Amid the continuing fallout from new NIL laws and the Supreme Court’s NCAA v. Alston decision, two significant and interrelated college-sports legal developments occurred last week.
In a forum with reporters, NCAA president Mark Emmert urged reforms that would supply conferences and colleges with more autonomy over amateurism. CNN, meanwhile, published an interview with U.S. Supreme Court Justice Stephen Breyer, in which the 82-year-old former Harvard Law School professor—who appears relatively supportive of amateurism—revealed he hasn’t decided if and when he might retire.
Emmert’s comments reflect a new and diminished legal reality for the NCAA. Until the Supreme Court’s ruling last month in NCAA v. Alston, the NCAA had claimed preferential treatment under federal antitrust law for rules restricting athlete pay. Antitrust law prevents competing businesses from colluding in ways that are anti-competitive. When competing businesses such as schools and conferences use NCAA rulemaking to restrict athlete pay, they potentially run afoul of antitrust law.
The NCAA has consistently invoked the U.S. Supreme Court’s 1984 ruling in NCAA v. Board of Regents, wherein Justice John Paul Stevens opined the NCAA holds “ample latitude” in setting rules related to college athletes. In the wake of the Alston ruling, which prevents the NCAA from enacting rules that cap education-related benefits, Board of Regents no longer insulates college sports’ governing body. In fact, the Alston ruling all but invites other antitrust challenges.
Only amplifying the NCAA’s legal woes is Congress’ failure to pass a federal name, image and likeness law that would create a national NIL standard. The NCAA has pushed for such legislation, which would likely include legal safeguards for the NCAA and its members. However, individual states haven’t waited. A dozen state NIL statutes or NIL executive orders have gone into effect. These laws are not uniform, sparking confusion among administrators and unintentionally spawning a decentralized system for NIL. This model has been made only more individualized by the NCAA letting schools in states without NIL laws develop their own systems.
“When you have an environment like that,” Emmert said, according to the Associated Press, “it just forces us to think more about what constraints should be put in place on college athletes. And it should be the bare minimum.”
Emmert’s new position is consistent with the basic goals of antitrust law. While it’s acceptable under antitrust law for individual schools to craft rules that restrict athlete pay, it’s problematic for those schools to join hands in crafting such rules. The same is largely true of conferences; so long as conferences determine their own policies, those policies would likely be compatible with antitrust law.
To that point, Justice Neil Gorsuch stressed in his Alston opinion that, “The court’s injunction preserves considerable leeway for the NCAA, while individual conferences remain free to impose whatever rules they choose.” By suggesting conferences ought to determine their own rules, free from NCAA restraint, Emmert appears to seek an NCAA model that can withstand antitrust scrutiny and thus preempt potential lawsuits from being filed. Whether, and how soon, this aspiration leads to actual change remains to be seen.
Justice Breyer’s comments to CNN might hold more immediate implications for NCAA legal strategy. Breyer, who served eight years in the U.S. Army Reserve while attending Stanford University and Harvard Law School, seemed supportive of traditionalist-styled arguments raised by NCAA attorney Seth Waxman during the oral argument for NCAA v. Alston in March. Should Breyer step down, the NCAA would lose a relatively sympathetic justice at a time when it could face ongoing litigation over rules restricting athlete pay. The fact that he appears interested in staying on is probably welcome news to the NCAA.
Some liberal advocates hope that Breyer retires so that President Joe Biden, with the Democrats holding a slim majority in the Senate, could nominate a younger and more progressive person. Justices, however, enjoy lifetime appointments; many serve until they die. Of the last five vacancies, three were brought on by justices’ deaths (Chief Justice William Rehnquist, Justice Antonin Scalia and Justice Ruth Bader Ginsburg).
Last month, Breyer joined the eight other justices in unanimously ruling for Shawne Alston. However, that case centered on the NCAA and member schools conspiring to limited education-related benefits, not athletics-related benefits. While Justice Brett Kavanaugh used his concurring opinion to advocate a broader repudiation of amateurism, no other justices joined his opinion.
Breyer, more than any of the other justices, seemed vexed by the prospect of ruling against the NCAA. As he questioned attorneys for the NCAA, Alston and the Justice Department during the March oral argument, Breyer at times seemed to romanticize college sports as being more than about money. He also implied that NCAA rules ought to be treated more deferentially under antitrust law.
“It’s a tough case for me,” Breyer acknowledged. “And the reason it’s so tough is . . . this is not an ordinary product. This is an effort to bring into the world something that’s brought joy and all kinds of things to—to millions and millions of people, and it’s only partly economic.
“So I worry a lot,” he added, “about judges getting into the business of deciding how amateur sports should be run. And I can think of ways around that . . . . You could just say it’s a different kind of product.”
At another moment in the oral argument Breyer hypothesized that “a joint venture sometimes can have a noneconomic, sometimes, as well as an economic objective.” This supported the NCAA’s legal argument. Acting U.S. Solicitor General Elizabeth Prelogar (who advocated for Alston) rejected that hypothesis, telling Breyer, “The reason I think that would be wrong, Justice Breyer, is because this Court has said over and over again that those types of noneconomic interests are not cognizable under the antitrust laws, that courts shouldn’t be in the business of trying to evaluate whether there are other socially important ideals to be promoted or—or other things to consider that don’t go to effects on competition.”
Other justices nonetheless picked up on Breyer’s sentiment and seemed influenced by it. Justice Amy Coney Barrett, for example, referred to Breyer in her questioning of Alston’s attorney, Jeffrey Kessler.
“Mr. Kessler,” Barrett asserted, “the tenor to me when I read it of both the district court and Ninth Circuit opinions [in Alston] is that they were trying not to do too much. And this, I think, goes back to Justice Breyer’s description of, you know, this is a delicate area. On the one hand, there’s concern about blowing up the NCAA and something that people have, as Justice Breyer put it, gotten so much joy out of, but then, you know, messing up general antitrust law.”
Although he didn’t reference Breyer by name, Chief Justice John Roberts echoed Breyer’s sentiments in worrying that courts taking down NCAA rules could become “a game of Jenga.” “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’s come—comes crashing down,” he said.
How soon the Court reviews another challenge to NCAA rules is unknown. It could be years before that happens, and the Court could have a number of different justices by then. However, there is a case that is advancing: House v. NCAA, where college athletes argue that schools violated antitrust law by agreeing to deny NIL opportunities. Perhaps the Court, and Breyer, will review it one day.