Sunday, August 1, 2021

Atty. Patrick Bradford: The NCAA Was Slaughtered 9-0 in the Supreme Court – Greater Economic Freedom for Black Student-Athletes Now Likely

Patrick Bradford attorney SW
Attorney Patrick Bradford

*On June 21, the Supreme Court ruled 9-0 against the NCAA in an antitrust case that found certain of the NCAA’s limitations on student compensation violative of U.S. antitrust laws. A week later, the NCAA, prompted by new state laws, voided additional rules limiting student-athletes from making money off of their name, image and likeness. Many predict that this trend is just the beginning, ultimately forcing the NCAA to share some of the over $10 billion it and its member colleges make annually with the unpaid student-athletes whose labor generates the largess. The majority of the elite Division I athletes in football and basketball are Black. Reminding us that true economic freedom for these student-athletes is a goal to be emphasized as we celebrate Independence Day.

The NCAA’s appeal to the Supreme Court in the Alston case was greedy. They were hogs, and as the saying goes: pigs get fed, hogs get slaughtered.

Since the mid-1980s when Black student-athletes flooded Division I football and men’s basketball, and the NCAA’s revenue skyrocketed accordingly, the NCAA’s goal has been to hold the line on paying college players. Amateurism is the NCAA’s long-held antitrust argument: paying the student-athletes will blur the line between college and professional sports and cause television viewership for college sports to significantly decline. Everyone knows this proposition is silly, but the courts still buy this nonsense. However the Supreme Court’s ruling, especially Justice Kavanaugh’s concurrence, may well be the beginning of the end for the NCAA’s peonage as amateurism lie.

The 9-0 ruling in favor of student-athletes, upheld the lower courts’ findings that certain of the NCAA’s limits-on-student-compensation rules violated U.S. antitrust laws. Further, the Court held that the NCAA does not warrant any special antitrust deference under the traditional Rule of Reason analysis, a full 360-degree review is needed. This finding, coupled with the national reach of the decision, and Justice Kavanaugh’s withering concurrence, means that the NCAA’s bleeding may not abate any time soon.

Let’s remember that the student-athletes did not want to be in the Supreme Court. The NCAA appealed asking the high court to take the case, and the law firm of Winston & Strawn for the students, objected to protect the win they had in hand on educational benefits. In the lower court, the NCAA had only lost a little of their control over the student-athletes given the Ninth Circuit’s affirmance of the District Court’s injunction – – permitting such items as post-graduate fellowships, musical instruments, certain tutors, computers – – all education-related items. However, the NCAA would not be constrained in its rule making. Nor did the NCAA want endless litigation of it rules. In actuality, the NCAA wanted antitrust immunity for its rulemaking in this area.

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If the NCAA had won, student-athletes would likely never win full economic rights in their labor. The Supreme Court’s decision provides real hope. Also, new state laws, proposed federal legislation, and nascent competition – – Overtime Elite, the Professional Collegiate League, G League Ignite – – will likely converge in the next several years. The result: more economic freedom for the most talented college age, elite Division I athletes.

Only 4 percent of Division I football and basketball players make it to the pros each year. What happens to the mostly Black, under-educated 96 percent who do not go pro? My group of Black antitrust lawyers submitted our amicus brief to represent this largely unacknowledged 96 percent.

The NCAA and its member schools earn over $10 billion annually from college sports.  Student-athletes whose labor generates the money, do not share in the money pot, as NCAA rules permit price-fixing so that the most any student-athlete can receive is a “scholarship.” Division 1 college football and men’s and women’s basketball programs generate the majority of this over $10 billion each year.  Within this subset of students, Black athletes dominate, representing 70 percent of the Division I football and men’s basketball players, though Black people are but 13% of the U.S. population..

So it is critical to understand that this Supreme Court decision affects the Black community, as hundreds of millions of dollars, annually, hang in the balance. And it is precisely because Black labor is primarily being stolen, a mainstay in American history, that the lie sustaining the NCAA’s compensation rules – in antitrust terms the pro-competitive justification for the restraint – – continues to this day.

Jeffrey Kessler, who argued the case for the student-athletes in the Supreme Court, recently said that exploitation of Black Division I players is the NCAA excess that offends him the most. “It is so offensive. It is so exploitative. And let’s not forget that the majority of football and Division I basketball players are students of color. That’s what offends me the most.” Yet Kessler’s briefing in the Supreme Court could not emphasize this argument. Which is one reason that I and a group of African American lawyers decided to submit our amicus brief.

Again, the lie sustaining the NCAA’s billion-dollar system of peonage is this: If the student-athletes are paid, viewership for college games will significantly decline.

Nobody reasonably believes this to be true. Certainly many state legislatures do not, as their laws permitting NIL revenue would, under the NCAA’s theory, decrease viewership for their schools’ games, thus lowering state tax revenues. And even if it were true, at oral argument Justice Kavanaugh termed the argument both “circular” and “disturbing.” He echoed this view in his concurrence. “The NCAA nonetheless asserts that its compensation rules are procompetitive because those rules help define the product of college sports. Specifically, the NCAA says that colleges may decline to pay student athletes because the defining feature of college sports, according to the NCAA, is that the student athletes are not paid. In my view, that argument is circular and unpersuasive.”

Justice Kavanaugh’s concurrence cited my group’s amicus submission, and his analysis is consistent with the major themes of our brief. Our submission argued, using the reasoning of the Supreme Court cases of NCAA v. Regents (1984) and American Needle v. NFL (2010), that if antirust restraints cannot be sustained when not an essential function of an association like the NCAA, restraints that directly conflict with the association’s mission, likewise, cannot be sustained. Maintaining and growing viewership that brings in billions pressures students to put sport above all else, directly thwarting the non-profit mission of the NCAA and its member schools – – the use of sports to enhance a college education. Not to have sport become so pervasive that it eliminates all else, which is exactly what happens when coaches, administrators, even professors, routinely take actions forcing student athletes to prioritize sport of everything else. There’s simply too much money on the line to actually treat these students as amateurs, save not paying them as the college professionals they are.

The antitrust laws were enacted to protect fair competition. Those with monopsony power like the NCAA and its member schools should not be permitted to end-run the Sherman Act and rob players of their fair pay by putting forth the flimsy argument that viewership might drop if the mostly Black players are able to take care of themselves and their families. The myth of amateurism is belied by the gold-rush of money that flows to every part of this billion-dollar industry – college endowments, coaching salaries, athletic facilities, alumni boondoggles – – save the mostly Black workers who create and sustain it. In the end, the NCAA’s rules are anti-competitive, anti-capitalistic, un-American and racially discriminatory in their impact. Eventually, they must fall.

Patrick Bradford attorney SW1
Attorney Patrick Bradford

Attorney Patrick Bradford is a founding partner of NYC based Bradford Edwards & Varlack LLP, a law firm built on the fundamental principles of diversity and excellence, where he specializes in advising clients on complex business and regulatory litigation. Learn more at https://bradfordedwards.com/patrick-bradford/

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