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This is a column by Morgan Campbell, who writes opinion for CBC Sports. For more information about CBC's Opinion section, please see the FAQ.
So just how unpopular is the NCAA's antiquated contention that college athletes, who form the foundation of a multibillion-dollar industry, don't deserve to make money in addition to their scholarships?
Consider that when the U.S. Supreme Court delivered its ruling in the landmark lawsuit involving the NCAA and former West Virginia running back Shawne Alston, who first sued in 2012 to challenge amateurism rules, all nine justices ruled against the college sports regulatory body.
The decision will likely compel the NCAA to loosen rules around compensating college athletes, and invite further legal challenges to the tenuous definition of amateurism upon which the college sports industry rests. And it demonstrated that, even in the most polarized era most of us can remember, a sliver of common ground still exists.
For reasons known only to people on the conservative/Republican/Trumpist end of the U.S. political spectrum, Americans can't agree on fundamental questions, like whether Joe Biden won last November's election, whether vaccines work, or whether voter suppression is hazardous to the country's health.
In a less fractious time we wouldn't have a debate — the answer to all three questions is "yes." Instead, halfway through 2021 we still have members of congress pretending Jan. 6 insurrectionists were harmless tourists, and NFL players trumpeting their refusal to take a needle that could keep them and their teammates healthy.
But the opportunity to humble the NCAA, which came to the Supreme Court leaning on the flimsy idea that people watch college sports because the players aren't paid, united all nine justices.
Remember, we're talking about an organization that, starting in 2025, will collect $1.1 billion US a year in broadcast revenue from the men's basketball tournament alone. And we're discussing an industry where schools change conferences based on TV money, conferences add teams to maximize their broadcast reach, and where salaries for top coaches are edging toward eight figures.
Thanks to the Supreme Court we can now, hopefully, move on from debating whether the players deserve more in return for their talent, plus the time and effort they invest in building college sports into big-money business. Now we can address more urgent questions, like how a pay-for-play setup could work, when the NCAA will modernize its outdated rules, and whether it will choose to adapt, or just let court challenges and new competitors pound it into submission.
Justice Neil M. Gorsuch wrote the lead opinion, stopping short of calling for salaries for players, but pointing out that more compensation, either in kind or in cash, was fair, as long as it was still related to education.
'The NCAA is not above the law'
But Brett Kavanaugh, another Trump appointee, expressed his skepticism toward the NCAA in much stronger words.
"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 market rate," he wrote in his concurring opinion. "Under ordinary principles of antitrust law, it's not evident why college sports would be any different. The NCAA is not above the law."
On Kavanaugh's first point, we can look to the Olympics as evidence that broadcasters and sports don't care whether world-class athletes are amateur, professional, or a hybrid. The Olympics don't pay prize money or appearance fees, but dropped its amateurism requirement in 1988 without damaging the brand.
Since then, the Olympics have only grown as a business, and nobody's going to tune out of the men's 100-metre final upon learning Trayvon Bromell has a big-money contract with New Balance, or that Andre De Grasse's roster of sponsors grows by the week. Representing your country and getting paid to perform aren't mutually exclusive, and most people understand that. If the NCAA didn't get it before Monday, they do now.
Kavanaugh's assertion that the NCAA isn't above the law highlights the absurdness of all these lawsuits and legal rulings, and illicit payments that end with federal charges for low-level college coaches.
It barely rates mentioning that paying athletes isn't against the law. It's only against NCAA by-laws to pay college athletes, which means college sports are already equipped to deal with rulebreakers.
A few years back I interviewed Cleveland-based lawyer Richard Johnson, who in 2009 sued the NCAA on behalf of Blue Jays draftee James Paxton, and he likened the NCAA to a condo corporation. If an owner paints a unit a colour that violates the by-law, you'd take the dispute to the condo board, not the FBI. But when NCAA rules are allowed to masquerade as federal laws, we wind up with farces like the 2018 federal investigation into player payment, which landed three people in prison.
If the NCAA wanted to update its rulebook to permit paying players, the courts wouldn't stop it. The move would keep player payment scandals, which are essentially compliance matters between the school and the NCAA, out of federal court. And cases like Alston's, which the NCAA appealed all the way to the Supreme Court, where an ideologically diverse group of nine justices agreed suppressing player earning power conflicts with antitrust law, wouldn't need to exist.
Other avenues for top talent
While the NCAA argues in court to preserve its right not to pay players value for their skills, competitors are gaining ground.
Last season, the NBA's G League fielded a team called Ignite, whose roster included NBA veterans, recent college grads, and college-aged players who turned pro instead of going to school. The players earned a salary while training like pros and playing a condensed G League schedule. They also took classes in financial literacy, and how to deal with the media. NBADraft.net's latest mock draft predicts two Ignite players who skipped college — Jalen Green and Jonathan Kuminga — will be selected in the top five.
Meanwhile, the Professional-Collegiate League, which will pay players a salary and arrange scholarships to schools near their teams' home cities, plans to begin play this year, and recently announced a broadcast deal.
Or college-aged players could emulate the Oklahoma City Thunder's Darius Bazely, who turned down scholarship offers in favour of a one-year internship with New Balance, which paid him a reported $1 million to learn on the job about the shoe industry while training for the 2019 NBA Draft.
Options abound both for talented teenage basketball players, and for the NCAA, which could find creative ways to persuade those players to choose college ball. But if the NCAA opts to cling tighter to its shaky version of amateurism, and keeps going to court to try to avoid paying talent, that talent will find other places to play. And if college basketball bleeds top talent for too much longer, fans won't care whether college players are pros or amateurs.
They'll all be watching something else.
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