NCAA hopes that Congress will save it from devastating antitrust liability based on NIL rules
The NCAA is caught between a rock and a potentially devastating antitrust lawsuit.
Faced with a long-overdue reckoning regarding a corrupt business model that consistently has refused to give fair value to the athletes who generate it, the NCAA has an immediate dilemma regarding name, image, and likeness laws that become effective in six states next Thursday. What does the NCAA do as to the other 44 states?
At one extreme, NCAA rules that persist in the flat refusal to allow athletes to profit from their fame become clear targets for another antitrust class action. At the other extreme, it’s open season and/or free enterprise, with individuals who have something worth buying able to sell it -- the very foundations of a capitalist society.
Via TheAthletic.com, NCAA president Mark Emmert therefore hopes to provide “temporary guidance” for the member schools while the NCAA asks Congress to pass a national set of rules regarding the ability of athletes to sell their NIL rights.
But why should Congress save the NCAA or, more accurately, become complicit in the NCAA’s corruption? If someone wants to pay an athlete for autographs or personal appearances or whatever, so be it. As many say whenever the federal government pokes its nose into matters of sport, Doesn’t Congress have better things to do?
The NCAA made this mess and then refused to clean it up for years, profiting dramatically from its existence. The NCAA should not be entitled to a solution that both protects it from liability and prevents the ability of athletes to capitalize on their fame.
Meanwhile, the NCAA needs to wake up and smell the blistering concurring opinion authored by Justice Brett Kavanaugh. Although the specific ruling in the Alston case was narrow, the NCAA would be foolish to hide behind it. The next shot from the Supreme Court will be something far more serious than a flesh wound; the next shot will be a death blow.
More accurately, it will be confirmation of the death blow that Monday’s narrow ruling, as amplified by Justice Kavanaugh, delivered, once lawyers and athletes and administrators come to terms with the fact that the game is over.