Just one week before the US Supreme Court hears oral arguments for NCAA v Alston (‘Alston’), the National Collegiate Athletic Association (‘NCAA’) has submitted its reply brief. The brief answers a 3 March filing by former West Virginia running back Shawne Alston, which contends that the NCAA and its 1,200 some-odd member schools have illegally conspired under federal antitrust law to cap compensation to student athletes up to the value of the full cost of attendance.
Alston has the potential to bring an end to what many believe is manifest athlete exploitation. The following provides a look at the evolution of this important case.
The NCAA oversees rules related to student athletes that play in American collegiate athletics programs. These programs are hugely lucrative for member schools, particularly the college football and basketball programs which are widely televised and marketed throughout North America. Because member schools retain tremendous revenue, the NCAA has instituted guidelines to limit what compensation they could give their student athletes. The guidelines included prohibiting non-monetary education-related benefits, such as scholarships and paid post-graduate internships, to stave off any ensuing ‘pay to play’ attributes that could blur the line between amateur and professional athletics.
In March 2019, following a slew of lawsuits led by Alston that challenged the NCAA’s restrictions, Judge Wilken ruled against the NCAA, finding that the aforementioned restrictions violated antitrust law under the Sherman Act. The Act, inter alia, explicitly prohibits anticompetitive agreements. The ruling effectively barred the NCAA from preventing athletes from receiving scholarships and other compensation ‘related to the pursuit of academic studies’.
The NCAA appealed the ruling to the Ninth Circuit, which, in May 2020, ruled to uphold the decision. Judge Smith wrote that the impact of the restrictions on student athletes is ‘not the result of free market competition’, but rather it constitutes an attempt to ‘depress the price that sellers could otherwise receive for their services’. This very conduct, his Honour wrote, is what American antitrust laws are intended to prohibit.
In October 2020, the NCAA and the American Athletic Conference filed two petitions to the US Supreme Court, both imploring the Court to review the Ninth Circuit’s decision. The Supreme Court granted certiorari to both petitions in December 2020, resulting in Alston, which will be heard on 31 March 2021.
No doubt the focal point of Alston will be the interpretation of the only other college sports antitrust case the Supreme Court has heard: NCAA v Board of Regents (‘Board of Regents’). Decided in 1984, Stevens J wrote that courts must give the NCAA ‘ample latitude’ to play its ‘critical role in the maintenance of a revered tradition of amateurism in college sports’. How broadly ‘ample latitude’ is to be read will be the discernible point of contention between the parties. The NCAA in its reply brief has regularly cited Board of Regents, commending the language of Stevens J. Alston’s attorneys on the other hand argue that in that case, said commentary was only tangentially mentioned in dicta.
Looking ahead, the NCAA should hope that the Supreme Court gives deference to its administration of amateurism. If it does not, then to the sound of college athletes rejoicing, the NCAA will need to restructure its governance model so that it conforms to the requirements of federal antitrust law.
If you are interested in learning more about the case, Sportico’s Michael McMann has provided a thoughtful reflection: