(04-21-2022 01:07 PM)MattBrownEP Wrote:  What I am hearing more and more is that Title IX ISN'T actually the key law that governs gender pay disparities re: a professionalized college athletics labor force. Title IX, after all, governs educational access, not professionalized outcomes. Transformation committee members have told me that the bigger concerns are around compliance with Title VII, not Title IX (that's the section that governs employment discrimination).

That makes sense. Ultimately, it would seem to be the same ultimate issue - there could be a Title VII claim if a plaintiff states that they're foreclosed from an employment opportunity or compensation due to sex (or other form of discrimination).

(04-21-2022 12:54 PM)ken d Wrote:  

(04-21-2022 10:14 AM)Frank the Tank Wrote:  Title IX compliance actually isn't really complex in direct athlete compensation: if Alabama pays its athletes all the same amount, then they'll comply with Title IX and that's perfectly legal just like an employer in any other industry can decide to play all of its own employees the same amount. Whether a star football player is worth more on the open market compared to a lacrosse player isn't really relevant to that analysis: ultimately, the school has to comply with applicable law first (in this case Title IX).

But what if Alabama doesn't pay all its athletes the same amount? What if they decide they will only pay players in sports that produce more revenue than they cost to operate? Does Title IX even address the issue of compensation, given that it was adopted when only scholarships were permitted (and they were given under the pretense that they weren't compensation at all)? Won't that statute need to be revisited in light of this changed landscape?

That's sort of the point (as Matt pointed out regarding Title VII) - Alabama (or any other school) might not have a choice under the law outside of directly paying all of their athletes equally regardless of revenue.

All of these questions about whether federal laws would be adjusted are examples of the tail wagging the dog. The chances of any of these federal laws being changed to accommodate college athletics is effectively zero. Conservatives aren't going to help the "elites" running academia that they love using as bogeymen and liberals want to promote both student compensation and DEI initiatives (which definitely would include equal pay for women's athletes). As I've noted elsewhere, hatred of the NCAA and college sports system in general seems to be one of the few issues where everyone on the political spectrum is in alignment.

The colleges are the ones that are going to have to adjust as opposed to the other way around. There is ZERO political sympathy on either side of the aisle for them right now. That might have unintended consequences if/when we move to a pay-for-play model, but the colleges have brought this upon themselves as a result of sticking their heads in the sand for so many decades. No one is helping them out.

We're going to need to get used it being the proverbial Wild West. Once again, the removal of the ability for an overarching entity like the NCAA to control student compensation is really the entire crux of all of these legal cases. No one with any power in the judicial or legislative systems really has any interest whatsoever on capping athlete compensation (and if anything, they're all actively encouraging a lasseiz faire free market). The Alston case was a unanimous ruling against the NCAA and states no matter what political persuasion (whether red or blue) have embraced NIL legislation. If that means Alabama and Ohio State can buy up all of the best players, then so be it. The answer is for other schools to find their own money to compete as opposed to trying to impose cost controls (which the courts are being very clear would be antitrust violations).

I don't see why title VII would be a problem. If it were, wouldn't we see challenges from female basketball coaches that its discriminatory not to pay them as much as the male coach running that schools men's team.

Iirc a coach tried that and the court and lost. I don't see why it would be different for a player.

There are no rules preventing women from playing college football. If a hypothetical woman were to be a 5 star qb somehow, they'd get big offers too. It's not discrimination based on sex. It's women largely (shout-out to the vandy kicker from the covid game and the handful of women below FBS over history) not being qualified for the job of football player.

(04-21-2022 01:53 PM)Frank the Tank Wrote:  

(04-21-2022 01:07 PM)MattBrownEP Wrote:  What I am hearing more and more is that Title IX ISN'T actually the key law that governs gender pay disparities re: a professionalized college athletics labor force. Title IX, after all, governs educational access, not professionalized outcomes. Transformation committee members have told me that the bigger concerns are around compliance with Title VII, not Title IX (that's the section that governs employment discrimination).

That makes sense. Ultimately, it would seem to be the same ultimate issue - there could be a Title VII claim if a plaintiff states that they're foreclosed from an employment opportunity or compensation due to sex (or other form of discrimination).

