In September, the Ninth Circuit Court of Appeals issued a major ruling in the O’Bannon v. NCAA litigation that NCAA backers initially hailed as a victory as the Court nixed any proposals to directly pay college athletes.
Although the Court struck down the proposed $5,000 per year trust funds, it also demolished the NCAA’s long-claimed antitrust immunity by subjecting it to the Rule of Reason, which I wrote about at length here. Ultimately, the Court determined that the NCAA’s rules prohibiting athletes from being paid for the use of their names, images, and likenesses constituted an unlawful restraint of trade in violation of the Sherman Antitrust Act.
Unsurprisingly, the NCAA petitioned the Supreme Court of the United States in May to review the Ninth Circuit’s game-changing decision. The NCAA’s position is rather simple: without antitrust immunity, there is no way to continue to operate as the cartel that it is. Seriously, the NCAA’s own attorney admitted that it is a cartel — albeit a “good cartel.” The NCAA knows that much of its rule book will not hold up under antitrust scrutiny, which is why it must pray the Supreme Court takes the case.
Now, supporting the NCAA in its petition to the Supreme Court is its Indianapolis neighbor, the National Federation of State High School Associations (NFHS), which filed an amicus brief with the Court on June 15. In its brief, the NFHS waxes poetic about some Leave It To Beaver era of athletics:
Watching individuals compete for the love of their sport rather than for direct monetary gain is part of what sets college sports apart. Allowing college athletes to receive compensation in any form not tied to their college education not only would threaten the unique nature of college athletics, and thus much of its appeal, but also would diminish the ideal of amateurism that has endured for so many generations.
. . .
College athletes enjoy a measure of the same school identity that was present during their high school years. Preserving the direct link between education and college athletics promotes this identity, which benefits students, student-athletes, and the popularity of college sports. . . Directly linking athletics and education promotes pride of school, and thus consumer interest, not to mention educational benefits for the athletes themselves.
So basically, even though the Big Ten can sign a $2.64 billion media rights deal with Fox and ESPN and coaching salaries can approach $10 million per year, if a single dollar lands in an athlete’s pocket, college sports will cease to exist. I also wonder how the NFHS feels about the educational benefits of the NCAA looking the other way on UNC’s academic fraud.
Keep in mind that the NFHS and its member organizations take its cues from the NCAA. It is why I called them the mini-NCAA when I spoke about athletes’ due process rights at Drexel University a few months ago. The NFHS, which is also a non-profit, only brings in about $12.5 million per year. That is pennies compared to the NCAA’s almost $1 billion in annual revenue.
However, what trickles down from the NCAA to the NFHS is not the money, but the way in which both organizations often disregard athletes’ rights.
The Restitution Rule, which Andy Oliver’s attorney, Richard Johnson, wrote a fascinating analysis of, is a prime example of a bylaw that might not survive antitrust scrutiny as it unnecessarily deprives athletes of due process rights.
In short, NCAA bylaw 19.7 permits the NCAA to penalize any athlete, coach, or school that challenges its eligibility rulings in a court of law. Seriously, if the NCAA deems an athlete ineligible and that athlete wins a court order allowing him or her to compete, but later voluntarily vacates an injunction or has an order overturned, then the NCAA can slam the challenger with a host of penalties. The punishments for taking the NCAA to court and losing include vacating individual and team wins, returning individual or team awards, post-season bans, and monetary sanctions. Notice that those penalties apply to entire teams and schools, even if only a single athlete has the nerve to exercise their due process rights. That is one steep incentive to never sue the NCAA, which is why very few athletes do.
Almost all of the NFHS members have adopted nearly identical restitution rules, many of which are simply copy and pasted from the NCAA bylaws. This is the impact the NCAA has not just on college athletes, but nearly all American athletes.
My home state’s NFHS member, the Pennsylvania Interscholastic Athletic Association (PIAA) codified its restitution rule in Article VII, Section 10 of its constitution, which is aptly titled “Fairness to Opponents.”
The PIAA’s rule also allows it to penalize anyone who challenges them in court by vacating wins and records. However, my personal favorite is that it can extend the initial ineligibility period by the length of time that an injunction is in place. Unlike the NCAA, this is a state-actor trying to enforce a loser-pays civil system should an athlete or coach bring a due process claim for an improper eligibility ruling. Imagine appealing a criminal conviction, losing, and having the length of your appeal tacked onto the initial sentence.
If that sounds backwards to you, it is because high school governing bodies model themselves after the NCAA. It is why the NFHS is not necessarily concerned about paying people who appear in video games, but are instead terrified of having their authority undermined by athletes who might have the audacity to demand due process rights.
In its brief, the NFHS admits that “Any undue limitations placed on the NCAA’s ability to regulate amateurism at the college level could similarly threaten amateurism as a guiding principle in American high school athletics.”
It is the classic parade of horribles claiming that subjecting the NCAA to antitrust scrutiny will kill all amateur athletics. In other words, if you allow a free market economy to creep into the multi-billion dollar college sports industry then little Johnny won’t be able to play high school squash anymore.
Well, if Johnny’s squash team leads to a massive TV deal, then yes, he should get a cut and your outdated notion of amateurism needs a crash course in capitalism.
Until then, let’s all keep burying our heads in the sand as new billion-dollar TV deals are announced and strength coaches take home half a million while the athletes are told to accept their scholarships and keep quiet.
Steve Silver is a former sports reporter for the Las Vegas Sun and is now a lawyer in Philadelphia representing athletes in eligibility proceedings. You can reach him at firstname.lastname@example.org or on Twitter @thelegalblitz.
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