The Supreme Court unanimously rejected the NCAA's definition of amateurism, which had restricted compensation for student-athletes. While the decision focused on education-related benefits, Justice Kavanaugh's concurring opinion went further, arguing that the NCAA's remaining compensation rules are subject to antitrust scrutiny. Kavanaugh criticized the NCAA for acting as a "lawless organization" that exploits student-athletes for billions in revenue while restricting their pay. He asserted that the NCAA's business model would be illegal in any other industry and questioned whether the NCAA can legally prevent fair compensation of student-athletes.

1. Amateurs No More
JRN 589 / 450
Supreme Court to NCAA: Drop Dead
Prof. Hanley

2. Supreme Court to NCAA: Drop Dead
On June 21, 2021, the U.S.
Supreme Court unanimously
rejected the NCAA’s definition of
amateurism, one that had
changed over more than 100
years of overseeing men’s college
football and other sports.

3. Supreme Court to NCAA: Drop Dead
The decision did not directly
address the name, image and
likeness as the case focused on
benefits related to education, but
the NCAA quickly decided to
abandon any efforts to ban
student-athletes from earning
money from sponsorship deals.

4. Supreme Court to NCAA: Drop Dead
Yet what could cause lasting
changes to collegiate sports
oversight is evident in the
concurring opinion of Associate
Justice Brett Kavanaugh filed with
the opinion by Associate Justice
Neil Gorsuch supporting the
unanimous decision.
A concurring opinion is a view
offered by a justice in support of
the majority decision.

5. Supreme Court to NCAA: Drop Dead
Kavanaugh pulled no punches and
argued relentlessly that the NCAA
had been acting as a lawless
organization under the cover of a
misguided concept of
amateurism.
His withering criticism sent the
NCAA running for cover from
Congress to keep it alive.

6. Supreme Court to NCAA: Drop Dead
“The NCAA has long restricted the
compensation and benefits that
student athletes may receive. And
with surprising success, the NCAA
has long shielded its
compensation rules from ordinary
antitrust scrutiny. Today, however,
the Court holds that the NCAA has
violated the antitrust laws,”
Kavanaugh wrote in his opening.

7. Supreme Court to NCAA: Drop Dead
“The Court’s decision marks an
important and overdue course
correction, and I join the Court’s
excellent opinion in full,”
Kavanaugh added.
Then he stared down the NCAA
and its inglorious history of
manipulating the concept of
amateurism for the benefit of its
member institutions, not student-
athletes.

8. Supreme Court to NCAA: Drop Dead
Kavanaugh went on to state in
effect that the court’s unanimous
decision didn’t go far enough. He
wrote that the decision focused
on “only a narrow subset of the
NCAA’s compensation rules—
namely, the rules restricting the
education-related benefits that
student athletes may receive, such
as post-eligibility scholarships at
graduate or vocational schools.”

9. Supreme Court to NCAA: Drop Dead
He pointed out that other NCAA
compensation rules remain in
effect and that those “restrict
student athletes from receiving
compensation or benefits from
their colleges for playing sports.
And those rules have also
historically restricted student
athletes from receiving money
from endorsement deals and the
like.”

10. Supreme Court to NCAA: Drop Dead
Kavanaugh proceeds to effectively
extend the court’s ruling to cover
benefits not associated with
education in his concurring
opinion.

11. Supreme Court to NCAA: Drop Dead
“I add this concurring opinion to
underscore that the NCAA’s
remaining compensation rules
also raise serious questions under
the antitrust laws,” he wrote
before launching into a legal
argument as to why the NCAA’s
compensation limits suggest it
thinks it operates above the law.

12. Supreme Court to NCAA: Drop Dead
That marks the first time that a
federal government entity – the
judiciary branch of government in
this case – essentially concluded
that the NCAA was operating an
illegal operation in its exploitation
of student-athletes.
It’s important to note that
concurring opinions are not taken
likely and are cited in court
opinions in related cases.

