By Amy Howe
on March 31, 2021
at 5:33 pm
With just a few days left before college basketball begins its “Final Four” to crown the men’s and women’s champions, attention at the Supreme Court on Wednesday turned to college sport. The limelight has often been harsh, with several judges openly criticizing the state of elite college sports – and, more broadly, the National Collegiate Athletic Association’s efforts to defend compensation restrictions on college athletes on the grounds that they preserve amateurism. At the same time, the judges expressed concern that a decision in favor of college football and basketball players, which would challenge the NCAA’s eligibility criteria, could ultimately destroy college sport as a whole.
The case in court was filed as a class action lawsuit against the NCAA and the major sports conferences in 2014 on the grounds that the NCAA’s eligibility and compensation restrictions violated federal antitrust law by prohibiting athletes from getting fair market compensation for to get their job. A California federal district court ruled that the NCAA could restrict non-education-related benefits (such as cash salaries), but prohibited the NCAA from restricting educational-related benefits (such as free laptops or paid post-graduate internships). The US Court of Appeals for the 9th Circuit upheld this decision and paved the way for the Supreme Court review of the NCAA v Alston case.
Attorney Seth Waxman represented the NCAA. He told judges that the “special character” of college sport for over 100 years has been that it has been played by students who are amateurs, which means that “they are not paid to play”. Since this distinction between college and professional sports promotes competition, rules like the one at the center of this case, which are “appropriately designed to preserve amateurism as defined by the NCAA,” Waxman continued.
Waxman’s focus on amateurism drew a barrage of questions from the judges. Chief Justice John Roberts asked Waxman about a current scheme that would allow colleges and universities to pay up to $ 50,000 to get a $ 10 million insurance policy to protect college athletes’ future earnings, in the event they get hurt before they can become professionals. That, Roberts told Waxman, sounds like “Pay for Play”; The school buys the policy for college athletes so they can stay in school rather than turn pro.
Justice Clarence Thomas, an avid fan of the University of Nebraska soccer team, said it was “strange” that coach salaries had “skyrocketed” despite the NCAA’s focus on amateurism in college sports. (A report by a “friend of the court” on the case found that college football or basketball coaches were the highest-paid government employees in 39 states in 2017, of whom 34 made more than $ 2 million.)
Justice Samuel Alito suggested that the circumstances of athletics at the big universities paint “a pretty stark picture” where powerhouse programs make billions of dollars and coaches pay huge salaries, but the athletes themselves train long hours at a significant cost their studies, resulting in “shockingly low” graduation rates. Alito concluded that the athletes “are recruited, used up and then thrown aside”.
Waxman pushed back, reminding Alito that there is a “healthy debate” in legislatures across the country about whether college athletes should be paid. But if they get paid, he warned, they will have to spend more time exercising than less.
Justice Elena Kagan came to the subject from a slightly different angle. Waxman’s speech on amateurism was “terribly haughty,” she warned. But this case boils down to the fact that schools, which are inherently competitors, have all come together and used their power to set salaries for college athletes at extremely low levels.
When Waxman replied that amateur college sports are not “a differentiated product that was just created” but “were created 116 years ago … to restore the integrity and social worth of college athletes,” Kagan was unmoved. “You can only ride history that long,” she replied. A lot has changed in college sports, Kagan said, even since the 1984 Supreme Court ruling in the University of Oklahoma NCAA v Board of Regents case, which the NCAA relied on for suggesting that rules should safeguard amateurism in college sports a more differentiated verification standard apply.
But it could have been Judge Brett Kavanaugh who coached his daughter’s basketball team and tried it unsuccessfully there as a student for the Yale basketball team, whose questions and comments were most hostile to the NCAA. Kavanaugh told Waxman that he was starting from the premise that US antitrust laws “should not cover the exploitation of student-athletes.” Kavanaugh then summarized the case as one in which the schools conspired with their competitors “not to pay wages to the workers who make the schools billions of dollars because consumers want the schools nothing to their workers.” numbers”. Such a scenario, concluded Kavanaugh, “seems completely circular and even somewhat unsettling.”
