KY Legislature Moves to Create Comparable Bill to CA Fair Pay to Play

[gossie21]

"As with the District Court, the Ninth Circuit analyzed the NCAA’s rules under the Rule of Reason. In the first step, the court found “substantial support in the record” that the challenged rules produced significant anticompetitive effects in the college education market even, in the absence of any output reduction. Id. at *18 (it is sufficient to show “the student athletes themselves are harmed by the price-fixing agreement among [the] schools” to value the athletes’ NILs at zero). The court found the amount of the harm suffered by the student-athletes irrelevant to this inquiry. Id. at *19 (noting that Supreme Court has rejected this “too small to matter” argument). In the second step, the Ninth Circuit accepted (as had the District Court) that the NCAA’s commitment to amateurism produced concrete procompetitive benefits by increasing the consumer appeal of collegiate sports. Id. at *20-*22. In the third and final step, the court addressed whether plaintiffs produced sufficient evidence that this procompetitive goal could be achieved by less restrictive alternatives. Here, the court cautioned, that “to be viable under the Rule of Reason, an alternative must be ‘virtually as effective’ in serving the procompetitive purposes of the NCAA’s current rules, and ‘without significantly increased cost.’” Id. at *22 (citation omitted). The court also warned that plaintiffs bear a strong evidentiary burden at this stage, particularly in light of the Supreme Court’s admonition to “afford the NCAA ‘ample latitude’ to superintend college athletics. Id. (citing Bd. of Regents, 468 U.S. at 120)."

"The court concluded that capping the permissible amount of scholarships below the full cost of attendance had no relation to the procompetitive justification of advancing amateurism. By NCAA’s own standards, “student-athletes remain amateurs as long as any money paid to them goes to cover legitimate educational expenses.” Id. at *23. The Ninth Circuit thus upheld the District Court’s injunction insofar as it related to permitting schools to set the compensation cap at the full cost of attendance, finding this to be “a substantially less restrictive alternative means of accomplishing the NCAA’s legitimate procompetitive purposes.” Id. at *24. Not so with the second alternative the District Court identified, which would result in NIL cash payments to students “untethered to their education expenses.” Id. According to the Ninth Circuit, “Aside from the self-evident fact that paying students for their NIL rights will vitiate their amateur status as collegiate athletes, the [district] court relied on threadbare evidence in finding that small payments of cash compensation will preserve amateurism as well as the NCAA’s rule forbidding such payments.” Id. Accordingly, the Ninth Circuit reversed this aspect of the District Court’s order."


This isn't difficult to read or understand Gossie.

What you are failing to consider is the legal posture of that case versus what is currently happening in California.

The case you cited was a direct challenge to the NCAAs rule. The court basically says the NCAA can make their own rules.

The current issue flips the roles, and drastically changes the position of power. California can establish laws that set preconditions to universities receiving state funding. The law in question only relates to California universities and colleges receiving state funding, it does not impose a burden on the NCAA, just the school. It’s questionable if the NCAA has standing to challenge the law. Even if they do it is unclear how the NCAA can impose their rules on the State of California. All the NCAA can really do is tell the California schools that they can't be part of the club anymore. But the NCAA doesn't want to do that, especially not if more states join California's side. The entire power structure the NCAA has built up depends on solidarity among universities.

Now perhaps the colleges can challenge the law. They would at least have standing, as the law places restrictions on them. They could argue that the law violates their contractual obligations to the PAC-12 and the NCAA, TV deals, contracts for Out-of-conference competitions and so forth. I don't think that would work because the law as drafted is a precondition on receiving state subsidies. Colleges can choose to reject state subsidies.... but in reality not one school would have the financial ability to do that.

You really should be listening more to @UKnCincy he's providing valuable information here.

 

[UKnCincy]

I don't agree with you, what a surprise. "ample latitude" to a layperson would mean "enough". As for your reasoning, you are leaving out procompetitive balance which was mentioned repeatedly and the 9th Circuit didn't refer to payments being tied to performance, they said "Aside from the self-evident fact that paying students for their NIL rights will vitiate their amateur status as collegiate athletes, the [district] court relied on threadbare evidence in finding that small payments of cash compensation will preserve amateurism as well as the NCAA’s rule forbidding such payments.”

I can't see how outside payments to players would change that though I know you will have a technical slant that fits your agenda on this subject. Like I've told you before, this will come down to who has primary right here, the NCAA in fighting to maintain a competitive balance or players who want to make money while in college. I still don't think you are going to win this one.

I left out “pro-competitive balance” because both the district court and appeals court stated that argument wasn’t valid.

