Student Athletes or Independent Contractors? The Supreme Court Moves the Goalposts on College Sports

Below is my column in The Hill on the recent ruling on college athletes by the Supreme Court.  The decision could prove to be the critical “crossing the Rubicon” moment for college sports and force schools to address long unsettled questions regarding big sports programs.

Here is the column:

Robert Maynard Hutchins as student

After its unanimous Supreme Court loss this week in NCAA v. Alston, it would be understandable if the National Collegiate Athletic Association’s Board of Governors wanted to pull a Hutchins. In 1939, Robert Maynard Hutchins, then-president of the University of Chicago, banned football entirely after years of the university being a dominant school in the sport. When asked if he ever personally wanted to engage in sports, Hutchins reportedly responded: “Whenever I feel like exercise, I lie down until the feeling passes.”

It was a story that I and many other students at the university embraced as sports-challenged, socially dysfunctional nerds. However, even for those of us who love watching sports, Hutchins remains like a pesky academic angel on our shoulders calling us to account. Hutchins not only viewed such programs as having no intellectual value but as presenting a threat to the academic integrity of universities. He insisted that “football has the same relation to education that bullfighting has to agriculture.” Of course, bulls do not get BAs, and it has long been clear that the educational advancement of these students is secondary to their competitive achievements. In 2014, a University of North Carolina professor found that as many as ten percent of the school’s football and basketball players could not read above a third-grade level. Compensation will only make college sports more like a business and student athletes more like the cost of doing business.

Hutchins’s lament is still heard by many academics over what is viewed as the corrupting influence of sports on higher education. Football and other big sports teams can cost tens of millions for a school. They are a big business cloaked in mortarboards and tassels. According to the Wall Street Journal, The University of Texas’s football program is worth $1 billion alone. The highest paid university employee at many schools is not the president but the football and basketball coaches. In 2017, the 129 schools in the NCAA’s Football Bowl Subdivision spent a combined $1.43 billion on compensation for coaches. That year, these schools spent a combined $8.05 billion on just their football programs.

That could get a lot worse.

The decision in Alston was, on one level, a modest change. The case was brought by athletes who played Division I football and basketball and who sought benefits beyond just tuition, board, and books. Writing for the court, Justice Neil Gorsuch upheld lower courts in saying that athletes could receive broader benefits related to their education. However, like tackles, there are opinions and then there are opinions.

Gorsuch insisted college sports is a “massive business” and “those who run this enterprise profit in a different way than the student-athletes whose activities they oversee.” Then came the horse collar tackle. In his concurrence, Justice Brett Kavanaugh declared “The NCAA’s business model would be flatly illegal in almost any other industry in America. Price-fixing labor is price-fixing labor.”

Justice Kavanaugh then went further and seemed to invite a massive antitrust challenge, declaring that “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 … The NCAA is not above the law.”

If you put a new caption on those words, you would have a ready-made antitrust case.

What was most striking in the Alston case was the open skepticism over the role of the NCAA in comparison to the last major review from the Court. In 1984 in NCAA v. Board of Regents of the University of Oklahoma, the Supreme Court ruled that restrictions on television coverage of college football games were unlawful, but Justice John Paul Stevens stressed that “the NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports.” He stated that “There can be no question but that it needs ample latitude to play that role, or that the preservation of the student-athlete in higher education adds richness and diversity to intercollegiate athletics and is entirely consistent with the goals of” the antitrust laws.

Now the NCAA is being portrayed by Kavanaugh as somewhere between a sweatshop operator and a robber baron. Even Gorsuch stressed that much has changed in college sports since 1984 and it is now a multibillion-dollar industry with hoarded wealth.

Some on the court are clearly not ready to return to the go-go period when college stars could find a luxury car waiting in their driveway. Gorsuch stressed that “Under the current decree, the NCAA is free to forbid in-kind benefits unrelated to a student’s actual education; nothing stops it from enforcing a ‘no Lamborghini’ rule.”

The question is what comes next. If laptops and study abroad opportunities can now be funded, how about recreational items or other travel opportunities offered to athletes to relieve stress? Kavanaugh would clearly go further, noting “there are serious questions whether the NCAA’s remaining compensation rules can pass muster.”

The elimination of limits on compensation for student athletes could create a free-for-all.

In professional sports, there are salary caps, but they are imposed per team. Such a system would put schools in a bidding competition for each player. Instead of 32 NFL teams, there are 130 Division 1 football teams alone — not counting other sports.