Seems like it wouldn't be difficult to argue that if you are paying more to a football player performing in prime time before thousands of fans paying big bucks to watch than for a member of the college bowling team or fencing team that gender isn't the reason for the difference. Though not as extreme, paying more to a male basketball player than a female basketball player is the same thing in principle.

Now, if you are paying a male cross country runner more than a female cross-country runner, I'd say that's a tough case to defend. Neither one is generating any significant revenue or publicity for their school.

But what if that male runner is the star of his team, and the female runner always finishes in the back of the pack, must they be paid the same? And does their compensation have to include cash payment of wages, or can it include the cost of tuition waived in the form of a scholarship?

At some point, schools need a safe haven in the form of rules spelling out what they may do to avoid a lawsuit. That safe haven used to be NCAA rules about scholarship assistance. If that's no longer available as a defense, something needs to take its place. Unless, of course, a goal of SCOTUS is to improve the income of lawyers rather than athletes. Because the lawyers are going to score big time on this.

(04-21-2022 02:36 PM)ken d Wrote:  Though not as extreme, paying more to a male basketball player than a female basketball player is the same thing in principle.

That's a road that university athletic departments don't want to go down. When the argument is, "Our men's basketball program is very profitable and our women's basketball program is not," are the courts going to take the AD's word for that? Nope. They're going to say, "Okay, to prove that, produce complete financial records for your athletic department and let the other side's independent accounting experts dive into it."

Is there an athletic department at any D-I university whose public statements about their financials tell the whole story and match up with the actual financial records? I doubt it. They don't want the real numbers to be public and fully disclosed.

(04-21-2022 02:47 PM)Wedge Wrote:  

(04-21-2022 02:36 PM)ken d Wrote:  Though not as extreme, paying more to a male basketball player than a female basketball player is the same thing in principle.

That's a road that university athletic departments don't want to go down. When the argument is, "Our men's basketball program is very profitable and our women's basketball program is not," are the courts going to take the AD's word for that? Nope. They're going to say, "Okay, to prove that, produce complete financial records for your athletic department and let the other side's independent accounting experts dive into it."

Is there an athletic department at any D-I university whose public statements about their financials tell the whole story and match up with the actual financial records? I doubt it. They don't want the real numbers to be public and fully disclosed.

Ah. That's a good point. They don't need it just to be legal. They need it to be clearly and unquestionably legal so any suits get thrown out before discovery.

(04-21-2022 10:14 AM)Frank the Tank Wrote:  

(04-21-2022 06:51 AM)ken d Wrote:  

(04-20-2022 09:27 PM)Frank the Tank Wrote:  Now, that doesn’t mean that the sky is the limit for direct payments from schools to players. At a certain point, there are realistic market limitations and, maybe more importantly, legal limitations with Title IX. It may very well be the case that each individual school has to pay all of its athletes in all of sports (male or female) equally in order to comply with Title IX. (Note that this is each *individual* school as opposed to an entire conference or the NCAA.) Still, Alabama can ultimately choose to pay their athletes a different amount than Kentucky. I firmly believe that will be the case if/when pay-for-play happens.

You've highlighted a problem with Kavanagh's opinion. While he (and others) may want college athletes treated the same way they would be if they were employees in any other enterprise in American society, Title IX appears to require that they be treated differently. In no industry I'm aware of must all employees have to be compensated equally without regard to the value they bring to that enterprise. The undeniable fact is that football players, and to a lesser extent, men's basketball players, are much more valuable to an athletic department than cross-country runners, or tennis players, or members of a field hockey team. Why should they all be paid the same?

Whether or not you are a fan of the current system as devised by the NCAA, a governing body established by its members, most athletes' sports probably wouldn't exist without being subsidized by the two revenue sports or by essentially taxing students through athletics fees. Kavanagh may be well-meaning, but I think he may have been a little reckless by not thinking through the chaos and carnage that would almost surely result without some agency making practical rules to implement his end-game.

If not the NCAA, who should that agency be? Congress ( with their rules subject to approval by at least five members of SCOTUS)? Or should there be no rules imposed on any individual school by an outside agency?

There's a reason the NCAA exists. If we throw them out, somebody else very much like them will replace them sooner or later.

Title IX doesn't apply to sports simply because it's sports, but rather it's one of the few areas where there are quotas specifically for males and females. This means that colleges have to provide equal opportunities in that area.