Instead, the court focused on “pro-competitive benefits”, which in this case means supporting demand for college athletics. “Balance” and “benefits” are not the same thing.

In terms of outside payments, my view is based on reading exactly what’s in the appeals court’s ruling.

The district court also considered evidence that Division I tennis recruits are permitted to earn up to ten thousand dollars per year in prize money from athletic events before they enroll in college. O’Bannon, 7 F. Supp. 3d at 974, 1000. Allowing college-bound tennis players to accept award money from outside athletic events implicates amateurism differently than allowing schools to pay student-tennis players directly.​

 

[BigBlueFanGA]

Yep...it going to end up being a federal law I believe.

I don't think that is going to happen but that would be an interesting twist. The courts will decide this one. It's been brewing for over a decade, may as well blow up now.

 

[OHIO COLONEL]

I don't think that is going to happen but that would be an interesting twist. The courts will decide this one. It's been brewing for over a decade, may as well blow up now.

Just because the gov of Calif signed it into law, doesn't mean it can't be challenged in court. Others have mentioned the NCAA. How about the PAC10 and other conferences that are located in or have schools in Calif.
There have been a ton of 'laws' approved by the voters of Calif that have been struck down by the courts in the last 30 years.

 

[KopiKat]

Me and my garage band should not expect nor be upset if we dont Get paid as much as the Rolling Stones just cuz we both are bands. I dont see any reason for lockeroom issue.

But when the members within your own band are paid unevenly? The singer making 10x what the drummer is paid . . . that is the consideration. How are your locker room issues then?

 

[gossie21]

Yes and that's the problem with these laws. It will create an anticompetitive environment and that is why I don't believe it will stand in the end.

You didn't use "anticompetitive" there correctly. Are you sure you understand what that term means?

 

[gossie21]

But when the members within your own band are paid unevenly? The singer making 10x what the drummer is paid . . . that is the consideration. How are your locker room issues then?

Good grief. You realize that many bands compensate members differently. Also, every professional athlete is compensated differently. In fact nearly every human in every occupation has different compensation based on each individuals unique factors.

This is the USofA, we ain't communists!

 

[gossie21]

I left out “pro-competitive balance” because both the district court and appeals court stated that argument wasn’t valid.

Instead, the court focused on “pro-competitive benefits”, which in this case means supporting demand for college athletics. “Balance” and “benefits” are not the same thing.

In terms of outside payments, my view is based on reading exactly what’s in the appeals court’s ruling.

The district court also considered evidence that Division I tennis recruits are permitted to earn up to ten thousand dollars per year in prize money from athletic events before they enroll in college. O’Bannon, 7 F. Supp. 3d at 974, 1000. Allowing college-bound tennis players to accept award money from outside athletic events implicates amateurism differently than allowing schools to pay student-tennis players directly.​

I have really enjoyed your posts the past few days. The quality and the patience you have shown is admirable. From what I have seen many taking the anti-NIL position are shooting from the hip, and really don't have a firm grasp on legal issues. And I'm not sure they understand or appreciate the level of education you are providing them. Well done!

 

[BigBlueFanGA]

You didn't use "anticompetitive" there correctly. Are you sure you understand what that term means?

I used it correctly.

 

[gossie21]

I used it correctly.

Very on-brand response. I love it.

 

[BigBlueFanGA]

You didn't use "anticompetitive" there correctly. Are you sure you understand what that term means?

I'm not talking about the competition of the bidding wars, I'm talking about the swing of power to schools with active and wealthy boosters building their dream teams.

 

[HoldMyBeer]

But when the members within your own band are paid unevenly? The singer making 10x what the drummer is paid . . . that is the consideration. How are your locker room issues then?

Ask those poor ladies from Destiny Child what they would do for a tour with Beyonce right now.

 

[gossie21]

I'm not talking about the competition of the bidding wars, I'm talking about the swing of power to schools with active and wealthy boosters building their dream teams.

Oh, I understood that. But that is not the correct usage of the term "anticompetitive."

Anticompetitive means price fixing, artificially depressing a market, or excluding participants from a market. It is a term used in monopoly (do not pas go, do not collect $200) cases. It does not have a second meaning the way you are trying to use it.

The terms I think you meant to use was an "unbalanced competitive environment." I still would have disagreed with that point, but you knew that.

 

[HoldMyBeer]

Oh, I understood that. But that is not the correct usage of the term "anticompetitive."

Anticompetitive means price fixing, artificially depressing a market, or excluding participants from a market. It is a term used in monopoly (do not pas go, do not collect $200) cases. It does not have a second meaning the way you are trying to use it.

