Sunday, August 1, 2021

Atty. Patrick Bradford/Modern Day Peonage: A legal Fiction Stands Between College Players and Their Rightful Compensation

Patrick Bradford attorney SW
Attorney Patrick Bradford

*Attorney Patrick Bradford and other Black antitrust lawyers filed the attached brief in the U.S. Supreme Court in the case of Alston v. NCAA. The antitrust case is about the NCAA’s ongoing refusal to pay (mostly Black) Division I football and basketball players fair compensation, even as the NCAA and its member school take in billions in TV revenue. The case will be argued in the high court on March 31, fitting for “March Madness” for which the NCAA’s TV contract is priced at $19.6 billion over the next several years.

Modern Day Peonage: A legal Fiction Stands Between College Players and Their Rightful Compensation
By Patrick A. Bradford, Denver G. Edwards and Tillman J. Breckenridge:

March Madness is a longstanding ritual in college athletics and is the capstone of the athletic year. “Bracketology” fuels water cooler conversations, on-line chat rooms, and when Barack Obama was President, White House comments. After the final buzzer sounds, we drift into non-revenue sports – baseball, track and field, lacrosse, among others – and impatiently wait for college football season to start. As fans consume action on the field or hardwood, a different reality exists for many of the “providers” of those “shining moments,” the so-called “student- athletes” who exist under the boot of coaching staffs, athletic departments and administrators, and ultimately the NCAA.

The NCAA’s Athletic Industrial Complex that exists for Division I football and basketball is built on exploitation and commercialism that we, as Americans, would find unacceptable elsewhere. That edifice is before the United States Supreme Court in an academic antitrust case. But the Court should not overlook that real lives are impacted; real harms occur each season that last a lifetime; and upholding the NCAA’s justification for not paying Division I football and basketball players is a legal fiction that should be called out as untrue. Support for paying market rates to Division I football and basketball players is consistent with ideals of this nation – equity, justice, freedom, and free market principles.

1 Patrick A. Bradford and Denver G. Edwards are Partners in the law firm of Bradford Edwards & Varlack LLP. Tillman J. Breckenridge is the principal at Breckenridge PLLC as an appellate attorney who practices before the Supreme Court and other appellate courts.

The NCAA Athletic Industrial Complex lures in young men with promise of competition and education; grinds them down, and often leaves them with virtually no tangible education or means of financially supporting themselves in the future. In season, Division I football and basketball, when you include practice, game-time, training, recovery, and travel, athletes spend the equivalent of a full-time job (plus overtime) on their sports. In the “off-season,” the load is only marginally lighter because “champions are made when no one is watching” the saying goes. Except the athletic staff is watching, and failure to commit to off-season training might lead to cancellation of a scholarship. Meanwhile, the athlete is forced to endure physical pain, potential brain injury, and sometimes experience actual hunger because they have no money to purchase a meal.

The only thing standing between Division I college athletes and their money is a legal fiction, now accepted by the courts: Fans will not want to watch college games on TV if the players are paid fair market value for their athletic labor. The concept, though laughable, is the only justification the NCAA and its member not-for-profit colleges assert for violating the antitrust laws against price collusion, not having to bid for the athletic talents of players who bring them over

$20 billion annually. Of course, the fact that the majority to the superstar players are Black – – those who are being robbed of millions of dollars – – simply makes the legal fiction easier to sustain. The Court now has the opportunity to address this economic exploitation once and for all.

The case of Alston v. NCAA is now in the Supreme Court, on appeal from a Ninth Circuit decision in favor of the players and will be argued on March 31. The limited issues on appeal involve the lower court’s elimination of certain NCAA restrictions on college-related benefits for

the athletes, finding that those limitations are not needed to maintain fan viewership. The case has

drawn legal briefs from the U.S. Justice Department, historians, and football and basketball players’ associations asking for the Ninth Circuit’s decision to be affirmed. The authors joined a group of fellow Black lawyers who specialize in antitrust law, asking the high court to uphold the Ninth Circuit, and to take the extra step of eliminating all NCAA limitations on player compensation. Our reasoning: that in practice the billions of dollars generated by TV revenue irreparably harm the not-for-profit mission of the NCAA and its member colleges and universities.

