The judge’s pause ruling regarding House v. NCAA is misguided. Here’s why.
Judge Claudia Wilken issued an order last week that may undo a $2.8 billion antitrust settlement—one that finally aimed to recognize the economic reality of college athletics. Her concern? Reducing roster sizes might force some athletes off teams. Let me translate: she’s worried about the walk-ons.
And that, frankly, is absurd.
Let’s be clear about who walk-ons are. These are not scrappy underdogs living in their cars and eating peanut butter out of the jar to chase a dream. Walk-ons, by and large, come from wealth. They are overwhelmingly white. They pay their way. They benefit from private coaching, showcase travel, recruiting consultants, and legacy connections. Their presence on rosters is not meritocratic—it is market distortion, disguised as heartwarming nostalgia.
So when Judge Wilken demands that no athlete lose their spot as part of the NCAA’s attempt to share revenue with the people who generate it, finally, what she’s doing is enshrining the privileges of the rich at the expense of the underprivileged. She’s protecting the participation ribbon class. And she’s doing it under the mistaken banner of equality.
The legal error here is profound. In Alston v. NCAA, the Supreme Court ruled that the NCAA’s amateurism model violated antitrust law. But perfect markets do not have ideal employment. A degree of friction—some job loss, some turnover—is a necessary byproduct of a functioning labor economy. You cannot overhaul an exploitative system and act surprised when it causes dislocation. That’s not injustice. That’s economics.
Judge Wilken’s order reflects a fundamental misreading of both law and labor. Her judicial intervention ignores how antitrust works in fundamental markets and how education works in real lives. It is not her job to preserve every status quo, especially not one built on exclusion and inequity.
This is not just about money. This is about access.
Scholarship athletes—many Black, many first-generation, many without a financial safety net—earned their spots. They often came through public school systems without resources, without booster clubs, without seven-on-seven tournaments and private QB whisperers. They were selected through objective, competitive recruitment processes. They didn’t buy their seat at the table—they fought for them.
Walk-ons, by contrast, wrote checks. And in many cases, they displaced more deserving kids because a coach needed to keep a donor happy or fill a locker room with “culture guys.” Their presence on rosters isn’t about excellence. It’s about access—access to wealth, campuses, and privilege.
If you don’t believe me, look at race. While data is complex, I hypothesize that the demographic breakdown of walk-ons versus scholarship athletes would make Harvard’s admissions office blush. This raises a simple constitutional question: if the Supreme Court in Fisher v. Texas and Students for Fair Admissions v. Harvard said that race can’t be used against disadvantaged applicants in education, why is it acceptable to let class and race-neutral caps disproportionately displace the most vulnerable athletes?
Footnote Four of United States v. Carolene Products tells us courts should apply heightened scrutiny when legislation or policy harms “discrete and insular minorities.” Who is more insular than the kid who came from nothing, made it onto a Division I roster, and now may lose their shot because a judge wants to save a place for someone who can already afford to be there?
Whether intentional or not, this order doubles down on a fiction that’s long haunted college athletics: the belief that all athletes are privileged, pampered, and over-entitled. That fiction is a convenient way to dismiss the very real structural barriers these kids face. It makes it easier for the NCAA to extract value while pretending it’s charity. It covers donors, presidents, and media figures who want their alma mater to win without paying the players.
It also reflects the deeper cultural sickness of our time: a pathological unwillingness to define greatness.
We’ve spent a generation handing out trophies to every child who shows up and participates. We’ve trained judges and policymakers to believe that fairness means equality of outcome. But excellence is not evenly distributed. It never was. And in sport, where failure is an integral part of development, the idea that no one should lose a roster spot is not just naïve—it’s dangerous.
We are no closer to understanding what it means to be elite. Nor will we ever be. Why? Because true greatness isn’t testable. It doesn’t appear in combined scores, admissions essays, or a neatly balanced spreadsheet. It emerges in chaos, risk, loss, and moments of transcendence. It’s a gamble. That’s what makes it beautiful. That’s what makes it human.
But Judge Wilken—and far too many like her—don’t trust that. They don’t trust the market. They don’t trust coaches. They don’t trust competition. And so they try to legislate fairness into a realm that only rewards effort, talent, and luck.
For now, we live in a world where FDR was wrong. It *is* the critic who counts. And that critic is an old white lady in a black robe, rewriting not just law but the lived experience of the athletes whose lives are most at stake. She’s ignored *stare decisis*, misunderstood antitrust, and in the process, preserved a system where the rich stay on the team and the poor go home.
That isn’t equity. That’s injustice in a jersey. It’s time to say it plainly: walk-ons must go.
If we’re serious about correcting the NCAA’s exploitation, if we’re serious about equity in college athletics, and if we’re serious about applying the law with integrity, then we have to be willing to let go of the myth that every kid deserves a roster spot because not every kid does. Especially not the ones who have already bought their way in.
