Court Hearing on whether NIL rules can be legally enforced

[short ornery norwegian]

I started the thread because I think this has the potential to be a really big deal.

never know with court cases how they may come out, but the NCAA is getting hit from all sides, and some of the judges hearing cases clearly seem to feel that the NCAA's positions do not stand up under legal scrutiny.

the potential outcome could literally be "no rules." at least no enforceable rules on NIL and transfers.

as crazy as college football is right now, imagine no rules. anybody can do anything with NIL. legal tampering. Michigan can call Darius Taylor and offer him $500,000 or more NIL to transfer.
players can transfer as many times as they want with immediate eligibility.

I see 3 possible outcomes -- either the NCAA comes up with new rules that meet legal scrutiny - Congress passes national NIL legislation - or the NCAA bites the bullet and declares D1 athletes to be employees with colleges setting work rules.

 

[MplsGopher]

What provision of antitrust law?

Yes, the Sherman Antitrust Act, enacted in 1890, contains provisions aimed at preventing anticompetitive practices and promoting fair competition in the marketplace. The act is divided into three main sections:

1. Section 1: This section prohibits contracts, combinations, and conspiracies that restrain trade or commerce among the states or with foreign nations. It essentially outlaws agreements between businesses that seek to restrict competition, such as price-fixing agreements or agreements to divide markets.
2. Section 2: This section deals specifically with monopolies and attempts to monopolize. It states that any person or company who monopolizes or attempts to monopolize trade or commerce among the states or with foreign nations shall be guilty of a felony. This section targets actions by individual companies that result in the suppression of competition.
3. Section 3: This section provides for fines and imprisonment for individuals convicted of violating the act.

 

[MplsGopher]

I am not a lawyer and I did not stay at a Holiday Inn Express last night.

I am only making a general, layperson argument. You can't defeat it by asking highly technical questions and pretending like that defeats the general, layperson argument. That of course doesn't.

 

[Pompous Elitist]

I started the thread because I think this has the potential to be a really big deal.

never know with court cases how they may come out, but the NCAA is getting hit from all sides, and some of the judges hearing cases clearly seem to feel that the NCAA's positions do not stand up under legal scrutiny.

the potential outcome could literally be "no rules." at least no enforceable rules on NIL and transfers.

as crazy as college football is right now, imagine no rules. anybody can do anything with NIL. legal tampering. Michigan can call Darius Taylor and offer him $500,000 or more NIL to transfer.
players can transfer as many times as they want with immediate eligibility.

I see 3 possible outcomes -- either the NCAA comes up with new rules that meet legal scrutiny - Congress passes national NIL legislation - or the NCAA bites the bullet and declares D1 athletes to be employees with colleges setting work rules.

I believe you hit the nail on the head. Interpretation of the law is in the eye of the beholder. Some latch onto Kavanaugh’s concurring flight of ideas opinion in the Alston decision as solid evidence amateur sports organizations are illegal restraints of trade. However, the main body of that decision and others from a lower court (Judge Wilken) actually specifically upheld amateurism as an ideal way to maintain a level competitive playing field.

Since NIL deals are specifically detached from a pay to play scheme (insert laughter here) it’s hard to argue the anti-tampering, solicitation, inducement rules are a restraint of trade. That doesn’t make sense. They are free to make appearances, ads, social media posts. It only makes sense if the NCAA rules are legally struck down. Are PJs team rules a restraint of trade?

It gets ridiculous pretty fast.

 

[2nd Degree Gopher]

Yes, the Sherman Antitrust Act, enacted in 1890, contains provisions aimed at preventing anticompetitive practices and promoting fair competition in the marketplace. The act is divided into three main sections:

1. Section 1: This section prohibits contracts, combinations, and conspiracies that restrain trade or commerce among the states or with foreign nations. It essentially outlaws agreements between businesses that seek to restrict competition, such as price-fixing agreements or agreements to divide markets.
2. Section 2: This section deals specifically with monopolies and attempts to monopolize. It states that any person or company who monopolizes or attempts to monopolize trade or commerce among the states or with foreign nations shall be guilty of a felony. This section targets actions by individual companies that result in the suppression of competition.
3. Section 3: This section provides for fines and imprisonment for individuals convicted of violating the act.

I am not a lawyer and I did not stay at a Holiday Inn Express last night.

I am only making a general, layperson argument. You can't defeat it by asking highly technical questions and pretending like that defeats the general, layperson argument. That of course doesn't.

