May 7th, 2021 |
21: Pay for Play (Part V): 2006 – 2014: An Antitrust Litigation Trilogy
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 - $4,000 per year) designed to cover the incidental costs of attending college, the NCAA launched a scorched earth litigation campaign against the athletes. The NCAA contended that these modest stipends, which were part of the athletics scholarship between 1956 – 1975, now amounted to “pay for play.” The White case settled in 2008, and the NCAA preserved its scholarship cap set below the full cost of attendance. In 2009, another group of athletes filed an antitrust suit in California—O’Bannon v NCAA—claiming that the NCAA’s amateurism-based compensation prohibitions on name, image, and likeness violate federal antitrust laws. After nearly a decade of litigation that cost over $150 million, the athletes achieved the modest cost of attendance stipends, but no more. In 2014, in Alston v NCAA, a separate group of athletes challenged all NCAA amateurism-based compensation limits under federal antitrust laws. The remedy crafted by the district court was limited to a small set of permissive education-related benefits, none of which has been provided by the Power 5 conference schools who have control over them. The NCAA and Power 5 appealed the case to the Ninth Circuit and then the US Supreme Court, where they claimed absolute antitrust immunity. The Supreme Court will rule in Alston by the end of June. These antitrust suits fundamentally changed the scope and nature of external regulatory threats to BigAmateurism’s business model. During this period, the NCAA and the emerging Power 5 joined forces in a litigation strategy to seek a judicially created antitrust immunity. The joint NCAA/Power 5 attack on athlete interests formed the beginning of Perfect Storm. The NCAA/Power 5 amassed their extraordinary market and political might to launch a joint judicial/Congressional campaign to eliminate all external regulators and the athletes’ rights movement itself.