Lawyer Clay Explains the SCOTUS 9-0 Slap Down of the NCAA

BUCK: I just want to tell folks what happened, and then I’m gonna let Clay explain why this is a big deal. Um, I can’t say the Biden version of that. It’s a big deal, okay? “The Supreme Court of the United States has unanimously affirmed a ruling today that provides for an incremental increase in how college athletes can be compensated, and also opens the door…” This is on ESPN.com right now. “It also opens the door for future legal challenges that could deal a much more significant blow to the NCAA’s current business model. Clay, 9-0 slapdown.

CLAY: (chuckles)

BUCK: Why does this matter so much?

CLAY: So, big picture. What I have argued for years is I’m a robust capitalist, right? I believe in the market. I want you and me and all of you out there with us to make as much money off of our talents as we possibly can. That’s what’s so strange about the way that college athletics is set up right now, Buck, because your talents — in particular in football and men’s basketball, which is where all the money is made.

You aren’t able to be compensated for your own talents. So, it can lead to ridiculous situations. I’ll give you an example. A lot of people probably are familiar with the name Johnny Manziel. He won the Heisman Trophy, played at Texas A&M, went on and was a first-round draft pick, did not have a great NFL career.

When he was in college, when he showed up at class or when he was around campus, people would show up with Sports Illustrated magazines with his picture on the front and ask him to sign those. As soon as he signed those, they would then take ’em and put ’em on eBay, put ’em on wherever they could sell them, hundreds of dollars.

You or me could have shown up on that college campus with those magazines, taken it to Johnny Manziel, gotten his autograph, sold it for as much money as the market was willing to pay for it. If Johnny Manziel himself sold his autograph, he was not eligible to play college football. I’ll give you another example.

Todd Gurley, good running back, played for the Rams, played at the University of Georgia. He sold his own jersey that he got for a bowl game — his own jersey that he wore that he was not gonna wear again that was his property — and some cleats that were told that he was not gonna wear anymore. He autographed them.

They found out that he did that he was suspended I believe it was six games. Everybody out there listening right now is saying, “Wait a minute. The Johnny Manziels and Todd Gurleys of the world didn’t even have the right to make money off of their own autograph, but if somebody else got their autograph, they could immediately sell that?”

That does not strike most people as being responsible and fair and just in America, in a country that embraces capitalism marketplaces. It doesn’t seem right. So this lawsuit effectively challenged the overall consensus benefits that were going to athletes, and it was determined to violate antitrust law.

Now, this is just the first domino that is starting to knock down all the other dominoes, right? The big significant factor here, I would say, is what Brett Kavanaugh wrote it. You remember Brett Kavanaugh the guy that all the blue checkmark brigade out there were furious that Brett Kavanaugh could ever become a Supreme Court justice.

BUCK: They lied about this guy a lot, by the way.

CLAY: Yes.

It doesn’t matter what is in your background.

BUCK: But I don’t mean to derail us from this.

CLAY: Brett Kavanaugh filed a concurring opinion. This was a Gorsuch opinion, 9-0, as you mentioned. But this paragraph, I think, is particularly significant from Brett Kavanaugh writing in a concurring opinion. And, by the way, if people out there who are like, “Why does your opinion matter?” I do have a law degree as well.

So as I used to say on my sports talk radio show, “Let me put my lawyer hat on here and sort of analyze this from a legal perspective why it matters.” To me, this is the essence of not only thinking about what the news is now but thinking about how the news is going to go in the future. This is Brett Kavanaugh:

“To be sure, the NCAA and its member colleges maintain important traditions that have become part of the fabric of America — game days in Tuscaloosa and South Bend; the packed gyms in Storrs and Durham; the women’s and men’s lacrosse championships on Memorial Day weekend; track and field meets in Eugene; the spring softball and baseball World Series in Oklahoma City and Omaha.”

By the way, that’s going on right now; it’s fantastic, the College World Series.

“The list goes on. But those traditions alone,” and I’m reading from Brett Kavanaugh, his concurring opinion, “cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of student athletes who are not fairly compensated. Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate.

“And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.” The big story here, Buck, is I think the NCAA’s days are numbered — and the NCAA, of course, manages all college athletics. And there are gonna be so many lawsuits that spiral out of this, because basically in college athletics, there are only really two sports that produce revenue and are profitable.

BUCK: And only a small percentage of schools overall, too.

CLAY: That’s right. Men’s basketball and football. And a small minority, tiny, like one or two — the UConn women, sometimes the University of Tennessee women. Big women’s basketball programs might break even or make a little bit of money. But all the money comes from the Ohio States, the Alabamas, the Oklahomas of the world rolling all of their cash — primarily from football — into the rest of the college athletic ecosystem.

So the challenge here — and this gets really complicated. But under Title IX, male athletes and female athletes have to be the same number of scholarships but also receive all the same benefits. So in theory in the socialistic system the starting quarterback for the Alabama Crimson Tide has the same value as a women’s lacrosse player.

We know that’s not true in reality, but they get the same benefits. How is that gonna play out going forward? It is a monumental and a massive question, and the Supreme Court saying that right now the NCAA is violating antitrust law puts the NCAA on the short list here, I think, in terms of what its long-term longevity is gonna be.

BUCK: It’s gonna be quite a thing when women’s field hockey —

CLAY: Those lawsuits are coming.

BUCK: — is saying, “We want an 80,000-person stadium and salaries and benefits too.”

CLAY: There’s no doubt.

BUCK: That’s gonna happen.