At stake is nothing less than college amateurism as we know it. That’s a logical conclusion when the U.S. Supreme Court hears the NCAA’s appeal in the landmark NCAA v. Alston case.
Late last year, the Supreme Court agreed to hear arguments in the suit, which contends that the NCAA is illegally capping education-based benefits. The Ninth Circuit Court in Northern California decided those benefits should be uncapped. The NCAA lost an appeal at the state level and is now contesting the case at the nation’s highest court.
You can understand the NCAA’s concern. If uncapped benefits are allowed, Alabama could conceivably purchase a new cars for their top players if they live on campus as transportation would be deemed essential for them to get to class. The NCAA contends the benefits wouldn’t stop there when it comes to recruiting or playing inducements.
The plaintiffs — a class of athletes led by Shawne Alston, a former West Virginia running back — say limiting such benefits violates federal antitrust laws. They claim the NCAA is engaging in monopolistic behavior.
If anything, the case has become even more significant since the Supreme Court agreed to hear it as this ruling will come down in the same offseason when federal name, image and likeness legislation is likely to be discussed at length if not passed. If the NCAA wins the appeal, it makes possible the association could slow-play NIL. At least it could be more free to implement NIL rights that are more restrictive than have been proposed by several proposed state and federal bills.
In a series of amicus (friends of the court) briefs, the Supreme Court has basically been warned by supporters of the plaintiffs not to meddle with 120-year old antitrust law. One of those amicus briefs came from the Department of Justice. Meanwhile, the NCAA is arguing that Ninth District Circuit Court judge Claudia Wilken has misapplied law.
Congress could still trump an NCAA-friendly by the Supreme Court by developing its own NIL legislation.
“The NCAA is willing to fight to the death to protect its amateurism standard,” Pepperdine sports law professor Alicia Jessop said this week.
If the Supreme Court rules in the NCAA’s favor, it could trigger an all-out “war” between the two sides, Jessop said. A Democrat-controlled Congress could react with NIL legislation that would be more expansive than anything the NCAA is considering.
“If the NCAA wins this case, you are going to see them push a full break on their advancement of NIL,” Jessop added, “because they would have the highest court in the land protecting their amateurism bylaw from antitrust scrutiny. It’s a green flag to keep doing what they’re doing.”
Regardless, this may be the NCAA’s last stand at maintaining its version of amateurism and remaining college sports’ Big Brother.
After speaking to several legal experts, CBS Sports has outlined what you need to know stemming from those separate briefs filed by the NCAA and the 11 FBS conferences, which total nearly 130 pages.
The NCAA has a shot at prevailing
The Supreme Court hears about 2% of the cases brought to it. Clearly, it sees something interesting in Alston after not having heard an NCAA case in 36 years. That was the epic NCAA vs. Oklahoma Board of Regents case that concluded schools controlled — and could profit from — their television rights.
That decision basically produced the big money that made college athletics look more like a Fortune 500 business than an athletic activity. That money glut has caused a decades-long fight over who should have access to the profits. The NCAA has lost significant ground in the NIL struggle for player compensation since Ed O’Bannon filed suit in 2009. Meanwhile, players have slowly gained financial traction and empowerment.
In a strange twist, the NCAA continues to make its argument from a case it lost. Language in Board of Education says the NCAA’s “standards of amateurism” differentiates it from professional sports. A favorable ruling from the Supreme Court would grab back some of the NCAA’s lost turf.
Following years or wrangling — and five months after the Supreme Court took the case — each side will have 20 minutes to argue its side. There is no messing around, no time for filibustering. A 100-yard dash to finish a landmark case.
Campus stakeholders are being told a decision could come as late as June.
Why the Supreme Court took the case
The NCAA sees a chance to put a stake in the ground at least slowing the flow of lawsuits against its amateurism model that have drained time and resources. The composition of the current Supreme Court (conservative-leaning) makes it more likely the NCAA will retain its amateurism model, and thus, power.
