V. Factors Influencing the Federal Judiciary’s Deference to Amateurism
Federal judges have important characteristics in common.
They are predominantly white, male, and over the age of 60.
Federal judges serve for life and must be confirmed by Congress.
They are the cream of the crop in our legal systems.
In O’Bannon and Alston combined, fifteen federal judges reviewed the cases (one District Court Judge, five Circuit Court Judges, and nine Supreme Court Justices). Twelve (75%) were men, fourteen (88%) were white, and ten (66%) were white men.
As discussed in the Introduction, federal judges operate in a system that, by design, is resistant to change. The precedent-based approach to the law’s development prioritizes stability and consistency.
In this sense, the law is “conservative,” and so are federal judges, regardless of their personal politics or the President who nominated them.
Federal judges are guardians of a public institution built around even-handed resolution of disputes and cautious incrementalism.
The demographic profile of federal judges and the nature of the law have combined to give college sports’ institutional interests an invisible and substantial advantage in athletes’ rights cases.
Keystone athletes’ rights cases, like O’Bannon and Alston, have focused on the interests of the most valuable laborers in college sports: Power 5 football and men’s basketball players.
These athletes are disproportionately African American. Many come from challenging personal and financial backgrounds.
These athletes come from a world far removed from that of most federal judges.
In the aggregate, federal judges know very little about the day-to-day lives of the athletes whose labors underwrite the big-time college sports entertainment industry or the system in which they operate.
This is not to suggest that federal judges have any conscious race-based bias against profit athletes. On the contrary, many of the judges who heard O’Bannon and Alston instinctively understood and were sensitive to the civil rights implications of the NCAA/Power 5 regulatory and business models.
However, at the same time, they were drawn toward protecting, preserving, and prioritizing institutional interests.
There is no middle ground between institutional values that prohibit athlete compensation and free market values that protect athletes’ economic rights.
Federal judges have tried to create and operate in an “equitable” middle space, but as the limited remedies from O’Bannon and Alston demonstrate, that is all but impossible.
The binary value options require decision-makers to make a choice. So far, that choice aligns more with institutional interests than athlete interests.
Early in the O’Bannon case, a witness used the acronym “SEC,” referring to the Southeastern Conference. District Court Judge Claudia Wilken stopped the witness to ask if he was talking about the Securities Exchange Commission!
Judge Wilken’s initial lack of understanding of the basics of the college sports business model, its jargon, and its power players is not unique among federal judges.
Judge Wilken is an exceptional jurist and developed a sophisticated understanding of the business model. But her decisions in O’Bannon and Alston nevertheless defaulted to the NCAA’s conceptualization of amateurism.
In O’Bannon and Alston, Judge Wilken heard the full array of NCAA and Power 5 amateurism-based talking points and narratives. As the case evolved, she became increasingly skeptical of the rhetoric when set against the reality of an obviously professionalized business model.
Her opinions in both cases deconstructed the amateur myth. She noted that the NCAA could not even offer a coherent definition of amateurism.
She sliced and diced the NCAA’s core arguments with skill and detail.
She came right up to the edge of blowing the doors on amateurism, but then she blinked and reverted to remedies that had only a modest impact on the amateur model.
Why?
Because powerful and largely invisible judicial instincts lead judges to defer to institutional interests over athlete interests.
No judge wants the first line of their judicial bio to read: “This is the judge that ruined college sports for everyone.”
Discussed below are several well-entrenched factors that influence judicial deference to NCAA and Power 5 interests, including:
(1) Well-intentioned paternalism.
(2) Respect for venerable American institutions and traditions.
(3) Deference to the judgments and choices of voluntary associations.
(4) Fear of unintended consequences.
(5) Utilitarianism
All of these factors are present today.
Despite what appears to be shifting momentum toward protecting athlete interests, these judicial instincts have become ensconced in caselaw and will continue to influence judicial thinking going forward.
A. Well-intentioned (mostly) Paternalism
How often do you hear college athletes described as “kids”? The NCAA has built its values-based rhetoric largely around protecting “the kids.”
