As the NCAA continues to wring its hands over the realities of NIL, attorney Jeffrey Kessler digs his teeth deeper into the ultimately toothless organization’s ankle.
The lawyer, perhaps best known for his role as being a persistent thorn in the NFL’s side, is trying to dismantle the inherently corrupt system under which hundreds of universities have justified refusing to share any of their billions with the men and women who earn the money. Kessler’s newest case goes to the heart of the façade behind which every revenue-generating sports program has hidden for decades.
Via Daniel Murphy of ESPN.com, Kessler and Steve Berman have filed on behalf of three college athletes an antitrust lawsuit that directly challenges the failure to pay college athletes for the skills.
Duke football player Dewayne Carter, Stanford soccer player Nya Harrison, and TCU basketball player Sedona Prince joined together in the 70-page complaint filed in the U.S. District Court for the Northern District of California. That has become the epicenter of recent NCAA antitrust losses. The cases systematically have laid bare the simple reality that the various schools have established a collective umbrella under which they have all avoided the raindrop realities of competition among independent business interests for those who make money for those businesses.
“It’s time for the NCAA to recognize that the rules prohibiting athletes from sharing in the massive revenues we help to generate are harming all college athletes,” Dewayne Carter said in a statement. “There are hundreds of people involved in NCAA sports but the only ones who cannot be paid are the athletes; I’m proud to stand up for all college athletes to correct that injustice.”
Amen to all of that. The NCAA and its many members have brainwashed a nation into believing that the services provided by college athletes are properly compensated by giving them a free education, not by paying them fair value that is negotiated individuals based on actual or expected contributions to the bottom line. That’s how business is supposed to work. Free markets. Full competition. Fair compensation. The true American way.
Instead, the athletes — under the guise of NCAA rules — have been prevented from getting anything beyond room, board, tuition, fees, and snacks. The Alston case from 2021 became the first clear indication that the end was coming. A blistering concurrence from Justice Brett Kavanaugh warned of the collapse to come: “Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.”
Still, the NCAA has managed to persistently break the law. But change is happening. Change will be expensive. The abrupt decision, post-Alston, to allow college athletes to be paid for their names, images, and likenesses came directly because of Alston. Because it was clear that, while it was bad enough for the NCAA to refuse to pay athletes, it was far worse to warp the notions of amateurism to the point where college students couldn’t parlay their personal fame into dollars and cents.
A class action aimed at forcing the NCAA and its members to compensate athletes for the NIL money they were previously deprived of earning is pending. More than two years of NIL open season will make it a lot easier for the numbers crunchers to calculate the massive amounts of money that athletes previously could have made, if they would have been allowed to do so by an organization that was committing rampant and ongoing antitrust violations.
College sports will survive. The industry is too big to fail. Schools will simply have to find a way to reconfigure their budgets to allow for the proper cash to compensate athletes based on their value to the various programs.
After, of course, the budgets are reconfigured to absorb the legal fees and the settlements.
Will it make college sports into professional sports? To anyone who would raise that question, here’s the simple answer. College sports already are professional sports, for everyone associated with the process except the people who are actually playing the games.