The thing is that Title IX compliance is completely on a school-by-school basis. It's the University of Alabama that needs to comply with Title IX based on the sports that it offers as opposed to the SEC overall.

While the NCAA (or some other entity) would need to exist to run competitions and have rules for on-the-field/court competition, that doesn't inherently mean that they need to govern *payments* to athletes, which is where the NCAA is getting into hot water.

Title IX compliance actually isn't really complex in direct athlete compensation: if Alabama pays its athletes all the same amount, then they'll comply with Title IX and that's perfectly legal just like an employer in any other industry can decide to play all of its own employees the same amount. Whether a star football player is worth more on the open market compared to a lacrosse player isn't really relevant to that analysis: ultimately, the school has to comply with applicable law first (in this case Title IX).

What would be illegal under antitrust law is if Alabama agrees with Kentucky and the rest of the SEC and/or NCAA that they *collectively* and *unilaterally* ALL will pay their athletes the exact same amount. Now, it may be a different story if students unionize and collectively bargain (which Kavanaugh mentioned regarding Title IX compliance) - in theory, a union could negotiate with a broader association such as a conference or the NCAA. It's just that the NCAA and/or conferences can't just unilaterally state that they're governing payments to players without an agreement with those players.

In fact, "governing" should be removed from the lexicon on this issue entirely. Instead, it is what's *negotiated* between the schools and players. That's what we all need to internalize as fans - it's a 2-way negotiation street as opposed to a 1-way governance/control organization imposing rules on the players.

Granted, I think pay-for-play may not really have as much impact as the current allowance of NIL compensation (which is why I'm more skeptical about broader upheaval at least for conference realignment purposes). Direct pay-for-play is going to have some inherent legal limitations because of Title IX. In contrast, indirect third party NIL compensation is free to pay whoever they want to at market rates without any concerns about Title IX at all. That's where the star football and basketball players are going to make their real money compared to anything directly from the schools.

This is exactly what I was referring to above, amid objections to same.

I can see a baseline of compensation for all student athletes established at each school which covers tuition, fees, whatever passes now for books and supplies, and board plus a wage based upon hours spent in their sport.

Then NIL would supply the difference for high profile sports stars and key players, as well as stars in some minor sports.

The school setting the baseline accommodates non price setting stipulations, and the market sets NIL compensation. Title IX is not abrogated and equity at the baseline level exists.

It's going to change the mission and function of every athletic department.

(04-21-2022 03:32 PM)JRsec Wrote:  I can see a baseline of compensation for all student athletes established at each school which covers tuition, fees, whatever passes now for books and supplies, and board plus a wage based upon hours spent in their sport.

Then NIL would supply the difference for high profile sports stars and key players, as well as stars in some minor sports.

The school setting the baseline accommodates non price setting stipulations, and the market sets NIL compensation. Title IX is not abrogated and equity at the baseline level exists.

It's going to change the mission and function of every athletic department.

Yes, that seems to be where we're headed.

NIL is really where the "market rate" for high profile athletes will get established (which has been happening already). Third parties don't have to worry about Title VII/Title IX and they're perfectly free to make variable deals based on the popularity of various athletes.

In contrast, the direct payments from a school to its athletes will likely be equal within that particular school for the reasons that we've discussed on this thread: civil rights law compliance, avoiding any hint of a potential lawsuit, not wanting to have to show which sports make a profit versus those that don't make a profit, etc. You put it in a good way as compensation for the time being spent playing and practicing for a sport as opposed to tying it to the particular financial value of that sport (which is a dangerous road for any school).

(04-21-2022 02:36 PM)ken d Wrote:  

(04-21-2022 01:53 PM)Frank the Tank Wrote:  

(04-21-2022 01:07 PM)MattBrownEP Wrote:  What I am hearing more and more is that Title IX ISN'T actually the key law that governs gender pay disparities re: a professionalized college athletics labor force. Title IX, after all, governs educational access, not professionalized outcomes. Transformation committee members have told me that the bigger concerns are around compliance with Title VII, not Title IX (that's the section that governs employment discrimination).

That makes sense. Ultimately, it would seem to be the same ultimate issue - there could be a Title VII claim if a plaintiff states that they're foreclosed from an employment opportunity or compensation due to sex (or other form of discrimination).