I understand that you aren't a lawyer and no one would care if you said "I don't understand the ins and outs of antitrust law, but why couldn't the Vikings sue the league to try to avoid the salary cap by characterizing a direct payment to one of their players as NIL?" That was really the apparent gist of your hypothetical. When another poster pointed out there is a significant legal difference between the current state of the NFL and the NCAA, you threw around a term that you don't understand and were called on it. Your response now is that you are really trying to make a "layperson argument" and that you don't want to be told that you are incorrect because somehow your feelings should trump the law. OK, have at it and follow your feelings and believe, incorrectly, that the two scenarios are analogous. No one is going to care that some anonymous doofus on GopherHole insists that he's identified a legal loophole that blows up the whole salary structure negotiated by the NFL and its players.

None of that changes that you are incorrect on the law. Hint, none of the provisions you cited above deal with a challenge by the Vikings (who are part of the NFL) against the NFL under a collectively bargained contract with the players.

 

[RememberMurray]

"Rules are for whiners and losers".

— Capitalist Free Market Guy

---

Do we really want regulation, and a sanctioning, governing body? Should we have laws and rules?

Or, should we have a free market? Every person for themselves? The strong survive, the weak perish.

 

[RememberMurray]

I understand that you aren't a lawyer and no one would care if you said "I don't understand the ins and outs of antitrust law, but why couldn't the Vikings sue the league to try to avoid the salary cap by characterizing a direct payment to one of their players as NIL?" That was really the apparent gist of your hypothetical. When another poster pointed out there is a significant legal difference between the current state of the NFL and the NCAA, you threw around a term that you don't understand and were called on it. Your response now is that you are really trying to make a "layperson argument" and that you don't want to be told that you are incorrect because somehow your feelings should trump the law. OK, have at it and follow your feelings and believe, incorrectly, that the two scenarios are analogous. No one is going to care that some anonymous doofus on GopherHole insists that he's identified a legal loophole that blows up the whole salary structure negotiated by the NFL and its players.

None of that changes that you are incorrect on the law. Hint, none of the provisions you cited above deal with a challenge by the Vikings (who are part of the NFL) against the NFL under a collectively bargained contract.

So we should, in fact, have enforceable laws (rules). Good to know!

 

[RememberMurray]

Rule #1:
You have to catch it.

Rule #2:
Next, you have to kill it.

Rule #3:
Then (and only then) you get to eat.

 

[2nd Degree Gopher]

So we should, in fact, have enforceable laws (rules). Good to know!

Yes! I am not sure how the college football world gets to that place, but for the sake of the sport, I hope that they find a way.

 

[MplsGopher]

"I don't understand the ins and outs of antitrust law, but

I don’t need to preface my post with this. Doing so isn’t more proper or better.

why couldn't the Vikings sue the league to try to avoid the salary cap by characterizing a direct payment to one of their players as NIL?" That was really the apparent gist of your hypothetical.

Except, no it wasn’t.

This is a side deal between a wealthy booster of the Vikings and our (hopefully) QB next year, blatantly as an enticement to stay.

Literally exactly as college football is doing now.

Not a direct payment by the team, but just in the form of NIL.

Maybe I F’ed up the hypothetical by doing Wilf. There is no analog in college football to an owner, so I thought I was safe. But say it was Glenn Taylor, doesn’t matter who it is. Some rich asshole who wants Kirk to stay two more years.

none of the provisions you cited above deal with a challenge by the Vikings (who are part of the NFL) against the NFL under a collectively bargained contract with the players.

I see. The section that specifically is about contracts, doesn’t deal with a contract.

The law is interesting!

 

[RememberMurray]

I started the thread because I think this has the potential to be a really big deal.

never know with court cases how they may come out, but the NCAA is getting hit from all sides, and some of the judges hearing cases clearly seem to feel that the NCAA's positions do not stand up under legal scrutiny.

the potential outcome could literally be "no rules." at least no enforceable rules on NIL and transfers.

as crazy as college football is right now, imagine no rules. anybody can do anything with NIL. legal tampering. Michigan can call Darius Taylor and offer him $500,000 or more NIL to transfer.
players can transfer as many times as they want with immediate eligibility.

I see 3 possible outcomes -- either the NCAA comes up with new rules that meet legal scrutiny - Congress passes national NIL legislation - or the NCAA bites the bullet and declares D1 athletes to be employees with colleges setting work rules.

In one corner: powerful, wealthy people who have profited mightily for decades on the blood and sweat of college players who received very little financial reward (by comparison) in return. These folks hate the idea of change, because the status quo was working very, very well for them.

