In late March, the Supreme Court heard oral arguments in a case that could change college sports – NCAA v. Alston – and higher education. As they deliberate, they will at least consider whether the NCAA can restrict universities from offering benefits to players that are unrelated to education (such as cash salaries).
But the Court should go beyond this limited decision and rule that college sports needs systemic reform that recenters education as the centerpiece of college sports.
Here’s how we got here. In 2019, Judge Claudia Wilken ruled that the NCAA was in violation of the 1890 Sherman Antitrust Act and that they had to eliminate their caps on the value of “grants-in-aid” and allow member schools and their conferences to determine the value of the scholarship (read: “education-related benefits”) they offer athletes (the ruling was upheld on appeal in 2020).
If the Supreme Court upholds Judge Wilken’s decision, there will likely be professionalization and a bidding war for high school recruits far beyond what we see today, and the definition of “education-related benefits” will likely be stretched as much as is deemed necessary to land top recruits.
But the Court has a choice regarding where that pay will come from, and it is an important one. And, however possible, those who care about higher education should urge the Court to acknowledge the unique system of college sports that exists in the US, replete with its emphasis on entertainment and education, and ask them to rule – or write their opinion – in a way that encourages the NCAA to strike a better balance between the two.
The Court should first rule that athletes can profit from their names, images and likenesses (NILs) outside the lines of play, and thereby reform this broken system in a way that is better for athletes, especially those from underprivileged backgrounds in violent sports, who see too little of the billions of dollars some sports generate. With power to control their own NILs, athletes will be able to sign endorsement deals. This is key because it would lessen the public outcry that universities and the NCAA are exploiting athletes, which damages the public image of higher education.
While the Court may not strictly be able to rule on what the NCAA must do, beyond what is asked of them in Alston, they can in their majority opinions or dissents demand that the NCAA take concrete steps to better educate and graduate college athletes, which must remain the ultimately priority, or as the 2018 Collegiate Commission on College Basketball put it, the “centerpiece of college sports”.
To do so, the Court should first insist that NCAA business is and should remain primarily education-related, not primarily entertainment-related, and that this business needs legal help to be bolstered, if not also Congressional legislation and/or an antitrust exemption. Big-time athletes today train so often that the NCAA’s “amateurism” rhetoric rings hollow, and its use should be discontinued, but the organization does provide considerable educational opportunity to more athletes than those fans see on television, and for most college athletes that opportunity is worth a great deal.
Unfortunately, many overlook this educational opportunity, instead choosing to focus solely on economic exploitation of a select group of “elite” athletes, and its purported solution – “pay-for-play” that is drawn directly from university coffers. But the Court must take both education and pay into consideration, and it must rule that athletes should be compensated through payment for the use of their NILs, not employee salaries from the university beyond “education-related benefits”.
College sports are a powerful engine of growth for men and women, which is another reason why education must remain paramount. The NCAA wants the Court to determine if Alston “blurs the line between student-athlete and professional”, but the bigger questions beyond this “student-athlete/professional” distinction are whether big-time male and female athletes should receive the same or a similar amount in pay, and whether it would be a violation of Title IX if they were not.
Two men’s sports – football and basketball – a make the lion’s share of revenue for colleges, but many female athletes also inspire the masses and stand to benefit from NIL reform, too. “Freeing” all athletes, regardless of gender, race, home state, sport, or division of play, to profit from their NILs, and build their own personal brands, which in the age of social media is potentially lucrative. But if the Court instead rules that colleges must pay players directly, the gender inequities that already exist in college sports may get worse, since universities would likely pay male athletes higher cash salaries.
To ensure education remains a priority, the Court should urge Congress to legislate that NIL earnings be put in a “educational lockbox” to be accessed after graduation (and managed by a third-party clearinghouse to ensure the money is invested and protected while the athlete is in college, and so that Title IX violations do not arise.)
To ensure education remains a priority, the Court should also urge NCAA member universities to tie new coaching and athletic director salary contracts to graduation rates, and appoint coaches as faculty members. Doing so would incentivize coaches to better balance physical and cognitive training and give deeper meaning to the notions of higher education and college sports. Over time college coach salaries may stabilize as a result, but even if they do not, the money would go to a good cause – to an educator/coach who happens to educate through a sport, rather than a professional coach who happens to coach at a university.
Athletes and civil liberties groups might balk at the idea of adults controlling NIL player payments during college, but language about the lockbox could be built into the NCAA contract that incoming athletes sign, which would be legally binding on the athletes and give them a more informed choice when choosing to play an NCAA sport, or do something else.
SCOTUS Justices may have a limited task in Alston but they can remedy the injustices in this system without forcing universities to pay players directly and without eliminating this great engine of educational opportunity.
SCOTUS Justices may not have the power to entirely fix this broken system, but they can write opinions or dissents that incentivize athlete education and allow athletes to enjoy more of the fruits of their own labor, all without fundamentally revolutionizing a system that does work for most college athletes.
These simple measures would, theoretically at least, improve graduation rates, which is in the long run the best social policy for our democracy. A college diploma adds considerably to a young person’s lifetime of earnings, and in their Alston opinion, SCOTUS Justices have great cultural power to educate young athletes, regardless of background, about this reality.