Seems like it wouldn't be difficult to argue that if you are paying more to a football player performing in prime time before thousands of fans paying big bucks to watch than for a member of the college bowling team or fencing team that gender isn't the reason for the difference. Though not as extreme, paying more to a male basketball player than a female basketball player is the same thing in principle.

Now, if you are paying a male cross country runner more than a female cross-country runner, I'd say that's a tough case to defend. Neither one is generating any significant revenue or publicity for their school.

But what if that male runner is the star of his team, and the female runner always finishes in the back of the pack, must they be paid the same? And does their compensation have to include cash payment of wages, or can it include the cost of tuition waived in the form of a scholarship?

At some point, schools need a safe haven in the form of rules spelling out what they may do to avoid a lawsuit. That safe haven used to be NCAA rules about scholarship assistance. If that's no longer available as a defense, something needs to take its place. Unless, of course, a goal of SCOTUS is to improve the income of lawyers rather than athletes. Because the lawyers are going to score big time on this.

I think that you're arguing for something that you may personally want - a safe haven for colleges - that the entire rest of the political and judicial system has no interest in granting to those colleges. There doesn't *have* to be a safe haven for the schools since no other industry in America has that safe haven.

We all have to put ourselves in the shoes of the general public here: the burden of proof is ALL on the colleges, NOT the other way around. Athletic departments need to adjust or die - they're getting zero help from the government and/or courts (and if anything, those venues are currently inclined to be downright hostile to them and make things even worse if colleges try to complain).

(04-20-2022 03:01 PM)ken d Wrote:  I'm not sure that I understand how Kavanaugh's opinion threatens the NCAA on antitrust grounds. Fair Labor Standards perhaps. But why antitrust? And would disbanding the NCAA solve the schools' problem? Could they just revert to a model where each conference decides for itself whether it may (or must) pay some or all athletes?

The NCAA member schools are colluding to depress compensation that elite athletes might receive if the schools would compete for their athletic services. If a school broke the NCAA rules they could be punished and possibly expelled from the association.

This is the District Court opinion in the Allston case.

IN RE NAT. COLLEGIATE ATHLETIC ASS'N LITIGATION

It was a class action brought by DI women's and men's basketball players, and FBS football players against the NCAA and 11* FBS conferences (*it was originally filed in 2014 and the WAC is a defendent).

While some folks have suggested that it might apply to all college athletes this might not be true. Much of the evidence is that all the significant money comes from the NCAA BB tournament and FBS football TV contracts.

It might not apply to baseball and soccer as elite players have the option to play professionally at a relatively young age.

The NCAA essentially conceded that they were restraining the free market in athletic services - but argued that this was necessary so that those who bought their product would believe that the performers were amateurs.

(04-21-2022 02:36 PM)ken d Wrote:  

(04-21-2022 01:53 PM)Frank the Tank Wrote:  

(04-21-2022 01:07 PM)MattBrownEP Wrote:  What I am hearing more and more is that Title IX ISN'T actually the key law that governs gender pay disparities re: a professionalized college athletics labor force. Title IX, after all, governs educational access, not professionalized outcomes. Transformation committee members have told me that the bigger concerns are around compliance with Title VII, not Title IX (that's the section that governs employment discrimination).

That makes sense. Ultimately, it would seem to be the same ultimate issue - there could be a Title VII claim if a plaintiff states that they're foreclosed from an employment opportunity or compensation due to sex (or other form of discrimination).

Seems like it wouldn't be difficult to argue that if you are paying more to a football player performing in prime time before thousands of fans paying big bucks to watch than for a member of the college bowling team or fencing team that gender isn't the reason for the difference. Though not as extreme, paying more to a male basketball player than a female basketball player is the same thing in principle.

Now, if you are paying a male cross country runner more than a female cross-country runner, I'd say that's a tough case to defend. Neither one is generating any significant revenue or publicity for their school.

But what if that male runner is the star of his team, and the female runner always finishes in the back of the pack, must they be paid the same? And does their compensation have to include cash payment of wages, or can it include the cost of tuition waived in the form of a scholarship?

At some point, schools need a safe haven in the form of rules spelling out what they may do to avoid a lawsuit. That safe haven used to be NCAA rules about scholarship assistance. If that's no longer available as a defense, something needs to take its place. Unless, of course, a goal of SCOTUS is to improve the income of lawyers rather than athletes. Because the lawyers are going to score big time on this.

