March 20 will mark the 40-year anniversary of the oral argument in NCAA v. Board of Regents, the U.S. Supreme Court decision where the late Justice John Paul Stevens famously wrote:

“The NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports. There can be no question but that it needs ample latitude to play that role …”

That language might as well be 400 years old. 

Ever since the NCAA lost O’Bannon v. NCAA a decade ago and especially since the NCAA lost NCAA v. Alston a few years ago, amateurism—the NCAA’s system of rules that tries to distinguish college athletes from professionals by limiting how colleges economically compete for them—has been in retreat. 

It may soon surrender. 

Last Friday NCAA president Charlie Baker announced his organization would suspend enforcement of NIL-related rules for collectives. It followed U.S. District Judge Clifton Corker ordering the NCAA to lift those rules. If NIL isn’t already an unregulated market, that era nears.

Amateurism isn’t dead—yet. The NCAA still prohibits schools from paying their players and still doesn’t allow players to share in TV money. Although the association has waived the white flag on NIL and transfer restrictions, it insists college athletes aren’t pros.

That may be true, but it’s hard to escape the feeling the NCAA is rearranging deck chairs as amateurism sinks. 

The basic legal problem is NCAA members are competing businesses and antitrust law doesn’t like competitors joining hands to restrain how they compete. When colleges and conferences prevent themselves from allowing athletes to receive their market value for their labor, NIL, broadcasting fame and other opportunities to earn money, those colleges engage in a form of price-fixing. 

For years, courts ascribed to the “revered tradition of amateurism” as an instruction from the land’s highest court to treat NCAA rules with deference. That, in turn, directed judges to apply a relaxed standard of review to NCAA rules that, in other contexts, would face rebuke.

That all changed in Alston, a case that ironically had nothing to do with paying players to play sports or NIL, but instead the more peripheral topic of athletes’ education-related expenses. The Court clarified Justice Stevens’ remarks from 1984 were mere dicta—commentary that is not essential to the holding—and had no bearing on whether NCAA compensation rules are legal. In his concurring opinion, Justice Brett Kavanaugh described the NCAA and its members as a cartel and blasted their business model as one that “would be flatly illegal in almost any other industry in America.”

Unless the NCAA embraces major reforms, it’s likely a matter of time before remaining amateurism rules are deemed illegal. 

The In Re College Athlete NIL Litigation (a.k.a. House v. NCAA) class action goes to trial in 10 months, and centers on NCAA rules blocking conferences from sharing broadcasting revenue with players, denying revenue opportunities for college sports video games and barring NIL prior to 2021. The players have already defeated the NCAA in the motion to dismiss and class action stages. If the class, which represents more than 14,500 college athletes, prevails, the damages could exceed $4 billion. Going forward, the players would also demand a cut of TV money. 

Then there’s Carter v. NFL. It’s a relatively new case, brought by a familiar and serious group of player-side antitrust litigators (including Jeffrey Kessler and Steve Berman) that seeks the knockout blow: A ruling that NCAA rules preventing Power Five schools from playing players their market value violates antitrust law. If the players win, the NCAA and conferences could owe billions of damages. And colleges would pay players their market value.

Worse yet for traditionalists, NCAA members face the real prospect that college athletes will be declared employees of their schools and possibly also their conferences and the NCAA. An NLRB regional director last month declared Dartmouth College basketball players are employees within the meaning of the National Labor Relations Act and those players are set to vote to unionize Tuesday. Out west, an administrative law judge is weighing whether USC football and men’s and women’s basketball players are employees. Back east, the U.S. Court of Appeals for the Third Circuit is considering employment of college athletes under the Fair Labor Standards Act in Johnson v. NCAA.

NCAA president Charlie Baker has a few options.

First, he could gamble that the losing will end. Even the coldest streaks eventually stop. Baker could surmise while the NCAA may lose on NIL, transfers and conferences sharing TV money with players, the fundamental rule that colleges can’t pay athletes for their labor is worth defending. It’s the rule at the heart of college sports. 

