Kavanaugh’s Dissertation Pressures NCAA to Solve NIL Dilemma

The NCAA has had a rough go of it this Summer when appearing before the Supreme Court. Many of the new directions and evolutions coming to collegiate athletics stem from these hearings and Monday morning's rulings spell doom for many of the NCAA's long held traditions centered on amateurism.

Monday morning the SCOTUS unanimously ruled in favor of student athletes in the case of Alston v. NCAA. While that ruling isn't directly related to the matter of players being compensated for name, image and likeness, Justice Brett Kavanaugh's dissertation of his occurring opinion of the court paints a picture of NIL soon becoming an unavoidable existence for college sports.

In his opinion, Kavanaugh expressed his feelings on the operation of the NCAA over the course of its existence, asserting that "the NCAA is not above the law."

"The NCAA couches its arguments for paying students athletes in innocuous labels," Kavanaugh wrote. "But the labels cannot disguised the reality: The NCAA's business model would be flatly illegal in almost any other industry in America."

Kavanaugh's base for his argument seems to stem most from the United States being a capitalistic economy and the dispersion of wealth in college athletics is disproportionate to the work put in by its athletes. Truthfully, it's an argument based in common sense, and Kavanaugh expanded upon that with examples of professions with traditional ideologies whose workers are not deterred by the compensation of a salary or wage.

"All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that “customers prefer” to eat food from low-paid cooks," Kavanaugh continued. "Law firms cannot conspire to cabin lawyers’ salaries in the name of providing legal services out of a “love of the law.” Hospitals cannot agree to cap nurses’ income in order to create a “purer” form of helping the sick. News organizations cannot join forces to curtail pay to reporters to preserve a “tradition” of public-minded journalism. Movie studios cannot collude to slash benefits to camera crews to kindle a “spirit of amateurism” in Hollywood."

In the eyes of Kavanaugh, the traditions of college athletics won't be enough to deter the change that is coming concerning player compensation, citing national championship host sights and tournaments alike "cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of student athletes who are not fairly compensated."

"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," Kavanaugh 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 explains further that the SCOTUS handing a ruling down to the NCAA to correct these faults in its model is but one option, acknowledging the difficult questions that befall the situation, including Title IX, the impact on non-revenue generating sports, and whether a cap should exist on student-athlete compensation.

While Kavanaugh's words here are nothing but opinion and do not carry a precedent to further change the face of college athletics, they do carry a sign of change to come for the NCAA should its leadership continue to avoid or outright fight the issue of amateurism and NIL compensation on the whole. At the end of the day, Kavanaugh presents a case against the NCAA that would be difficult for the association to overcome, that being that the NCAA's entire structure of business may be in violation of antitrust laws.

"Everyone agrees that the NCAA can require student athletes to be enrolled students in good standing," Kavanaugh wrote. "But the NCAA’s business model of using unpaid student athletes to generate billions of dollars in revenue for the colleges raises serious questions under the antitrust laws. In particular, it is highly questionable whether the NCAA and its member colleges can justify not paying student athletes a fair share of the revenues on the circular theory that the defining characteristic of college sports is that the colleges do not pay student athletes. And if that asserted justification is unavailing, it is not clear how the NCAA can legally defend its remaining compensation rules."

As it stands now, NCAA president Mark Emmert said Friday in a memo sent to over 1,100 schools saying that if the NCAA cannot come to a permanent resolution to NIL compensation, he will enact temporary rules in July to allow players the ability to be compensated under the NCAA's umbrella, rather than the laws set to be in place in several states, including Alabama, on July 1.

"This is an important moment for college sports and particularly for our athletes," Emmert wrote in the memo. "We must act to ensure that fair opportunities, consistent with our values, are provided to all student-athletes."

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While the NCAA has asked for Congressional help in addressing the matter, that doesn't appear to be a possibility before the Fall season of collegiate athletics. The NCAA Division 1 Council will meet Tuesday and Wednesday and in light of today's ruling as well as Kavanaugh's pressure-filled dissertation, the issue of NIL compensation could be acted upon after first being tabled in January.

Still, the NCAA's leadership has been questioned by U.S. government and the Supreme Court, and enforcing a capitalistic yet fair system in terms of compensation seems a staunch task for an organization that faces many scandals in recruiting every year, most of which go unnoticed or disproportionally punished. The prevailing question becomes even if the NCAA can come up with something, will it adhere correctly to antitrust laws, can it serve all sports fairly and can it be monitored in a way to prevent recruiting advantages?

While Emmert has in the past said he's confident NIL structure will be in place before the upcoming season, there's pressure coming from all sides for he and the NCAA to provide an answer and time is running out with August quickly approaching.

Supreme Court Justice Brett Kavanaugh's opinion on Monday's ruling, as well as the rest of the United States Supreme Court and its decisions in Alston v NCAA, can be read in its entirety here.