. 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. And under ordinary principles of antitrust law, it is not evident why college sports should be any different.
“The NCAA is not above the law.”
The fact that Brett Kavanaugh went to such lengths to be heard means that you don’t really need a translation.
But if you do, here it is: Plaintiffs of America, come on down.