In the other corner: a different set of powerful, wealthy people who want to be able to use their wealth to purchase the services of college athletes (for their own reasons). These folks are slick, and they're good at writing contacts that work very much to their own advantage — especially when the person signing on the line is an inexperienced teenager.

Big Money vs. Big Money. Who will 'win' this cage match?

 

[2nd Degree Gopher]

I don’t need to preface my post with this. Doing so isn’t more proper or better.

You certainly don't need to. Anyone who reads your posts understands that you frequently write confidently about things that you are wrong about. My suggestion was that if you admitted that you were a bit out of your depth at the outset, you might receive more helpful responses. But it appears that you have made your choice.

Except, no it wasn’t.

This is a side deal between a wealthy booster of the Vikings and our (hopefully) QB next year, blatantly as an enticement to stay.

Literally exactly as college football is doing now.

Not a direct payment by the team, but just in the form of NIL.

Maybe I F’ed up the hypothetical by doing Wilf. There is no analog in college football to an owner, so I thought I was safe. But say it was Glenn Taylor, doesn’t matter who it is. Some rich asshole who wants Kirk to stay two more years.

Yep, that's one place that you f'ed up. You proposed that the owner of the Vikings circumvent the salary cap and then claim that the contract that he and his business partners created somehow constituted an antitrust violation. It doesn't.

I see. The section that specifically is about contracts, doesn’t deal with a contract.

The law is interesting!

The law is interesting, you should study it! If you did, you would quickly learn that not every law that contains the word contract is going to be applicable to every contract under the sun. The Sherman Act can certainly be implicated by the terms of some contracts, but it isn't implicated by this contract in the scenario you proposed.

 

[SeaBee_Gopher]

Please remind me never to get into a legal argument with 2nd Degree Gopher because I will lose...

 

[GopherTheJugular]

Rule #1:
You have to catch it.

Rule #2:
Next, you have to kill it.

Rule #3:
Then (and only then) you get to eat.

??? Did "Out State Gopher" hack your account or something?

 

[Ski U Mah Gopher]

Zygi Wilf wants to personally offer Kirk Cousins a $100M NIL deal over the next two years. Has nothing to do with NFL salary or salary cap.

NFL says that’s against the rules

Vikings sue the NFL, say that’s a violation of antitrust laws.


Where did I go wrong????

The difference is that the salary cap is a collectively bargained item. A certain % of the league's revenue goes to the players. There is probably a clause in the CBA that bans personal service contracts (which is what the first paragraph's scenario is) for active players.

 

[short ornery norwegian]

I really don't want to send this thread any more off track, and
I really don't want to get into an argument with MPLS.
But
the NFL is a professional league for professional players, who are employees of their teams and work under collectively-bargained contracts.
the NCAA is (theoretically) an amateur organization for college players, who are students at academic institutions.

these are two very different entities. why would anyone think that the same rules would apply to both entities?

 

[GopherTheJugular]

these are two very different entities. why would anyone think that the same rules would apply to both entities?

I think the issue is that people came to the correct conclusion before MplsGopher was able to chime in with his opinion on it. Therefore, he stakes his heels in and tries to prove everyone wrong.

Rinse and repeat for each thread....

 

[GopherTheJugular]

Please remind me never to get into a legal argument with 2nd Degree Gopher because I will lose...

Good one!

 

[Ope3]

Greed drives the death of college sports. Organs are failing and the damage is not curable.

This news within the past 24 hours appears to contradict that "the death of college sports" is near.

College Football Playoff, ESPN agree to six-year extension worth $1.3 billion per season, per report

The College Football Playoff has locked down media rights through the 2031-32 season

www.cbssports.com

 

[MplsGopher]

There is probably a clause in the CBA that bans personal service contracts (which is what the first paragraph's scenario is) for active players.

Mahomes and Kelce acted in a State Farm commercial.

I had in mind Cousins doing "something" for Wilf's business.

 

[MplsGopher]

you frequently write confidently about things

Huh??? Where in my post did I state "I am very confident about the following:"??

Just seems ... so bizarre, for you to project this onto my post where it doesn't exist an iota. You're not the first poster on here to make this bizarre projection.

I conclude that it must be a weird extension of Minnesota nice. As if, should you not go way out of your way to exclaim that you're not an expert in something you're commenting on .... then automatically you're implying the converse!!

You proposed that the owner of the Vikings circumvent the salary cap and then claim that the contract that he and his business partners created somehow constituted an antitrust violation.