13. Supreme Court to NCAA: Drop Dead
Kavanaugh points to the fact the
NCAA v. Alston decision did not
“address the legality of the NCAA’s
remaining compensation rules.”
Those rules, he wrote, must be
subjected to the rule of reason, a
judicial doctrine that states
“antitrust law needs to be applied
only to the unreasonable
restraints of trade,” according to
Black’s Law Dictionary

14. Supreme Court to NCAA: Drop Dead
Kavanaugh wrote: “The NCAA’s
remaining compensation rules
should be subject to ordinary rule
of reason scrutiny.”
In other words, if the court found
that the NCAA violated the rule of
reason in restricting
compensation to education-
related benefits, it’s violating the
rule in other compensation limits.

15. Supreme Court to NCAA: Drop Dead
“Under the rule of reason, the
NCAA must supply a legally valid
procompetitive justification for its
remaining compensation rules. As
I see it, however, the NCAA may
lack such a justification,” wrote
Kavanaugh.

16. Supreme Court to NCAA: Drop Dead
The interpretation of that? The
NCAA can’t restrict any
compensation the student-athlete
seeks, which means the definition
of amateurism is dead as the
organization can’t restrict
compensation of any kind.
Thus names, images and
likenesses compensation should
not be perceived under the law as
the only benefit.

17. Supreme Court to NCAA: Drop Dead
“The NCAA acknowledges that it
controls the market for college
athletes. The NCAA concedes that
its compensation rules set the
price of student athlete labor at a
below-market rate. And the NCAA
recognizes that student athletes
currently have no meaningful
ability to negotiate with the NCAA
over the compensation rules,”
Kavanaugh wrote.

18. Supreme Court to NCAA: Drop Dead
The NCAA’s defense that its
product is amateur sports, and
this it must control the definition
of that to protect its business is
absurd, according to Kavanaugh’s
thesis.

19. Supreme Court to NCAA: Drop Dead
“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,” Kavanaugh wrote.

20. Supreme Court to NCAA: Drop Dead
After questioning the NCAA’s
business model on that point,
Kavanaugh eviscerates the
organization, showing the
absurdity of its model of
amateurism.

21. Supreme Court to NCAA: Drop Dead
“The NCAA couches its arguments
for not paying student athletes in
innocuous labels,” Kavanaugh
wrote. “But the labels cannot
disguise the reality: The NCAA’s
business model would be flatly
illegal in almost any other industry
in America.”

22. Supreme Court to NCAA: Drop Dead
In short, the NCAA has been
operating an illegal enterprise
since 1906, effectively practicing
what amounts to wage theft
under the camouflage of
amateurism.
[It would not be surprising to see
hundreds of thousands of former
NCAA athletes asking a federal
court for compensation from the
NCAA at some point soon]

23. Supreme Court to NCAA: Drop Dead
Kavanaugh then lists other
industries where the NCAA’s
practice would be illegal.

24. Supreme Court to NCAA: Drop Dead
“All of the restaurants in a region
cannot come together to cut
cooks’ wages on the theory that
“customers prefer” to eat food
from low-paid cooks,” Kavanaugh
wrote.

25. Supreme Court to NCAA: Drop Dead
“Law firms cannot conspire to
cabin lawyers’ salaries in the
name of providing legal services
out of a ‘love of the law.’ ,”
Kavanaugh added.

26. Supreme Court to NCAA: Drop Dead
“Hospitals cannot agree to cap
nurses’ income in order to create
a “purer” form of helping the
sick,” Kavanaugh continued.

27. Supreme Court to NCAA: Drop Dead
“News organizations cannot join
forces to curtail pay to reporters
to preserve a “tradition” of public-
minded journalism,” Kavanaugh
pointed out.

28. Supreme Court to NCAA: Drop Dead
“Movie studios cannot collude to
slash benefits to camera crews to
kindle a ‘spirit of amateurism’ in
Hollywood,” Kavanaugh wrote in
the final example of his pointed
critique of the NCAA’s attitude
toward student-athletes, making
sure to cite “amateurism” in that
context.