The terms I think you meant to use was an "unbalanced competitive environment." I still would have disagreed with that point, but you knew that.

tHiS AiNt SkOoL mAn

Let the turd go about his business thinking that JUST NOW boosters are going to start attempting to pay players to attend a certain university. You know, before this California thing boosters NEVER tried to buy championship players.

 

[BigRedMachineBigBlueNation]

tHiS AiNt SkOoL mAn

Let the turd go about his business thinking that JUST NOW boosters are going to start attempting to pay players to attend a certain university. You know, before this California thing boosters NEVER tried to buy championship players.

Unless there is a cap **** pay for play.

 

[cat_in_the_hat]

I used it correctly.

I get tickled when attorneys discuss economics and markets. No offense if you are an attorney. Anti-competitive in the financial/economic world means policies that unfairly restrict or impede competition. In this case, I think the NCAA should have valid concerns that the California model, without some means for strict regulation, could definitely restrict or impede competition among its member institutions.

 

[gossie21]

I get tickled when attorneys discuss economics and markets. No offense if you are an attorney. Anti-competitive in the financial/economic world means policies that unfairly restrict or impede competition. In this case, I think the NCAA should have valid concerns that the California model, without some means for strict regulation, could definitely restrict or impede competition among its member institutions.

Wait..... You think the NCAA should have concerns about someone else implementing anti-competitive measures? I am having a difficult time processing that. Please explain how the NCAA model is not anti-competitive.

Also, if you think BBinGa is an attorney..... I would be shocked if he is. And disappointing.

 

[HoldMyBeer]

Unless there is a cap **** pay for play.

Lol. Make a cap, boosters will still pay whatever they need to to get a recruit. This ain't new. This is just a way for players to legally get paid, don't think for 1 second the illegal/ under the table ways are gonna just go away. This changes NOTHING recruiting wise once it's applied to every school.

 

[shutzhund]

Maybe...or maybe that sentiment could more aptly be applied to their constituents, whom said politicians know they can corral, and gin up tribalistic sentiments from, with issues that are contrived or have no bearing on their duties. Seems to me, many of these politicians might be accomplishing exactly what they intended (which some might label as pretty smart - sickening and deceitful, but smart in a weaselly sort of way).

Good post.

 

[UKnCincy]

I get tickled when attorneys discuss economics and markets. No offense if you are an attorney. Anti-competitive in the financial/economic world means policies that unfairly restrict or impede competition. In this case, I think the NCAA should have valid concerns that the California model, without some means for strict regulation, could definitely restrict or impede competition among its member institutions.

It’s the other way around in terms of restraining competition.

The NCAA is the one creating anticompetitive restraints, not the state of California.

 

[Cat06]

So what are they going to do when the first guy decides he is going to need a fee from the University for using his name, another fee for him to do interviews for the university, another fee for having the pleasure of him attending the University?

 

[cat_in_the_hat]

It’s the other way around in terms of restraining competition.

The NCAA is the one creating anticompetitive restraints, not the state of California.

It depends on the market you are talking about.

 

[gossie21]

It’s the other way around in terms of restraining competition.

The NCAA is the one creating anticompetitive restraints, not the state of California.

Yeah. I'm still trying to wrap my head around how he decided it wasn't the NCAA engaging in anticompetitive practices.

 

[cat_in_the_hat]

Wait..... You think the NCAA should have concerns about someone else implementing anti-competitive measures? I am having a difficult time processing that. Please explain how the NCAA model is not anti-competitive.

Also, if you think BBinGa is an attorney..... I would be shocked if he is. And disappointing.

The members of the NCAA obviously think their rules allow them to the best of their abilities to conduct fair and competitive athletic competitions. You may disagree with that notion, but it's the point the rules the NCAA members put in place. In what way does the NCAA model restrict its members from competing with each other?

 

[cat_in_the_hat]

Whether or not the NCAA has athletes transfer these rights is not relevant to this discussion.

What is relevant is that the NCAA still prohibits all athletes from earning outside endorsements, and that this prohibition is the result of all market players on one side banding together to adopt a uniform, take it or leave it agreement where athletes are unable to negotiate the terms.

In that context, the amount of value the athlete actually receives is not what’s relevant. What’s relevant is the use of market power to deprive athletes of the opportunity to receive value from third parties.

Let's revisit the notion of market power. The market you are speaking of is the market for selling ones likeness. That is a very large market that stretches well beyond NCAA apparel, etc. How would you demonstrate that the NCAA has market power in that specific market? I have performed market power analyses and it is not as simple as showing the NCAA has market power over its events. The market for selling ones likeness includes many avenues outside the NCAA. Does the NCAA truly possess market power in that market?