Umbrella organizations like the not-for-profit NCAA can create new products and services, and for that reason under the U.S. antitrust laws, their price collusion is not banned as illegal outright. Rather, courts conduct a 360-degree analysis, called the “Rule of Reason” analysis, consider all relevant factors.

Step One: Define the Relevant Market & Anti-Competitive Conduct

The relevant antitrust market must be identified as an initial step. Here the “market” is the athletic labor of college players, and the players must show conduct that violates the antitrust laws to prevail. NCAA rules, however, prohibit member colleges from paying Division I football and basketball athletes more than certain costs related to their education, which is typically tuition, room and board. But it is logically inconsistent to contend that a star athlete, such as the recent Heisman Trophy winner, received the benefit of his bargain when we compare what he has given to the University of Alabama against the value of his scholarship (e.g., tuition, room and board). Without the NCAA’s rules, certain Division I football and basketball players would make millions of dollars, and others would make enough to buy food, support their families or enjoy other advantages of a competitive wage. The trial court found that the NCAA’s rules constitute price collusion which violates Section 1 of the Sherman Act (1890). The NCAA did not challenge the court’s finding.

Step Two: The NCAA’s Justification for Anti-Competitive Conduct

The NCAA must offer a procompetitive justification for its price collusion. The NCAA says that consumer demand for watching the games is the justification. Paying Division I football and basketball players, according to the NCAA, would blur the line between professional leagues, and maintaining the distinction between intercollegiate and professional leagues is necessary for marketing the football and basketball to consumers. Amateurism – defined by not paying players more than certain college-related expenses – is necessary for maintaining consumers’ interest in watching football and basketball games. That is the NCAA’s only antitrust justification for not compensating the players.

This justification is silly, and nobody reasonably believes it. The trial court below heard evidence that college affiliation is the chief animating reason that fans watch college games. Yet the NCAA presented no clear and convincing evidence that fans would stop watching college games if the players were paid. It is all hypothetical and contrary to common sense.

Even if viewership did fall off, which is highly unlikely, we believe it is irrelevant. We believe that there is an inverse relationship between the not-for-profit mission of the NCAA and its member colleges – the use of sport to augment a college education – and the pro-competitive justification of TV viewership and the money it provides. A justification for anti-competitive conduct cannot provide an exception to the antitrust laws, and there is little doubt that the multi- billion dollar business of college sports robs Division I players of their bargained for educational experience. The Supreme Court brief of former NCAA Executives agrees with these facts. “[T]he NCAA now operates in a manner akin to a commercial enterprise and has shifted its focus from

making athletics an integral part of the educational experience of college athletes to generating profits for itself and its members. With this shift in focus, the NCAA’s professed commitment to ‘amateurism’ has become a way of preserving the market the NCAA has come to dominate, rather than a means of protecting and benefiting college athletes.” The Supreme Court brief of the NFL and NBA Players’ Associations provides similar support. “The NCAA claims that its ‘core mission’ is ‘to facilitate intercollegiate sports as an important component of the educational opportunities offered by its member schools. But the NCAA’s amateurism rules impair these opportunities – to a near farcical degree.”

The NCAA and its member schools have permitted billions of dollars transferred to it and its member colleges to decimate the educational lives of their players. The money pays for million- dollar salaries for coaches, administrators, sports facilities, and subsidizes non-revenue sports. Winning games on TV increases alumni giving and merchandising sales. The NCAA also generates revenue from video licensing and players being required to wear certain shoe brands, and other decals of brands. The revenue means that coaches, administrators and even some faculty encourage players to spend most of their college lives on sports. The pressure is enormous, and anybody who has played a team sport at any level will understand the pressure to conform.

At the Division I level, where the coach can rescind scholarships, and according to the trial record in the Alston case, students can spend over 40 hours a week on activities related to their sports, the educational experience is greatly diminished. The required commitment to football and basketball hits Black athletes especially hard. They graduate at a rate of up to 19% less than their white teammates. And even when Black football and basketball players graduate, they struggle to find gainful employment on which to build a future.  Professional teams will select less than 4% of Division I football and basketball players. What happens to the 96% who do not make it? Take a look at Lebron James’ 2018 HBO documentary, “Student Athlete,” and you will begin to understand how the NCAA and its member colleges chew Black football and basketball players up, leaving them with little to build a financial future after an injury or superior athletes supplants them.