Again, I don't think you're getting it.

Being the owner really shouldn't have anything to do with it, other than it was just a very easy person for me to grab for a hypothetical of: i) very wealthy, and ii) very motivated to see the Vikings do well.

I was saying he either uses his personal wealth, or involved his business, to do the deal with Cousins. Not that he uses the team's money. Not that it was a form of direct payment like a salary.


I would love to know what NFL rules exist that govern endorsements overall. Obviously players do them.

And I'm shocked that, with how painfully obvious it was that college football boosters were going to pervert the NIL framework the moment it was enacted .... that similar kinds of schemes haven't been devised and employed for the NFL.


And now we're seeing how frail and brittle the NCAA is in the face of lawsuits to enforce its own rules, only further encouraging lawsuits. So indeed, maybe its time someone sued the NFL that their own rules violate antitrust law in a similar way.

but it isn't implicated by this contract in the scenario you proposed.

It's hard to know if your words here are still valid, given how badly you've misunderstood my scenario.

But regardless, given how much you've asked me to provide, I don't think I'm out of line asking you to provide more than zero effort in justifying this statement. Links/case citations are fine.

 

[Pompous Elitist]

Alright, coming at this with an open mind can anyone explain - in a logical way - and in language a fifth grader can understand how the NCAA eligibility rules violate the Sherman Act. The athletes are not employees or non-W-2, the NCAA, leagues and schools are not employers. Neither meets the legal tests. Athletes are willing volunteers (and they don’t HAVE to be) in the televised games that just so happen to bring in big money for the networks, receive athletic scholarships subject to many eligibility stipulations, and are free to change schools or enter NIL agreements not tied to pay to play schemes.

This impetus for all of this seems to revolve stem solely from the amount of money taken in by media entities and doled out to schools. Take away that (hypothetically or in the case of non-rev college and high school sports), and does any of this hold water? Does it really make any sense the wrestling team should be considered employees of the school?

 

[MplsGopher]

Alright, coming at this with an open mind can anyone explain - in a logical way - and in language a fifth grader can understand how the NCAA eligibility rules violate the Sherman Act. The athletes are not employees or non-W-2, the NCAA, leagues and schools are not employers. Neither meets the legal tests. Athletes are willing volunteers (and they don’t HAVE to be) in the televised games that just so happen to bring in big money for the networks, receive athletic scholarships subject to many eligibility stipulations, and are free to change schools or enter NIL agreements not tied to pay to play schemes.

Not that I agree with it, but I think the argument they're attempting to make is simple:

by not allowing me to play immediately at the new school, you're restricting me from selling my NIL for the value it would have if I could play immediately.

I don't see how else it works. And I don't really agree that's a valid argument, because I don't agree that you have the right to sell something that you haven't obtained yet, no matter how "obvious" the hypothetical value would be correct.

 

[PMWinSTP]

I believe you hit the nail on the head. Interpretation of the law is in the eye of the beholder. Some latch onto Kavanaugh’s concurring flight of ideas opinion in the Alston decision as solid evidence amateur sports organizations are illegal restraints of trade. However, the main body of that decision and others from a lower court (Judge Wilken) actually specifically upheld amateurism as an ideal way to maintain a level competitive playing field.

Since NIL deals are specifically detached from a pay to play scheme (insert laughter here) it’s hard to argue the anti-tampering, solicitation, inducement rules are a restraint of trade. That doesn’t make sense. They are free to make appearances, ads, social media posts. It only makes sense if the NCAA rules are legally struck down. Are PJs team rules a restraint of trade?

It gets ridiculous pretty fast.

Slippery slope for sure.

 

[short ornery norwegian]

Pompous - to flip the argument to the other side -

the question could be seen as - does the NCAA have the legal right to impose rules and policies on its member institutions and the athletes who compete in NCAA-sanctioned activities? If so, what - if any - limits may be imposed on the NCAA's ability to govern or regulation those activities?

the lawsuits seem to be claiming that the NCAA may not or should not impose any restrictions on NIL - because that is seen as constraining the ability of athletes to market their NIL. likewise with the transfer rules.

if the NCAA has no ability - or only a limited ability - to impose rules and policies, then it becomes even more toothless than it already is.

it feels like one of those old western movies where the bad guys run the Marshall out of town - and the town becomes so lawless that the merchants start pleading for a new Marshall to restore 'law and order.' (for an example, see "Man with the Gun" with Robert Mitchum)

 

[Pompous Elitist]

Not that I agree with it, but I think the argument they're attempting to make is simple:

by not allowing me to play immediately at the new school, you're restricting me from selling my NIL for the value it would have if I could play immediately.

