Law & Courts

High School Sports World Watching U.S. Supreme Court Case on NCAA Compensation Rules

By Mark Walsh — March 26, 2021 5 min read
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The U.S. Supreme Court will soon take up a thorny case involving the National Collegiate Athletic Association’s rules governing education-related compensation of student-athletes.

High school sports, the system that feeds the behemoth of intercollegiate athletics, is also paying close attention to the case of NCAA v. Alston (No. 20-512), to be argued March 31.

“Allowing compensation of college athletes threatens to undermine amateurism in high school athletics,” says a friend-of-the-court brief filed by the National Federation of State High School Associations. “The erosion of amateurism at the college level also creates the risk of high school athletics becoming a mere training ground for professional college athletes.”

The case before the justices stems from a class action by college athletes that originally sought to eliminate all limits on their compensation, which would have radically transformed the landscape of college sports.

The suit is part of a broader debate in the last decade over the treatment of student-athletes and whether they should be able to get paid, among other ways, through advertising or sponsorship deals for their own names, images, and likenesses. (That issue remains unresolved and is not before the Supreme Court in this case.)

In the Alston case, two lower courts rejected the suit’s bid for unlimited pay for athletes, but they found the NCAA’s rules restricting education-related aid to student-athletes violated federal antitrust law.

A 2019 injunction in the case by U.S. District Judge Claudia Wilken of Oakland, Calif., upheld by the U.S. Court of Appeals for the 9th Circuit, in San Francisco, authorizes the expansion of education aid to include unlimited payments for post-eligibility internships and annual cash payments of nearly $6,000 above scholarships and other aid that student-athletes many now receive to cover the full “cost of attendance.”

The legal questions in the case revolve around the Sherman Antitrust Act and what level of antitrust scrutiny to apply to analyze whether the NCAA’s rules are a “restraint on trade” in the market for the services of student-athletes. The court has been flooded with the views of antitrust professors, sports economists, higher education associations, professional sports labor groups, and others.

Experts agree that the court’s decision in the case will either lend momentum to the movement for greater rights and better compensation for college athletes, or will strengthen the NCAA’s hand as it seeks to hold back that momentum.

“If the Supreme Court rules in the athletes favor right down the line, that keeps the movement extremely lively,” said Rodney Fort, a professor of sports management at the University of Michigan, who helped organize a friend-of-the-court brief by sports economists in support of the student-athletes.

Matthew Mitten, a law professor at Marquette University and the executive director of the school’s National Sports Law Institute, did not sign on to any briefs but is sympathetic to the NCAA’s views in the case.

“If you have student-athletes getting cash above the cost of attendance and other reasonable costs, then they are getting paid just because they are athletes,” said Mitten. “And that starts to look like pay for play.”

Are college sports prospects ‘commodities’?

A handful of briefs discuss the potential effects of the case on high school sports, in the areas of recruitment of top athletic prospects or the effects on the secondary school athletic system itself.

One group of college professors who study big-time college athletics point out in their brief in support of the student-athletes that high school prospects have long been recruited and offered scholarships based on their athletic performance, not their academic abilities.

“They are effectively commodities—as athletes, not students,” says the brief by Ellen J. Staurowsky of Ithaca College and others. High school basketball and football players, in particular, are ranked by various outlets, and colleges devote “an ever-increasing amount of money to recruitment,” it says.

The professors argue that the injunction offering increased education-related compensation to college athletes “is likely to bolster, rather than harm, their scholastic achievement.”

A brief in support of the NCAA by the American Council on Education and 10 other higher education groups expresses deep concern about the paid internships for college athletes authorized under the injunction.

“Guarantees of large payments and lavish housing associated with internships requiring little work could easily move to the forefront of recruiting pitches to high schoolers and potential transfers,” the ACE brief says. “This is just the sort of disguised, deferred cash signing bonus arrangement the NCAA has understandably sought to preclude.”

The brief in support of the NCAA by the National Federation, which writes rules for and administers high school sports (as well as activities such as speech, debate, and theater) goes the furthest in tying the Supreme Court case to potential effects in precollegiate education.

The federation, which like the NCAA is based in Indianapolis, argues that if the high court rules for the college athletes, “many premier high school student athletes would become motivated less by their love of sports and more by the prospect of being rewarded handsomely to play certain sports in college.”

The federation says the prospect of greater education-related compensation going to college athletes in football and basketball may affect support for non-revenue college sports, and that would have a trickle-down effect on high school and youth sports.

“This threatens to undermine the broad diversity of sports and athletes that has long been a hallmark of our high school education system,” the federation says.

The federation’s concerns belie the fact that it has played at least a part in high school athletics themselves taking on more of a big-time character in recent decades.

In 1989, the federation signed a deal with a fledgling cable sports network called SportsChannel America to air a high school game of the week, mostly football and basketball games. The games attracted a sponsor—Gatorade—and prompted many raised eyebrows about whether high school sports where on a path to some of the abuses of college athletics.

But the SportsChannel deal lasted only two seasons. Today, high school football and basketball games can be found on various ESPN channels in addition to more local and regional telecasts.

The National Federation itself sponsors the NHFS Network, a subscription service that streams thousands of high school sports contests in multiple sports. The service, launched in 2013, appeals to distant relatives of high school athletes, and during the COVID-19 pandemic, has often been one of the few ways parents and other fans were able to watch games that returned without in-person fans.

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