“Hey, these are just kids, they need us to protect them.”
“Look, these kids are vulnerable. The ‘bad actors’ [agents, boosters, collectives] will exploit them.”
The NCAA’s built its long-standing “Principle of Amateurism” (prior Constitution, Principle 2.9) around paternalism:
“Student-athletes shall be amateurs in an intercollegiate sport, and their participation should be motivated primarily by education and by the physical, mental and social benefits to be derived. Student participation in intercollegiate athletics is an avocation, and student-athletes should be protected from exploitation by professional and commercial enterprises.” (emphasis added)
Putting aside the fact that the NCAA and Power 5 are the primary “professional and commercial enterprises” that exploit athletes, paternalism—whatever its motive—is a powerful force.
Judges tend to elevate “adult” and institutional interests over athlete interests because they have been conditioned to believe that college sports’ values and governance priorities are truly athlete-centered and protect athletes from harm.
An example of the federal judiciary’s disparate treatment of “adult” v. “kid” interests is a comparison of Law v NCAA (1998) to the athletes’ rights cases discussed in the prior section.
In 1992, the NCAA implemented two rules that limited the number of Division I basketball coaches a university could employ. The rules were designed primarily to cut costs.
NCAA Bylaw 11.6.4 limited coaching staffs to four members—one head coach, two assistant coaches, and one entry-level “restricted earnings coach” (REC). Bylaw 11.02.3 capped the REC’s annual salary at $16,000.
In 1995, a group of RECs filed a class-action antitrust suit challenging the REC cap as naked horizontal price-fixing. The NCAA offered three justifications for its REC rules: (1) retention of “entry-level” positions, (2) reduction of costs, and (3) maintenance of “competitive equity.” Notably, the NCAA did not invoke amateurism-based principles to defend the REC rules.
The district court ruled as a matter of law (on summary judgment) that the REC salary cap violated antitrust laws. The wage-fixing agreement was so egregious that the district court struck down the compensation limit through an abbreviated “quick look” analysis.
The NCAA appealed to the Tenth Circuit, which made short work of the NCAA’s arguments and found the REC salary cap a slam dunk violation of antitrust laws.
From an antitrust standpoint and as a market practice, the NCAA’s REC compensation limits on coaches are identical to the NCAA’s amateurism-based compensation limits on athletes.
The only differences are (1) the REC limits applied to “adults,” not “kids,” and (2) the NCAA offered business-based justifications for its REC limits and values-based amateurism justifications for its athlete limits.
From an antitrust standpoint, the NCAA cannot offer an intelligent distinction between these two scenarios except to say that their “hands are tied” on coach compensation limits because of the Law decision.
Eye-popping coaching salaries are the norm in Power 5 football and men’s basketball. Some reform groups have proposed an antitrust exemption for the NCAA broad enough to permit it to rein in coaches’ salaries. Those proposals have fallen on deaf ears among NCAA/Power 5 leaders and in Congress.
Instead, the NCAA and Power 5 continue their monomaniacal quest in Congress for an antitrust exemption to prevent only athletes from accessing free markets.
The hypocrisy of the NCAA’s and Power 5’s position on coach vs. athlete compensation is so obvious that it has come up in Congress and during oral arguments in Alston.
On September 15th, the Senate Health, Education, Labor, and Pensions Committee held a hearing (“Compensating College Athletes: Examining the Potential Impact on Athletes and Institutions”), ostensibly on name, image, and likeness.
Senator Chris Murphy (D-CT) questioned Wisconsin Madison Chancellor Rebecca Blank on why coaches operate in the free market but athletes don’t:
Murphy: Chancellor Blank, I've heard the argument from you and others that if you were forced to pay college athletes, at least in sports like football and basketball, that make money, then you couldn't afford to run all the other sports.
