Sports Law Experts Weigh in on the Import of the Landmark Supreme Court Ruling in Alston

Jul 16, 2021

Sports Litigation Alert asked a handful of our contributors, all of whom are attorneys, to analyze the U.S. Supreme Court’s ruling in NCAA v. Alston. Here are their responses:

Jeff Birren, former law professor/general counsel to the Oakland Raiders

It is sad that it took a unanimous Supreme Court decision to finally do the right thing so that now so many of their athletes can be lifted out of poverty. The NCAA will have spent well over $100,000,000 in attorneys’ fees.  Had they embraced change earlier, that money could have gone for many worthy causes, starting with a fund for permanently injured college athletes.

Mark Conrad, professor of sports law and ethics at Fordham University

The Supreme Court’s opinion not only reaffirmed the importance of antitrust law in the governance of sports associations, but also demolished the NCAA’s core arguments. In justifying a rigorous “Rule of Reason” analysis (as opposed to the more lenient “quick look” approach), the court affirmed the district court and appeals court rulings that found that the educational benefits restrictions were unduly burdensome to student-athletes and rejected the “amateurism” justifications given by the organization.

The court strongly rejected the NCAA’s reliance on language in the 1984 Board of Regents ruling that pointed to the NCAA’s role as protecting the “revered tradition of amateurism.” The fact that the NCAA relied so strongly on an old case that had nothing to do with student-athlete rights shows a desperation in finding anything to justify its restrictions.

The lower court ruling in question was actually quite narrow — it only rejected the method of calculation of educational benefits but upheld other compensation restrictions. Yet, the NCAA made a misguided attempt to appeal the case to the Supreme Court. This turned out to be a strategic mistake.

Justice Kavanaugh’s concurrence goes further than the majority opinion in its criticism of the NCAA’s restrictions. His criticism of the NCAA’s policies used a broader brush and opens the door for more litigation. Maybe that is why the NCAA threw up its hands when it suspended enforcement of its name, image and likeness regulations in the states that do not have pro-NIL laws.

If the NCAA is hoping for a lifeline from Congress in passing new NIL laws, coupled with an antitrust exemption, dream on.

Gary Chester, sports law professor and national CLE lecturer on sports law

The Supreme Court recognized the thin veneer that is so-called amateurism in college sports. The truth is that our universities did away with true amateurism, where people engage in sports without significant compensation, decades ago when it took in substantial television and other revenues and awarded valuable scholarships to student-athletes who are aggressively recruited by highly compensated coaches. The Court, particularly Justice Kavanaugh, recognized that the NCAA and the universities have enriched themselves while maintaining strict limits on the ability of a student-athlete to profit from signing autographs and other activities that are not directly related to games. A telling statement in the opinion: “While the NCAA asks us to defer to its conception of amateurism, the district court found that the NCAA had not adopted any consistent definition…the NCAA’s rules and restrictions on compensation have shifted markedly over time.”

While few see our universities as akin to for-profit businesses, there is little doubt that the athletic departments in the major conferences are just that. The Court understood this concept and did an excellent job of examining intercollegiate athletics through the lens of antitrust law. It saw the NCAA for what it is: a business charged with keeping costs as low as possible for its members, without regard for the constraints of antitrust law.

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