Even modest direct compensation could create other problems. For example, men’s football and basketball teams still generate far more viewership and revenue than women’s teams. If a free market controls, male athletes would likely be paid far more than female athletes. Likewise, looser rules could open up lucrative collateral guarantees for employment or “externships” from loyal alumni working with such programs.

Alston highlights the fact that universities still have not come to grips with our reliance on college sports. With billions in revenue, that reliance has become an addiction. The ruling could force schools to offer greater financial rewards, but that could make actual education even less of a priority for these students.

It is the realization of Hutchins’ fears when he observed that “in many colleges, it is possible for a boy to win 12 letters without learning how to write one.”

Unless we maintain the amateur status of our student athletes, schools will become mere glorified farm teams for corporate sports. Increasing forms of compensation may prove more equitable but it is unlikely to prove more educational.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

36 thoughts on “Student Athletes or Independent Contractors? The Supreme Court Moves the Goalposts on College Sports”

  1. The ACLU (or Institute for Justice) could have a 14th Amendment case of equal treatment. What about a high-school graduate that is neither a sports star nor college material, but just as intelligent in welding, auto mechanics, plumbing, HVAC, etc.?

    Is a state college [government entity] or federal grant denying that same treatment to graduates just as intelligent but not gifted in sports or book smarts? It’s government officials [school administrators] doling out tax dollars to a preferred occupational group.

    Maybe the ultimate solution is that government funded colleges shouldn’t be in the sports business at all, since they aren’t fair to all graduates. A guy or gal servicing your heat-pump or repairing your automobile is many times smarter than many college grads or athletes but denied scholarships worth millions in future earnings. Can government manage such an unfair program that excludes blue-collar graduates just as smart?

  2. College sports are already farm teams for the major leagues. Let’s stop pretending and let them get compensation for their hard work. It is wrong that everyone makes bank on college sports but the athletes themselves.

    1. ONLY the lawyers will make money. The college sports associations account for any number of schools with a WIDE variety of skill levels.
      What is going to happen when ‘millionaire freshmen BB player Iam Great’ gets fouled and bruises a heiny bone by the 3rd string player from Podunk U?
      A promising and well funded college career goes to heck and a senior English lit undergrad student walk on get hits with a quadrillion dollar suit for reckless endangerment?

      This is going to take liability to a whole new level.

  3. The difference is professional vs. amateur.

    It is the decision of the individual to pursue happiness, whether that happiness be professional or amateur.

    College sports constitute a “showcase.”

    2%, only, of amateurs succeed as professional athletes.

    “To [go pro], or not to [go pro], that is the question:

    Whether ’tis nobler in the mind to suffer

    The slings and arrows of outrageous [exploitation],

    Or to take arms against a sea of [failure].”

    That is the only question, and it is none of the legislative or judicial branch’s purview.

    No law may exist which restricts any individuals from receiving compensation.

    No law may confiscate private property and mandate minimum or any other level of compensation.

    This is a specious if not fraudulent debate.

    Sports leagues, competitive with the NFL, emerge constantly, usually to vanish precipitously.

    Here again, elected and appointed officials seek power for power’s sake as purveyors of the “dictatorship of the proletariat.”

    This question considers private property, or private universities, over which no entity, except the owner(s), may “claim or exercise dominion.”

    Congress, government, officials, tyrants, dictators and despots, go away – Americans are free, maximally free and as free as humanly conceivable and as humanly possible.

    Free enterprise and free markets are, wait for it, free.

    No individuals or groups outperform Mr. Market…

    Ever!

  4. Just one big step toward creating another level of professional sports, masquerading as educational institutions. The big-money generated by college sports has diverted colleges away from their missions as institutions of higher learning. I don’t recall a time when anyone ever thought that the big-name college athletes were actually getting a real education. I even know the name of the woman who took final exams for a very famous NFL player, whom I won’t name. She was the valedictorian in my husband’s high school.

  5. I cannot forget that the taxpayer subsidizes our universities. Money tends to be commingled in one way or the other.

    I also know this is a crazy idea, but if Gorsuch is correct that sports are a “massive business,” why shouldn’t that “massive business” own its land and facilities for the athletes and separate the university from its athletics in that fashion. The universities could teach student-athletes and consider student-athletes as students that live off-campus and commute to the university.

    I know many of the problems, but I don’t understand why taxpayer funds are mingled with such a “massive business.

    (I admit that I am looking at this from a completely different angle and point of view about how government becomes overly involved in places government doesn’t belong,)

  6. Silly to pretend big time college sports is anything but a large sports entertainment business.

  7. Hutchins was right. The best thing to do about college sports would be to abolish them entirely. The same with high school sports. The end result are “educated” idiots who can’t hold a job. The role of colleges and universities is supposed to be education, not serving as a training ground for (mostly black) “professional” athletes.

