Meet the Lawyer Out to Destroy the College Sports ‘Cartel’

The New York Times recently published a

fascinating story and
Q and A with Jeffrey Kessler, a lawyer on a quest to bring down
the NCAA’s restrictions on paying players. The lawsuit centers
squarely on how such restrictions hurt players who never see a dime
of the money they earn for their schools. Kessler believes
conditions are right to abolish the faux-amateurism of college
sports once and for all:

[Kessler:] “Our case is directed specifically at the core
restrictions that prevent schools from deciding for themselves how
they want to treat their players. What we are seeking to do is
remove the shackles so that the schools can decide themselves what
is the fair and appropriate way to take care to their players.

If you have a school like Texas that earns close to $200 million
for their football or basketball programs, you might decide it is
fair to give some of that to the players who are generating the
money once you are no longer stopped from doing so.”

Kessler uses direct—some would say libertarian—language in his
attacks on the NCAA. He considers the organization to be a criminal
“cartel” that prevents schools from giving players market-based
compensation:

[NYT:] In a recent decision in the O’Bannon case, the
judge ruled that schools should make scholarships cover the full
cost of attending, but also set up trust funds for athletes that
are potentially limited to $5,000 a year. Is that a good enough
result?

[Kessler:] The market should decide what’s
the result. If a school wants to offer $5,000 a year to their
players, they can do that. And if another school wants to offer a
different number, they can do that. Someone might say, “Let’s put
it in a trust fund.” Someone else might say, “I’m going to pay
through increased health benefits or insurance.” Someone else might
say, “I’m going to give you enhanced scholarships.” That’s what
markets decide.

Q. In your scenario, couldn’t we see schools engaging in
bidding wars for teenagers?

A. The players won’t get one dollar more than
the markets decide they are worth. Schools will make different
decisions. Some schools will not want to do this at all.

The Ivy League doesn’t offer athletic scholarships — that’s not
going to change. The idea here is, let schools decide, let’s not
have a cartel decide. That’s what’s illegal.

The complicating factor is that colleges exist in a world filled
with other market distortions that would frustrate any
great sports liberation. Most obviously: State universities get
some of their funding by coercing taxpayers, and even though their
athletic departments are often separate financial entities, that
boundary is sometimes blurred.

The best way to undue all this market confusion is to privatize
the universities entirely, of course.

But it’s an interesting lawsuit, nonetheless.