In the wake of the U.S. Supreme Court unanimously ruling against the NCAA in the NCAA v. Alston case, which centered on how the NCAA and member schools conspire to limit education-related benefits, and as name, image and likeness statutes in Alabama, Florida, Georgia, Mississippi, New Mexico and Texas take effect on July 1, college sports administrators face the most tumultuous period for the NCAA in decades, if not ever.
To try to clarify where things stand, here are answers to a dozen pivotal questions:
1. How could the Supreme Court ruling most immediately impact college sports?
The Supreme Court holding that the NCAA can only limit cash awards for academic or graduation achievements to an amount not lower than the NCAA limit on athletic cash awards (currently, $5,980) is primed to have an immediate impact.
The NCAA argued that cash for academic success is tantamount to salaries, but Justice Neil Gorsuch’s opinion on behalf of all nine justices bluntly rejected that logic, particularly since the NCAA has accepted cash for athletic awards without classifying them as salary. Gorsuch’s opinion makes clear that individual conferences could decide on lower limits for member schools. However, multiple conferences cannot join hands in lowering those limits as that would present the same antitrust problem of competitors joining hands to fix prices.
College athletes who meet academic benchmarks will be able to pocket about $6,000 per year, in addition to a similar amount for athletic achievements—at least so long as their conference and school offer these awards. Remember, the Alston ruling doesn’t force schools to spend more money, it only prevents them from agreeing to limit what each can spend on academic-related expenses. No school “must” spend a penny more as a result of Alston, but competition will lead them to do so.
There might be pressure on the NCAA to permit higher value cash awards for academics than for athletics. The NCAA’s mission statement highlights such laudatory goals as “emphasizing academic opportunities and responsibilities of student-athletes in their college experience” and “encouraging student-athletes to enrich the experience of being a student-athlete by applying what is learned in athletics to their course of study and ultimately, to their career development.”
What better way to promote academics in college sports than by allowing college athletes who excel in the classroom to be paid more than those who excel on the field?
2. Will schools exploit the phrase “education-related” to advance recruiting objectives?
Yes.
Justice Gorsuch emphasized that the NCAA may continue to enforce a “no Lamborghini” rule—an exaggerative description of the idea that the NCAA can lawfully forbid in-kind benefits that are “unrelated to a student’s actual education.” A student obviously does not need a Lamborghini to pursue his or her studies. Therefore, an athletics program that provides expensive, non-academic gifts to its athletes as rewards, and as a way of enticing recruits, would still run afoul of NCAA rules and face penalties.
The problem for the NCAA is that there are many valuable items that fall short of Lamborghinis and that could be superficially portrayed as education-related. Here are some ideas:
- Video game systems and large screen TVs might be related to the study of esports or technology;
- Trips to historical landmarks that happen to be near popular vacation spots might be related to the study of history;
- Concerts with rock stars might be related to the study of music.
Creative minds—at least those employed by schools interested in spending money on athletes—could prove their mettle in brainstorming so-called “education-related” benefits.
3. Can the NCAA do anything to challenge the Supreme Court’s ruling?
No. The NCAA lost before the highest court of the land. It’s game over.
However, as Justice Gorsuch carefully noted, the NCAA remains “free” to “seek clarification” from U.S. District Judge Claudia Wilken—whom the Supreme Court justices unanimously found handled the Alston case correctly—about how to interpret “education-related” expenses regarding specific items. I expect the NCAA to avail itself of that option, which could delay how quickly it implements the ruling.
4. Does that mean member schools and conferences must wait for what could be months, maybe years, of additional legal proceedings in Alston?
No. The Supreme Court has issued its ruling. Schools, conferences and the NCAA must comply with it. Schools and conferences could conceivably wait for the NCAA to change rules, which the NCAA would obviously prefer. However, any NCAA rules that are illegal are also not enforceable against member schools and conferences.
5. How quickly will attorneys suing the NCAA use the Alston ruling?
We’ve already seen this happen.
