On Wednesday at 10 a.m. ET, the U.S. Supreme Court will hear oral arguments in one of the most important cases to involve the sports industry. Two petitioners, the NCAA and the Big Ten Conference, will argue their consolidated side in the class action led by former West Virginia running back Shawne Alston over how schools compensate athletes. The Justice Department will also participate on behalf of Alston. The hearing will occur by telephone conference in light of pandemic safety measures.
1) In a nutshell, what is NCAA v. Alston about?
This is an antitrust case about the legality of colleges, through the NCAA, agreeing to limit compensation to student-athletes. Federal antitrust law prohibits competing businesses from unreasonably restraining how they compete. The basic rationale is that when competitors work together, some element of the economy might experience higher prices, fewer choices or less innovation.
Alston argues it is illegal for the NCAA and its member schools to cap grants-in-aid to tuition, fees, room, board, books and other expenses up to the value of the full cost of attendance. In a competitive landscape, schools would vie for recruits much like they contend for coaches, faculty, staff, prospective and admitted students, grants, fundraising and media attention.
When Alabama, LSU, USC, Texas and Notre Dame battle to hire a top football coach, theoretically they can offer to pay that coach any amount of salary and offer any fringe benefits. With athletes, however, schools are capped. As Alston sees it, this arrangement funnels money to those around the recruit—a school spends millions to hire an elite coach or to build a state of the art facility in hopes they’ll draw recruits. Meanwhile, the recruit himself or herself doesn’t receive the direct financial benefit.
The NCAA insists Alston has it all wrong. It contends the Supreme Court has already voiced, through the NCAA v. Board of Regents case, that courts should review NCAA rules with deference under antitrust law. The NCAA also maintains that grant-in-aid rules enhance certain elements of the market: (1) restraints on college athlete compensation help to distinguish college sports from pro sports, particularly minor league sports, and without that distinction some college fans would lose interest; (2) competitive balance in college sports would be jeopardized if schools waged bidding wars for athletes; and (3) restrictions on pay enhance schools’ ability to integrate academic and athletic goals and thereby promote education.
Last year the Ninth Circuit, covering federal judicial districts in nine western U.S. states from Alaska to Arizona, sided with Alston after the NCAA appealed California federal district judge Claudia Wilken’s ruling for Alston. However, the Ninth’s remedy was limited to NCAA rules that restrict how schools reimburse or pay athletes for academic-related expenses, such as costs for computers and study abroad or internship opportunities. The Ninth Circuit made clear that the NCAA could continue to limit how schools compensate their athletes in regard to athletics.
2) If Alston wins, would that mark the end of amateurism?
No. “Amateurism” is a label used to define a set of NCAA rules that govern college sports and that, by prohibiting certain types of commercial opportunities, attempt to distinguish college athletes from professional ones. These rules have changed over the years—including through reforms sparked by Ed O’Bannon’s litigation—and will continue to evolve, regardless of the Court’s forthcoming ruling. Nothing will “end” amateurism as much as change it.
3) What kinds of changes could we expect if Alston wins?
If the Supreme Court affirms the Ninth Circuit and upholds the prescribed remedy, the NCAA must then rewrite rules to allow schools to offer reimbursements for expenses pertaining to computers, science equipment, musical instruments and other tangible, academic-related items not included in the cost of attendance calculation. In addition, the NCAA could no longer limit internships for college athletes after their eligibility expires, though could cap cash graduation and academic awards to $5,600 (a dollar figure that would change by academic year).
If the Court not only affirms the Ninth Circuit but signals a broader remedy, the ruling could have a more transformative impact that includes new compensation opportunities for playing college sports. For example, the Court could express that certain restraints on athletics-related compensation are, like certain restraints on academics-related compensation, unlawful under federal antitrust lawful. That’s unlikely, however. To the extent such a metamorphic outcome is possible, it would more probably arise if the Court remands the case back to the trial judge, Judge Wilken (see questions 19 and 20 below).
4) If the Ninth Circuit’s remedy is fairly limited, why would the NCAA petition the Supreme Court?
For a few reasons.
First, the NCAA and its member schools would argue that the changes aren’t so minor. In its recent brief, the NCAA maintained that so-called academic benefits, including cash for maintaining academic thresholds and paid internships, are in reality “pay-for-play” and would be abused by opportunistic athletic programs.
Second, rule changes come with administrative cost and operational disruption. Compliance officers in athletic departments would need to rework how they enforce amateurism, potentially in ways that make it harder to do their jobs. That’s not a reason for the justices to side with the NCAA, but it is a pragmatic consideration for the NCAA.
Third, Alston will become precedent upon which other litigants who challenge NCAA rules can rely. Transfer rules and limitations on recruiting could be challenged. High school athletes and their parents could likely develop legal arguments that find an Alston ruling in favor of colleges players valuable precedent.
5) Some have conflated the Alston case with name, image and likeness reform. Are they the same?
