The justices took the NCAA system to task, but experts warn of the danger of reading into Tuesday's hearing questions.
INDIANAPOLIS — For decades, the NCAA has served as a punching bag for fans, athletes, coaches and even administrators, blasted for its archaic amateurism policies.
Lately, in light of the debate over athlete compensation, Congressional members have gotten in their blows, striking the NCAA with powerful punches and forcing the organization to metaphorically shield itself in the marbled hallways of Capitol Hill.
On Wednesday morning, the highest court in the land stepped into the ring.
Supreme Court justices, even those normally conservative in nature, struck the governing body of college athletics, raining down criticisms from the most lofty perch in America.
The NCAA has never been so bruised, bloodied and battered.
“The way you talk about amateurism is high-minded,” Justice Elena Kagan told Seth Waxman, an attorney representing the NCAA.
It was one of many blistering remarks that justices delivered to the NCAA side during a virtual, 95-minute hearing—the first case involving the NCAA heard by the Supreme Court in 37 years. The case, Alston v. NCAA, challenges the association’s restrictions on athlete compensation and whether they violate federal antitrust law. Plaintiffs, former players, are arguing that a lower court’s ruling to grant $5,900 in additional educational awards to athletes is fair and right. The NCAA is arguing against such.
The case could produce a landmark decision that not only grants athletes the extra awards but impacts the NCAA’s long-standing amateurism model at a crucial time and in a seminal year of college athletics, when a debate rages in Congress, state legislatures and NCAA headquarters over how to compensate athletes for their name, image and likeness (NIL). A decision from the high court is expected by July 1, when, coincidentally, several state NIL laws could take effect, potentially toppling the NCAA’s governing structure.
A winning decision in the case could bolster the NCAA’s potential court battles over amateurism, chiefly against states to prevent their NIL laws. A loss could devastate the governing body of college sports, forever changing the landscape and redefining amateurism all together.
It all played out a day after the last two teams punched their ticket to the NCAA's primary moneymaker: the men’s Final Four, which is set for Saturday and will be played, coincidentally, one mile northwest of NCAA headquarters.
“What’s happening is that, step by step, this system of exploitation is gradually coming apart," Jeffrey Kessler, the lead attorney for the plaintiffs, told SI in a previous interview.
Waxman and Kessler each received time to argue, virtually, before justices on Wednesday, but the most important revelation to emerge from the hearing came from the judges themselves, each granted a specific amount of time to question both the defendant and plaintiff sides. While their questions were specifically poignant, and sometimes downright harsh toward the NCAA, their inquiries were similar to the plaintiffs, challenging each side to produce a defense of their claims.
So who won on Tuesday? It’s not that easy.
“It’s a complicated antitrust issue in a complicated industry, plus it’s a sports case,” says Gabe Feldman, a sports law professor at Tulane and an expert on these matters. “It’s dangerous to read too much into the questions the justices asked. If one only listens to one side of questions, they’d draw conclusions that that party will lose the case. That’s fairly typical.”
In many respects, the justices hammered the NCAA. They pried into the organization’s amateurism policy, criticizing a model that allows coaches, administrators and executives to make millions while “the workers,” says one justice, go unpaid. Several justices questioned the merits of the NCAA’s grievances, referring to them merely as “complaints” that shouldn’t be before the court in the first place. After all, asked Justice Brett Kavanaugh, what’s an extra $5,800 per athlete when executives make billions from television revenue?
“Schools are conspiring, agreeing with competitors, to pay no salaries to workers,” Kavanaugh said. “It seems somewhat disturbing.”
In one of the most significant and maybe stunning moments, Clarence Thomas, another conservative justice who experts say rarely speaks up during cases, prodded Waxman over million-dollar coaching salaries.
“It strikes me as odd,” he said, “that coaches’ salaries have ballooned and they are in the amateur ranks, as are the players.”
Later on, Thomas showed his affinity for the college game, citing the “transfer portal” during one question.
The justices seemed to agree that the NCAA provided no evidence in its filings to suggest that fans would be less interested in college sports if athletes receive greater benefits, striking at the heart of the organization’s case. And several justices, most notably Kagan, ripped the governing body for leaning on historical rulings and practices to buoy its argument. Things have changed, several justices told Waxman—it’s no longer 1984.
“You can only ride on history for so long,” Kagan said.
For years, the NCAA has contended that it is different from all other entities and should receive special treatment in the way of antitrust law, which is generally intended to promote competition for the benefit of consumers. Opponents contend that the NCAA oversees a group of competitors conspiring with one another to profit from the revenue produced by its unpaid labor. Waxman spent much of his time reemphasizing the argument that the defining feature of college athletics is exactly that—the restriction on athlete compensation.
Kessler called the NCAA’s argument “the latest iteration of a debunked claim that compensation would destroy” college athletics.
While justices were hard on the NCAA, they also expressed concern about the court involving itself in the matters of college sports and even suggested that its ruling could destroy the sport and open the door for future, unending litigation.
The justices seem to be walking a fine line, some of them even playing what appeared to be a devil’s advocate role, making a prognostication on their decision even more difficult.
“Regardless whether you are conservative or liberal, justices are concerned about protecting college sports,” Feldman says.
For those against the NCAA’s amateurism model, Wednesday’s hearing felt like a victory, says Andy Schwarz, an antitrust economist based in California who considers himself in that group.
“Who knew that Clarence Thomas knew about the transfer portal? And who knew Justice (Samuel) Alito knew that the NCAA doctors graduate rates to include fencing in with football?” Schwarz says.
“I’ve got to think people at the NCAA are feeling pretty glum. I don’t know how if you were rooting hard for the NCAA to maintain a price-fixed college football, I cannot imagine you came out of this hearing more optimistic than you went in.”
A ruling could take weeks if not months. Justices must answer a bevy of pressing questions. How should antitrust law apply to college sports? Should the NCAA get special treatment? Is amateurism necessary to differentiate college and pro sports? And is that enough to deprive athletes compensation?
A decision is likely to come in one of four forms: (1) a narrow plaintiff ruling that upholds broader amateurism policies; (2) a more broad plaintiff ruling that destroys the amateurism defense and cracks the door for more legal challenges to the NCAA model; (3) a narrow ruling in favor of the NCAA that strikes down the lower courts’ decision; (4) a more broad NCAA ruling that upholds the amateurism model.
Will amateurism be reaffirmed, strengthened or destroyed? That answer is the bottomline, experts say.
“It’s hard to predict,” says Feldman. “One could make the argument based on the questions asked in favor of either side that you could see a victory for the NCAA or the plaintiffs.
“There were enough questions on both sides to suggest this is a difficult issue for the court,” he continues. “I don’t see this as a slam dunk either way.”