But what if the male cross-country runner is the national champion? Or the team wins the national championship? That is recognition. Sure, it isn't going to like winning a tournament game, but it is something.

(04-21-2022 06:22 PM)dbackjon Wrote:  

(04-21-2022 02:36 PM)ken d Wrote:  

(04-21-2022 01:53 PM)Frank the Tank Wrote:  

(04-21-2022 01:07 PM)MattBrownEP Wrote:  What I am hearing more and more is that Title IX ISN'T actually the key law that governs gender pay disparities re: a professionalized college athletics labor force. Title IX, after all, governs educational access, not professionalized outcomes. Transformation committee members have told me that the bigger concerns are around compliance with Title VII, not Title IX (that's the section that governs employment discrimination).

That makes sense. Ultimately, it would seem to be the same ultimate issue - there could be a Title VII claim if a plaintiff states that they're foreclosed from an employment opportunity or compensation due to sex (or other form of discrimination).

Seems like it wouldn't be difficult to argue that if you are paying more to a football player performing in prime time before thousands of fans paying big bucks to watch than for a member of the college bowling team or fencing team that gender isn't the reason for the difference. Though not as extreme, paying more to a male basketball player than a female basketball player is the same thing in principle.

Now, if you are paying a male cross country runner more than a female cross-country runner, I'd say that's a tough case to defend. Neither one is generating any significant revenue or publicity for their school.

But what if that male runner is the star of his team, and the female runner always finishes in the back of the pack, must they be paid the same? And does their compensation have to include cash payment of wages, or can it include the cost of tuition waived in the form of a scholarship?

At some point, schools need a safe haven in the form of rules spelling out what they may do to avoid a lawsuit. That safe haven used to be NCAA rules about scholarship assistance. If that's no longer available as a defense, something needs to take its place. Unless, of course, a goal of SCOTUS is to improve the income of lawyers rather than athletes. Because the lawyers are going to score big time on this.

But what if the male cross-country runner is the national champion? Or the team wins the national championship? That is recognition. Sure, it isn't going to like winning a tournament game, but it is something.

Without looking it up, who is the current X-Country national champion?

(04-21-2022 06:51 PM)ken d Wrote:  

(04-21-2022 06:22 PM)dbackjon Wrote:  

(04-21-2022 02:36 PM)ken d Wrote:  

(04-21-2022 01:53 PM)Frank the Tank Wrote:  

(04-21-2022 01:07 PM)MattBrownEP Wrote:  What I am hearing more and more is that Title IX ISN'T actually the key law that governs gender pay disparities re: a professionalized college athletics labor force. Title IX, after all, governs educational access, not professionalized outcomes. Transformation committee members have told me that the bigger concerns are around compliance with Title VII, not Title IX (that's the section that governs employment discrimination).

That makes sense. Ultimately, it would seem to be the same ultimate issue - there could be a Title VII claim if a plaintiff states that they're foreclosed from an employment opportunity or compensation due to sex (or other form of discrimination).

Seems like it wouldn't be difficult to argue that if you are paying more to a football player performing in prime time before thousands of fans paying big bucks to watch than for a member of the college bowling team or fencing team that gender isn't the reason for the difference. Though not as extreme, paying more to a male basketball player than a female basketball player is the same thing in principle.

Now, if you are paying a male cross country runner more than a female cross-country runner, I'd say that's a tough case to defend. Neither one is generating any significant revenue or publicity for their school.

But what if that male runner is the star of his team, and the female runner always finishes in the back of the pack, must they be paid the same? And does their compensation have to include cash payment of wages, or can it include the cost of tuition waived in the form of a scholarship?

At some point, schools need a safe haven in the form of rules spelling out what they may do to avoid a lawsuit. That safe haven used to be NCAA rules about scholarship assistance. If that's no longer available as a defense, something needs to take its place. Unless, of course, a goal of SCOTUS is to improve the income of lawyers rather than athletes. Because the lawyers are going to score big time on this.

But what if the male cross-country runner is the national champion? Or the team wins the national championship? That is recognition. Sure, it isn't going to like winning a tournament game, but it is something.

Without looking it up, who is the current X-Country national champion?

NAU team, Connor Mantz BYU individual. Just because YOU wouldn't recognize, doesn't mean that others wouldn't. Shoe companies, apparel, pro running teams, etc all know.

