WASHINGTON — Justices across the ideological spectrum teamed up during Supreme Court oral arguments Wednesday to voice skepticism about the NCAA’s argument that it could bar modest payments to student-athletes in the name of amateurism despite antitrust laws. But they also seemed worried about opening the floodgates to other challenges.
Justice Brett Kavanaugh, noting that college sports generate billions of dollars in revenue, said that “the antitrust laws should not be a cover for the exploitation of the student-athletes.”
Justice Clarence Thomas noted that other participants in college sports are paid enormous sums. “It just strikes me as odd that coaches’ salaries have ballooned,” he said.
By contrast, Justice Elena Kagan said, colleges and universities have used their market power “to fix athletic salaries at extremely low levels.”
Though there seemed to be something like a consensus that the relatively modest education-related payments at issue in the case should be allowed, several justices said they were concerned that they would prompt a deluge of other challenges.
“How do we know,” Justice Sonia Sotomayor asked, “that we are not just destroying the game as it exists?”
Last year, a federal appeals court ruled that the NCAA was not free to limit benefits tied to education for Division I football and basketball players. The decision allowed payments for things like musical instruments, scientific equipment, postgraduate scholarships, tutoring, study abroad, academic awards, and internships. It did not permit the outright payment of salaries.
The court rejected the NCAA’s argument that compensating athletes would alienate sports fans who prize students’ amateur status. “Uncapping certain education-related benefits would preserve consumer demand for college athletics just as well as the challenged rules do,” Chief Judge Sidney R. Thomas wrote for a unanimous three-judge panel of the US Court of Appeals for the 9th Circuit in San Francisco.
“Such benefits are easily distinguishable from professional salaries,” he wrote, as they are linked to education and could be provided in kind rather than in cash. “The record furnishes ample support,” Thomas added, “that the provision of education-related benefits has not and will not repel college sports fans.”
In urging the Supreme Court to hear an appeal, lawyers for the NCAA wrote that “the decision will transform student-athletes into professionals, eliminating the pro-competitive distinction between college and professional sports.”
“Consumers will likely come to view NCAA athletics as just another form of minor league sports,” the group’s petition said.
The association said the distinctions drawn by the appeals court — between education-related payments and others — were either meaningless or easily evaded. Internships, the brief said, posed particular hazards.
“It would be easy for schools to label such internships ‘related to education,’ even if a star athlete was given, say, a six-month ‘internship’ at a sneaker company or auto dealership that paid $500,000,” a brief filed in February said. “But fans, student-athletes, and everyone else would recognize the reality: that student-athletes were being paid large sums in cash for their athletic play — with the ‘internships’ a thinly disguised vehicle for funneling them quintessentially professional salaries.”
The Supreme Court last considered how antitrust laws applied to the association in 1984, ruling that its restrictions on television coverage of college football games were unlawful. But the decision, National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma, included an influential passage on student-athletes.
“The NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports,” Justice John Paul Stevens wrote for the majority. “There can be no question but that it needs ample latitude to play that role, or that the preservation of the student-athlete in higher education adds richness and diversity to intercollegiate athletics and is entirely consistent with the goals of” the antitrust laws.
Lawyers for the lead plaintiff in the new case, Shawne Alston, a former West Virginia University running back, said that he and other athletes had been exploited. The Biden administration filed a brief supporting the athletes in the case, National Collegiate Athletic Association v. Alston, No. 20-512, saying that the 9th Circuit had struck the right balance.
“Promoting amateurism widens consumer choice, and thereby enhances competition, by maintaining a distinction between college and professional athletics,” the brief said. But “some of the challenged rules did not actually foster consumer demand.”