    1. “The best thing to do about college sports would be to abolish them entirely. The same with high school sports. The end result are “educated” idiots who can’t hold a job.”

      How is that the end result? Sounds like an unfair characterization to me. Lots of collegiate sports out there, not just football and basketball. Plenty of former college athletes are gainfully employed. Some are doctors, engineers, businessmen. They would say that their experiences as a student-athlete helped them be successful in their careers.

  8. Walter Byers (former President of the NCAA) told us in his book, “Unsportsmanlike Conduct,” that the term “student-athlete” was coined to avoid calling them what they really are which are “employees.” The kids playing meet every legal test and the courts that have reviewed it have all found they were “employees.” The NCAA just wanted to avoid having to pay workers comp and other employee benefits to them.

    Follow the Money anytime something seems out of whack.

    1. Thought this was interesting and relevant to the discussion. I have not read the whole thing over carefully, but it did bring up some interesting points about to what degree athletic programs are income-generating, how the headliner sports help support less popular sports, etc.

      Written by Cody J. McDavis is a former Division I Men’s Basketball Student-Athlete. McDavis is expected to graduate with a Juris Doctor from the University of California, Los Angeles School of Law in May 2019.

      https://scholarship.law.marquette.edu/cgi/viewcontent.cgi?article=1748&context=sportslaw

      “A dollar figure cannot be put on the value of a decent education. Courts should take the opportunity to realize that paying student-athletes in cash, or in kind, comes at a greater cost. Sports will be cut and access to higher education will be restricted for many. Moreover, academic values will be subordinated to short term financial gain. Student-athlete gain in being compensated does not outweigh the resulting losses in educational values. “Basically, my position is that coaches and administrators and the NCAA and everybody else needs to do a better job in educating youngsters about the value of a degree, the value of an education.”464 Indeed.”

      “[I]n defending athletics I would not for one moment be understood as excusing that perversion of athletics which would make it the end of life instead of merely a means in life. It is first-class, healthful play, and is useful as such. But play is not business, and it is a very poor business indeed for a college man to learn nothing but sport. Play while you play and work while you work, and though play is a mighty good thing, remember that you had better never play at all than to get into a condition of mind where you regard play as the serious business of life, or where you permit it to hamper and interfere with your doing your full duty in the real work of the world.465
      – President Theodore Roosevelt”

      1. From the same article:
        “The majority of the NCAA membership cannot cover the costs of their athletic programs.29 As one President of a major university puts it, “I’m amazed that intelligent people really believe that athletics makes a lot of money for the university.”30”

        “The funds generated from the revenue generating sports of men’s basketball and FBS football are partially used to subsidize all other sports.42 And, because the non-revenue generating sports are reliant on football and basketball revenues, it is typically those non-revenue generating sports that get cut when football and basketball are not as lucrative.43”

  9. Don’t send your kid to some sports college and pay the tuition room and board. The academics are lowered by the sports people.
    Send your kid a ticket to a pro football game if he wants to see a game. The University of Missouri at Columbia has been a football scam college for years. The other state schools are better. Good ol boys from ol Mizzou. Went in dumb, come out dumb too. Hustling round Columbia in their alligator shoes.

  10. Likewise, something is wrong with the Olympics

    I never liked the idea of professional athletes competing in the Olympics alongside amateur nobodies. The professionals come to the Olympics with a well oiled machine & grab all the attention, endorsements, & money.

    Problems can arise for amateur sportsmen when sponsors offer to help with an amateur’s playing expenses in the hope of striking lucrative endorsement deals with them in case they become professionals at a later date.

    1. The Olympics should be open to the very best in every sport, without distinction as to what job the athlete has. Pros are pros generally because they are better at athletics then armatures, and it would make no sense to exclude the very best just because they get paid.
      On the other hand I do hate the Olympics on other grounds so I don’t really give a shit.

  11. And just to add about the ‘career-like’ pressures that go along with being an athlete playing D 1 sports, Turley…

    Here’s the deal. People love to cite the one and done athlete who goes pro after a year as this mockery of what amateur sports are all about, but consider this reality…

    You have one, maybe one and half years to make your mark or else you’ll get run off your scholarship because of the pressure to win on the coach and the school. Best case scenario if you don’t set the world on fire is they let you get full benefit from your scholarship, but they recruit over your head every year after, increasing the odds of your being run off of your scholarship each time.

