Episodes
This episode expands on my initial reaction to the Supreme Court’s Alston decision on June 21st. I reflect on the contributions of former Duke basketball player and athletes’ rights advocate Dick Devenzio (1949 – 2001), who was influential in my thinking on big-time college sports. I also discuss the tepid reaction to the Alston decision of institutional stakeholder-beneficiaries such as the NCAA Board of Governors, Power 5 presidents and chancellors, Power 5 conference commissioners, athletics directors, coaches, and Republican Senators who have been proxies for NCAA/Power 5 interests. The silence in many quarters is deafening. Will it be business as usual, and a double down on the NCAA/Power 5 organized lies in the wake of an epic failure of leadership in college sports? Or we will finally see a sober reckoning that leads in-system stakeholders to demand change—perhaps including the dissolution of the NCAA national office and a new relationship between institutional stakeholders and the athletes whose labors underwrite the entire college sports marketplace?
This morning, the US Supreme Court issued its long-anticipated ruling in the Alston case. The Court rejected the NCAA’s claim for antitrust immunity. It held that any challenge to NCAA compensation limits must be thoroughly vetted through the fact-intensive rule of reason antitrust analysis. The Court upheld the district court’s permission for education-related benefits for athletes that exceed the cost of the existing athletics scholarship. The Court also put to rest for good the NCAA’s 40-year reliance on dicta from the 1984 Board of Regents decision. The NCAA has clung to those off-hand judicial musings on amateurism in every legal challenge to its amateurism-based compensation limits. Justice Kavanaugh’s concurring opinion that addressed at the values level the weakness in the NCAA’s case may be a game-changer in how Congress and the American public view the NCAA’s propaganda on “amateurism”, the “collegiate model,” and the “student-athlete.” This episode is a raw (unedited) initial take on the Court’s opinion and its likely impact on the current debate on athletes’ rights. I will do follow-up episodes that dive deeper into the Court’s analysis.
Resources:
Following an assassination attempt on President Ronald Reagan in 1981 and the vice-president’s (George HW Bush) unavailability, Reagan’s Secretary of State, Al Haig, boldly declared in a press conference, “I am in control here in the White House.” Lost on Haig—never short on ego—was that the House Speaker and the Senate President pro tem outranked him in the constitutional chain of command. Following Haig’s example, NCAA President Mark Emmert declared in a June 18th letter to all 1,100 NCAA member institutions that he was in control of both the NCAA executive and legislative processes, turning the NCAA Constitution on its head. Emmert boldly stated that if “NCAA rules changes are not in place by July, please know that I will work with our governance bodies to develop temporary policies that assure student-athletes that they will not become trapped in such circumstances and that all will have NIL opportunities. I have directed my staff to create proposals by the end of the week.” As with Myles Brand before him, Emmert has steadfastly denied that he or the office of NCAA president has any independent authorities that would permit unilateral presidential action. Now, after losing control of the preemption narrative in the Senate, the NCAA national office has pivoted to dictatorial edicts only twelve days before the Y2k-like July 1st deadline. Will the six state laws set to go into effect on July 1st bring the college sports world to an immediate and fatal collapse? Stay tuned.
On June 17th, the Senate Commerce Committee held a hearing on name image and likeness and athletes’ rights. The Committee heard from four witnesses, all African American:
1. Martin McNair, whose son Jordan died in 2018 from heatstroke after a summer conditioning session;
2. Christina Chenault, a former UCLA track star;
3. Sari Cureton, a former Georgetown University women’s basketball player; and,
4. Kiara Brown, a current track and field athlete at Vanderbilt University.
All four witnesses support an athletes’ bill of rights that would require, among other things, essential health and safety protections for athletes. This hearing was the first among six Senate hearings since February 2020 (ostensibly devoted NIL “compensation”) to include athletes themselves. Of the ten Senators who participated in the hearing, nine were Democrats. Jerry Moran, a Republican from Kansas, was the only Republican at the hearing. Moran departed the hearing room soon after he asked a couple of questions. At an NCAA-friendly hearing just the week before, on June 9th, fourteen Senators participated. Eight were Republican. The absence of Republican participation amounted to a boycott of the hearing. Roger Wicker (R-MS), along with Moran, has been leading a last-ditch NCAA/Power 5/Republican charge to nullify the state NIL laws set to go into effect on July 1st, objected to the “haste” with which the hearing came about. Wicker and his allies, who controlled the Committee and the witness lists through the first four Senate hearings in 2020, failed to hold a hearing dedicated to athletes’ views on NIL or any of the athletes’ rights issues that arose through the NIL debate. Wicker’s boycott of the June 17th hearing is further evidence of Senate Republicans’ indifference to the rights, well-being, and opinions of athletes who disagree with the NCAA/Power 5 party-line. After the hearing, Committee Chair Maria Cantwell (D-WA) told the media that there would not be a bill coming out of the Commerce Committee before July 1st. What will the NCAA/Power 5 do now?
Resources:
Senate Commerce Committee Hearing (6/17/2021) (see “Webcast”)
Written Testimony of Martin McNair (6/17/2021)
Written testimony of Christina Chenault (6/17/2021)