It’s that important of a case. USA Today estimated that $250 million in legal fees has been spent over the last 12 years to get to this point.
In their briefs, the NCAA pile on Wilken and what is perceived as a liberal Ninth Circuit Court in front of a conservative — thus pro-business — Supreme Court. Wilken is a 71-year-old Stanford-educated judge who was appointed by the Clinton administration. She has been a U.S. District Court judge since 1993. In 2014, Wilken ruled athletes could earn money from their name, image and likeness. The NCAA brief calls her NCAA rulings “judicial micromanagement” that have resulted in what the association contends is Wilken becoming a de facto czar of college sports.
“The result is effectively to install a single judge in California [Wilken] as the superintendent of a significant component of college sports that lawyers representing essentially the same class can achieve [success] through repeated litigation,” the NCAA brief stated.
It should be obvious why most of these major suits against the NCAA lately have been filed in the Ninth Circuit. Wilken has produced favorable rulings for the plaintiffs. The Supreme Court could reign her in.
“The odds may even be in [the NCAA’s] favor to get a favorable decision that protects their business model for the foreseeable future,” said one attorney familiar with the case who did not want to be identified.
It can be argued the Supreme Court picked up the scent on this when it noticed multiple lawsuits against the NCAA in the last 12 years attempting to change the way the association does business by enforcing the amateur model. If the NCAA wins this, it will at least put second thoughts into the minds of those who would sue on this issue in the future.
“Conservatives do not like expansion of labor rights,” said Ricky Volante, a Cleveland-based attorney familiar with NCAA litigation.
There’s agreement at the top
In reading the briefs from the NCAA and the conference, the parties have filed almost the same arguments. That alignment is key during a time when there is much speculation about the Power Five breaking away from the NCAA. The two sides filed different appeals to the Supreme Court, but they are united in this crusade. In their briefs, the two parties agree the Ninth Circuit overstep “distorts federal antitrust law and … wrongly redefines amateurism and the NCAA’s supervision of college athletics.”
The NCAA took its shot attempting to capitalize not only on legal reason but on the conservative Supreme Court leaning toward reaffirming the current collegiate model. “The NCAA and [Power Five] conferences were in disparate positions in filing their petitions. They seem to be completely aligned on their views on why the Supreme Court should reverse this case,” said one legal source involved in the process.
The money question
The parties aren’t arguing whether players should be paid. They can and have been paid. Cost of attendance benefits, which began in 2015, give athletes cash to get them closer to the “true cost of attendance” that includes incidental living expenses. That money goes only to athletes. Among other examples, football players are paid for playing football when they accept NCAA-approved bowl gifts at the bowl sites.
Instead, the parties are arguing whether athletes can be paid unlimited amounts. So the argument once again comes down to not whether players are paid but how much money they are paid.
On a parallel course, the NCAA is seeking what it calls “guardrails” in being able to oversee and limit name, image and likeness compensation. All of it becomes a circular argument considering the NCAA got itself in this legal predicament years ago because it didn’t allow financial freedoms to athletes available to every student on campus.
The NCAA must be careful
The NCAA bases a large part of its argument on Wilken overreaching in Alston. It cannot be too critical in the Supreme Court because it will most likely up in front of Wilken again in House vs. NCAA.
Grant House was an Arizona State swimmer who alleged the NCAA had unlawful name, image and likeness limitations. That gets us to July 1, the next signpost on the player compensation trail. That’s the date the Florida name, image and likeness law takes effect. It also leaves a month before the NCAA’s proposed legislation would go into effect.
In the interim, there would be chaos. The Florida law is much more expansive than anything proposed by the NCAA. The NCAA is hoping for “preemption” — intervention by the federal government over state laws.
Without federal intervention, “I think you’ll see the NCAA sue the state of Florida,” one Power Five administrator said. “You’re putting the schools in a situation where they can’t comply with the NCAA rules without breaking a state law. They can’t comply with a state law without breaking NCAA rules.”
Will Big Brother survive?
Portions of this story were previously published on March 3.