 

[gossie21]

The members of the NCAA obviously think their rules allow them to the best of their abilities to conduct fair and competitive athletic competitions. You may disagree with that notion, but it's the point the rules the NCAA members put in place. In what way does the NCAA model restrict its members from competing with each other?

Wait..... we were talking about anticompetitive issues. You even ackowledged you understood what that term meant. It does not have an application related to keeping sporting competitions fair.

The NCAA actively engages in price fixing. They cap benefits at the cost of attendance, in doing so they maximize revenue for the universities while suppressing wages and artificially manipulate the market. Everyone who follows this stuff understands this. The NCAA is a cartel. The problem is courts have allowed the NCAA to do this and no antitrust lawsuit has succeeded. That doesn't mean the NCAA isn't engaging in anticompetitive practices, just that they have not violated antitrust laws.

 

[cat_in_the_hat]

Wait..... we were talking about anticompetitive issues. You even ackowledged you understood what that term meant. It does not have an application related to keeping sporting competitions fair.

The NCAA actively engages in price fixing. They cap benefits at the cost of attendance, in doing so they maximize revenue for the universities while suppressing wages and artificially manipulate the market. Everyone who follows this stuff understands this. The NCAA is a cartel. The problem is courts have allowed the NCAA to do this and no antitrust lawsuit has succeeded. That doesn't mean the NCAA isn't engaging in anticompetitive practices, just that they have not violated antitrust laws.

The poster that responded to you was speaking about competition between member schools within the NCAA and how the California bill might impact that. Of course you already know that.

 

[gossie21]

The poster that responded to you was speaking about competition between member schools within the NCAA and how the California bill might impact that. Of course you already know that.

No. I really don't. I am very confused right now. You are using antitrust terms and applying the sporting competitions in a very bizarre fashion. I have no idea what you are talking about.

 

[cat_in_the_hat]

No. I really don't. I am very confused right now. You are using antitrust terms and applying the sporting competitions in a very bizarre fashion. I have no idea what you are talking about.

I'm not surprised. Your thinking seems to be limited to legal terms and situations. In the world of economics and finance we talk of competition within leagues even though those leagues themselves are monopolies and run by cartels. That doesn't preclude the NCAA, NFL, MLB, NBA, etc., from implementing rules that attempt to create what it considers to be fair competition between the teams/schools participating in its leagues. Polices that obstruct fair competition within those leagues are anti-competitive to that league because they restrict each team/school from competing fairly with each other. The term anti-competitive has meaning outside of legal circles. It's not a hard concept to grasp unless you are willfully refusing to grasp it.

 

[gossie21]

I'm not surprised. Your thinking seems to be limited to legal terms and situations. In the world of economics and finance we talk of competition within leagues even though those leagues themselves are monopolies and run by cartels. That doesn't preclude the NCAA, NFL, MLB, NBA, etc., from implementing rules that attempt to create what it considers to be fair competition between the teams/schools participating in its leagues. Polices that obstruct fair competition within those leagues are anti-competitive to that league because they restrict each team/school from competing fairly with each other. The term anti-competitive has meaning outside of legal circles. It's not a hard concept to grasp unless you are willfully refusing to grasp it.

I don't believe the term anti-competitive has an independent meaning outside of antitrust laws. Perhaps in your group you use it in alternate ways.

Using it to describe fair competition in sports is really confusing.

 

[cat_in_the_hat]

I don't believe the term anti-competitive has an independent meaning outside of antitrust laws. Perhaps in your group you use it in alternate ways.

Using it to describe fair competition in sports is really confusing.

Use whatever term you want. His point was clear. He saying that the NCAA has rules to try and ensure fair competition between its member institutions and the California law puts that in jeopardy. The NCAA has a legal right to implement rules that it thinks ensures the integrity of its leagues. Instead of recognizing his obvious point, you resorted to trying to argue with him over the term anti-competitive.

 

[gossie21]

Use whatever term you want. His point was clear. He saying that the NCAA has rules to try and ensure fair competition between its member institutions and the California law puts that in jeopardy. The NCAA has a legal right to implement rules that it thinks ensures the integrity of its leagues. Instead of recognizing his obvious point, you resorted to trying to argue with him over the term anti-competitive.

Yes. Because he was using it incorrectly and it's confusing.

And then you even acknowledged that in a response to him..... then you went back to using it incorrectly. So it was all very confusing.

I'm not sure what we are discussing if the issue is whether the "NCAA has a legal right to implement rules." Because of course the do. I've never disputed that. I've never seen anyone else dispute that. That is an obvious statement. But I don't see how the California law plays in to this. The NCAA has the right to kick California schools out of the NCAA. They can and should do that. It is my hope that the NCAA ends up kicking out all 50 states. If the new-NCAA wants to sit down and hammer out some policy on fair competition while allowing NIL, I am all for that. But I don't believe the NCAA should be engaging in price fixing, players need a seat at the negotiating table if caps are going to be put in place.

