The NCAA went to the Supreme Court in March with high hopes. Arguing before the justices in NCAA v. Alston, college sports’ governing body made the case that it knew what was best for the sports and the athletes who play them—and as a result, the NCAA should get broad deference from the court in setting rules limiting the compensation of those athletes.
“I think the NCAA was hoping that the high court would agree with its public posture that NCAA college athletics are sacrosanct, and they’re inexorably intertwined with higher education and amateur sports,” Michael Burwick, a partner and sports lawyer with the law firm Greenspoon Marder, tells Men’s Journal.
The justices didn’t see it that way. On June 21, the court unanimously ruled against the NCAA, affirming a lower-court ruling that the NCAA’s blanket restrictions on education-related benefits to athletes violate antitrust law. Legally speaking, the NCAA’s view of itself as the arbiter of what should be allowed in college sports is now in tatters—“dead,” as Burwick puts it.
Matt Brown, the publisher of the college sports business newsletter Extra Points, is even blunter about the scale of the NCAA’s defeat.
“They absolutely got their ass kicked,” he says. “It was, I think, the worst possible result for the NCAA.”
The NCAA was looking for an exemption from antitrust laws, which it could have wielded in future lawsuits about player compensation.
The Alston case was, officially speaking, only about one narrow issue of athlete compensation. It dealt with whether the NCAA could impose a national cap on what schools can offer athletes in education-related benefits (like laptops and school supplies). But over the long haul, the ruling is likely to have a much wider impact on how universities treat their athletes.
The plaintiffs in Alston, a group of college athletes past and present, argued that the NCAA’s education-related benefits restrictions violated antitrust law. The NCAA argued at length that they did not, citing the “pro-competitive” benefits of amateurism. Essentially, the NCAA claimed that the well-being of college sports would suffer if the NCAA couldn’t set its own rules––and that people enjoy college sports specifically because the athletes are unpaid amateurs. A district court in California disagreed in 2019, and now the high court has as well.
“Basically, the NCAA’s position has always been, ‘If you don’t allow our restrictions or our system, you will destroy it,’” says Jonathan L. Israel, a sports attorney and partner at the firm Foley & Lardner LLP. “It really has been their main argument for many, many years. And I think the Alston case put that to rest.”
Alston does not end amateurism as we know it, but it opens the door in that direction.
On its own, the ruling won’t fundamentally change college sports. The issue at hand was limited in scope, and the decision for the plaintiffs doesn’t actually require schools to do anything. It simply says the NCAA cannot institute blanket caps on education-related benefits to athletes. Schools can still choose to offer whatever they want. The only difference is that now they’ll risk a recruiting disadvantage if other universities choose to offer more.
The NCAA has long sought an antitrust exemption, first from Congress and then from the Supreme Court. There’s no indication one is forthcoming. The lack of an exemption creates an opening for a future plaintiff to challenge other NCAA restrictions, like the prohibition on athletes getting a cut of the revenue they generate for their schools. (Power conference football teams generate tens of millions of dollars per year in TV money, and the NCAA men’s basketball tournament is a billion-dollar event.) It’s even possible, Israel says, that the ruling filters down to high school athletic associations, giving high schoolers the opportunity to profit off their performance (or at least for some of them to go to court looking for that right). It will certainly weigh on future efforts to control what players can earn in endorsement money.
“The door’s open,” Israel says. “The NCAA’s probably not the only one to find themselves in the crosshairs here. I suspect conferences, high school associations, anyone who’s attempting to control name, image, and likeness in certain ways might look carefully at the Alston case.”
In addition to losing this case by unanimous decision, the NCAA saw its model excoriated in a blistering concurring opinion by Justice Brett Kavanaugh.
“Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate,” he wrote. “The NCAA is not above the law.”
NCAA president Mark Emmert downplayed the significance of that opinion, saying the most notable thing about it was that eight other justices didn’t sign on. But it left an indelible impression that at least one conservative justice does not buy the NCAA’s legal case at all.
“I would view Kavanugh’s concurring opinion less about a condemnation of the NCAA and more about the fact that in his opinion, the NCAA had no leg to stand on in this case,” Burwick says, “and also anything with respect to future cases involving monetary rewards outside of the educational sphere.”
There are many signs the NCAA is in trouble.
State legislators and governors from both political parties have already taken aim at the association. Many have passed laws that force the NCAA to end its policy of banning athletes from collecting endorsement money.
Both Democratic and Republican members of Congress have gotten their shots in, too. Two Democratic senators recently introduced a bill that would grant college athletes unionization rights, something they’ve never had before. And while that bill is unlikely to pass any time soon, its mere existence is evidence of how the NCAA has become a target in professional politics.
So far, the only official action that has forced the NCAA’s hand has been the state laws (in two dozen states) that effectively made the association’s name, image, and likeness rules illegal.
Amateurism is not dead yet. It’s at least conceivable that the NCAA eventually convinces Congress to pass national laws that would favor the current model. That could come in the form of an antitrust exemption or a national NIL bill with more restrictions than many current state laws.
“It’s not impossible that the NCAA eventually wins,” Brown says.
But mix in the NCAA’s failed plea for relief from the Supreme Court, and add the political headwinds confronting the association in Congress and at the state level, and it becomes clear that college sports amateurism is imperiled. Burwick believes it’s “highly likely” that broader structural reform arrives well within the next decade.
“I don’t really wanna give it odds,” he says, “but in terms of direct payment of players, and the outgrowth of that is going to be unionization, I think that has a better than 50/50 chance of passage in the next five years.”
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