(04-21-2022 06:59 PM)dbackjon Wrote:  

(04-21-2022 06:51 PM)ken d Wrote:  

(04-21-2022 06:22 PM)dbackjon Wrote:  

(04-21-2022 02:36 PM)ken d Wrote:  

(04-21-2022 01:53 PM)Frank the Tank Wrote:  That makes sense. Ultimately, it would seem to be the same ultimate issue - there could be a Title VII claim if a plaintiff states that they're foreclosed from an employment opportunity or compensation due to sex (or other form of discrimination).

Seems like it wouldn't be difficult to argue that if you are paying more to a football player performing in prime time before thousands of fans paying big bucks to watch than for a member of the college bowling team or fencing team that gender isn't the reason for the difference. Though not as extreme, paying more to a male basketball player than a female basketball player is the same thing in principle.

Now, if you are paying a male cross country runner more than a female cross-country runner, I'd say that's a tough case to defend. Neither one is generating any significant revenue or publicity for their school.

But what if that male runner is the star of his team, and the female runner always finishes in the back of the pack, must they be paid the same? And does their compensation have to include cash payment of wages, or can it include the cost of tuition waived in the form of a scholarship?

At some point, schools need a safe haven in the form of rules spelling out what they may do to avoid a lawsuit. That safe haven used to be NCAA rules about scholarship assistance. If that's no longer available as a defense, something needs to take its place. Unless, of course, a goal of SCOTUS is to improve the income of lawyers rather than athletes. Because the lawyers are going to score big time on this.

But what if the male cross-country runner is the national champion? Or the team wins the national championship? That is recognition. Sure, it isn't going to like winning a tournament game, but it is something.

Without looking it up, who is the current X-Country national champion?

NAU team, Connor Mantz BYU individual. Just because YOU wouldn't recognize, doesn't mean that others wouldn't. Shoe companies, apparel, pro running teams, etc all know.

I knew NAU was the champion, but I'd be surprised if five out of a hundred people on this forum would know, or even know that there is a professional cross-country league. Shoe companies and apparel companies won't pay you much because they know that. They'll only pay if a lot of people know that. You know because that's the team you root for. I wonder how much Nike paid to sponsor the national broadcast of that meet.

(04-20-2022 03:01 PM)ken d Wrote:  

(04-20-2022 10:15 AM)Frank the Tank Wrote:  

(04-20-2022 09:54 AM)ken d Wrote:  AFAIK, SCOTUS has ruled that the NCAA can't prohibit NIL. But I haven't seen where they have ruled on questions regarding whether they can prohibit pay for play or ruled on whether college athletes are employees. Have I missed something here?

I don't believe all questions about NIL have been settled yet, and I expect (or at least hope) that the NCAA, conferences and schools will challenge some of the "NIL" schemes that have already arisen on the basis that they are sham attempts to enable boosters to recruit athletes to specific schools designed to get around legitimate NCAA regulations.

Interesting. My feeling is more of the opposite because of how the Alston case went down. The Brett Kavanaugh concurring opinion was such an intense and complete evisceration of the NCAA model (from a conservative justice who isn't even labor-friendly, no less) that I think it will have a severe chilling effect on the NCAA challenging anything regarding student compensation in court again. Kavanaugh all but said that if the NCAA tried to come in front of the Supreme Court again, it could be destroyed entirely on antitrust grounds.

Once again, the fact that it was the conservative corporation-friendly Kavanaugh stating this instead of a historically labor-friendly justice is MORTIFYING to the NCAA. I mean, he actually said that the students should go out and collectively bargain for more rights! A conservative justice is TELLING students that they ought to unionize to protect themselves! That's how uniformly despised the NCAA is from a legal standpoint right now. I don't think the NCAA wants to take that risk at all - they'll just look the other way or simply adjust their NIL rules to allow schools to be directly involved as opposed to putting itself in any court setting for the foreseeable future.

Does that mean that all we are waiting on is for an athlete to sue his school for unpaid wages? I'm not sure that a concurring opinion by a single justice has the same weight a majority opinion does. If it doesn't does a class action suit specifically demanding employee status have to come before a court (not necessarily SCOTUS) in order to force schools to pay up?

And if a court rules that schools must pay athletes, would that mean all schools and all athletes must be paid? And if so, what does Title IX require?

