What’s the next shoe to drop after the NCAA lost in court and as name, image and likeness becomes ratified?
The case centered on football and basketball players. But it’s a baseball analogy that springs to mind. The athletes suing the NCAA on antitrust grounds pitched a rare shutout when the Supreme Court ruled 9–0 in their favor. Narrowly, the decision removed the NCAA’s ability to put restrictions on educational benefits conferred on athletes. Broadly, it took a swipe at the NCAA’s anti-competitive practices and opened the door to more challenges, including athlete compensation.
Justice Neil Gorsuch wrote the majority opinion and noted that the NCAA “means to propose a sort of judicially ordained immunity from the terms of (antitrust law) for its restraints of trade—that we should overlook its restrictions because they happen to fall at the intersection of higher education, sports, and money—we cannot agree.” But it was his colleague, Justice Brett Kavanaugh, who delivered the more severe blows in a concurring opinion, that all but mocked the NCAA’s justification for amateurism.
Apart from the athletes, the other big winner was Jeffrey Kessler. A longtime sports labor lawyer, Kessler, 67, has for decades represented players seeking bigger shares and louder voices. After last week’s Supreme Court decision, he spoke with SI.
This interview has been lightly edited for clarity.
Sports Illustrated: Okay, so I’ll start with the subject line in your email. What’s next?
Jeffrey Kessler: I think the NCAA is at a crossroads. If it’s going to be changed, it has to be driven by the members, and the [college and university] presidents because we’ve never seen any propensity or willingness to consider real change out of Indianapolis. … They could go one of two directions. They could realize that it’s time for them to accept the fact that the antitrust laws apply to them fully like any other business, and they need to restructure their model to comply with those laws. Or they can continue to thumb their noses and violate the laws and get sued again, and pay large damage results and do nothing to benefit either the student athletes, their schools or, frankly, college sports. And we’ll have to see which direction they choose to go with.
SI: How far does this go in invalidating the model, by eroding the antitrust exemption?
JK: The most significant thing about this is that for 37 years, the NCAA hid behind what we lawyers call the dicta in the Board of Regents decisions. That decision had language that largely suggested that amateurism was entitled to some special deference under the antitrust laws. And they actually convinced some courts to follow that path, and they deterred others from fully holding them accountable based on that dicta in those Supreme Court words. That is now in the ashbin of legal history. If one thing is made clear by these nine justices it’s that [the] Board of Regents does not have that impact and has effectively been overruled by the unanimous Supreme Court.
[Explainer break: in the 1984 Board of Regents decision, the Supreme Court poked holes in the NCAA’s cartel-like practice and ruled that individual schools could negotiate their own football television contracts. In a decision otherwise adverse to the NCAA and its restrictions on the free market, Justice John Paul Stevens wrote:
“In order to preserve the character and quality of the ‘product,’ athletes must not be paid, must be required to attend class, and the like. … The NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports. … 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 Sherman Act.”
Since then, for nearly four decades, the NCAA has seized on this “dicta”—specifically “athletes must not be paid”—to justify not compensating athletes.]
SI: I think people don’t always remember that the Board of Regents decision went against the NCAA.
JK: Right, right, right. In that case, the issue was the broadcast restrictions. On TV broadcast for college football, and they actually lost the case. But in the course of losing the case, there [were] several paragraphs talking about how amateurism is a needed leeway to be able to promote that part of the game. And again, they seized on this kind of loose language. … [The Supreme Court] said the world has changed in 37 years and the court went through everything that’s changed in 37 years and what a gigantic business college football and Division I basketball have become. They are gigantic commercial businesses. And as a result, the Court said whatever force the dicta had then, has no force now.
SI: What’s your response to the schools that say: This is going to turn into an arms race, and sorry, we don’t have $5,000 worth of computer equipment and iPhones and other educational benefits to bestow on our students, we just don’t have the resources?
JK: So, it’s an argument that sounds good, and makes absolutely no factual sense. And, the reason is, that arms race exists today. It exists when Alabama pays each of its strength and conditioning coaches $550,000 per year. It exists when these schools spend $150 million on some palaces for the athletes to live by themselves and have their own billiard rooms and gold-plated locker rooms, of which you can’t possibly imagine. There is no equality of competition in college sports now. There are the rich and there are the not rich. And, that’s not going to change today. But what will change is instead of Nick Saban making $11 million, maybe he’ll only make $9 million and the athletes will benefit from the difference.
SI: What excess did you come across that offended you the most?
JK: The spending is not what offended me the most. What offended me the most in this record is how the athletes are treated. It’s the fact that the average BCS football players and Division I basketball players work more than 50 hours a week for their schools, before they attend a single class. That they’re told not to pursue majors or classes that they’re interested in because it will conflict with the team. That their first priority is to support their team, not to be students. And then they come in and say, “Oh but we can’t let you have any benefits because you won’t be integrated as students in the campus.” It is so offensive. It is so exploitative. And let’s not forget that the majority of football and Division I basketball players are students of color. That’s what offends me the most.
