Supreme Court justices on Wednesday seemed highly skeptical of the NCAA’s arguments that it is protecting the integrity of amateur college athletics by opposing greater compensation for athletes, but also leery of “blowing up” the organization’s authority that could bring long-lasting results.
“How do we know that we’re just not destroying the game as it exists?” Justice Sonia Sotomayor asked.
The NCAA is contesting a lower-court ruling that would allow colleges to offer greater academic-related perks to Division I football and men’s and women’s basketball players—benefits such as scholarships for graduate degrees, paid postgraduate internships and computers, musical instruments and other types of equipment related to education.
But in 90 minutes of arguments held via teleconference, justices across the ideological divide grilled the NCAA’s lawyer and repeated criticisms that the organization invokes its defense of amateurism as a way to increase profits while keeping its labor cost low.
“The antitrust laws should not be a cover for exploitation of the student athletes,” Justice Brett M. Kavanaugh said.
Justice Elena Kagan was unimpressed when Washington lawyer Seth P. Waxman recounted the organization was created more than 100 years ago to “restore integrity and the social value of college athletics” against the threat of turning it into another version of professional sports.
“You can only ride on the history, I think, Mr. Waxman, for so long,” Kagan said, adding “I guess it doesn’t move me all that much that there’s a history to this if what is going on now is that competitors, as to labor, are combining to fix prices.”
Lawyers for the players and the Justice Department drew the distinction that the case was about increasing educational benefits, rather than simply compensating athletes for their play.
But that still worried some justices about enhancing the role of the judiciary to decide what protects amateurism and what compromises it.
“It’s like a game of Jenga,” said Chief Justice John G. Roberts Jr. “You’ve got this nice solid block 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.”
Justice Stephen G. Breyer worried about the court interfering with a system that has brought “joy” to millions of people.
“This is not an ordinary product . . . and it’s only partly economic,” Breyer said, adding “So I worry a lot about judges getting into the business of deciding how amateur sports should be run.”
Justice Amy Coney Barrett was the justice who repeated concerns about “blowing up” the NCAA, although she also said she thought the decision seemed limited and deferential to the organization.
NCAA v. Alston is a long-running antitrust lawsuit filed by former West Virginia running back Shawne Alston and former University of California center Justine Hartman, representing a class of former men’s and women’s college athletes.
It’s not directly related to the debate surrounding name, image and likeness (NIL) compensation that’s taking place in Congress and state capitals across the country, nor does it address uncapped payment for athletes’ on-field prowess.
U.S. District Judge Claudia Wilken agreed with the organization about direct compensation. But she said enhanced education benefits were fair game, even though the NCAA said it would set up a bidding war between universities and athletic conference for top athletes.
Waxman told the Supreme Court that the decision, upheld by the U.S. Court of Appeals for the 9th Circuit, approves “a regime that permits athletes to be paid thousands of dollars each year just for playing on a team and unlimited cash for post-eligibility internships.”
But Jeffrey L. Kessler, a New York attorney representing the players, said courts have recognized the NCAA’s unique role, and simply ruled against them on the facts.
The case, he said, 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.”
Elizabeth B. Prolager, making her first appearance at the court as President Joe Biden’s acting solicitor general, said the lower court decision was carefully crafted to allow only payments related to education.
“Where the NCAA goes wrong is in suggesting that the analysis should be based on its own perspective of what it thinks supports amateurism, because amateurism is not its own free-floating ideal under the antitrust laws,” she said.
The argument comes during the annual men’s basketball tournament, which is the NCAA’s biggest moneymaker, generating more than $800 million. And it comes before a court filled with sports enthusiasts.
Justice Clarence Thomas name-checked the University of Nebraska, of which he and his wife are fans. Kavanaugh regularly takes his daughters to the women’s Final Four, and Kagan is often in the stands when her Princeton Tigers play a Washington area college. Barrett, a former student and professor at Notre Dame Law School, is known to be a Golden Dome tailgater.
The tough questions from the justices did not conform to the usual ideological patterns.
Conservative Justice Samuel A. Alito Jr., a fanatical Philadelphia Phillies fan, sounded more like a union organizer as he questioned Waxman about what he said were critiques of the current system in the amicus briefs filed in the case.
Among them: that athletes are discouraged from taking tough majors, that their schools and coaches makes fortunes while they are unpaid, that graduation rates are low and that few go on to reap the financial benefits of a professional career.
“So the argument is they are recruited, they’re used up, and then they’re cast aside without even a college degree,” Alito said. “So they say, how can this be defended in the name of amateurism?”
But Alito’s fellow conservative Thomas said he feared that disposing of limits on education benefits would only make the imbalance between powerhouse programs—he mentioned Alabama, Ohio State and, of course, Nebraska—and those with less means, allowing the big schools to “cherry-pick.”
And he said he was “perplexed as to how the NCAA would be able to preserve what it thinks is an important distinction between student-athletes and professional athletes without constantly being involved in litigation.”
Sotomayor, a liberal, sounded a similar theme, wondering if “extravagant” benefits will lead spectators to no longer be able to tell the difference between college and professional sports.
Her usual compatriot Kagan, however, seemed to dismiss what she termed “awfully high-minded” rhetoric from the NCAA about amateurism and focused on the organization’s monopoly status.
“There’s another way to think about what’s going on here,” she said, and it is that schools have “undisputed market power, and they use that power to fix athletic salaries at extremely low levels, far lower than what the market would set if it were allowed to operate,” she said.
A decision is likely to come toward the end of the court’s term in June.