Twelve days before the U.S. Supreme Court hears the oral argument for NCAA v. Alston, the Indianapolis-based nonprofit on Friday submitted a 28-page reply brief. The brief responds to a March 3 filing by attorneys for the class led by former West Virginia running back Shawne Alston.
Last year, the NCAA petitioned the Supreme Court to reverse the U.S. Court of Appeals for the Ninth Circuit’s 2020 ruling that the NCAA and its roughly 1,200 member schools have illegally conspired under federal antitrust law to cap grants-in-aid to tuition, fees, room, board, books and other expenses up to the value of the full cost of attendance. If the Court upholds the ruling, the NCAA could no longer prohibit individual colleges from reimbursing student-athlete expenses that are “related to education” (such as for computers, study abroad, musical instruments or academic achievement incentive awards no greater than what the NCAA already permits for athletic achievement). The NCAA, however, could continue to limit compensation related to athletics. A Court ruling adverse to the NCAA would become powerful case precedent that other parties—including former, current and future athletes—could cite in their own litigation against the NCAA.
The NCAA stresses several core arguments and themes in its reply brief.
One key concept is stare decisis, a Latin expression for “to stand by things decided” and the legal principle that judges must, absent extraordinary circumstances, adhere to precedent. In 1984, the U.S. Supreme Court held against the NCAA in the Board of Regents case. The case involved NCAA restrictions on the number of football games a school could televise. Although the Court held these restrictions violated antitrust law, the opinion by Justice John Paul Stevens supplied language that the NCAA would come to embrace.
In what Alston’s attorneys argue is merely dicta—meaning commentary that is not essential to the holding—Justice Stevens recommended that the NCAA enjoy “ample latitude” to uphold “the revered tradition of amateurism in college sports.” This language suggests that courts should review antitrust challenges to NCAA rules with high degree of deference. There is debate among legal scholars as to whether Justice Stevens’ language, which was not central to the ruling, ought to have the type of precedential effect the NCAA ascribes.
The NCAA’s reply brief repeatedly cites Board of Regents. In doing so, the brief underscores Justice Stevens’ writing that the “character and quality” of NCAA sports—including that college athletes aren’t paid and must meet academic requirements—supply a crucial distinction from pro sports.
To that end, the NCAA expresses worry that the professionalization of college sports would diminish interest among college sports fans. “The record,” the brief explains, “shows that a substantial percentage of fans choose NCAA sports because its players are amateurs. Even if many other fans might prefer to blur (or be indifferent to blurring) college and professional sports, nothing more is needed to reach the self-evident conclusion that amateurism meaningfully differentiates the two.” This is, of course, a rebuttal argument when viewed in the context of the commercialization around college athletes. Fans, it seems, haven’t lost interest in their favorite teams while college coaches earn millions of dollars a year, as schools build world-class stadiums and training centers, and as TV networks pay billions to broadcast games played by “amateurs.”
The brief also repudiates the ways in which the Ninth Circuit permitted educational opportunities for athletes, admonishing that they would bring about de facto compensation for athletic participation. “Requiring the NCAA,” the brief warns, “to permit schools to provide all student-athletes $6,000 in cash every year they maintain some minimal academic threshold is pay-for-play, pure and simple.” Similarly, the brief warns that “unlimited pay internships is an invitation to pay-for-play.”
The NCAA also attempts to deride U.S. District Judge Claudia Wilken as a judicial maverick whose viewpoints on amateurism breach established precedent. Judge Wilken held in favor of Ed O’Bannon in his historic case over name, image and likeness and more recently ruled for Alston. The Ninth Circuit upheld her legal reasoning in both cases.
“For 12 years and running,” the brief charges, “a single district judge has entertained successive challenges to the NCAA’s amateurism rules . . . [and created] her newly invented conception of amateurism, a conception that has no basis in reality and that erodes the distinct character of NCAA sports.” By framing Wilken as trying to redesign college sports from the bench, NCAA attorneys hope the nine justices will be more inclined to question her analysis.
The brief also expresses the NCAA’s frustration at having to litigate amateurism. “This case and O’Bannon,” the brief charges, “have subjected the NCAA to 12 years of non-stop litigation.” The NCAA hopes that the Court will establish (or re-establish, depending on broadly how one interprets Board of Regents) deference to the NCAA’s administration of amateurism. If it does, athletes and their attorneys would be less inclined to expend the money and resources to challenge the NCAA in court.
If it doesn’t? Then the NCAA will need to reimagine amateurism so that it comports with the ordinary requirements of federal antitrust law.