No. The Alston case, as explained above, is a federal antitrust dispute. NIL falls under a different area of law, intellectual property, and to date only under state law (Congress is considering federal NIL bills but none has advanced past committee).
The Alston case is also about how schools compensate their student-athletes. NIL reform, in contrast, concerns how college athletes can earn money from third parties—be they apparel companies, sneaker manufacturers, summer camps, video game publishers and businesses that leverage social media influencing—not the schools themselves.
6) So, Alston and NIL are completely unrelated?
No, that’s not correct either. The NCAA’s delayed decision on how to allow NIL reflects in part the NCAA waiting for the Alston ruling. While NIL and Alston concern different areas of law, both concern topics that are governed by NCAA rules and, through those rules, interact in regard to athlete eligibility. The NCAA would find it more efficient to change its rules with more legal certainty.
7) How long will Wednesday’s hearing last, who will go first and who will be arguing?
The hearing, like all Supreme Court oral arguments, will last about an hour. As the petitioner, the NCAA (and Big Ten) will have 30 minutes to present. They might choose to reserve several of those minutes for rebuttal. The NCAA is represented by, among others, Seth Waxman, a partner at Wilmer Cutler Pickering Hale and Dorr. The 69-year-old graduate of Yale Law School and Harvard College served as U.S. Solicitor General under President Bill Clinton. Waxman has delivered more than 80 oral arguments in the Supreme Court and is regarded as one of the most talented appellate attorneys in the country.
Alston’s side will then have 20 minutes to respond to the petitioner’s presentation. Jeffrey Kessler will argue for Alston. Kessler, 67, is a familiar name in the sports industry. Along with his Winston Strawn partners David Greenspan and David Feher, Kessler has litigated on behalf of Tom Brady, the U.S. Women’s National Soccer Team, Ray Rice, Ezekiel Elliott, Oscar Pistorius, players’ associations and other major sports figures. A graduate of Columbia University for both law and undergrad, Kessler has won numerous awards for his legal skills.
The last 10 minutes will be awarded to Acting Solicitor General Elizabeth Prelogar, a former clerk to Justice Elena Kagan, the late Justice Ruth Bader Ginsburg and U.S. Attorney General Merrick Garland while he was an appellate court judge. She has argued multiple times before the Supreme Court and has taught at Harvard Law School, her alma mater.
In short, some of the most talented attorneys in the country will be debating each other—but with strict time limits, they’ll need to make every minute count.
8) Is it now “two-on-one” with the Justice Department involved?
In a way, yes, though each side will still get only 30 minutes. Also, the justices will have already formed opinions about the case before the hearing. The two-on-one dynamic might not be as impactful as it would otherwise seem.
9) Will I be able to watch or listen to the arguments?
Sorry, you won’t be able to watch. The Supreme Court Building is closed to the public due to the pandemic and the telephone conference isn’t televised. The Court has never televised proceedings, though has made audio recordings and transcripts of oral arguments available.
But you can listen. C-SPAN has streamed oral arguments. Recordings of arguments have also been made available on the Court’s website.
10) What will the justices ask and which of them will do the asking?
The justices will ask questions that usually demand the attorney clarify a position, address a counterargument or respond to a hypothetical.
In terms of the justices’ involvement, the Court has modified its practices during the pandemic. Chief Justice John Roberts will ask questions first. Questions will then go in order of seniority, meaning Justices Clarence Thomas, Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett.
11) Will the justices’ questions reveal which way they are leaning?
The questions will lend insight on what the justices regard as important. They might also signal whether their views are unsettled. But keep in mind, the justices and their clerks will have already read the numerous briefs that have been filed. The oral argument is not for the justices to learn about the case but rather to examine its finer points. Also be careful not to fall into the trap of “reading the tea leaves.” Judges sometimes ask questions to test their position, rather than to hint at their leanings.
12) The many briefs in the docket frequently refer to Board of Regents v. NCAA. Why?
Board of Regents is arguably the most important precedent in Alston. Depending on how the justices interpret Board of Regents, the case could make it easy for the justices to rule in favor or against the NCAA.
In 1984, the Supreme Court ruled against the NCAA in Board of Regents. The case concerned whether, under antitrust law, the NCAA could restrict schools’ autonomy to broadcast football games on national TV networks. Although the NCAA lost, Justice John Paul Stevens wrote the opinion in a way that has greatly benefited the NCAA. He reasoned that the “revered tradition of amateurism in college sports” is owed deference and thus the NCAA should enjoy “ample latitude” in setting amateurism rules.
The NCAA and Alston disagree sharply about whether that passage of Justice Stevens’s opinion has precedential impact. From the NCAA’s vantagepoint, the current justices must honor Board of Regents under the legal concept of stare decisis, which says (in so many words) that justices must follow prior Supreme Court rulings absent extraordinary circumstances (such as in Brown v. Board of Education, where nine justices unanimously held that racial segregation in public schools is illegal). Alston’s side argues the passage was mere dicta, which refers to commentary that is not essential to the holding and lacks the same precedential impact.
