Division I student athletes were on the verge of victory in their Supreme Court battle against the National Collegiate Athletic Association over whether the organization could restrict education-related compensation.
During Wednesday’s 90-minute phone battle, judges were skeptical of the NCAA’s claim that paying students for things like musical instruments and internships would annoy fans drawn to the amateur quality of their competitions.
The case, the most recent legal challenge related to the NCAA’s compensation policy, takes place amid a high-profile and related push by athletes looking to capitalize on their own names, images, and likenesses. The NCAA March Madness basketball tournament will host its championships for women and men on Sunday and Monday.
Both Republican and Democratic judges appeared to be convinced by the arguments made by attorney for the student athletes, Jeffrey Kessler, that the NCAA’s restrictions on education-related payments were against federal antitrust law.
A federal district court lifted these restrictions and the US 9th Court of Appeals upheld the decision. The case was brought up by Shawne Alston, who ran back for the West Virginia Mountaineers, and other student athletes.
“These are competitors that all come together with the overall prices for establishing market power,” Judge Elena Kagan told Seth Waxman, NCAA attorney and former US attorney general.
Elizabeth Prelogar, the acting attorney general, spoke out in favor of the student athletes.
Waxman centered his arguments on the claim that NCAA sports have always been defined by their amateur quality, which meant that student athletes weren’t paid to play. He said that education-related benefits, “regardless of their titles,” are effectively professional salaries.
The last time the Supreme Court issued a statement regarding compensation for amateur athletes, the 1984 NCAA v Board of Regents of the University of Oklahoma found that amateurism precluded payment for athletic performance, Waxman said.
In contrast, Kessler cited Waxman’s arguments “just the latest iteration of the repeatedly debunked claims that compensation will destroy demand for college sports”. Kessler said the definition of amateurism should be narrower: that games are played by students.
Several court conservatives expressed concerns that the NCAA’s arguments were hypocritical or exploitative.
Judge Brett Kavanaugh said his “overriding concern” was that the sports organization was using antitrust protections to exploit students.
Kavanaugh said schools “appeared to be plotting with competitors not to pay wages to workers who make schools billions of dollars because consumers want schools to pay their workers nothing”.
Former President Donald Trump said it was “a bit worrying.”
Kavanaugh added that he believed the Board of Regents case cited by Waxman “really was from another time” and was not convincing.
Judges Samuel Alito, Clarence Thomas, and Amy Coney Barrett also appeared bothered by some of the NCAA’s arguments.
Thomas noted that NCAA coaches, for example, make millions of dollars, one of the main arguments of those who oppose the NCAA’s restrictions on paying players.
“It just seems strange to me that coaches’ salaries have skyrocketed,” he said.
Barrett asked Waxman if it was really his argument that “consumers enjoy watching unpaid people play sports”.
“Yeah, that’s our line,” said Waxman.
While the judges appeared to support the student athletes’ arguments, they were concerned about the prospect of further lawsuits for any limitation on compensation. Some raised concerns that they could turn the character of NCAA sport for the worse.
Chief Justice John Roberts, perhaps the NCAA’s sympathizer, compared the situation to a game by Jenga where each block was one of the restrictions.
“You pull out a log and another and everything is fine,” said Roberts. But he suggested that the competitions wouldn’t really be amateur anymore if the courts overturned enough of the NCAA’s policies.
“All of a sudden it crashes,” said Roberts.
Thomas asked Kessler if he would be on trial again if “a consumer survey showed that tomorrow consumers will think it’s okay for amateur athletes to make $ 20,000 a year.”
Kessler refused. With the same question, Prelogar, the Justice Department attorney, suggested that such a survey could create new legal challenges – and that it wouldn’t be a bad thing.
Prelogar said the NCAA was wrong to suggest that the differentiators analysis of their product should be based on the NCAA’s own beliefs about what constitutes amateur athletes. What mattered, she said, was what consumers thought.
A decision on the case, Shawne Alston v NCAA, No. 20-512, is expected by the end of June.