NCAA: Justice Kavanaugh’s Opinion on Paying Athletes ‘His Own View’

NCAA: Justice Kavanaugh's Opinion on Paying Athletes 'His Own View' NCAA: Justice Kavanaugh's Opinion on Paying Athletes 'His Own View' Supreme Court Associate Justice Brett Kavanaugh. (Win McNamee/Getty)

By Charlie McCarthy | Tuesday, 22 June 2021 01:53 PM

The NCAA on Monday dismissed a blistering concurring opinion by Justice Brett Kavanaugh, perhaps the Supreme Court's biggest sports fan.

The high court unanimously decided to uphold lower-court rulings that college athletics' governing body illegally restricted education-based benefits that could be used as compensation to student-athletes, USA Today reported.

Justice Neil Gorsuch wrote the court opinion, which concerned only payments and other benefits related to education. The justices' logic, though, suggested the court might be open to a direct challenge to the NCAA's ban on paying athletes for their participation in sports that earn billions of dollars in revenue for colleges and universities, USA Today said.

Kavanaugh wrote that the NCAA's compensation rules raise "serious questions under antitrust laws."

NCAA President Mark Emmert and the organization’s lawyers said Kavanaugh's opinion meant little.

"The notable thing is that eight other justices did not agree with that and wouldn't sign on to it," NCAA’s outside lawyer Jeffrey Mishkin told USA Today. "So I don't think that you can make very much of that concurrence. It's his own view, and he's writing for himself. So, I think that's just not at all central to what's been decided today."

As a result of Monday's ruling, Division I men's or women's basketball or Bowl Subdivision football athletes will be able to receive benefits that include cash or cash-equivalent awards based on academics or graduation.

Schools can also offer scholarships for the completion of undergraduate or graduate degrees and paid internships after athletes have completed their collegiate sports eligibility. Institutions are not required to offer such benefits.

In a statement, the NCAA pointed at one of the few aspects of Gorsuch's decision that affirmed the lower courts' rulings that the association "could develop its own definition of benefits that relate to education and seek modification of the court’s injunction to reflect that definition."

"While today’s decision preserves the lower court ruling, it also reaffirms the NCAA’s authority to adopt reasonable rules and repeatedly notes that the NCAA remains free to articulate what are and are not truly educational benefits, consistent with the NCAA’s mission to support student-athletes," the NCAA said, according to USA Today.

Kavanaugh, however, took aim at NCAA leaders and athletic administrators.

"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.

"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."

Kavanaugh also said NCAA traditions could not disqualify the organization from potential antitrust issues.

"To be sure, the NCAA and its member colleges maintain important traditions that have become part of the fabric of America," Kavanaugh said. "Game days in Tuscaloosa and South Bend; the packed gyms in Storrs and Durham; the women’s and men’s lacrosse championships on Memorial Day weekend; track and field meets in Eugene; the spring softball and baseball World Series in Oklahoma City and Omaha; the list goes on.

"But those traditions alone cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of student athletes who are not fairly compensated.”

He added that the "NCAA is not above the law."

"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," Kavanaugh said. "And under ordinary principles of antitrust law, it is not evident why college sports should be any different."

USA Today reported that one of the plaintiffs, Steve Berman, already has another case before the same U.S. district court judge that asks that the NCAA be prevented from having rules that "restrict the amount of name, image, and likeness compensation available."

He is also seeking unspecified damages based on the share of television-rights money and the social media earnings.

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