Supreme Court Conservatives Seem Ready To Break NCAA Control Over Student Athlete Pay. Why?

 Background 

If the conservatives on the Supreme Court have been consistent about anything, it's been in support of big business.   Senator Sheldon Whitehouse, at the Amy Barrett confirmation hearings, argued that while everyone focused on abortion and LGBT issues before the court, the real impact of packing of the court with conservative judges was to set up a court that unabashedly sided with big business.  Whitehouse cited 80 cases that were decided by 5-4 rulings along partisan lines.  These cases had four themes important to large corporations:

• Unlimited Dark Money - that allows the wealthy and corporations (yes those do overlap) to control legislatures that make the rules and even to get people appointed as head of federal agencies that regulate them.  Citizen United is the key decision here, but there are many others
• Knock the Civil Jury Down - The powerful can't control civil juries like they can control Congress.
• Weaken Regulatory Agencies - particularly pollutors to weaken their independence and strength
• Voter Suppression and Gerrymandering - making it harder for citizens  to vote for candidates who might vote against big business' interests - Shelby County decision on no factual record against overwhelming support on the other side, that knocked out voter suppression protections and a bunch of states started suppressing the vote.  Same on gerrymandering.  

*You can see the Whitehouse presentation in the Senate below and I recommend that you listen to it.  Whitehouse puts a lot of puzzle pieces together that help us understand the conservative goals of getting Heritage Foundation trained judges onto the court.  Here's another Whitehouse report on partisan decisions at the Supreme Court which divides the cases a little differently.  

Conservatives Question NCAA Lawyers

So I was surprised to see that in the Supreme Court case National Collegiate Athletic Association v. Alston**, the conservative judges were asking the NCAA lawyers some tough questions.  After all this is about a large monopolistic organization exploiting student athletes for big money.  It would seem a natural for the Supreme Court's conservatives to be protecting the NCAA.  But no.  From the LA Times:

"Justice Clarence Thomas said it was “odd” that the salaries of college coaches have “ballooned,” but that did not destroy the aura of amateur competition between colleges and universities.

Justice Samuel A. Alito Jr. said the case showed “colleges with powerhouse football and basketball programs are really exploiting the students that they recruit.” Most athletes work very hard on their sports, have little time for studies and often do not graduate. “They are recruited, used and cast aside,” he said.

Justice Brett M. Kavanaugh said he, too, was concerned about the “exploitation of athletes.” This looks like a system “where schools are conspiring with their competitors to pay their workers nothing,” he said, likening the situation to a classic antitrust violation in the business world."

But on further consideration, the NCAA is not exactly a for-profit corporation like Pepsi.  On its home page it tells us:

The National Collegiate Athletic Association is a membership-driven organization dedicated to safeguarding the well-being of student-athletes and equipping them with the skills to succeed on the playing field, in the classroom and throughout life.

We support learning through sports by integrating athletics and higher education to enrich the college experience of student-athletes. NCAA members – mostly colleges and universities, but also conferences and affiliated groups – work together to create the framework of rules for fair and safe competition.

Those rules are administered by NCAA national office staff, which also organizes national championships and provides other resources to support student-athletes and the schools they attend. The NCAA membership and national office work together to help nearly half a million student-athletes develop their leadership, confidence, discipline and teamwork through college sports.

NCAA Core Values    [bold added]

I've left the link to the Core Values there, because it goes to a page that doesn't really mention core values other than being dedicated to to "the well-being and life-long success of student athletes."  Most of it is about who all the members are.  

Also, notice that their sole emphasis is on the welfare of student athletes.  Absolutely no mention of money.

So Why Are The Conservatives Asking the NCAA Hard Questions  

My initial guess - and that's all it is - stems from one of the themes conservatives keep repeating about how universities and colleges are elite institutions full of socialist professors that indoctrinate students in liberal ideology.  (Of course the only colleges that fit that sort of ideological laboratory stereotype are the far right Christian colleges like Liberty University.]   

The NCAA generated close to a billion dollars just from the NCAA basketball playoffs.  They claim that most of that goes to the colleges and universities  From CBS Sports:

"The NCAA Tournament remains the lifeblood of the association's 1,268 members. It is the primary source of the NCAA's income. That $800 million in annual tournament revenue is 72% of the NCAA's $1.1 billion annual total. Last year, $600 million of that $800 million was scheduled to flow back to the schools.

That revenue fills athletic department coffers, provides operating capital for conference offices and provides funds directly to athletes in need."

But does this money help support universities or even cover the costs of college sports?  Best Colleges says no.

"By any measure, college sports are a big business — but that doesn't mean universities are getting rich off athletics. The reality is that most sports programs operate in the red. If the time comes when colleges have to pay athletes to participate, then the financial picture will change even more dramatically."

Some of the largest college sports programs, the ones that get the most back from the NCAA - see the Best Colleges link above for the top 20 and how much they make - might make a profit.  Or maybe not.  It's not clear.  My quick search for information on this leads me to believe that most of the stories are based on information from the NCAA.  I didn't find any in-depth independent studies. But I also didn't look too hard.

So maybe my hypothesis about the conservatives on the Supreme Court is wrong.  Maybe they're big sports fans and so they have more empathy for college athletes than they do for average employees.  Maybe they see the NCAA not as a corporation (it isn't one) but as a cooperative of universities.  Then my hypothesis may be right.  Or maybe they think the universities make more money from sports than they actually do.  That sports help pay for political science programs and affirmative action scholarships.  

Just raising a possibility.  I really don't know what paying college athletes would mean.  The biggest winners, probably, would be the majority of college athletes who will never go on to be highly paid professional players.  

But it's clear that monopolies concentrate power and concentrated power attracts those who want power.  Breaking things up will bring change and quite probably good change.  When they broke up ATT in 1984, we got a revolution in telephone technology.  (I bet some readers don't even know about ATT being a giant phone monopoly that merely leased black dial up phones to every home.)

And if the Supreme Court finds this monopoly problematic, maybe they'll have to take a fresh look at other concentrations of power.  That would be the best consequence.

* Here's the video of Sen. Whitehouse at the Barrett hearings.  He really does a great job of bringing together a number of threads.  

**Shawne Alston was a running back for West Virginia University.