Representing the college athletes, attorney Jeffrey Kessler told the judges that the NCAA had repeatedly attempted to stave off antitrust challenges by predicting that “economic competition between its member schools would destroy consumer demand for college sports.” But every time the courts put down contested restrictions, Kessler declared, “The courts were correct” and “[d]The demand for university sports continues to flourish. “
Despite Kessler’s assurances, both he and acting US Attorney General Elizabeth Prelogar, who argued on behalf of the Justice Department as a “friend of the court” and supported the athletes, were faced with a series of questions related to two subjects that related to one Related topic: What impact would a decision in favor of athletes have on university sports and the role of the judiciary in them? The first category of questions centered on the District Court’s decision that schools can provide up to $ 5,980 per year to a college athlete as a benefit for just being on a college team. Thomas asked Kessler about a scenario where a survey found that consumers would not object to athletes receiving up to $ 20,000 a year. What happens then? Asked Thomas? Will we be in court again?
Kessler responded that the $ 5,980 limit was the same that the NCAA placed on payments from schools to college athletes to recognize their play on the field, stressing that the NCAA “did no harm to their product seen “because she allowed such awards.
Thomas suggested that such awards could create an imbalance, as “upper-level schools” like Alabama and Nebraska pay such benefits and draw highly skilled players away from schools with fewer resources.
Kessler countered that an imbalance already existed and reminded the judges that the district court’s decision did not oblige schools to pay benefits; The decision “simply said the NCAA can’t ban it, but the conferences can.” In fact, he noted, some sports conferences – like the Patriot League, which includes the College of the Holy Cross, which Thomas graduated from in 1971 – do not allow athletic scholarships.
Kagan wondered aloud whether the $ 5,980 limit wasn’t an arbitrary award that the court should “react badly” to. But, as Kessler repeated, Prelogar, “The key here is to realize that this only qualifies the students for awards up to this amount.” Nothing in the district court’s decision, stressed Prelogar, suggests that every student will automatically receive that money just to play on a team. Prelogar made her debut as acting attorney general to President Joe Biden, despite having previously fought seven times as a lawyer in the SG’s office.
Kavanaugh asked Prelogar to respond to Waxman’s claim that if the district court ruling persists, the definition of “educational benefit” would “stretch” and “very quickly” become “just an automatic payment” to college athletes.
Prelogar defied this allegation, telling Kavanaugh that the appeals court was examining this argument and clarifying that the district court’s order could not be precisely interpreted to allow bogus payments. “The district court here,” Prelogar told Kavanaugh, “was clearly aimed at legitimate educational achievement,” so a situation like the one the NCAA warned about on their behalf – a $ 500,000 internship at a sneaker company – this wouldn’t do qualify. And if there is any confusion, Prelogar added, the district court specifically said the NCAA can define what qualifies as an educational benefit.
Judge Stephen Breyer told Kessler that this was a “tough case” for him, partly because he was “very concerned about judges getting involved in deciding how amateur sports should be practiced”. And depending on how the court decides, this could also affect other areas of antitrust law, Breyer noted. Roberts reiterated this point in a question to Prelogar, suggesting that although the athletes and the DOJ describe the district court’s decision as “modest”, “there will be a multitude of rules that may be challenged in later cases”.
Prelogar tried to reassure the judges, telling them that “the legal standards protect themselves from micromanagement,” but Waxman returned on the issue during his rebuttal. “Once the courts start drawing their own boundaries,” he argued, “ongoing litigation and judicial oversight are inevitable.” However, it was not clear whether those concerns would be enough to overcome the judges’ clearly substantial concerns about the restrictions the NCAA attempted to defend on Wednesday. A decision is expected by the summer.
This post was originally published on Howe on the Court.