    Sports at that level are a business. To act like the past still exists is folly..

    eb

  12. There are several hundred men, that are playing and not getting an education. They lack the ability to do the course work. Without athletics, where would they be? I don’t see them as victims of college athletics, but huge beneficiaries. More than 90% of the athletes are students, and also are benefiting. (I had a summer intern walk on to a Dev 1 school cross country team and get a scholarship. she is now a Veterinarian)
    The point is, all want to demonize a few men in Basketball and Football, not understanding those programs allow for the existence of all the rest, at a level of excellence, impossible without those two sports.

      1. One hundred percent false.
        So they can read and cipher at grade level? Lot of commenters here believer differen,t and cite sources to back them up.

    1. “The point is, all want to demonize a few men in Basketball and Football, not understanding those programs allow for the existence of all the rest, at a level of excellence, impossible without those two sports.”

      Absolutely true.

  13. Institutions of higher education serve, teach, research, and educate. Professional sports leagues can develop minor leagues such as baseball’s farm system to train young athletically gifted individuals. University and college athletics should be limited to intra-mural club sports and physical education classes that promote health, exercise, and proper diet.

  14. The broader problem with this is that we now have several generations that would happily believe bullfighting and agriculture are systemically linked because their ideology is designed around inventing justifications for pretty much any if their beliefs or behavior on the fly. Awareness of nuance isn’t just not a strong suit, it isn’t even a halfway decent pair of socks.

  15. Have to respond to this through a particular lens, Turley…

    My father played 3 sports his freshman year at an Ivy League school, 2 every year thereafter until graduation. He received the type of academic financial aid athletes receive at those schools and it almost entirely paid his way. He played on one of the best hockey teams in the country and many of his teammates went of to make up a good bit of the 1960 mens hockey team, which was the first to win a gold medal in mens hockey at the winter Olympics for the U.S. Upon graduation, he had the oportunity to play pro baseball, but turned down the Red Sox in order to go to grad school in physics. My grandfather thought he was making the biggest mistake in the world because a) the Red Sox duh!!, and b) because my father turned down a job at the phone company that my grandfather could get him and everyone knew after the depression you don’t turn down a job at the f^&king phone company.

    I suspect the literal dent in my father’s head that he got from a double play breakup attempt gone wrong in the Cape Cod League had more than a little bit to do with his decision…, but who knows?

    I remember my dad sying a few things. One was that 1 hour in the gym was worth 3 in the library (and he wasn’t talking about blowing off his studies), the other was that the intelligence agencies heavily recruited Ivy League athletes who got good grades…, it took me years to realize what he was telling me. Ha. I’m slow on the uptake with those type of things. Ha.

    Me on the other hand? I played a couple of years of basketball at the type of college that let’s just say if you had issues with drugs, grades and discipline — or all three — you wouldn’t be entirely out of place. We prided ourselve on (mostly) not shooting heroin in the locker room at half time. But we could hang a hundred points on almost anyone when the mood struck us.

    When I transferred out to a big state school, I scrimmaged throughout the fall with the mens team and was seriously considering walking on without a scholarship because the men’s coach, a true basketball legend, liked me. Every year he liked to take somone on the team who could just be a dick in practice and make the starting point guard’s life miserable. Since I had a D 1 jump shot without a body to match, and I could play any sort of pressure defense maniacally, I totally considered it. Thing is, without full scholarship, playing a sport at that level basically amounts to upwards of 40 hours per week of work without getting paid for it. And you couldn’t get a tutor for free without being on scholarship, so if you get behind in a class (and how could you not with the time and travel involved?) you had to pay out of pocket for it. So I opted not to take the coach up on his offer. He was immensely understanding about it. So i became a scrimmage crash dummy for the rest of my time at that particular school.

    School’s at that level make millions off of Division 1 sports, and indeed, this coach I was refering to was the highest paid state employee. It’s not for lack of stress and effort and pressure either. Sports are a business, full stop. Great if you love playing them, but they are a business at that level. So all this is just a way of saying that the train has long ago left the station on the vast majority of your concerns, Turley. In basketball, maybe the NBA development league, or the European pro circuit can feed players to the NBA, but there goes a huge generator of income for large state schools. If that was meant to happen it already would’ve.

    I’m surprisingly in line with Kavanaugh on this one. Rock on Barty O.K.!!!

    eb

  16. In professional sports, there are salary caps, but they are imposed per team. Such a system would put schools in a bidding competition for each player. Instead of 32 NFL teams, there are 130 Division 1 football teams alone — not counting other sports.

    🤔 Since our colleges and universities have become incubators of socialism, this will be a great opportunity for them to prove their commitment to this motto:

    From each according to his ability, to each according to his need.