29. Supreme Court to NCAA: Drop Dead
Kavanaugh concluded that
segment of his argument with
what he interpreted as an obvious
situation:
“Price-fixing labor is price-fixing
labor. And price-fixing labor is
ordinarily a textbook antitrust
problem because it extinguishes
the free market in which
individuals can otherwise obtain
fair compensation for their work.”

30. Supreme Court to NCAA: Drop Dead
Driven by the momentum of his
argument, Kavanaugh lashes out
at the NCAA, its member
institutions and academic and
athletic administrators who
permitted the wage theft to
happen.

31. Supreme Court to NCAA: Drop Dead
“The bottom line is that the NCAA
and its member colleges are
suppressing the pay of student
athletes who collectively generate
billions of dollars in revenues for
colleges every year,” he wrote.
“Those enormous sums of money
flow to seemingly everyone except
the student athletes.”

32. Supreme Court to NCAA: Drop Dead
Kavanaugh, who sides with the
conservative majority in most
cases, implied that the NCAA’s
compensation structure may, in
fact, be somewhat racist as it
disproportionally hurts Black
athletes who otherwise would
earn generational wealth for their
families as well as harmful to all
student-athletes from low-income
households.

33. Supreme Court to NCAA: Drop Dead
“College presidents, athletic
directors, coaches, conference
commissioners, and NCAA
executives take in six- and seven-
figure salaries. Colleges build
lavish new facilities. But the
student athletes who generate the
revenues, many of whom are
African American and from lower-
income backgrounds end up with
little or nothing,” he wrote.

34. Supreme Court to NCAA: Drop Dead
Kavanaugh returns to his opening
segment about the implications
for the NCAA under antitrust
provisions.
“Everyone agrees that the NCAA
can require student athletes to be
enrolled students in good
standing,” he wrote.

35. Supreme Court to NCAA: Drop Dead
“But the NCAA’s business model
of using unpaid student athletes
to generate billions of dollars in
revenue for the colleges raises
serious questions under the
antitrust laws,” he wrote.

36. Supreme Court to NCAA: Drop Dead
Kavanaugh then deploys
impeccable logic to attack current
NCAA compensation rules:

37. Supreme Court to NCAA: Drop Dead
“In particular, it is highly
questionable whether the NCAA
and its member colleges can
justify not paying student athletes
a fair share of the revenues on the
circular theory that the defining
characteristic of college sports is
that the colleges do not pay
student athletes …

38. Supreme Court to NCAA: Drop Dead
“And if that asserted justification
is unavailing, it is not clear how
the NCAA can legally defend its
remaining compensation rules,”
he concluded in yet another blow
he struck against the NCAA’s
concept of amateurism.

39. Supreme Court to NCAA: Drop Dead
Kavanaugh expressed sympathy
with student-athletes
participating in non-revenue
sports, and he raised questions on
that score on how they could
share in any fair compensation
system.

40. Supreme Court to NCAA: Drop Dead
“Of course, those difficult
questions could be resolved in
ways other than litigation.
Legislation would be one option,”
he suggested.

41. Supreme Court to NCAA: Drop Dead
“Or colleges and student athletes
could potentially engage in
collective bargaining (or seek
some other negotiated
agreement) to provide student
athletes a fairer share of the
revenues that they generate for
their colleges” in a structure like
pro sports that share revenue, he
wrote.

42. Supreme Court to NCAA: Drop Dead
Kavanaugh pointed to the
traditions that college athletics
maintain but said these are not
enough to justify the NCAA’s
“massive money-raising
enterprise” built on the “backs of
student athletes who are not fairly
compensated.”

43. Supreme Court to NCAA: Drop Dead
“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 fair market
rate,” he wrote in yet another
attack on the concept of
amateurism.

44. Supreme Court to NCAA: Drop Dead
Kavanaugh drops the mic with his
closing sentence:
“The NCAA is not above the law,”
he wrote.
And the question now is how can
the NCAA exist within the law and
survive within the reality of the
death of amateurism?