March Madness Is Back. And It’s Going To The Supreme Court Too

On Thursday, the 2021 NCAA men’s basketball tournament tips off in Bloomington, Ind. After COVID-19 felled last year’s March Madness, this year’s event will unfold entirely in the state of Indiana, amidst a pandemic that has killed more than 535,000 Americans. Many college teams have struggled to contain the coronavirus all season. Duke pulled out of the ACC tournament last week and ended its season after a member of the program tested positive for the coronavirus. Iona College, a 15th-seed, took a 51-day pause due to COVID; Houston coach Kelvin Sampson said in December each member of his team had contracted COVID-19 since testing began last summer.

Amidst the pandemic, college sports commercialism and economic injustice, loom large. Players will continue to suit up in service of an event that is worth north of $800 million, annually, to the National Collegiate Athletic Association (NCAA). Despite the lucrative nature of the tournament—which features millionaire coaches screaming on the sidelines—and the health risk borne by the players who fuel the event, the athletes who hit the bracket-busting buzzer beaters still won’t see their commiserate share of March Madness’ riches. Last week, Michigan State University even announced that its men’s basketball team, which faces UCLA on Thursday, would now be known throughout its home arena as “MSU Spartans Presented by Rocket Mortgage,” but NCAA rules disallow players from directly profiting off the new advertising deal.

If there was ever an ideal time for player advocates to make a high-profile argument, say, in the highest court in the land, to reform the business model of college sports once and for all, you can’t do much better than right now.

Read More: It’s Time To Pay College Athletes

As it turns out, on March 31 the Supreme Court will indeed hear oral arguments in what is sure to be a landmark case, NCAA v Alston, in which a district court ruled, and an appellate court upheld, that the NCAA cannot limit education-related benefits for college athletes. The NCAA and 11 of its top conferences, worried that the ruling was a slippery slope toward a true open labor market for players, appealed the case to the Supreme Court, which will make its first antitrust ruling on college sports in 37 years.

The movement to fairly pay players, which began in earnest decades ago as a talking point in academic and media circles, has gained popular support. A 2019 Seton Hall Sports Poll found that 60% of Americans believed that college athletes should be allowed to profit “image and likeness” endorsement money; in a 2017 poll, 60% said that scholarships were sufficient compensation for college athletes without their receiving pay above that. The issue is now reaching state legislatures, who have passed laws allowing athletes to profit off their name, image, and likeness; Congress, where several college sports bills, including a College Athlete Bill of Rights that would require revenue-generating sports to share 50% of their profit with the athletes from that sport after accounting for the cost of scholarships, have been introduced; and now, the Supreme Court. Last week, the Department of Justice filed an amicus brief on a behalf of the players. “With so many external pressures on the NCAA, it seems inevitable that we will have the most meaningful change in college sports in many of our lifetimes,” says Gabe Feldman, director of the Tulane Sports Law program.

Calls for change

The pandemic would seem to have eliminated all pretense about amateurism, which holds that college athletes can’t receive lucrative cash compensation, based on their athletic talents, above the value of their scholarship and a cost of attendance stipend. Schools faced enormous pressure to take public health risks in order to provide entertainment content for media networks—and generate athletic department revenues. “One thing that COVID did kind of expose to the world, that we have already known in the world of college sports, is that collegiate sports is not a bunch of competitions for fun,” Oregon State defensive back Jaydon Grant tells TIME. “It’s a for-profit business for many institutions across the entire country.”

And it’s not lost on Grant, and many careful observers of college sports, that the football and basketball players playing in the high-revenue sports, exposing themselves to COVID-19, and still being denied fair pay, are overwhelmingly Black. “It is an undeniable fact that this multi-billion-dollar business has been built and is maintained by Black labor,” wrote a group of African American antitrust lawyers in a March 10 amicus brief filed on behalf of college athletes in the Supreme Court case. The NCAA’s restrictive compensation rules, the lawyers write, “thus rob hundreds of millions of dollars from the Black community each year.”

The NCAA’s legal argument for amateurism largely relies on the notion compensation for college athletes will turn off fans, and thus harm the business of college sports. “It is easier to buy into a legal fiction when the people who are losing are African-American,” Patrick Bradford, one of the lawyers named in the brief. “In this country, aren’t we sort of used to that?”

In another brief, a group of sports economists argue that this defense is economic fiction too. “Compensation of athletes has been going up consistently all over the world in all sorts of different sports,” says David Berri, an economist at Southern Utah State University. “And at no point did anyone ever get mad about that. Nobody cares. And the idea that somehow college is unique and that fans would care, that’s ridiculous.”

In its own Supreme Court brief, the NCAA argues that in order to preserve amateurism, “the NCAA and its member colleges and university must agree on a board of eligibility rules limiting athletics-based compensation for student-athletes.” The NCAA cites the last Supreme Court antirust ruling on college sports, the 1984 NCAA v Board of Regents of University of Oklahoma case, which said that conferences could negotiate their own television rights deals, but that the NCAA “needs ample latitude” to set policies like pay restrictions to play its “critical role in the maintenance of a revered tradition of amateurism in college sports.” Wrote Justice John Paul Stevens in the majority opinion: “In order to preserve the character and quality of the ‘product,’ athletes must not be paid.”

The most telling brief in the case, however, may have been filed by six former NCAA executives now eschewing a principle they were once paid to uphold. One of these former senior NCAA leaders, executive vice president Mark Lewis, testified in 2014 for the NCAA at another class action trial. Amateurism, Lewis said then, “at its heart, it is what college sports is.”

His perspective, however, has evolved. Lewis remembers meeting, along with NCAA President Mark Emmert, two football players during a trip to the University of Georgia; one couldn’t afford a brake job on his car, another struggled to buy food for his daughter. According to Lewis and the former NCAA executives, the organization has shifted its focus from incorporating sports into the educational experience to more commercial endeavor. “The number one objective has been to generate money,” Lewis tells TIME. “If that’s changed, the fairness of how you treat a college student-athlete has to change with it.”