The longer I think about Kavanaugh's concurrence, the more I disagree with it. Why? Because Kavanaugh says the NCAA had a monopoly over "intercollegiate amateur athletics" (which both Kavanaugh and the NCAA explicitly never even tries to define) ... and then Kavanaugh says it isn't really "amateur," but instead professional athletics (because the players have always been paid in scholarships, room, books, etc). He then says that prohibiting paying players (banning NIL) can still happen, it just can't happen at the NCAA level and, instead, must occur at the conference or individual school level (because then it isn't a monopolistic practice and it isn't an anti-trust violation).
But if everyone (including Kavanaugh) agrees that it has always been professional sports (since the first scholarship was granted to a player), then the NCAA is not acting as a monopoly; it doesn't have a share of the marketplace that is too large and too anti-competitive. If a player doesn't want to play "professionally" at an NCAA school, it can play professionally in the NBA, or the G-League, or overseas. Hell, Baker's argument for the last three years has been that if NIL wasn't granted, players would drop out of school and play professionally overseas. Guess what? That's capitalism. That's a marketplace without a monopoly. The Alston majority (and particularly Kavanaugh's concurrence) falls apart completely if you acknowledge NCAA football and mens basketball are professional sports.
Your post is not (in totality) what Kavanaugh wrote nor at the heart of his concurrence. What Kavanaugh wrote was that the NCAA does not have an anti-trust exemption (like the NFL, NBA, MLB, etc); therefore, restrictions on college athletes' compensation violates US anti-trust law. And as you can see below the NCAA agrees with that assertion. From the Concurring Opinion:
"The NCAA acknowledges that it controls the market for college athletes. The NCAA concedes that its compensation rules set the price of student athlete labor at a below-market rate. And the NCAA recognizes that student athletes currently have no meaningful ability to negotiate with the NCAA over the compensation rules."
Kavanaugh goes on to write:
"The NCAA nonetheless asserts that its compensation rules are procompetitive because those rules help define the product of college sports. Specifically, the NCAA says that colleges may decline to pay student athletes because the defining feature of college sports, according to the NCAA, is that the student athletes are not paid."
Kavanuagh also states that SCOTUS ruling can only be applied to the case before the Court, but he clearly believes the case has not gone far enough (bold added for emphasis):
"Everyone agrees that the NCAA can require student athletes to be enrolled students in good standing. But the NCAA’s business model of using unpaid student athletes to generate billions of dollars in revenue for the colleges raises serious questions under the antitrust laws. In particular,
it is highly questionable whether the NCAA and its member colleges can justify not paying student athletes a fair share of the revenues on the circular theory that the defining characteristic of college sports is that the colleges do not pay student athletes. And if that asserted justification is unavailing, it is not clear how the NCAA can legally defend its remaining compensation rules."
So, the NCAA argument is college athletics is defined by the fact that athletes are not compensated even though they are clearly worth more than tuition, room, board and books.. It's a laughable position and the reason the NCAA lost 9-0 at SCOTUS.
https://www.supremecourt.gov/opinions/20pdf/20-512_gfbh.pdf
