NCAA’s Nobel Prize-Winning Expert Witness Sounds Off on Alston, NIL

As American public opinion and jurisprudence has, over the last decade, swayed in favor of college athletes earning money—and away from the NCAA’s “collegiate model”—James Heckman, a fierce defender of that model, remains committed to the way things were.

Heckman, the renowned University of Chicago economist, served as the NCAA’s expert witness during both the Ed O’Bannon and In re: NCAA Grant-in-Aid Cap Antitrust trials, the latter of which earned him $2,300 an hour.

Though he is no longer on the NCAA’s payroll, the 77-year-old Heckman’s support for amateurism has not waned in the intervening years, and he believes that jealousy and anecdotal fallacy have confused the country over the value of a college degree to an athlete.

In the O’Bannon case, Heckman initially challenged the contentions made by the plaintiff’s key expert witness, the economist and Stanford professor emeritus Roger Noll, that the NCAA was functioning as a cartel that engaged in anticompetitive behavior to the financial detriment of college athletes. Heckman argued that Noll had failed, in his deposition and report, to provide a “reliable framework” in his assessments that there was class-wide harm to the athletes.

Heckman argued that athletes acquire significant “human capital” from participating in intercollegiate athletics, and that this was potentially at risk by rule changes allowing them to sell their publicity rights during their eligibility. He concluded that the harm Noll proffered was “highly speculative.”

Three years later, in the grant-in-aid cap trial—which eventually became known as NCAA v. Alston by the time it reached the Supreme Court on appeal—the NCAA relied heavily on a report Heckman produced, which furthered his O’Bannon analysis. In it, he concluded that the existence of intercollegiate athletics creates “substantial benefits” to its participants, while creating “little or no evidence of adverse effects” on “academic or labor market outcomes.”

Heckman based his analysis on two previous national surveys that looked at how athletics factored into an individual’s likelihood of graduating from high school, attending college, graduating from college, and earning higher wages upon entering the workforce. He concluded that sports participation already provided a “vehicle for social mobility,” as well as “life-long benefits” to athletes.

This contention failed to persuade the bench—from District Court Judge Claudia Wilken to the Supreme Court—that schools should thereby be able to conspire, via the NCAA, to set a fixed limit on the “academically related benefits” an athlete could receive from an individual institution.

In her findings for the athlete plaintiffs, Wilken highlighted a number of concessions that Heckman made under cross-examination, including that additional compensation “could improve outcomes for student-athletes.” The judge wrote that this belied “the notion that the challenged compensation limits, as they currently stand, are necessary to achieve positive student-athlete outcomes.”

In the years since his testimony, Heckman says that he has grown increasingly “dismayed” to see the national conversation about amateurism turn on the idea that college athletes are exploited. He invokes the green-eyed monster in explaining why the country has, in his words, “lost its mind.”

“I don’t mind that some people are jealous that Nick Saban gets so much money,” Heckman said during a recent hourlong telephone interview. “I personally don’t care if he has a private plane and flies to Monte Carlo. But I do think it is misleading to cast [college sports] as a labor market and to somehow think the goal of college is to make money off these athletes. I don’t see that as the goal.”

In his concurring opinion to the Court’s unanimous ruling last month against the NCAA, Justice Brett Kavanaugh wrote that the association “couches its arguments for not paying student athletes in innocuous labels. But the labels cannot disguise the reality: The NCAA’s business model would be flatly illegal in almost any other industry in America.”

Heckman decried Kavanaugh’s “rant” as a “bull—- opinion.”

“College is not an athletic market, and Wilken was irresponsible, and Kavanaugh was just insane in thinking this was an athletic market, and they were squeezing salaries down,” Heckman said. He says Kavanaugh was taken in by a handful of heart-tugging anecdotes about ill-treated college athletes, stories propagated by “yellow journalists” and “so-called sports economists.”

“To me, it is part and parcel of something that really bothers me about the whole discussion of everything—a little incident, a salient event, becomes magnified into being the whole story,” Heckman said.

Four years before he testified for the NCAA in the O’Bannon case, Heckman received the Nobel Prize for his work in developing theories and methods in applied research for “individual economic behavior.”

Subsequent to the trial, Heckman says had discussions with the NCAA about the commissioning of another analysis, but it never came to pass. This past March, two weeks prior to the Supreme Court hearing the oral argument in Alston, Heckman co-authored an op-ed for The Hill that warned against the “wide-ranging policy implications” of a decision that would gut amateurism, including the potential elimination of college sports offerings.

In his interview with Sportico, Heckman reserved particular ire for Jeffrey Kessler, the lead attorney for the Alston side.

“This guy, Kessler, is a real hustler,” Heckman said. “He knows how to dig deep and find dirt. He should have worked for Joe McCarthy back in the day. He would have been a great adjunct to Roy Cohn.”

In response, Kessler effectively pointed to the scoreboard.

“My work in Alston has been on behalf of tens of thousands of athletes who have been exploited by the NCAA, many of whom never graduate,” Kessler said in an email. “The positions of Dr. Heckman were rejected unanimously by 13 federal judges in Alston—the trial judge who assessed his credibility, three judges on the Ninth Circuit and nine Supreme Court justices. Rather than lashing out at me, it is time for him to accept the fact that the courts have spoken.”

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