Baker knows at least one judge sees the wisdom of amateurism. In Bewley v. NCAA, former Overtime Elite players contend their league payments were NIL. U.S. District Judge Robert Gettleman recently wrote the NCAA rendering ineligible athletes who already turned pro promotes the association’s “unique product” of “college sports.” The case is on appeal to the U.S. Court of Appeals for the Seventh Circuit, so the NCAA could still lose. But maybe there are more judges like Gettleman out there who aren’t yet ready to wipe out amateurism.

Still, the risk for Baker is that Bewley is an outlier and the losses keep piling up. And instead of the NCAA deciding its future, judges will tell the NCAA its future.

As a second option, Baker could keep pressing Congress to pass something of a miracle bill—one that exempts the NCAA from antitrust scrutiny, declares college athletes are not employees, sets a national NIL standard and preempts any conflicting state laws. This is the same Congress that has held 11 hearings on NIL since 2020 and not one has led to any bill advancing out of committee. Even if Congress passes and the president signs some sort of federal college sports law, it would face Constitutional challenges on Equal Protection Clause and preemption grounds and likely toil in court for years. 

The third option has two parts. First, Baker leads the NCAA to radically change its system of player compensation rules so it complies with antitrust, labor, employment, intellectual property, civil rights (Title IX) and all other laws. Second, Baker negotiates litigation settlements with thousands of player-plaintiffs. To work, the third option would need to be implemented before the NCAA incurs more losses in court or at the NLRB.

That’s a lot for Baker to do and do quickly. But the former Massachusetts governor is open to evolutionary reforms. His proposal last year to let Division I colleges pay athletes for their NIL and to create a super league that pays athletes at least $30,000 a year demonstrates he’s willing to think big.

Option three would involve allowing conferences to set their own rules on player compensation, including whether the athletes are employees and ought to get a cut of TV and other licensing money. 

Conference empowerment is crucial to any reform because the Supreme Court has said as much. 

In Alston, Justice Neil Gorsuch wrote the Court’s ruling “applies only to the NCAA and multiconference agreements,” while adding “individual conferences remain free to reimpose every single enjoined restraint tomorrow—or more restrictive ones still.” While Alston involved education-related expenses in the context of antitrust law, odds are a court will generally be less scrutinizing of individual conference decisions than those made by the NCAA or a group of conferences.

Conferences would still need to follow the law. If the Ivy League decides its athletes aren’t employees, but the NLRB and courts disagree, the Ivy League’s “decision” would be nullified. The conference would need to treat the athletes as employees. As Sportico recently explained, if a school wants to maintain a traditional system of amateurism, it could convert its athletics program to club sports. That could mean a loss of athletic scholarships, but some of those athletes might qualify for numerous other types of scholarships, including for academics, merit, extracurricular and financial need. 

Baker leading a massive reform of NCAA rules wouldn’t resolve the bevy of ongoing legal claims against his organization that seek many billions of dollars in damages. He would need to cut deals with player-plaintiffs so they drop their claims in exchange for money. 

Settlements are typically cheaper than the alternative of losing a trial. Settlements can also involve deferral of payments over years or decades to mitigate the financial impact. To illustrate, the NFL’s concussion settlement is for $1 billion, but the league’s payouts will occur over 65 years.

The NCAA could still play important roles after option three. It could regulate athlete safety, formulate scheduling, negotiate broadcast and other deals, enforce rules and serve as a forum for school discussions. It doesn’t have to “die” even if amateurism does.

This might all sound like pie-in-the-sky thinking. But reality tells a different story. The NCAA is on the verge of its system being obliterated in court. It needs to undertake major reforms quickly. Otherwise, it will be compelled to change rules and likely pay out billions of dollars. Where will that money come from? How many jobs at the NCAA, conferences and schools will be lost? 

The NCAA’s “revered tradition” is no longer revered and, it seems, no longer lawful.

The clock is ticking on the NCAA to create a new one.