    1. “Since our colleges and universities have become incubators of socialism, this will be a great opportunity for them to prove their commitment to this motto:

      “From each according to his ability, to each according to his need.”

      Nah. That’s only for “fat cat” industrialists. Champagne socialists get, well, champagne. And $500k a pop for their “art.”

  17. Another coffin nail in college sports. Combined with the NIL push, the rich will get richer and the smaller, more financially challenged schools will fall by the wayside. As a fan of The Ohio State Buckeyes, such changes will not likely affect their status; however, other in-state schools, such as Miami, Ohio University, Cincinnati, Toledo, et. al., may find that they cannot compete even for three star athletes. Then there are programs in the larger conferences, such as Vandy, Iowa, Wake Forest, that may not have the wherewithal to compete in this altered arena. It may lead to a resurgence of the PAC 12 tho. Overall, a bad decision with unintended (?) consequences to be sure

    1. “…however, other in-state schools, such as Miami, Ohio University, Cincinnati, Toledo, et. al., may find that they cannot compete even for three star athletes. ”

      Just an aside, I was a ball boy at Miami for the football and baseball teams way back when.

      Actually the ‘mid majors’ will always have a place due to playing time limitations and scholarship run offs at the majors. Basically this ruling just would take the NCAA from having to archaically patrol itself. No one says you have to be paid huge amounts to play. And face it, at higher levels there is already a ‘black market’ for players, this would actually take a step into being a regulatory act. Would it completely erase the illegal market? No. But it would take a step toward acknowledging reality and reacing accordingly.

      Kavanaugh is accurate with his observation that comparable work models are held to different standards for the most part.

      eb

  18. This is the same Supreme Court that ruled recently in Bostock v. Clayton Co. that Title VII protects a person’s sexual identity, not just his or her actual, biological gender. Of course, nothing could be further from the truth. Title VII was designed to protect women from employment discrimination. There is absolutely nothing in the text of the law, nor it’s legislative history, to suggest that the drafters ever even considered the law as extending to someone who “considers himself” a woman, or “identifies as” a woman, rather than someone who is actually a biological female. The SCOTUS and the Biden Administration are not just torturing the law, but inventing the law, to allow males to displace females in employment and sports. Laws designed to protect biological females have been gutted in favor of males. A second-rate male athlete can now declare himself a “trans” female, and dominate women’s sports, taking scholarships, Olympic spots and other opportunities away from real female athletes. I would like to see a case where a “trans-racial” white female, who “considers herself” or “identifies as” black, takes a seat and a scholarship in an Ivy League law or medical school that was designated for a real African-American. It would be hilarious to see SCOTUS twisting itself into knots trying to distinguish its pro trans-gender ruling from its inevitable anti trans-racial ruling.

  19. “Unless we maintain the amateur status of our student athletes, schools will become mere glorified farm teams for corporate sports.”

    They already are J. T.

    Seems to me colleges would be better off if they stopped pretending that they were teaching athletes. Why not have them just play for 4 years with no school and then the ones that do not go professional, give them four years of free schooling after.

    1. Having a quasi-student take a seat for an extra 4 years in a highly competitive university wouldn’t work. First, a semi-literate athlete wouldn’t be able to pass his classes at a top university. There was a case decades ago where a football player at U.C. Berkeley who was functionally illiterate, committed suicide. He didn’t make it to the pros, and flunked out of the university. Thereafter, UCB claims to have tightened its academic standards for student-athletes, but who knows…? The university still demands a basic academic ability even in its easy majors that would be beyond the ability of many athletes. I would just hand the student-athlete a default degree in “sports studies” and be done with it. That extra four-year slot could go to a some smart kid studying neurology or nuclear engineering.

      1. I see your point but I view the extra four years as a type of payment for the employment of being an athlete.

    2. ““Unless we maintain the amateur status of our student athletes, schools will become mere glorified farm teams for corporate sports.”

      They already are J. T.”

      Not really. For instance, college cross-country, an NCAA sport does not have a corporate equivalent. Neither do most of the college sports in any real capacity. After student-athletes run track f”or four years, they graduate and that distinction goes on their resume. They may wish to pursue Olympic dreams, but most do not.

      Seems to me colleges would be better off if they stopped pretending that they were teaching athletes. Why not have them just play for 4 years with no school and then the ones that do not go professional, give them four years of free schooling after.”

      This is not fair at all. You are thinking of the small percentage of football and basketball athletes who struggle academically. Most college athletes balance their studies and their athletic pursuits fine. Maybe schools should stop letting in students who simply are not prepared to handle college-level academics. To go the route you suggest would put students who are capable four years behind on their studies!

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