And I think Mr. Huma did a pretty good job of explaining that. In fact, there are plenty of other institutions, from high schools to Division III colleges, that manage to run sports programs without making any money. So, I'm not necessarily sure why you couldn't adopt a model in which it's just a little bit less professional-looking, but let me make the argument to you that you don't have to actually reallocate money at all outside of your football program.
Your head coach at the University of Wisconsin makes 4 million a year. What's the problem with just paying him the salary of the average member of Congress and taking those additional dollars and divvying them up amongst those who play for him? That wouldn't affect the rest of your college sports, just reallocating money within the football program.
Blank: I actually have been quoted as being quite critical of the amounts of money that we currently pay coaches. I'm an economist. It's a market out there. As I noted earlier, it's very hard to find people who have really top coaching skills, whether in college or in professional sports, and the market competes those prices up.
We used to restrict college coach salaries in the NCAA. There was a lawsuit on antitrust grounds that we lost. And since then, college coaches have simply been competed up by the market. I would be more than happy, and I've said this before publicly, to consider an antitrust exemption that would allow us to restrict coaches' salaries.
I think that is appropriate for college sports. I think it is somewhat outrageous that the highest-paid employee in many states is their state university college coach.
Murphy: So, in closing, you were not allowed by antitrust rules to be able to restrict the pay of college coaches, but you are allowed under current rules to be able to restrict the compensation of athletes.
While Chancellor Blank—then a member of NCAA governance boards—seemed to support an antitrust exemption that would permit the NCAA to limit coaches’ salaries, no proposed federal bill has addressed coaching salaries. Her testimony supported a federal legislative structure focused on limitations for athletes, not coaches.
During the oral argument in Alston on March 31st, 2021, Justice Clarence Thomas also raised the tension between the treatment of coaches’ compensation and athlete compensation in an exchange with NCAA attorney Seth Waxman (edited for clarity):
Thomas: Mr. Waxman - a matter of curiosity to me. You put a lot of weight on -- focus on amateurism. [A]nd you look at the limitations of the benefits or pay to players. But is there a similar focus on the compensation to coaches to maintain that distinction between amateur coaches, coaches in the amateur ranks, as opposed to coaches in the pro ranks?
Waxman: Thank you, Justice Thomas. The NCAA previously had a rule that limited the amount of compensation that coaches could receive. It was challenged in the Tenth Circuit in a case called Law versus NCAA. The NCAA sought to defend that rule on the amateurism principle, and what the Tenth Circuit said was, look, rules that are reasonably designed to protect the amateur status of student-athletes should be upheld in the twinkling of an eye. But coaches are not student-athletes. They are professionals, just like professors and presidents, and, therefore, the Court applied a full rule of reason review and struck down the limitation on coaches. So, the NCAA is no longer permitted, under the antitrust laws, from in any way restraining the salaries of coaches and other professionals.
Thomas: Well, it just strikes me as odd that the coaches' salaries have ballooned and they're in the amateur ranks, as are the players.
Waxman played the Law card, but his characterization was slightly off the mark. The NCAA did not invoke amateurism in Law, and the court did not say that amateurism-based rules should be “upheld in the twinkling of an eye.”
Nevertheless, Waxman makes a paternalism argument distinguishing “student-athletes” from adult “professionals just like professors and presidents…”
Well-intentioned but misguided instincts fuel this fundamental hypocrisy in the college sports business model.
B. Respect for Venerable American Institutions and Traditions
As a venerable institution built on tradition, the federal judiciary is inclined to respect other venerable American institutions and traditions.
Undoubtedly, college sports have a rich tradition and a special place in American culture.
Indeed, that very tradition produced the magic dicta in Board for Regents (“revered tradition of amateurism”) and has become a rallying cry in the NCAA’s and Power 5’s campaign in Congress to preserve the “national treasure” that is college sports.
Even though federal judges may be less likely than most Americans to be avid consumers of college sports, they are well aware that iconic college sports events like traditional bowl games in football and March Madness in basketball captivate the American public and have cultural value.
