In a move that could alter the trajectory of the U.S. Supreme Court’s scheduled March 31 oral argument for NCAA v. Alston, Acting Solicitor General Elizabeth Prelogar on Wednesday filed a motion on behalf of the United States to participate in the oral argument. Accompanying the filing was a Justice Department amicus brief in which the federal agency responsible for enforcement of U.S. law expressed firm support for former West Virginia running back Shawne Alston’s class action.
The Alston case is portrayed as a sports dispute but is fundamentally a controversy over interpretation of federal antitrust law. Last year the U.S. Court of Appeals for the Ninth Circuit held that the NCAA and its members illegally conspire when capping grants-in-aid to tuition, fees, room, board, books and other expenses up to the value of the full cost of attendance. At the same time, the Ninth Circuit limited its finding of illegal activity to a narrow band of activities, namely when schools, through the NCAA, elect to disallow individual universities the opportunity to reimburse student-athletes for expenses related to education (such as costs for computers and study abroad).
Yet in regard to more noteworthy NCAA restrictions on universities compensating student-athletes for athletics—including the headline-grabbing possibility of colleges paying athletes athletic scholarships that reflect their market value and revenue generation—the Ninth Circuit found no illegal activity by the NCAA. The NCAA is nonetheless worried the Alston ruling will open the door to other antitrust lawsuits over amateurism. Unless reversed by the Supreme Court, Alston will be precedent for future challenges against NCAA restrictions.
In its amicus brief, the Justice Department asserts that the NCAA and its members ought not to receive preferential treatment under antitrust law. This is an area of law that requires competing businesses (such as colleges that vie for students, faculty, staff, grants, media attention, among many other pursuits) to only conspire in ways compatible with the basic tenets of competitive markets. The brief acknowledges that “schools must agree on at least some aspects of the competition” in order to make college sports work. The brief also points out that the NCAA and member schools have long portrayed the amateur status of athletes as “essential” to organizing and marketing college sports.
The Justice Department doesn’t necessarily disagree with the broad concept of amateurism. However, it objects to amateurism avoiding standard scrutiny for antitrust law litigation. “Contrary to [NCAA’s] contentions,” the brief maintains, neither the unique characteristics of the college sports industry nor case precedent “suggest that the challenged restraints should have been analyzed [by the Ninth Circuit] under a standard more relaxed than the traditional rule of reason.” The Justice Department’s reference to “rule of reason” is a reference to the customary way collusive activities by competing businesses are judged, whereby possible procompetitive qualities of the collusion (such as more choice for consumers or greater economic growth) versus anticompetitive harms of the collusion (such as higher prices or diminished innovation) are weighed.
The brief also casts doubt on NCAA worries over the potential loosening of amateurism rules for educational expenses. To that end, the Justice Department questions why the NCAA “highlights the possibility of atypical lucrative internships given by boosters” when the Ninth Circuit’s ruling “does not affect NCAA rules that prohibit boosters from providing such internships.” This reiterates a theme expressed throughout the brief: If upheld, the Alston ruling wouldn’t prevent the NCAA from continuing to deny compensation for athletes when that compensation is tied to athletics.
The Justice Department’s amicus brief is one of 22 such briefs that are presently listed on the Supreme Court’s website. The briefs have included those by former student athletes, former NCAA officials, pro players’ associations, minor league baseball players, Ed O’Bannon’s class action group, law professors, historians, African American antitrust attorneys, high school associations, open market advocates, states’ attorneys general and others. None of these groups is an actual party in the litigation. Their briefs are only as influential as the nine justices find them.
That said, there are two reasons to believe the Justice Department’s brief will prove uniquely impactful.
First, the justices will likely accord added weight to the views of the Justice Department than they would, with all due respect, law professors, attorneys, economists, players’ associations, athletes and other interested parties. The Justice Department is not a mere commentator or observer. It is charged with enforcing federal antitrust law in the United States. The Department’s views on a federal antitrust dispute are thus especially meaningful. The agency also has an ongoing stake in college sports litigation. In January, the Justice Department signaled concerns to the NCAA over potential name, image and likeness guardrails. It will likely continue to weigh in on amateurism, especially should any of the federal NIL bills advance in Congress and land on the desk of President Joe Biden.
Second, the Justice Department wants to participate in the oral argument. It wishes to do for purposes of a “divided argument.” This occurs when the Solicitor General—the federal officer who represents the country before the Supreme Court—determines that the interest of the country would be better served by having a direct voice in the oral argument than to rely on the parties’ attorneys (here, attorneys for the NCAA and Alston). The Solicitor General can draw on department expertise and historical understandings.
To that point, Prelogar—who previously clerked for Justice Elena Kagan and the late Justice Ruth Bader Ginsburg—could offer a perspective that the justices find helpful. There’s a good chance they’ll accept her request. According to a 2008 Georgetown Law Journal article authored by Harvard Law School professor Richard Lazarus, the Court “routinely grants motions for divided argument filed by the Solicitor General as amicus curiae, even in cases in which the federal interest hardly seems central to the case, traditionally because of the reputation of the Solicitor General’s Office for outstanding advocacy.”