We believe that our analysis is consistent with the Supreme Court’s decisions in NCAA v. Bd. of Regents and American Needle v. NFL – albeit at a different point in the Rule of Reason analysis. The Supreme Court analyzes anti-competitive conduct in relation to that which is necessary for the NCAA to perform. In Regents, that Court ruled that the selling of football games in the TV market was not an activity that required the NCAA to coordinate, member colleges could do this on their own. In American Needle the Court ruled that the NFL’s teams did not need to sell their merchandise through one agreed upon source. Rather, each team could make this marketing decision independently.

If anti-competitive conduct is voided when a coordinating organization is not needed to perform it, then a pro-competitive justification which directly conflicts with the not-for-profit mission of such an organization cannot be used to sustain the anti-competitive conduct. In this case we believe the analysis should end here, and the colleges should have to compete for the best players. The NFL and NBA Players Associations get to the same place via a different route, arguing simply that price collusion, a violation of the antitrust laws, can never be permitted to create consumer demand that justifies anti-competitive conduct. Or put another way, you cannot break the law and get away with it simply because consumers like it.

Step Three: Finding A Less Anti-Competitive Method

Players must offer a less anti-competitive alternative that will achieve the same pro-competitive benefit. In this case, the trial court found that certain NCAA rules that restrict college-related benefits – such as computers, science equipment, internships, tutors – could be offered without diminishing television viewership for the games. We note that the amicus brief submitted by a group of historians led by Taylor Branch argues that there is no historical support for the NCAA’s contention that paying the players will reduce fan viewership. The historians also cite current payments made to Division I football and basketball players, including cash bonuses for certain athletic achievements, noting no affect on viewership. However, clearly fearing a slippery slope, the NCAA did not like the lower courts’ decisions and so the NCAA appealed to the Supreme Court. The NCAA and its member schools are asking the high court for new law that would limit the Rule of Reason to a “quick look,” one that would defer to the NCAA’s judgment in matters of rule-making to preserve amateurism. In practicality, the NCAA seeks immunity from antitrust review of its rule-making. The Supreme Court has never used a “quick look” to affirm any such venture’s anti-competitive conduct, only to strike it down. The NCAA’s request is both extraordinary and unprecedented.

At a minimum, the Supreme Court should affirm the Ninth Circuit’s decision. Additional support for Division I football and basketball players will provide marginal benefits for educational growth and may help athletes gain a more from their college experience. But any such marginal gains are dwarfed by the benefits that would accrue to these players if the free market were permitted to operate. Star players would potentially gain millions of dollars to help their families. Courts have interpreted the antitrust laws to enable the NCAA to take hundreds of millions of dollars from Black football and basketball players and their families annually. Among these players are the approximately 96% who will not play in the pro leagues, and for whom a college athletic scholarship means little.

Division I players are, in truth, little more than serfs. If injured, their scholarship is not renewed. If healthy, they are not permitted to make any money from outside activities. If they need academic help, there is no extra time for tutoring or study, as sports comes first. If they are academically gifted, a pre-med major it out of the question, as needed lab classes conflict with practice. No time for clubs, extracurricular activities, or simply relaxing and making new friends. The players are forced to subordinate everything else to their athletic labor. It’s modern-day peonage.

While Alson v. NCAA is presented as an antitrust case, it is actually part of a long history of America’s economic exploitation of Black people. Taking money from the Black community that would be paid to these predominately Black athletes if market collusion were outlawed is, unfortunately, a continuation of historic exploitation which ensures that Black communities remain economically subjugated. Because no right-thinking person believes that fairly paying Division 1 football and basketball players will lead to declines in television viewership for their games; and because that viewership at its billions decimates the educational opportunities of these players, the NCAA’s rules limiting player compensation should be declared illegal. The NCAA’s member schools should pay these gifted athletes what the unencumbered market will sustain.

© Patrick A. Bradford, Denver G. Edwards and Tillman J. Breckenridge (March 2021).

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