SI: How much do you allocate responsibility to the NCAA, this institution, and how much to member schools. It seems to me, we all pick on the NCAA, but we all forget that if colleges and university presidents felt similar to you, we wouldn’t be here.
JK: The NCAA is the one who drives the train. But the schools could control the train. And that’s what they should be doing. They should be saying enough is enough. I saw recently the president of Notre Dame say this issue of name, image and likeness (NIL). The NCAA had been thinking to prohibit group licensing so that the athletes can’t participate in video games. And Notre Dame came out and said, “We’re not participating unless our athletes can participate.” So it’s time for more presidents to say that.
SI: You want to talk about name, image and likeness real quick? Where do things stand and where would you like them to stand?
JK: Now, you’re not allowed to profit off that at all. The answer is you should be able to. You know name, image, likeness can be interesting because people think that that is just about the star players like football, basketball. It’s not. That’s going to benefit gymnasts and swimmers and tennis players and all sorts of different athletes. Not because their sports generate so much revenue as teams, but because they’re really popular figures either locally or nationally or on social media. And they’re going to find all sorts of ways to monetize that. That’s going to be great. There’s not a reason in the world that that shouldn’t happen. Every other student—if you’re a musician, you could go on YouTube right now and do a video, you could do it as an actor or a singer or a journalist, you could pursue anything you want outside of the school. Why should the athletes be restricted in this way? That never made any sense.
SI: What do you make of the argument [put forth by the NCAA as a defense] that fans aren’t going to be as interested in college spots if we don’t have amateurism?
JK: So just ask yourself, if you’re a fan of Notre Dame, do you think that the Notre Dame fan is not going to watch Irish football because the athletes can get a computer? Or because they get a $6,000 payment for making progress toward their graduation? Do you see those bars closing down around the country as people look away in disgust because these athletes get to benefit a little bit out of these massive funds that go instead to the athletic director or God knows where? The argument is so silly, people laugh at them when you think it through.
SI: How do you think this impacts nonrevenue sports?
JK: I don’t think it has any effect at all because the nonrevenue sports, the secret is they don’t cost that much and their subsidies are actually very, very small. There’s no reason that any of this will affect what they get. They’re basically supported out of university general funds to begin with. And we know this with things like Division III. Division III has all the nonrevenue sports, and it has no football programs funding it and it has no basketball programs funding it.
How did they get funded? They get funded the same way that the newspaper gets funded, the same way that glee club gets funded. It’s just not credible that somehow their existence is dependent on these other sports, their existence is dependent on the university’s dedication to them.
I just went through this with Stanford. Stanford said they were canceling 11 sports because it was important for economic stability.
So Stanford had, I believe, a $28 billion endowment. These 11 sports cost $2.8 million to run collectively. So what sense did that argument make? It had nothing to do with money. For whatever reason they had decided that—it’s never been revealed—that they decided they wanted to [eliminate] these sports. Now, we filed a lawsuit a few weeks later. They folded. And all the sports were restored. But my point in that story, the university administrators love to use, “Oh we can't afford to do this.” That is not what it’s about, any more than they can't afford their English department.
SI: Just to be clear, who did you represent in the Stanford case?
JK: I represented eight of the 11 teams.
SI: Justice Kavanaugh [in his concurring decision] almost seemed to goad the plaintiffs to pursue further action on the same lines—
JK: As I said, I think that if the NCAA does not get its house in order, there will be undoubtedly more litigation. There will be more challenges and people. The first test is going to come this [week]. Because they’re going to adopt something on name, image and likeness. And if they adopt something that is unduly restrictive in that area, you can be sure that they’re going to be challenged over that.
SI: Let me ask you about arguing this case. Did you have any inkling, a nine–nothing shutout was in the offing?
JK: No, I would never as a lawyer think that it would be nine–nothing. Because it’s so rare. I mean how can you predict that? I did believe after the arguments, after listening carefully to the justices’ questions, I told people I have trouble counting to five for the NCAA. So I felt pretty good about our chances. But that didn’t mean I thought [we were] going to get all nine.
SI: Again, back to the first question. The subject of the email I got was “What’s next for the NCAA?” and certainly Justice Kavanaugh sort of seemed to suggest this could be expanded. What’s the next shoe to drop here?
JK: I think name, image and likeness is the first one. And that will get money to a lot of people, and then we’ll see what’s happening after that. Again, I think until the NCAA decides it’s getting out of this compensation-restricting business, it’s going to be challenged. It will be challenged in the courts. By the way, Congress may come in and not do something to help the NCAA, it may come in and do something to help the athletes, that wouldn’t shock me either.
SI: If this were a game, who would be the unsung hero? Who is someone who ought to have got more credit than they have?
JK: The players who stood up, people like Nigel Hayes, Martin Jenkins, every single one of these players who brought this litigation, not for themselves. They’ve all graduated. They’re not going to get any of the benefits of these changes but they stood up as athletes [that played in the] past because someone had to for the generations who were going to come after them.
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