The NCAA made a big move to benefit athletes on Wednesday, announcing proposed rules changes that would allow players to finally profit from product endorsements, autograph sales and other promotional activities.
But that doesn’t mean the NCAA is willing to let go of the concept of amateurism in college sports.
To the contrary, the NCAA petitioned the U.S. Supreme Court on Thursday in an effort to save amateurism and avoid having to give players more than their current compensation, which has been restricted to the cost of attending college.
The two moves, coming a day apart, seem contradictory but are on separate tracks with money coming from two different potential sources:
►The legislative proposals would allow third parties to pay athletes for endorsements, autographs and the like, subject to certain conditions. Athletes previously were subject to loss of their eligibility in sports if they accepted such payments from third parties. The proposed rules changes now are headed for final vote in January.
►The Supreme Court petition stems from a lawsuit against the NCAA brought by plaintiffs including former West Virginia running back Shawne Alston. In that case, U.S. District Judge Claudia Wilken issued a permanent injunction in March 2019, ruling that NCAA's limits on compensation for athletes in major college football and basketball were in violation of antitrust laws and an unreasonable restraint on trade.
The NCAA wants the Supreme Court to kill that injunction, which could lead to more money going to athletes from schools, not third parties, as long as the payments are related to education, such as with internships or postgraduate scholarships.
“The decision allows unlimited payments to student-athletes, so long as payments like uncapped internships can somehow be described as `related to education,’ ” the NCAA’s petition stated. “By permitting such payments for student-athletes’ play, the decision will transform student-athletes into professionals, eliminating the procompetitive distinction between college and professional sports. Consumers will likely come to view NCAA athletics as just another form of minor-league sports.”
A basketball on the court during a game between the Utah Utes and the Arizona Wildcats at McKale Center. (Photo: Jacob Snow, USA TODAY Sports)
The Supreme Court could decide by the end of the year not to take up the case, leaving the injunction intact after other unsuccessful appeals by the NCAA. Or the Supreme Court could agree to hear the case and decide later, probably well into next year.
The Supreme Court gets about 8,000 such petitions per term but only grants and hears oral arguments in about 80 of them, according to its website. To justify why it should get a hearing, the NCAA noted that NCAA sports are a "major feature of American life, with hundreds of thousands of participants and millions of viewers annually."
It also noted that it has been examining how it might amend its own rules to allow athletes to earn income from their publicity rights “consistent with the principle of amateurism.” The NCAA said antitrust litigation should not be used to resolve that debate.
“As other courts have recognized, that is improper,” the NCAA’s petition states. “Antitrust litigation should not replace the ability of the NCAA to make the critical judgments about the sports league that they created and administer.”
Wilken’s injunction followed a 2018 court trial and other legal efforts that have challenged NCAA rules that generally limit athletes’ compensation to the cost of attending college. These challenges in effect tried to create the possibility of putting more money in the pockets of players as coaches’ compensation and athletics department revenue soared.
One was the so-called O’Bannon case, a civil suit brought by former UCLA basketball player Ed O’Bannon. That case involved compensation for players’ names, images and likenesses and ended up in a split decision after an appeal. Judge Wilken also heard that case and ruled in 2014 that the NCAA’s system violated antitrust law and was an unlawful restraint of trade.
After the NCAA appealed that ruling, the U.S. Court of Appeals for the 9th Circuit agreed with Wilken on the antitrust violation but also sided with the amateurism system and said any compensation for players should be related to education. Both sides in the O’Bannon case appealed to the Supreme Court, which decided in 2016 not to consider the case.
That paved the way for Wilken’s injunction in the Alston case, in which she wrote that the NCAA may not limit compensation or benefits “related to education,” such as scholarships after players’ eligibility expires, tutoring, computers or expenses for studying abroad.
In August, Supreme Court Justice Elena Kagan rejected the NCAA’s request for a stay of the injunction, effectively letting the injunction go into effect. The practical effect of that decision hasn’t been clear, however. With the injunction in place, schools have the ability to offer athletes additional benefits. But that doesn’t mean they will do so before a final decision comes down from the court.
The NCAA and member conferences asked Wilken for clarity on this last month.
“Prospective student-athletes and the institutions recruiting them reasonably need to know the benefits made available under the Injunction,” they stated in court documents. “Thus, defendants respectfully request confirmation that setting the maximum amount of compensation that an individual student-athlete can receive in an academic school year in academic and graduation awards and incentives at $5,600 complies with the Injunction.”
That amount remains disputed until Wilken provides clarity.
In its petition to the Supreme Court, the NCAA says the 9th Circuit erred in this case and that amateurism has been a hallmark of NCAA sports for many decades. It says these “revolutionary changes to the way NCAA administered athletics have existed and operated for decades — and other far-reaching consequences, including for other sports leagues and joint ventures — warrant the Court’s review.”
The NCAA also released a statement from NCAA chief legal officer Donald Remy:
“It is critical for the Supreme Court to address the consequential legal errors in this case so that college sports can be governed, not by the courts, but by those who interact with and lead students every day. Together with our conferences that were individually sued in this matter, we will continue to defend the line between professional sports and college sports.”
Follow sports reporter Brent Schrotenboer @Schrotenboer. E-mail: [email protected]
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