the BigAmateurism monologues

As the NCAA picks up the pieces of its failed Congressional and legal campaign to achieve the Iron Throne of college sports regulation, Division I legislative bodies scramble to offer “guidance” on name, image, and likeness compensation. The NCAA issued a press release on Monday, June 28th, in which it transferred to individual member institutions control over the application and enforcement of th...

On June 24th, 2021, just three days after the U.S. Supreme Court’s historic ruling in Alston, federal district court judge Claudia Wilken issued an opinion denying the NCAA’s motion to dismiss a new class-action antitrust lawsuit filed by athletes renewing challenges to the NCAA’s amateurism-based compensation limits on name, image, and likeness. Wilken, who presided over O’Bannon and Alston, adop...

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...

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 th...

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. Follow...

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,...

The Senate Commerce Committee is considering NCAA-protective legislation that would wipe from the books every proposed state name, image, and likeness law. The power of federal preemption—the removal of states from a regulatory field—is the vehicle through which the NCAA seeks this goal. This episode explores the nature and purpose of federal preemption and how the NCAA’s claimed justification for...

Important Note(s) and Episode Description: On June 9th, 2021, the Senate Commerce Committee held hearings titled “NCAA Athlete NIL Rights.” I have an extended intro. (approx. 7 minutes long) that captures highlights of this intriguing hearing. I analyze these clips throughout the episode. Additionally, I have an addendum at the end of the episode that addresses an upcoming hearing in Commerce on J...

A series of seemingly random events have played out over the last six weeks that may signal the NCAA’s and Power 5’s short-term strategies to protect and pursue their quest for the Iron Throne of college sports regulation. After the Alston case was formally submitted to the Supreme Court for decision after the March 31st oral argument, the NCAA, Power 5, and their allies made some intriguing moves...

On July 9th, 2014, NCAA president Mark Emmert testified in the Senate Commerce Committee to unveil “reforms” in the structure of Division I as well as a laundry list of “benefits” for college athletes. Emmert’s testimony suggested that these “historic” changes were his own and reflected the preferences of the full NCAA membership association-wide and also Division I-wide. Yet behind the scenes sin...

2014 was an important year in the evolution of the relationship between revenue-producing athletes and the institutional interests that benefit from athlete labor. A rapid-fire series of events placed the NCAA national office and Power 5 in a state of panic because their exploitative business model was under direct assault. From an attempt by Northwestern football players to unionize, to the trial...

The ink was barely dry on Myles Brand’s 2006 “collegiate model” speech when a group of revenue-producing athletes filed a federal antitrust suit—White v NCAA—in California challenging the NCAA’s athletics scholarship cap that was set below the full cost of attending college. Despite broad-based in-system stakeholder and public support for an additional, modest stipend (typically between $1,500 - $...

After the 2003 hearings in the House and Senate that raised antitrust concerns relating to big-time football’s monopoly over post-season bowl money, pressure mounted for the NCAA and big-time football interests to justify their market behavior. In his 2004 state of the association speech, Myles Brand debuts the collegiate model in broad strokes to respond to criticism from external regulators. At...

The “collegiate model” was invented in 2003 by former NCAA president Myles Brand to redefine the NCAA’s conceptualization of amateurism and the relationship between revenue-producing athletes and in-system stakeholder-beneficiaries. Brand used the same tactic that Walter Byers used in the 1950s through his invention of the “student-athlete.” The collegiate model has been put to many purposes, but...

The period 1945 – 1956 is one of the most consequential eras in the history of college sports. The modern NCAA was born with the hiring of Walter Byers as CEO and the acquisition of legitimate, national enforcement authority. This era saw the NCAA successfully monopolize the market for televised football along with the adoption of the full athletics scholarship as a nationally uniform limit on com...

The amateur-professional dance of hypocrisy in big-time college sports is defined principally in the relationship between high-value revenue-producing athletes in football and men’s basketball and the universities who buy their services. From the earliest iterations of BigAmateurism, universities have professed their amateurism virtue to the outside world while privately pursuing professionalism f...

How will the US Supreme Court rule in Alston? Predicting how courts may rule is always treacherous terrain, particularly with the US Supreme Court. Will the US Supreme Court throw us a curveball? In this episode, I look at four possible outcomes: (1) direct or indirect antitrust immunity for the NCAA in cases challenging their amateurism-based compensation limits; (2) an affirmance of the 9th Circ...

Looking at the NCAA-Power 5 prisoner’s dilemma with the benefit of historical context and the evolution of the football product into a dominant sub-cartel under the NCAA umbrella, we look at the existing incentives for both the NCAA and Power 5 to either preserve the status quo through cooperation or to split and pursue their separate interests. This episode explores the reasons why the NCAA and P...

Since 2010, the Power 5 has solidified its complete market domination of BigAmateurism and sowed the seeds of a breath-taking bull market in college sports history. This era saw the rise of the Power 5 commissioners and the decline of college presidents as leadership figures in intercollegiate athletics. The Power 5 expanded its market presence and profitability through the College Football Playof...

In response to a question from US Supreme Court Justice Sonia Sotomayor on why the Power 5 conferences shouldn’t just be left alone to decide whether to offer the limited education-related benefits permitted by the district court’s injunction in Alston, NCAA attorney Seth Waxman said “…this is a classic example of a…prisoner’s dilemma in which national agreement is the only solution. There is no d...

The NCAA’s quest for federal antitrust immunity in the US Supreme Court is in the books. This episode does some clean-up work on issues I didn’t address in the first post-argument episode and also looks at some things that were left out of the argument. I also explore some examples of the NCAA’s conflation fetish which is designed to convince Congress and federal courts that Alabama football and S...

Important Heads-Up for this Episode: I have an extended intro for this episode that includes a series of audio clips from the Supreme Court’s oral argument in Alston on 3/31. The full intro is about four and a half minutes. These clips cover the range of central issues raised during the argument, literally gavel to gavel. The transcript of the argument (from the Supreme Court website) can be found...

The words “amateur” and “amateurism” flow effortlessly from the mouths of NCAA lawyers and propagandists in litigation and public relations campaigns. But what is amateurism? After nearly 10 years of litigation in O’Bannon and Alston that focused in large measure on answering that lone question, the NCAA has failed to provide a defensible, coherent definition. This episode looks at amateurism thro...

In this episode, we break down how the NCAA and Power 5 have pursued a sophisticated dual strategy in Congress (primarily the Senate) and in Alston to eliminate federal courts as external regulators in college sports. The NCAA has sought antitrust immunity in the Senate through a stealth lobbying campaign that is disguised through the NCAA's professed intention to seek name, image, and likeness "c...

In this episode, we look at the federal judiciary's deference to the NCAA's conceptualization of amateurism in suits by athletes challenging the NCAA's/Power's amateurism-based business model. This deference has six components: (1) benign paternalism; (2) the allure of adhering to venerable American traditions and institutional interests; (3) deference to the judgments of values-based, voluntary n...