Law & Courts

Supreme Court Sympathetic to College Athletes’ Challenge to NCAA Rules on Education Aid

By Mark Walsh — March 31, 2021 6 min read
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The U.S. Supreme Court on Wednesday appeared inclined to side with a challenge to the National Collegiate Athletic Association’s rules limiting education-related compensation to student-athletes, but the justices also worried about “blowing up” amateurism in college sports and the “endgame” for athlete pay.

“Why does the NCAA get to define what pay is?” Justice Amy Coney Barrett asked in reference to the market for student-athlete labor at the center of NCAA v. Alston (Case No. 20-512).

The case brought under federal antitrust law has broad implications for the recruitment and compensation of college athletes and may, according to some in K-12 education, have trickle-down effects in youth and high school sports.

Seth P. Waxman, representing the NCAA, said the organization’s long-understood concept of amateurism in college sports meant “you are not paid for play, but you may receive the expenses of obtaining an education.”

Justice Elena Kagan said the NCAA’s definition of amateurism sounded “awfully high-minded” but that it appeared the organization “has undisputed market power” that it uses to “fix athletic salaries at extremely low levels, far lower than what the market would set if it were allowed to operate.”

But there was also concern among the justices about upholding the federal district court injunction in the case, which authorizes greater education aid to student-athletes beyond the cost of attendance to include computers, study abroad, post-eligibility internships, and cash payments of as much as $5,980 per year.

“What in your view is the endgame of this litigation [and] of future litigation?” Justice Brett M. Kavanaugh asked. “Is the endgame collective bargaining? Is the endgame legislation?”

Jeffrey L. Kessler, the lawyer representing the student-athletes, said the goal was to apply federal antitrust scrutiny to the NCAA’s rules, as two lower courts did when they invalidated the limits on education-related aid. But he acknowledged that an original goal of the class action was to remove all limits on student-athlete compensation, something the lower courts rejected.

Barrett said there was a “concern about blowing up the NCAA” given that college sports is “something that people have … gotten so much joy out of.”

Kessler said that far from blowing up the current system of college sports, the education-related aid authorized in the injunction will provide “life-changing benefits for these athletes.”

Questions arise on the implications for Title IX

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 say, as unionized employees or through advertising or sponsorship deals for their own names, images, and likenesses. (Although they were mentioned, those particular issues are not before the Supreme Court in this case.)

Among the many friend-of-the-court briefs filed in the case was one from the National Federation of State High School Associations, which said in support of the NCAA that “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.”

High school sports did not directly come up during the 90-minute telephone arguments, though Barrett asked about the effects of the case on Title IX of the Education Amendments of 1972, which bars sex discrimination in federally funded schools and colleges and is the foundation for efforts to achieve gender equity in high school and college sports.

“If we rule against you, what’s the impact of the decision on Title IX in women’s sports?” Barrett asked Waxman, the NCAA’s lawyer.

Waxman, a former U.S. solicitor general under President Bill Clinton, said that Title IX remains an “independent mandate,” but for colleges to comply with the injunction’s expansion of education-related aid, they would “have to come up with the money somewhere.”

The evidence in the case, Waxman added, was that colleges would “reduce the number of ‘non-revenue sports,’ men’s and women’s sports, thus reducing the advantages and offerings available to student-athletes in those other sports.”

Justice Samuel A. Alito Jr. laid out what he said were some of the views of those challenging the NCAA’s definition of amateurism, which was “a pretty stark picture” of “powerhouse football and basketball programs are really exploiting the students that they recruit. They have programs that bring in billions of dollars. … But the athletes themselves have a pretty hard life. They face training requirements that leave little time or energy for study, constant pressure to put sports above study, pressure to drop out of hard majors and hard classes, really shockingly low graduation rates.”

Waxman said that only about 25 colleges nationwide make money on their athletic programs, and that the idea that athletes have low graduation rates was not supported by the evidence in the case, including evidence that NCAA Division I athletes graduate at higher rates than non-athletes.

“Yeah, the athletes on the crew and fencing [teams], but for the powerhouse basketball and football teams, it’s different,” Alito shot back.

“There is a healthy debate going on in legislatures around the country over whether college athletes should, as a matter of principle, be paid,” Waxman said. “Our own view is, if you allow them to be paid, they will be spending even more time on their athletics and devoting even less attention to academics.”

Are concerns about destabilizing college sports overblown?

Kessler, arguing for the student athletes, said that the NCAA had often argued in the past that “economic competition among its member schools would destroy consumer demand for college sports,” only to have certain restrictions invalidated by the courts while consumer demand has continued to flourish.

“This case is more of the same,” Kessler said. “It is just the latest iteration of the repeatedly debunked claims that competition will destroy consumer demand for college sports and that the NCAA should have a judicially created antitrust exemption because of an imaginary revered tradition that they argue for.”

Chief Justice John G. Roberts Jr. appeared most sympathetic to the NCAA’s case. He suggested to Kessler that he worried about courts making incremental changes to the NCAA’s rules.

“It’s like a game of Jenga,” Roberts said. “You’ve got this nice solid block [of rules] that protects the sort of product the schools want to provide, and you pull out one log and then another and everything’s fine, then another and another and all of a sudden the whole thing comes crashing down.”

President Joe Biden’s administration argued in support of the student-athletes, with Acting U.S. Solicitor General Elizabeth B. Prelogar answering the chief justice’s concern by saying applying the appropriate antitrust standards “is not going to lead the courts rushing into trying to dismantle the NCAA’s framework rule by rule.”

The argument had a light moment when Waxman mistakenly began an answer from Justice Clarence Thomas by saying, “Well, Mr. Chief Justice …” Thomas interrupted him to say, “Thank you for the promotion by the way.”

Waxman said, “I’m sorry, but I’m sure you would be terrific at that, Justice Thomas.”

Roberts then interjected to say, “There’s no opening, Mr. Waxman.”

Waxman then did his best to get back on track by saying, “There’s nothing more I can say that will not get me into trouble, so let me answer Justice Thomas’s question.”

A decision in the case is expected by late June.

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