I'm not sure that I understand how Kavanaugh's opinion threatens the NCAA on antitrust grounds. Fair Labor Standards perhaps. But why antitrust? And would disbanding the NCAA solve the schools' problem? Could they just revert to a model where each conference decides for itself whether it may (or must) pay some or all athletes?

"Ralph Johnson, et al v. The National Collegiate Athletic Association, et al', 2-19-cv-05230, Pennsylvania Eastern District

This is a case that has been going on for at least three years and is brought under Fair Labor Standards Act (FLSA). The original complaint was dismissed based on statute of limitations. It was refiled with new plaintiffs. The NCAA along with several schools that "employed" students as sports entertainers did not pay them (or perhaps did not pay them enough to comply with minimum pay laws (the NCAA requires schools to track hours "worked" by athletes, just as they track hours for work-study students).

They also sued schools that competed against the school that employed the plaintiffs (for example, one of the plaintiffs worked/competed for Lafayette. Bucknell was also sued). They argued that the other schools were joint employers. That is, the unpaid Lafayette student workers were given a work assignment to play a lacrosse match against similarly unpaid Bucknell student workers. The court ruled last September that Bucknell did not hire/fire Lafayette student-workers, etc. and dismissed the case against Bucknell, Drexel, Duquesne, Farleigh Dickinson, La Salle, Lehigh, Monmouth, Princeton, Rider, Robert Morris, Seton Hall, St. Francis, St. Joseph's, St. Peter's, Delaware, Penn State, Penn, Pitt, Rutgers, and Temple.

The plaintiffs then filed a second complaint against the NCAA, Villanova, Fordham, Sacred Heart, Cornell, and Lafayette where student-athlete-worker plaintiffs had played/worked (or had recently played/worked), and added now plaintiffs suing Drexel, Penn, Oregon, Tulane, Notre Dame, Arizona, Purdue, Duke, and Marist. So the lawsuit is now more national in scope.

If the plaintiffs win, it will instantly be applied at every other NCAA university. They will either voluntarily change their rules, or be sued and placed under injunctions not to enforce their work rules. Compensation for former student-athlete-workers might simmer for years.

The NCAA was continued as a defendant since they have a direct role in dictating that the schools not pay their student-athlete-workers for work performed in association with their athletic performance.

The court refused to dismiss the case. This is now on interlocutory appeal to the 3rd Circuit, which has just this week set the briefing schedule. An interlocutory appeal is an appeal that is made before the lower court has rendered a final decision. I suspect that the 3rd Circuit will deny the appeal, and the SCOTUS will refuse to take the appeal of that - preferring that the district court fully develop the facts.

So the case will go back to the district court for trial on the merits, that decision will then be appealed to the 3rd Circuit, and eventually to the SCOTUS which will uphold the decision around 2025.

I don't know if there is any significance that only Division I schools have been named in the current case. Unlike the Allston case the plaintiffs include athletes for minor sports at a wide range of institutions (in terms of athletic budgets).

(04-21-2022 03:32 PM)JRsec Wrote:  I can see a baseline of compensation for all student athletes established at each school which covers tuition, fees, whatever passes now for books and supplies, and board plus a wage based upon hours spent in their sport.

Then NIL would supply the difference for high profile sports stars and key players, as well as stars in some minor sports.

The school setting the baseline accommodates non price setting stipulations, and the market sets NIL compensation. Title IX is not abrogated and equity at the baseline level exists.

It's going to change the mission and function of every athletic department.

Unless SCOTUS has ruled that the cost of tuition, fees and books, which is the part of a scholarship not taxable to the student, do not constitute compensation, many college athletes are now receiving at least minimum wage, even if that minimum were based on $15/hour. To the extent that athletes on partial scholarship don't meet that minimum as calculated based on hours spent on their sport, they would presumably be entitled to a cash payment for the shortfall.

Some major questions would need to be resolved. For example, is the time spent based on the amount of hours athletes are officially allowed to spend each week, or the amount they actually spend? Are they to be compensated for time spent traveling to games? Are they to be compensated for hours spent on their sport during the off-season, including time spent on strength and conditioning? Since being a student in good academic standing is a job requirement, should time spent on academics be compensated?