In Johnson v. NCAA, a case in Pennsylvania federal court centering on whether college athletes are owed minimum wage protections, the presiding judge, John Padova, has asked the players and NCAA to file briefs explaining to what extent, if at all, the Alston ruling impacts their case.
Expect to see similar activity in other ongoing litigation, including in the lawsuit brought by Arizona State swimmer Grant House and Oregon basketball player Sedona Prince against the NCAA and the Power 5 conferences. They seek class certification in a case where they maintain the NCAA and conferences denying NIL violated antitrust law, leading to many millions of dollars in damages to athletes. The House/Prince case is before Judge Wilken, who not only handled Alston but also presided over Ed O’Bannon’s successful case against the NCAA.
Beyond current cases, the Alston ruling—and Justice Brett Kavanaugh’s concurring opinion in which he eviscerates the basic premise of denying pay to college athletes because they are so-called “amateurs”—will create incentives for future litigation. Other parties could challenge restraints on compensation for athletics and recruiting restrictions as antitrust violations and forms of price fixing.
6. Why didn’t the Supreme Court go further in dismantling amateurism, as Justice Kavanaugh preferred?
The short answer is the Court addressed the specific legal controversy before it. That controversy was whether Judge Wilken’s injunction regarding NCAA restrictions on education-related expenses was correctly decided under antitrust law. Judge Wilken, and later the U.S. Court of Appeals for the Ninth Circuit, rejected Alston’s demand for an injunction concerning athletics-related expenses.
This point was directly addressed during the Supreme Court oral argument in March, when Justice Sonia Sotomayor asked Alston attorney Jeffrey Kessler, “For purposes of this court’s review, you are not asking for broader relief than that provided by the district court?” Kessler agreed.
It’s also important to note that the NCAA, not Alston’s attorneys (Jeffrey Kessler, David Greenspan and David Feher), petitioned the U.S. Supreme Court for review. The NCAA challenged Judge Wilken’s order, as affirmed by the Ninth Circuit. Had Alston’s attorneys sought review, the Court could have considered more transformative remedies.
7. Should Alston’s attorneys have sought that wider review?
In my view, Kessler and his team made the right call in limiting the Court’s review to education-related expenses.
Kessler could have lost the case if he asked for more. Remember, only Justice Kavanaugh is a sure bet to support the broader dismantling of amateurism. During the oral argument, several other justices notably expressed trepidation about using antitrust litigation to force athletics-related reforms. Justice Breyer opined that he “worried about judges getting into the business of amateur sports” while Chief Justice John Roberts warned of the game of Jenga, where “all of a sudden the whole thing comes crashing down.”
Kessler knows that taking on NCAA amateurism will require a series of cases and legislative reforms. Not everything can be accomplished in one fell swoop.
8. Will the NCAA losing Alston in a blowout make it less likely to challenge state NIL statutes in court?
The NCAA has plausible, if not persuasive, legal arguments to challenge the Constitutionality of state NIL statutes. It could seek restraining orders in the handful of states where NIL will become legal on July 1. An attorney advising the NCAA might urge it to pursue litigation, especially given favorable precedent.
The optics, however, of the NCAA rushing to courts in NIL states could prove problematic for both the NCAA and its president, Mark Emmert. The NCAA would be trying to stop college athletes from enjoying a right that is no longer controversial and that Republican and Democratic lawmakers endorse. It’s hard to see which constituency would support such a move.
The NCAA would also be taking such measures on the heels of all nine Supreme Court justices, be they conservative or liberal, flatly rejecting the NCAA’s longstanding depiction of amateurism. The NCAA would be sure that states contesting NCAA lawsuits would cite the opinions of both Gorsuch and Kavanaugh early and often in briefs.
What will the NCAA do on July 1?
We know that Emmert has implored member schools to adopt NIL rules that would apply nationally and that conferences might take action before July 1.
