What would Whizzer White weigh in on National Collegiate Athletic Association v. Alston Et Al.? And what would he think of his former law clerk Neil Gorsuch’s opinion in the lawsuit appeal?
The only two Supreme Court Justices who were born in Colorado figure prominently in history’s two most significant cases, with game-changing ramifications, affecting college sports.
Byron White was the most legendary student-athlete ever from this state, and Gorsuch played baseball and soccer as a kid in Denver. They grew up to serve on the highest court in the land.
In a rare 9-0 shutout by the Supremes announced Monday, college athletes can’t be limited from being recruited with and receiving extra academic-related benefits and incentives including internships, computer equipment, free graduate tuition, education abroad expenses and monetary awards for athletic achievements.
For example, a high school basketball player may consider varied financial inducements from all schools trying to lure him or her.
Already, recently, legislation has passed in multiple states – Colorado among them – giving college athletes the rights to generate revenue, directly or indirectly, from their names, images and likenesses (NIL).
For instance, a football star can make money signing jerseys, selling bobblehead dolls or having his name used in a sports video game.
Consider the opportunity: In the past a wealthy alum of a major university/football school illegally would slip an exceptional running back several hundred dollars or give him a car. Soon the same football fanatic could offer the player a summer job paying $400,000.
The lines between amateurism, which the NCAA has sought to protect and control, and professionalism finally, and correctly, is blurring and ending.
Pay for play is the new reality.
The NCAA is on a path of deconstruction and perhaps obsolescence. The controversial governing body of college sports is on the hottest seat and has asked Congress for official guidance and laws going forward. States and the Supreme Court have intervened.
For decades, the argument has raged. One side believes that college sports must remain pure, and athletes do get a free four- or five-year educations in lieu of compensation.
The other side claims that universities and their presidents, athletic directors and especially football and basketball coaches – who in many states are the highest-paid public employees – derive multiples of millions of dollars while the players work 50 hours a week beyond classes for no imbursement.
However, the word “amateur’’ doesn’t have the same meaning or declaration any more.
And the NCAA, courts rule, doesn’t abide by the nation’s landmark Sherman Antitrust Act.
The Supreme Court not only agreed, but opened the Marble Palace’s doors to a wave of more lawsuits.
The late Whizzer White might wonder.
Born in Ft. Collins and raised in nearby tiny Wellington, White was awarded a scholarship by the University of Colorado in 1934 because he was high school valedictorian. He played for the Buffaloes in football, basketball and baseball and led the football team to an undefeated record before it lost in the Cotton Bowl, and the basketball team to the National Invitation Tournament. As a senior in ’37 he was runner-up for the Heisman Trophy and the fourth pick in the NFL draft.
Byron, who hated the nickname “Whizzer’’ coined by a sports columnist, delayed his Rhodes Scholarship and became NFL rookie of the year and later the league’s highest-paid player.
He would join the U.S. Navy in World War II and went on to graduate from Yale Law School, was employed as an assistant at the Supreme Court, became an attorney in Denver and ultimately was chosen as an Associate Justice by President John Kennedy.
In 1984 the Supreme Court resolved that the NCAA’s national football network television contracts violated the Sherman Act restraint of trade and competition. Justice White dissented and provided the minority position, stating that college athletics historically had established a unique situation, and TV restrictions were lawful and acceptable.
The majority decision altered the landscape of college football television then and now.
In the unanimous verdict by the Supreme Court Monday, Justice Gorsuch, who early on shifted from team sports to hunting and fishing, represented the Justices’ conclusion by writing that the NCAA had sought “immunity from the normal operation of the antitrust laws’’ with rules limiting financial gains for student-athletes, and the court would not grant their continuance.
Judging by the backgrounds and political proclivities of Justices White and Gorsuch, their strong perspectives in these two cases were somewhat curious.
The fellow Coloradans who once worked together had diametrically opposing viewpoints of the NCAA 38 years apart.
Justice was served by both men.