I don't see how else it works. And I don't really agree that's a valid argument, because I don't agree that you have the right to sell something that you haven't obtained yet, no matter how "obvious" the hypothetical value would be correct.

So…under current or past rules NIL deals cannot be tied to a pay to play scheme at a specific school, yet TN is arguing there was harm from lack of NIL by not playing at a specific school.

Not in any way a deflection and diversion related to multiple rules violations and pending consequence.

 

[RememberMurray]

??? Did "Out State Gopher" hack your account or something?

Just me, having a little innocent fun with our free market types.

"The free market is great, unless and until it inconveniences me in some way. At that point someone, somehow, must step up and do something quickly, damnit!"

 

[2nd Degree Gopher]

Huh??? Where in my post did I state "I am very confident about the following:"??

Just seems ... so bizarre, for you to project this onto my post where it doesn't exist an iota. You're not the first poster on here to make this bizarre projection.

I conclude that it must be a weird extension of Minnesota nice. As if, should you not go way out of your way to exclaim that you're not an expert in something you're commenting on .... then automatically you're implying the converse!!

It appears that you post more than 5,000 times a year on this site (and under this moniker). If you feel that multiple posters misunderstand your intent, perhaps you should use some of your apparently endless amount of free time to examine why you are failing to communicate effectively.

Again, I don't think you're getting it.

Being the owner really shouldn't have anything to do with it, other than it was just a very easy person for me to grab for a hypothetical of: i) very wealthy, and ii) very motivated to see the Vikings do well.

I was saying he either uses his personal wealth, or involved his business, to do the deal with Cousins. Not that he uses the team's money. Not that it was a form of direct payment like a salary.

And yet your hypothetical, the one I responded to, specifically posited that it be Wilf, an owner of the Vikings, who should scheme to violate the salary cap and then sue the NFL (and by extension the Vikings) and allege violation of the Antitrust Act. My response was dictated by your hypothetical. If you actually meant to suggest that it be someone other than an owner of the Vikings who took this action, perhaps you should have not used Wilf's name.

I would love to know what NFL rules exist that govern endorsements overall. Obviously players do them.

Another project for you to tackle in your boundless free time!

And I'm shocked that, with how painfully obvious it was that college football boosters were going to pervert the NIL framework the moment it was enacted .... that similar kinds of schemes haven't been devised and employed for the NFL.


And now we're seeing how frail and brittle the NCAA is in the face of lawsuits to enforce its own rules, only further encouraging lawsuits. So indeed, maybe its time someone sued the NFL that their own rules violate antitrust law in a similar way.

OK, we are back to your failure to recognize the difference between one population of organizations and individuals who have a collectively bargained agreement governing their relationships and a separate population without such an agreement. You have been told this several times that this is a significant distinction and don't want to accept it. So be it.

It's hard to know if your words here are still valid, given how badly you've misunderstood my scenario.

But regardless, given how much you've asked me to provide, I don't think I'm out of line asking you to provide more than zero effort in justifying this statement. Links/case citations are fine.

Nice try. My "misunderstanding" was naively thinking that the words you used represented what you meant to say and failing to run them through my English to MplsGopher decoder ring. You haven't answered any of the questions you have been asked with anything beyond "if the NCAA can be sued under an antitrust theory, then surely that must mean that the NFL could be, too." The reason that it doesn't happen is that it's not a legitimate legal theory. Believe it or not.

 

[50PoundHead]

Yes! I am not sure how the college football world gets to that place, but for the sake of the sport, I hope that they find a way.

It maybe wouldn't have made any difference, but when the NCAA was throwing every roadblock in front of NIL and other assistance to players (allowing work or increasing stipends) maybe they should have been a bit more generous with the student/athletes. Everything might have unfolded in the same manner, but the NCAA's attitude was clearly one of "you guys are really lucky so shut up and play while we're raking in millions."

 

[2nd Degree Gopher]

It maybe wouldn't have made any difference, but when the NCAA was throwing every roadblock in front of NIL and other assistance to players (allowing work or increasing stipends) maybe they should have been a bit more generous with the student/athletes. Everything might have unfolded in the same manner, but the NCAA's attitude was clearly one of "you guys are really lucky so shut up and play while we're raking in millions."

Certainly wouldn't have hurt for there to have been some foresight.