• Emily Rollo

Alston v. NCAA and the Potential Slippery Slope of College Athlete Compensation

Updated: Jun 20


Photo[1]


Wednesday, March 31, 2021 was a monumental day for college sports. Anyone that has a relation with college sports—athletes, coaches, parents, fans—were tuned into the United States Supreme Court hearing of Alston v. NCAA. On its face, it is a case about whether college athletes can make money, a practice that has been banned for the entirety of the NCAA’s existence. However, the legal issues run much deeper than allowing student-athletes to be paid for viral Tik-Toks and Instagram posts.[2]


The question presented before the Supreme Court was whether the Ninth Circuit erred in ruling for former West Virginia running back, Shawne Alston, over how schools compensate its athletes.[3] Legally, it is a question of whether the NCAA’s eligibility rules regarding the compensation of student-athletes violates federal antitrust law.[4] The Sherman Act provides that “every contract, combination in the forum of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is declared to be illegal.” (Section 1 of Sherman Act, 15 U.S.C. §1).[5]


The lawyer for the NCAA, Seth Waxman, relied on history.[6] He argued that allowing compensation to players would abolish the core principles of the NCAA’s amateur model.[7] He also rejected the idea that judges should decide the NCAA’s model, saying it should be left to the experts of the Association and its member schools.[8]


Ordinarily, a fundamental argument rooted in history is upheld by the Supreme Court, but in oral arguments some Justices were skeptical about the NCAA’s reasons for defending its amateurism model.[9] Through the hearing’s transcript, it may seem easy to predict the outcome: 7-2 against the NCAA.


A breakdown of the seven justices who seem to support the student-athlete is as follows. First, Justice Kagan stated that the NCAA can only ride on history for so long.[10] The establishment is at a point where there is no historical example that tells the court what to do about athletes’ unpaid labor.[11] Justice Gorsuch touched on the idea of price fixing by identifying the NCAA as the sole controller and purchaser of college athlete labor.[12] Justice Kavanaugh further stated that any argument rooted in tradition is irrelevant as exploitation of the student athlete has never reached the level it is at currently.[13]


Additionally, Chief Justice Roberts took a stab at Waxman’s argument insisting that there was no difference in “pay for play” and schools funding multi-million-dollar insurance policies to protect athletes’ future earnings.[14] Justice Thomas asked about the “balloon[ing]” salaries of coaches when they are in the amateur arena along with the players.[15]Justice Alito also raised a substantial question about how “powerhouse” programs justify pressuring its student-athletes to prioritize sports over studies and then after their four years, they are left without any earnings or a promising future.[16]


On the other hand, two justices were sympathetic towards the NCAA. Justices Sotomayor and Breyer fear the messy fallout of player compensation.[17] Sotomayor is specifically concerned about possibility of destroying the college sports game.[18] Justice Breyer believed that the American judicial system should not be getting so involved with the business of amateur sports.[19]


While it appears obvious that the majority of the justices were attacking the NCAA, that does not necessarily mean they will rule against the NCAA.[20] The idea of allowing college athletes to be compensated runs much deeper than paid Tik Toks and Instagrams. There is a real danger of the college athletes being treated like a professional athlete with agents.[21] This may cause a ripple effect into high school and youth sports. MAAC Commissioner, Rich Ensor, comments on the real possibility of player compensation even extending to high school athletes, which would substantially affect the college recruiting process as well.[22] Amateur sports at all levels may be affected by the outcome of this case.


A ruling against the NCAA has the potential to open the floodgates for player compensation and the amateur athlete may soon be unrecognizable. There are sports that will significantly benefit if such a ruling occurs, especially in basketball and football.[23] However, there are many sports who will be initially unchanged by the ruling.[24] While it may seem unfair, it is the reality of non-revenue sports. However, once the pay for play model becomes common, these other sports may also start to benefit from pay for play, therefore, wiping out any true amateur in college athletics.


While it is easy to speculate an outcome, the Justices’ questions and commentary during the hearing on March 31st, does not automatically translate into a decision.[25] The entire college athletics community now must wait until June or July to know the Supreme Court’s final ruling. During this time, the Justices will be deliberating on a decision that may forever change, and ultimately eliminate, the amateur model of college sports.



References

[1] Ramsey, K. (Sept. 19, 2019). Alston v. NCAA: Judge Rules for Plaintiffs But NCAA Keeps Amateurism. Retrieved from https://unafraidshow.com/alston-ncaa-ruling-amateur-college-sports/ [2] Wetzel, D. (Mar. 31, 2021). NCAA v. Alston: Supreme Court not impressed with old arguments, but how will it rule?. Retrieved from https://www.yahoo.com/lifestyle/nca-as-stubborn-apathetic-nature-on-display-in-front-of-supreme-court-195237939.html [3] McCann, M. (Mar. 31, 2021). SCOTUS Justices Challenge NCAA Amateurism in Historic Oral Argument. Retrieved from https://www.sportico.com/law/analysis/2021/ncaa-v-alston-supreme-court-1234626223/ [4] Reply of Petitioner National Collegiate Athletic Association. (Mar. 19, 2021). NCAA v. Alston. Retrieved from https://www.supremecourt.gov/DocketPDF/20/20-512/157752/20201015094027767_20-xxxx%20-%20NCAA%20v.%20Alston%20-%20cert.%20petition.pdf [5] Id. [6] McCann, supra. [7] Id. [8] Reply of Petitioner National Collegiate Athletic Association, supra. [9] Wetzel, supra. [10] Id. [11] Id. [12] McCann, supra. [13] Id. [14] Id. [15] Supreme Court of the United States. (Mar. 31, 2021). NCAA v. Alston Transcript. Retrieved from https://www.supremecourt.gov/oral_arguments/argument_transcripts/2020/20-512_g314.pdf [16] McCann, supra. [17] Wetzel, supra. [18] Id. [19] McCann, supra. [20] Lust, D. and Wallach, D. (Apr. 2, 2021). NCAA Special Episode: MAAC Commissioner Rich Ensor, Esq. Talks All Things College Sports. Retrieved from https://podcasts.apple.com/us/podcast/ncaa-special-episode-maac-commissioner-rich-ensor-esq/id1490287845?i=1000515465161 [21] Lust and Wallach, supra. [22] Id. [23] Id. [24] Id. [25] Id.