Expect the justices to ask questions about how Alston’s case connects to Board of Regents.
13) There were 26 amicus briefs filed. How influential will they be?
The amicus briefs will be as influential as the justices find them. They are filings by non-parties who express an interest in a case’s outcome. Justices and their clerks might see them as helpful in understanding certain antitrust arguments or sensing how a ruling would impact different industries and people. One clue will be whether the justices refer to any of the briefs in their questioning on Wednesday. A brief by former college players in favor of the NCAA seemed like it might have been persuasive, since it was ostensibly from the voice of athletes—except as Sportico’s Daniel Libit showed, a number of those players appeared to disagree with the brief when questioned about it.
14) How about the #NotNCAAProperty movement and Sedona Prince’s video?
As I recently wrote, the #NotNCAAProperty movement is not part of the Alston case. But justices (and their clerks, many of whom graduated college in recent years) don’t live or work in a bubble or vacuum. They are aware of concerns brought by athletes over NCAA treatment and that could shape their views. Similarly, Sedona Prince’s video revealing inequitable conditions for the women basketball’s weight room generated national news (not just sports news).
15) Play prognosticator. Which side is going to win?
The conventional logic is that a majority of the justices will rule in favor of the NCAA and reverse the Ninth Circuit. This viewpoint is shared by some antitrust attorneys for a few reasons.
First, the fact that the Court took the case is suggestive. It means at least four justices (the minimum needed to grant cert) believe the appellate ruling should be reviewed. This is a rare occurrence; ordinarily, only between 1% and 2% of petitions are granted cert. Also, the Supreme Court reverses appellate court rulings about seven out of 10 times.
Second, the Ninth Circuit has one of the highest reversal rates of the 13 federal circuits. According to SCOTUS Blog, the Supreme Court reversed the Ninth Circuit 76% of the time from 1986 to 2018. This was the highest percentage (per Ballotpedia, from 2017 to 2020, the Ninth Circuit was reversed 78%, which was second highest). Strictly going by odds, if the Supreme Court reviews four Ninth Circuit rulings, three of them will be reversed.
Third, six of the nine justices are “conservative” in the sense that they were nominated by Republican presidents, and their rulings are typically labeled conservative. To the extent these justices wish to maintain the traditions of college sports, they could be inclined to favor the NCAA.
But conventional logic might not apply. A libertarian-leaning justice might find NCAA rules to be overly confining and unduly burdensome. Justices, be they conservative or liberal, might also reason that in the absence of a Congressional exemption from antitrust law, the NCAA should be treated like every other business. Lastly, justices aren’t politicians, who worry about election and fundraising implications of positions they adopt. Justices have lifetime appointments. They aren’t bound by ideological labels in any given case.
We’ll know more after Wednesday.
16) Some of the justices have sports connections. Does that matter?
Yes, in the sense that justices are humans. Their views on legal controversies are shaped by relevant life experiences, sports or otherwise, and sometimes that appears in their opinions.
Much has been written about Justice Kavanaugh’s sports fandom, including of Yale sports and organizing tailgates for fellow Bulldogs fans. Justice Sonia Sotomayor’s rulings have shaped the sports industry, including in ending the 1994-95 MLB players’ strike and ruling against Maurice Clarett in the antitrust and labor law case, Clarett v. NFL (disclosure: I was one of Clarett’s attorneys). Justice Alito is reportedly a diehard Phillies fan and wrote the majority opinion in Murphy v. NCAA where the Court held the federal ban on sports betting unconstitutional. Chief Justice Roberts has famously opined the role of the judge is to be an umpire.
It’s possible those and other experiences will shape the justices’ interpretation of NCAA v. Alston. But remember: The Alston case is fundamentally about federal antitrust law, not sports.
17) When will the justices vote?
The nine justices usually meet to discuss a Wednesday oral argument on Friday. They’ll vote and determine which justice will write the opinion, or in the case of divided vote, which justices will write the majority and dissenting opinions (and concurring opinions if a justice agrees with the ultimate outcome but rejects the reasoning). The clerks, some of whom are future judges, often play instrumental roles in the drafting of the opinions.
18) When will we find out who won?
Most likely in June or July.
19) What are the potential outcomes?
The Court could reverse the Ninth Circuit’s ruling (good news for NCAA), affirm it (bad news for NCAA), vacate the ruling whereby the Ninth Circuit’s ruling is rendered void and the case is remanded to Judge Wilken with new instructions, or issue some combination or variation therein (e.g., affirm and reverse in part, possibly with a remand).
20) Are you saying the case won’t necessarily end with the Supreme Court’s ruling?
Yes. If the case is remanded, or sent back, to Judge Wilken, it would essentially start over under new guidance and could take several years to play out thereafter. Depending on the Supreme Court’s instructions, the NCAA might welcome a remand: The Ninth Circuit’s ruling would no longer apply and to the extent the NCAA and its member schools wish to delay substantial reform to amateurism, they would be provided a longer offramp.