The NCAA and Power 5 have been brilliant over the years selling to federal courts the illusion and sanctity of the amateur ideal in college sports.
They have also been very effective at weaving patriotic themes into the culture of college sports. The NCAA ties its mission to our Olympic development program every chance It gets. The NCAA wants decision-makers to believe that our Olympic development structure will collapse without NCAA sports as a feeder system.
Similarly, American flags are everywhere during March Madness—on athletes’ chests, coaches’ lapels, below the scorers’ table, and even on backboards.
The NCAA website is loaded with patriotic symbols and rhetoric.
The NCAA also deliberately associates itself with individuals who inspire patriotic associations. Former Secretary of State Condoleezza Rice served as the chair of the Commission on College Basketball and is viewed by many as an American patriot.
Former Secretary of Defense and Director of the CIA Bob Gates was an “independent” NCAA Board of Governors member and the NCAA Constitution Committee chair.
Gates has served under Presidents from both parties.
Like Rice, Gates is viewed as a noble public servant.
Federal judges are susceptible to these sophisticated appeals, even when evidence and logic do not support them.
Indeed, the NCAA’s amateurism-based compensation limits could not be further removed from American principles of economic liberty, freedom of association, and egalitarianism.
Yet NCAA mythologies cloaked in American values and traditions are irresistible and invisible barriers to athletes’ rights.
C. Deference to the Judgments and Choices of Voluntary Associations
The NCAA and Power 5 are education nonprofits. They have built their public profiles around education-related values.
They are also private, voluntary associations claiming expertise in regulating college sports.
The central arguments the NCAA and Power 5 make in their litigation and congressional campaigns are built around the belief that they are uniquely qualified to sit on the Iron Throne of college sports regulation.
The Supreme Court in Board of Regents suggested as much by observing that the NCAA needed “ample latitude” to regulate college sports.
More recently, the work product of the NCAA Board of Governors Federal and State Working Group and its Presidential Subcommittee on Congressional Action made the same case in their April 17th, 2020, Final Report:
“…the subcommittee believes the that the NCAA is the most appropriate and experienced entity to oversee intercollegiate athletics given the uniqueness of the collegiate model of athletics, its membership driven nature and daily connection to student-athletes, the breadth and scope of its administrative operations, its willingness to respond to the evolving needs of student-athletes, and its long track record of providing remarkable opportunities for student-athletes to gain access to higher education” (emphasis added).
The NCAA says “we are the experts” in a voluntary association where members agree to the regulatory model and rules. We should be left alone in our private, nonprofit world to do as we see fit without external interference or second-guessing.
D. Fear of Unintended Consequences
Fear of unintended consequences is an element of the law’s preference for slow, incremental change. That is a given.
However, courts have been particularly cautious in cases that challenge the college sports regulatory and business models.
This is due largely to the NCAA’s decades-long fear-mongering that the next change in the business model will be the change that brings college sports to a fatal collapse.
Over the years, the NCAA (or the Power 5) have predicted catastrophe and the “end of college sports as we know them” over (1) television and its impact on live game attendance [early 1950s], (2) the full athletic scholarship [1956], (3) Title IX’s impact on football [1972-1978], (4) the Board of Regents decision [1984], (5) a football playoff [1990s and early 2000s], (6) the full cost of attendance scholarship [2006 – 2015], (7) name, image, and likeness compensation [2021], (8) one-time transfer rule (2021), and (9) education benefits after Alston [2021].
So far, college sports are doing just fine. Moreover, many of these changes resulted in windfall financial benefits to the NCAA and Power 5 (TV, Board of Regents, College Football Playoff).
In her opinion in Alston, Judge Wilken explicitly invoked unintended consequences in response to the athletes’ claims that all NCAA amateurism-based compensation limits should be struck down:
“[The athletes] and their experts strenuously argue and opine, perhaps correctly, that if this alternative [a free market for athletes’ services] were adopted, conference officials, as rational economic actors, would not act contrary to their members' aggregate economic interests, and would not choose to pay amounts of cash compensation unrelated to education that would be demand-reducing for Division I sports. Whether by survey or trial and error, these actors would eventually discover the level of cash compensation to student-athletes that would encourage competition for recruits but would not reduce the demand for their product.
