Congress did something of great significance to Ivy League sports Friday.
It did nothing at all.
Congress allowed a section of the Higher Education Act allowing key antitrust protection for the Ivy League to expire. The expiration increases the Ivy League’s exposure to legal challenges to its refusal to grant academic and athletic scholarships.
The National College Players Association, a college athlete advocacy nonprofit, hailed the expiration in a press release Friday, calling the lapsed antitrust exemption in place since 1994 “unjust.”
”It’s time for Ivy League universities to head in a new direction, one where they respect their athletes’ rights and freedoms under the law,” NCPA executive director Ramogi Huma said in the press release.
The Ivy League’s eight members are the only institutions among 358 Division I schools that don’t grant athletic scholarships.
Proponents of the Ivy League embracing athletic scholarships say that its refusal to do so made their lives unnecessarily harder.
Penn men’s senior guard Lucas Monroe recalled almost getting evicted because he couldn’t pay rent in the NCPA press release.
“I don’t know of any scholarship athletes that would get evicted because expenses like housing are paid for,” Monroe said.
One of the Ivy League’s defenses has been that granting scholarships would negatively impact their ability to parcel out their large need-based scholarships.
This argument seems specious since all the Ivies have endowments in excess of $5 billion, with Harvard’s sitting at $53 billion and Yale’s at $42 billion. The Ivies can well afford both academic and athletic scholarships along with already existing need-based scholarships.
All of the above must be considered within the context of the U.S. Supreme Court’s groundbreaking decision in NCAA v. Alston last year.
The court upheld a lower court ruling that NCAA rules limiting education-related benefits that college athletes may receive from their schools – like rules prohibiting schools from offering scholarships – violated the Sherman Antitrust Act of 1890.
”Nowhere else in America can businesses get away with not agreeing 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,” Justice Brett Kavanaugh, a former Yale basketball reporter for the Yale Daily News, wrote in a concurring opinion. ” … And under ordinary principles of antitrust law, it is not evident why college sports should be any different.”
One of the results of the Alston decision has been the proliferation of name, image and likeness (NIL) collectives at universities throughout the country. Texas A&M athletes earned over $4.1 million in during the first academic year of NIL eligibility, according to The Eagle.
NIL collectives – fund pools independent driven by boosters aimed at creating NIL opportunities for student-athletes – have sprung up for NCAA schools.
Ivy institutions do not turn a financial profit through athletics, but ticket prices at this year’s Yale-Harvard football game at Harvard Stadium are $100, and a 30,000-seat sellout is expected. Harvard will derive millions of dollars of revenue from The Game in November.
Some Ivy athletes, including former Brown men’s basketball standout Tamenang Choh, spoke out in favor of Ivy athletic scholarships, even before the Alston decision.
#NotNCAAProperty And while we’re at it someone explain to me why the Ivy League is the only conference that doesn’t give athletic scholarships…
— Tamenang Choh (@ThatMan_T) March 17, 2021
No one is expecting the Ivies to proactively announce that athletic scholarships are in the offing. But the Ivy could be in for a very difficult battle if and when a student-athlete brings a federal lawsuit alleging a denial of equal protection under the law or a similar claim.
One thing is certain: The Ivy will no longer be able to hold up antitrust exemption as a defense.
One night many years ago Pete Carril came to Scranton to recruit a kid who was the son of a friend of mine. We saw him play and then adjourned to a nearby joint for clams and beer. My friend, a successful business man, told Carril that X University offered his son a full scholarship. Pete thought about the number and told my friend, “If I were you I would take it.” He did.
Lost a lot more 3 car garage kids than poor ones.
Thanks for this update, Richard. I would think the main, new legal challenge based on this interesting development will be based on the allegation that the Ivy League policy is a violation of antitrust law, not necessarily the equal protection clause. This is definitely worth keeping an eye on.