See comments above in Bold.
In summary:
1. Really the only thing the NCAA/Conferences potentially have control over would be the portal
2. Everything having to do with NIL is supposed to be not through the school and 100% 3rd party contracts with the NIL Benefactor and the athlete so no one really has any power to do anything with it.
The only way to control this thing is to take CFB to a professional level and put the kids under contract.
To clarify, Alston was not about NIL. The only direct holding from Alston is that the NCAA can not limit academic benefits that can be given to student athletes. But, that holding was based on them finding that the NCAA limiting academic benefits was a violation of the Sherman Act.
NIL came into being based on state laws passed in about 30 states. While the timing made it seem that it was related to Alston, it wasn't directly. One could argue that the NCAA didn't fight back due to Alston, but there was simply a practical aspect to them simply giving up.
If anyone is interested I will try to put Alston in layman's terms:
- The Sherman Act prohibits anti-competitive activity.
- To determine if the Act was violated:
(1) the plaintiff (players) have to show the challenged restraint (restricting academic benefits) has a substantial anticompetitive effect - SCOTUS agreed that it did.
(2) then the burden shifts to the defendant (NCAA) to demonstrate the restraint results in procompetitive effects - importantly, SCOTUS agreed that distinguishing college from pro sports was pro-competitive ... this is key ... from the trial court level up, they all agreed that keeping the difference between college and pro sports was vitally important.
(3) the the plaintiff (players) must then show the procompetitive benefit could be achieved through less restrictive means - SCOTUS determined there were less restrictive means, (1) that expanding academic benefits was not seen by the consumers (fans) as making college sports like pro sports, and (2) the decision could be shifted to the conferences where each conference might handle it differently which is good for the players.
Some interesting details:
- For now SCOTUS has accepted the idea that limiting benefits unrelated to education may be price-fixing, but they are reasonable in
light of the possibility that “professional-level cash payments . . . could blur the distinction between college sports
and professional sports and thereby negatively affect consumer demand.” This is the pro v. amateur aspect of the issue. So long as the NCAA/Conferences can show that their product would be harmed by the blurring of this line, they will be able to control non-academic payments.
- I listened to the oral arguments, and most of the justices have a great interest in college sports. They were clear they are wary of the courts micro-managing sports. They are very aware of the distinction between college and pro sports and want to be careful to not blur the lines. This is the main thing the NCAA has working for them and they have to think of a way to compensate the players, without the payment coming from the colleges. Hence their reliance on NIL, even though they have fucked up the way it is being introduced.
- A lot has been made of Kavanaugh's concurrence. There are 9 justices. When 5 or more agree, you have the majority. They write the opinion. The non-majority justices can concur or dissent. To dissent means they disagree with the majority opinion. To concur means you ultimately agree with the majority, but you have other ideas that you want to express. Only the majority opinion is precedent that has to be applied in future cases by the lower courts. The concurrence and dissent are called "dicta" - an observation made by a judge in an opinion that is not necessary to resolve the case, and as such, it is not legally binding on other courts but may still be cited as persuasive (but not binding) authority in future litigation. The fact that no other justices joined Kavanaugh in his concurrence - often several justices will concur - means a lot. If any of the other 8 agreed with Kavanaugh, they could have joined his concurrence. They did not which means they don't agree with his extreme views on this. So, when you hear commentators go on and on about what Kavanaugh stated, remember he is all alone on his thoughts for now.
- I've rarely seen this mentioned, but the players/plaintiffs lost a lot of issues at the trial level. They chose not to cross appeal on these issues. One justice, in particular, hammered them in oral argument on this. They were asked why they didn't cross appeal their loss on collective bargaining, and several other issues that related to direct compensation. Their lawyer admitted he didn't think there was an appetite to change college sports to that degree right now. This is really important, yet few ever mention it.
- For lawyers only ... three lawyers participated in oral argument ... the attorneys for the NCAA and the players, and the Solicitor General who participated in oral argument as amicus curiae. I thought the 2 lawyers were ok, the NCAA's attorney better than the players. But the General ... she was fantastic. She was way better than the other 2 highly paid attorneys, IMO.
