Conference Realignment Harms Legal Case for NCAA Amateurism
The chaos of conference realignment is still playing out.
The Power Five might become the Power Four.
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Top college football programs could form two super conferences, much like the NFC and AFC in the NFL, or the Eastern Conference and Western Conference in the NBA.
Or the situation could play out altogether differently.
But there are three certainties.
First, the conferences and member schools are making transformative decisions in real-time and in Zoom meetings and other non-private forums reported on by dogged journalists closely following every move.
Second, schools are largely motivated by money and exposure. Each university leader is trying to position their school to earn as much as possible through television contracts and to boost their school’s reputation with alumni, prospective students—both athletes and non-athletes—and other key constituencies.
Third, judges, some of whom might preside over cases involving college sports, and members of Congress, whom the NCAA is lobbying, pay attention to the news and are likely keeping tabs.
Collectively these factors could undermine efforts under NCAA president Charlie Baker to fortify amateurism from legal challenges.
The NCAA has long argued college sports are qualitatively different from pro sports because the players are students who aren’t paid for their play. This feature allegedly enhances fan interest and ensures athletes are focused on being college students.
As college sports has morphed into a multibillion-dollar industry, and as some college coaches earn millions of dollars a year, those arguments are harder to make. At least at major programs, college sports look a lot like pro sports.
Dramatic conference realignment isn’t going to help.
Instead of conference members making decisions based on athletes’ academic interests—such as minimizing travel during the semester—the focal points are revenue and reputation.
Those charged with creating and enforcing laws are paying attention.
John Broderick, a longtime trial lawyer who is a fellow of the American College of Trial Lawyers and who served as president of both the New Hampshire Bar Association and the New Hampshire Trial Lawyers Association, sees the unvarnished chase of money by conferences and their schools as spawning new problems for the NCAA when it appears in court or before Congress.
It is “pretty disingenuous for the NCAA to be working overtime to increase revenues for itself and member conferences and schools off the incredible skills and hard work of college athletes while at the same time insisting they should not share in any of the spoils,” Broderick, who later served as chief justice of the New Hampshire Supreme Court and dean of UNH Franklin Pierce School of Law, told Sportico.
“My sense is that appellate courts would look at that record with a jaundiced eye—and should.”
Judges acting on what they learned from media reporting on college sports is not new.
Take NCAA v. Alston.
By the time it advanced to the U.S. Supreme Court a few years ago, Alston concerned a fairly narrow issue: Whether the NCAA and its members unlawfully conspired under federal antitrust law to prevent schools from paying college athletes for their education-related costs.
Alston was not about whether college athletes should be paid for their athletic performances or their labor. Nor was it about name, image and likeness or TV money. It was about money for academics—an important subject, no doubt, but not one that typically generates headlines on ESPN.
Yet when given the opportunity to question the NCAA’s attorney, Seth Waxman, during oral argument, the justices aggressively challenged him on the fundamental principles guiding amateurism. They repeatedly raised high-profile, newsworthy issues to boost their points.
Justice Clarence Thomas opined it “strikes” him “as odd” that college “coaches’ salaries have ballooned and they’re in the amateur ranks, as are the players.”
The case had nothing to do with coaches’ salaries. But Thomas used that topic to test the underpinnings of amateurism.
Justice Samuel Alito spoke about college athletes having a “pretty hard life” where they have “little time or energy for study” and are “pressured to drop out of hard majors and hard classes.” He feared that college athletes “are recruited … used up, and then they’re cast aside without even a college degree.” He demanded that Waxman defend those problems “in the name of amateurism.”
Justice Kavanaugh chastised colleges for not paying “salaries to the workers who are making the schools billions of dollars on the theory that consumers want the schools to pay their workers nothing.” That phenomenon, he said, “seems entirely circular and even somewhat disturbing” and he noted injuries suffered by college athletes, too.
Alston was neither about pay-for-play nor colleges making billions of dollars through sports. But those issues were clearly on the minds of Kavanaugh and other justices.
Justice Amy Coney Barrett struck a similar theme. She asked Waxman if he defined an amateur athlete “as someone who is unpaid” and whether he thinks “consumers love watching unpaid people play sports.”
The onslaught continued for much of the hearing. A few months later, the Court ruled 9-0 against the NCAA. The majority and concurring opinions by Justices Neil Gorsuch and Kavanaugh, respectively, eviscerated the NCAA’s arguments.
A more recent example of judges challenging NCAA attorneys through high-profile controversies in college sports occurred in February.
A three-judge panel from the U.S. Court of Appeals for the Third Circuit held a hearing on Johnson v. NCAA, which centers on whether college athletes are employees under the Fair Labor Standards Act.
Judges Theodore McKee, David Porter and L. Felipe Restrepo used the forum to force NCAA attorney Steven Katz to defend what they’ve observed as problematic in college sports. The judges referenced blatant inequities between the treatment of men and women basketball players at the NCAA basketball tournaments, including a TikTok video taken by then-Oregon forward Sedona Prince of weight rooms.
NIL also came up, despite Katz insisting it is unrelated to employment status since the payer is a sponsor not a school. The judges seemed aware that some schools, through boosters and collectives, use NIL to recruit athletes and that the NCAA hasn’t stopped that from happening.
If the NCAA hopes to credibly defend amateurism, it might want to chat with member conferences and schools about their naked pursuit of the almighty dollar.
