Comment: NCAA’s case for amateurism faces a full court press

By Joe Nocera / Bloomberg Opinion

They say you should never presume how a U.S. Supreme Court case is going to turn out based on the questions the justices ask, but it was hard not to be hopeful — and maybe even a little giddy — after Wednesday’s oral arguments in National Collegiate Athletic Association v. Shawne Alston, et al.

Last year, the U.S. Court of Appeals for the 9th Circuit ruled that the NCAA’s rules about amateurism — rules designed to prevent college athletes from reaping any money from their talent — violated antitrust laws. Further, the court upheld the district court’s remedy: Players could reap any reward from a university as long as it was related to education.

The NCAA appealed to the Supreme Court in part because it knew that “education-related” payments would most likely finish off amateurism. But it also presumably appealed because with conservatives holding a 6-to-3 majority on the bench, the odds of overturning the 9th Circuit ruling were pretty good.

Oops.

The NCAA’s relationship with its university members constitutes “an agreement among competitors to fix prices in a labor market,” said former President Trump’s first Supreme Court nominee, Neil Gorsuch.

Trump’s second nominee, Brett Kavanaugh, said that amateurism should not be a cover for the exploitation of student athletes.

Amy Coney Barrett, the third Trump nominee, wanted to understand why the NCAA was arguing that “consumers love watching unpaid people play sports.” She also wanted to know why the NCAA got to decide the pay for athletes.

Oh, and let’s not forget Justices Clarence Thomas and Samuel Alito. Thomas: “It just strikes me as odd that the coaches’ salaries have ballooned and they’re in the amateur ranks as are the players.”

And this from Alito: “(Universities) have programs that bring in billions of dollars … but the athletes themselves have a pretty hard life. They face training requirements that leave little time or energy for study, constant pressure to put sports above study, pressure to drop out of hard majors and hard classes, really shocking graduation rates. Only a tiny percentage ever go on to make any money in professional sports. So, the argument is they are recruited, they’re used up and then they’re cast aside, without even a college degree, so they say ‘How can this be defended in the name of amateurism?’”

Reading these questions and comments on Wednesday morning caused me not just to look ahead to the court’s ruling but also to look back. Wednesday’s hearing might never have taken place if Sonny Vaccaro — the former “sneaker pimp” — hadn’t decided to quit Reebok to take on the NCAA. The association’s mistreatment of athletes — not just the lack of pay, but also the petty rules, the one-sided investigations and other issues — had long bothered him, and at the age of 68, he decided to do something about it. He began making speeches on college campuses, laying out his case against the NCAA. Few people attended at first.

But he just redoubled his effort. He persuaded the well-known journalist Lowell Bergman to do a tough piece about the NCAA for “Frontline” on PBS. The report ran in March 2011, just before that year’s March Madness tournament, and it was one of the first pieces critical of the NCAA to air to a national audience.

In addition, Vaccaro persuaded the prominent plaintiffs’ lawyer Michael Hausfeld that the NCAA was vulnerable on antitrust grounds. He then persuaded former UCLA basketball star Ed O’Bannon to be the lead plaintiff after O’Bannon had seen his avatar in a video game and wondered why he wasn’t being paid for his image.

Aggrieved athletes had sued the NCAA over the years, but they had never gotten anywhere. The O’Bannon trial, which took place in June 2014, was different. The judge, Claudia Wilken, was skeptical of the NCAA’s argument that if the players were paid, fans would lose interest in college sports. Even before she issued her ruling — which was favorable to the players — two other lawyers, Jeffrey Kessler and Steve Berman, sued the NCAA in what became the Alston case. Which, of course, culminated in Wednesday’s hearing.

When I first started writing about the NCAA in 2010, I spent a lot of time talking to Vaccaro. It could be hard to contain him sometimes; he had such a long history with athletes and coaches and the NCAA, and he wanted to tell you every bit of it. But his central arguments got through, and I became a convert to the cause.

There were others as well, people like the economist Andy Schwarz and the ESPN basketball analyst (and former college player) Jay Bilas. Back then, their ideas — that players deserved their full economic value, that their college experience was exploitive, that mostly Black athletes were enriching mostly white coaches and administrators — were hardly widespread.

But the ideas were powerful, and they spoke to an injustice that was relatively easy to remedy; if not so for the NCAA. And over time, more and more people embraced those ideas first articulated by Vaccaro. Some years ago, I was shown a memo written by the NCAA’s general counsel that said, essentially, that if the tide truly turned against the association, it could always go to Congress and get favorable legislation passed. But the NCAA is now viewed as such a pariah that even Congress is unlikely to help. The other day, Sen. Chris Murphy, D-Conn., the NCAA’s leading congressional critic, described the plight of college athletes as “a civil rights issue.”

What began with Vaccaro laying out heretical beliefs in sparsely attended speeches culminated Wednesday with most of the justices on the Supreme Court repeating his arguments as if they were the most obvious thing in the world.

Which they are. Or rather, which they are now. Thanks to Vaccaro, compensating college athletes is an idea whose time has come, if the Supreme Court is willing.

Joe Nocera is a Bloomberg Opinion columnist covering business. He has written business columns for Esquire, GQ and the New York Times, and is the former editorial director of Fortune. His latest project is the Bloomberg-Wondery podcast “The Shrink Next Door.”