A national framework would ensure all athletes enjoy the same set of NIL rights, regardless of where they live or in which state their school resides. In my recent testimony before the U.S. Senate, I argued for a national framework and urged Congress to adopt one that preempts state NIL statutes. Neither the NCAA nor member schools have the legal authority to preempt state statutes.
In theory, the NCAA could threaten member schools with penalties or even breach of contract litigation should they permit their athletes to sign endorsements in violation of NCAA rules. Schools in NIL states would argue they must comply with state law, but the NCAA could—again, in theory—remind them they also have a legal obligation to comply with contractual obligations to the NCAA.
In reality, the NCAA is in a weakened position to play the role of membership enforcer or would-be plaintiff. It is more likely to adopt permissive NIL rules or acquiesce to states with NIL statutes until it can formulate a national approach.
10. Given the NCAA’s weakened position, could it stop athletes in non-NIL states from signing endorsement deals?
The NCAA could rationally conclude that in states where no NIL statutes are in effect, member schools have no choice but follow their contractual obligations to the NCAA to enforce NIL restrictions. The problem for those schools, however, is that rivals in NIL states would enjoy a decisive recruiting advantage by promising recruits more freedom in pursuing endorsement and sponsorship opportunities with third parties.
To the extent the NCAA, which has long demanded uniformity, expects members to be treated equally, it would face a difficult task allowing NIL deals in some states but not others. That suggests that athletes in all 50 states could benefit from NIL on July 1.
Remember, as Americans, college athletes already enjoy a right to profit from their NIL, just like actors and musicians. It’s NCAA rules that suppress the exercise of that right. Stated differently, an NIL statute is only needed for college athletes if the NCAA successfully restricts NIL opportunities.
11. Assuming the NCAA or conferences adopt national NIL rules before July 1, could there still be litigation?
Yes. Those rules could conflict with state law. If an athlete is allowed to sign an endorsement deal under a state NIL statute, but an NCAA or conference guardrail blocks such a signing, the athlete could sue the NCAA or conference for violating the state statute. He or she could claim an antitrust violation (NCAA members or conference members joined hands to restrict competition) and a violation of the statute itself. Alternatively, if the NCAA or conference rules prove more permissive than a state NIL statute and an athlete relies on those rules rather than a statute in signing an endorsement deal, it’s unlikely to generate legal action. There would be a lack of identifiable plaintiff (the NCAA, conference or school would presumably not sue the athlete, and government enforcement action there, at this point, seems unlikely).
12. Will Congress save the day?
Congress had more than two years to address NIL before July 1, but not one NIL bill introduced during that time advanced past committee or was voted on. There have been more pressing topics facing the country, including the pandemic and social justice movements. Yet there are also major disagreements among lawmakers about how to address college sports challenges.
Some members of Congress propose narrowly tailored solutions to pressing matters. Senators Roger Wicker and Jerry Moran, for example, have proposed NIL bills that create a national standard, thus resolving that specific challenge of divergent state NIL statutes taking effect on July 1. “Congressional action on NIL remains important,” Sen. Wicker stressed in the aftermath of the Alston ruling, “to ensure that all schools are playing by the same rules.” He added ensuring the same rules apply are “critical to preserving fair play and competition in the collegiate sports system.”
Others in Congress eye more transformative changes. Sen. Chris Murphy and Rep. Lori Trahan, for example, seek group licensing and employment recognition opportunities for college athletes. Meanwhile, Senators Cory Booker, Richard Blumenthal, Kirsten Gillibrand and Brian Schatz propose revenue sharing and expanded health benefits.
There are still other areas of disagreement, including skepticism from members of both parties in regards to the NCAA’s desire for an antitrust exemption.
One final point: Timing matters. The Senate and House will not be in session for part of July and most of August. Even if the next couple of months prove tumultuous in college sports, the possibility of Congress hastily acting is a non-starter. That said, Congress could revisit college sports issues in the fall. Members might be more pressed to act if enough colleges complain.