 

[cat_in_the_hat]

Yes. Because he was using it incorrectly and it's confusing.

And then you even acknowledged that in a response to him..... then you went back to using it incorrectly. So it was all very confusing.

I'm not sure what we are discussing if the issue is whether the "NCAA has a legal right to implement rules." Because of course the do. I've never disputed that. I've never seen anyone else dispute that. That is an obvious statement. But I don't see how the California law plays in to this. The NCAA has the right to kick California schools out of the NCAA. They can and should do that. It is my hope that the NCAA ends up kicking out all 50 states. If the new-NCAA wants to sit down and hammer out some policy on fair competition while allowing NIL, I am all for that. But I don't believe the NCAA should be engaging in price fixing, players need a seat at the negotiating table if caps are going to be put in place.

I respect your opinion on this along with the others who also want this change to happen. Don't take anything I have said as thinking this opinion is absurd or stupid in any way. I just don't agree with it.

That being said, the use of the term anti-competitive as it pertains to how it affects the competitive forces within the leagues the NCAA operates is a proper use of the term from an economic perspective. It may not be from a legal perspective but I don't he cared about the legal use of the word, nor should it have mattered with respect to his overall point.

 

[UKnCincy]

It depends on the market you are talking about.

In which market is the state of California placing a restraint on trade as it pertains to the NCAA, and what specifically is that restraint on trade?

 

[UKnCincy]

I'm not surprised. Your thinking seems to be limited to legal terms and situations. In the world of economics and finance we talk of competition within leagues even though those leagues themselves are monopolies and run by cartels. That doesn't preclude the NCAA, NFL, MLB, NBA, etc., from implementing rules that attempt to create what it considers to be fair competition between the teams/schools participating in its leagues. Polices that obstruct fair competition within those leagues are anti-competitive to that league because they restrict each team/school from competing fairly with each other. The term anti-competitive has meaning outside of legal circles. It's not a hard concept to grasp unless you are willfully refusing to grasp it.

There is no distinction between legal use of competition for anti-trust law and the economic use of competition. Anti-trust law is rooted in economic analysis and courts rely on an economic analysis when evaluating whether an action violates anti-trust law.

Your assertion is inaccurate.

 

[Mojocat]

I generally agree with your point..... but you don't think the athletic department has a payroll department? How are the coaches, assistants, staff, administrators, trainers, medical, and event staff getting paid then? The athletic department has a $147.7M operating budget.

However, to get around Title IX and other problematic issues, the best way to allow athletes to seek compensation is the Olympic Model, or NIL laws.

Yep, you’re right, that was just really slopping posting. What I was trying to say is endorsements seems like a cleaner way to address the inequities as opposed to putting athletes on the school payroll. But who knows really - it’s easy to imagine a lengthy list of possible bad outcomes, but that’s just guessing (and being uncomfortable with change). Or maybe everyone on that side is exactly right and college sports will cease to exist in a few years! Heh. The only thing I’m comfortable saying is I have zero clue.......

 

[Ron Mehico]

This thread is a wonderful example of why you should never represent yourself in a court of law if you’re not an attorney, no matter how smart you think you are.

 

[Jumpercat]

There is no distinction between legal use of competition for anti-trust law and the economic use of competition. Anti-trust law is rooted in economic analysis and courts rely on an economic analysis when evaluating whether an action violates anti-trust law.

Your assertion is inaccurate.

UknCincy I just want to say thank you for taking the time to explain this to us.

 

[rabbitTown]

i just don't want the bill to pass then one of UKs stud players gets paid for an ad then is declared ineligible by the UNCAA right before the FF!

You're no better than the NCAA by that statement. Allowing a student-athlete to be compensated for his/her likeness (like any other student can) is the right thing to do. I'd be honored to have one of our 'Cats be the exemplar that finally righted this travesty.

 

[KopiKat]

Ask those poor ladies from Destiny Child what they would do for a tour with Beyonce right now.

Exactly . . . the star left the band. It will be hilarious, when a star college athlete, upon realizing he has inked enough deals to tide him over for the next several months, up and quits in the middle of a college basketball season, no longer able to see the point in risking injury, putting effort into whatever modest curriculum he signed up for . . . maybe does this in mid January with a few hundred grand in pocket. Honestly, what would be the point? When he can just bide his time before NBA combines . . . maybe even join the panels on ESPN during the NCAA tournament.