At some point, SCOTUS decisions must be reflected in changes to IRS regulations regarding compensation and the tax consequences of different forms and sources of compensation. Current laws and rules are based on the presumption that college athletes are amateurs and that intercollegiate athletics are an education related activity and not an unrelated business. That has now been blown out of the water. Somebody in government has to amend those laws and rules to conform to SCOTUS rulings.

(04-25-2022 07:48 AM)ken d Wrote:  

(04-21-2022 03:32 PM)JRsec Wrote:  I can see a baseline of compensation for all student athletes established at each school which covers tuition, fees, whatever passes now for books and supplies, and board plus a wage based upon hours spent in their sport.

Then NIL would supply the difference for high profile sports stars and key players, as well as stars in some minor sports.

The school setting the baseline accommodates non price setting stipulations, and the market sets NIL compensation. Title IX is not abrogated and equity at the baseline level exists.

It's going to change the mission and function of every athletic department.

Unless SCOTUS has ruled that the cost of tuition, fees and books, which is the part of a scholarship not taxable to the student, do not constitute compensation, many college athletes are now receiving at least minimum wage, even if that minimum were based on $15/hour. To the extent that athletes on partial scholarship don't meet that minimum as calculated based on hours spent on their sport, they would presumably be entitled to a cash payment for the shortfall.

Some major questions would need to be resolved. For example, is the time spent based on the amount of hours athletes are officially allowed to spend each week, or the amount they actually spend? Are they to be compensated for time spent traveling to games? Are they to be compensated for hours spent on their sport during the off-season, including time spent on strength and conditioning? Since being a student in good academic standing is a job requirement, should time spent on academics be compensated?

At some point, SCOTUS decisions must be reflected in changes to IRS regulations regarding compensation and the tax consequences of different forms and sources of compensation. Current laws and rules are based on the presumption that college athletes are amateurs and that intercollegiate athletics are an education related activity and not an unrelated business. That has now been blown out of the water. Somebody in government has to amend those laws and rules to conform to SCOTUS rulings.

This goes to my "Is the juice worth the squeeze?" analysis that I've been applying to a lot of these issues where so many of the proposed solutions actually cause so many other problems for universities that it's simply cheaper and more efficient to just to bite the bullet and pay the athletes outright and forget about any workarounds.

Could colleges try to argue that scholarships are "compensation" to athletes that would take the place of minimum wage laws? Possibly - but then that opens up a whole other much more problematic can of worms regarding non-profit status of their athletic operations, having to means test scholarships to anyone on campus (whether athletes or not) about whether it's considered compensation, etc.

If you look at a "normal" non-athlete student that's offered a financial aid package, they are often offered a scholarship combined with a work-study job. The fact of the matter is that colleges have to pay that student at least minimum wage for those work-study hours in order to comply with the law. It doesn't matter whether a student received a $50,000 scholarship or $0 scholarship - a college CANNOT argue that the student with the large scholarship can then pay that same student less than minimum wage for their work-study hours on the basis that the scholarship is "compensation" that can be averaged out over all of those work-study hours.

I would assume that it would be the same for athletes - there's really no difference between their situation and the regular student scholarship/work-study scenario that I stated above. For an athlete, their package is a scholarship and then they get paid at least minimum wage for their time spent as an athlete (essentially their equivalent of a "work-study" job). To be honest, until I just wrote that out, I now think that might be the best way to think of this (scholarship + work-study where the "work-study" is your athletic commitment) and actually is pretty easy to implement because colleges across the board already do this at a massive scale.

(04-21-2022 03:32 PM)JRsec Wrote:  I can see a baseline of compensation for all student athletes established at each school which covers tuition, fees, whatever passes now for books and supplies, and board plus a wage based upon hours spent in their sport.

That's a leap. Why not a baseline of compensation for all students, then?

(04-25-2022 08:21 PM)DFW HOYA Wrote:  

(04-21-2022 03:32 PM)JRsec Wrote:  I can see a baseline of compensation for all student athletes established at each school which covers tuition, fees, whatever passes now for books and supplies, and board plus a wage based upon hours spent in their sport.

That's a leap. Why not a baseline of compensation for all students, then?

Now this is the slippery slope leap!

Why? Because the ruling is on student athletes actually being student employees. It’s NCAA vs Johnson. Being an athlete is a fundamental part.

Perhaps you’ll see other students that get scholarships for other university activities also take legal action to get more than educational costs covered. But most students that do things fir the university are already considered student employees and make some low level wage