Be that as it may, the inevitable trial-and-error phase could result in miscalculations by one or more conferences as to levels of cash pay that would not reduce demand for the product, and this could produce unintended consequences.
It is to be hoped that gradual change will be instructive. If it were persuaded to do so, the NCAA could conduct market research and allow gradual increases in cash compensation to student-athletes to determine an amount that would not be demand-reducing” (emphasis added).
Fear of unintended consequences is a powerful deterrent to meaningful change, and the NCAA and Power 5 always have another fear to offer up.
In Congress, the NCAA and Power 5 have pivoted to two reliable bogeymen: (1) the dreaded notion of athletes as employees and (2) gender equity.
Both have elicited the desired response. There seems to be little appetite in Congress to permit athletes to become university employees, and several NCAA/Power 5-friendly bill proposals would make employee status impossible.
Senator Roger Wicker (R-MS), a staunch NCAA/Power 5 ally, said in an October 2022 interview that he would filibuster any bill granting athletes employee status.
The gender equity scare tactic is premised on believing that college sports exist in a zero-sum financial and equity world. If anything is done to benefit profit athletes in football and men’s basketball, then money and equity will be stolen from women and women’s sports.
It is a terrible, divisive, and unproven theory. Yet it has tremendous persuasive power.
E. Utilitarianism: Sacrificing the Interests of a Few to Protect the Interests of Many
This is the “greater good” principle. It is insinuated into nearly every aspect of the college sports business model.
It is an equity-based argument, and federal judges are susceptible to it.
In the college sports setting, the “few” are Power 5 football and men’s basketball athletes (approximately 8,000), and the “many” are all other NCAA athletes across all three Divisions (approximately 492,000).
The NCAA and Power 5 aggressively promote this narrative in federal litigation, Congress, and public relations.
As noted above, this framing assumes zero-sum financial and equity worlds in college sports: if profit athletes in Power 5 football and men’s basketball are permitted to enjoy the fruits of their labor, that would be tantamount to stealing money and equity from nonrevenue and female athletes.
There is scant evidence that any changes to the business model that recognize the true value of profit athletes will harm non-revenue and female athletes.
Utilitarianism expresses itself in a variety of ways, including
(1) Myles Brand’s “collegiate model,” which requires the maximization of profits in Power 5 football and men’s basketball to fund “participation opportunities” for nonrevenue athletes whose sports lose money.
(2) The false assumption that payments for athletic services to Power 5 football and men’s basketball players (above the value of an athletic scholarship) will impact hundreds of thousands of athletes and sports in lower-level Division I and Divisions II and III.
(3) The NCAA’s and Power 5’s public lobbying campaigns for protective federal legislation based on the premise that any changes to the college sports business model will result in the fatal collapse of college sports.
(4) The delegitimization and devaluation of Power 5 football and men’s basketball athletes through narratives that these athletes have it so good and get so much that they shouldn’t complain.
(5) The myth that revenues from Power 5 football and men’s basketball are essential to fund NCAA sports that are the pipeline for our Olympic development program(s).
In framing their utilitarian arguments, the Power 5 and NCAA conveniently omit two crucial realities of the existing college sports business model.
First, they never acknowledge that the “few” provide nearly all the commercial value in the college sports marketplace. Because they aren’t paid fair market value for their labor, Power 5 football and men’s basketball players provide windfall profits to many other stakeholders.
From a purely business standpoint, the “many” are either primary beneficiaries of the market value of the few (Power 5 universities, coaches, nonrevenue athletes, and athletics administrators) or completely irrelevant to the business model (lower-level Division I, Divisions II and III).
Second, the “few” are disproportionately African American, and the “many” are disproportionately white.
The Power 5 and NCAA go to great lengths to obscure this uncomfortable truth.
