By Nicholas A. Plinio and Gregg E. Clifton , of Jackson Lewis
The U.S. Supreme Court has announced that it would allow the U.S. Department of Justice (DOJ) to become an additional presenter during the landmark case, NCAA v. Alston, which is set for oral argument on March 31, 2021.
The Alston case arises out of consolidated appeals from the NCAA and several high-level conferences in two U.S. Court of Appeals for the Ninth Circuit rulings, American Athletic Conference v. Alston and NCAA v. Alston, which challenge the NCAA’s restrictions on compensation student-athletes can earn while participating in collegiate athletics.
The U.S. Solicitor General will have 10 minutes to argue the DOJ’s position that the Ninth Circuit properly found the NCAA’s limitations on education-based benefits to college athletes, including cash-based awards, violate federal anti-trust law under the Sherman Act. Given that the DOJ is the entity responsible for enforcing U.S. anti-trust law, its oral argument regarding its position could prove especially impactful.
In its March 10, 2021 amicus brief — one of 22 filed in Alston by various individuals and entities — the DOJ argued that the NCAA’s restrictions must be analyzed using the full “Rule of Reason” review typical for alleged anticompetitive practices under the Sherman Act. Rule of Reason review would allow a court to undertake an analysis of whether the NCAA’s rules are the least restrictive means to accomplish procompetitive goals. The DOJ’s brief notes that the Supreme Court has never upheld an alleged restraint of trade under Section 1 of the Sherman Act “based on a quick look or abbreviated deferential review” and that doing so in this case would be improper because the NCAA’s restrictions amount to “horizontal price-fixing agreements among competitors who exercise monopsony control in the relevant labor market.”
In its reply brief, the NCAA admonishes the DOJ’s view and stresses the importance of maintaining its authority to oversee collegiate athletics without “judicial superintendence of a defining aspect of college sports.”
Thus, the NCAA maintains that anti-trust concerns regarding its amateurism rules should be analyzed under a more relaxed standard of review.
By agreeing to include the DOJ in oral argument, the Supreme Court may have tipped its hand, at least with respect to what it perceives as the weakness in the NCAA’s case.
While the DOJ does not necessarily contest the NCAA’s control over its amateurism model, it does oppose treating the NCAA differently under anti-trust laws.
The NCAA has defended challenges to its amateurism model in the past by relying on the wide latitude afforded to it to oversee collegiate athletics. However, the Supreme Court appears poised to press the NCAA as to why it deserves a special exemption from federal anti-trust law.
The DOJ’s desire to intervene in Alston is consistent with its recent efforts to establish the federal government’s position on anti-trust issues surrounding amateurism in collegiate athletics. Indeed, the DOJ’s anti-trust concerns indefinitely delayed the NCAA’s historic vote on student-athlete name, image, and likeness rights, originally scheduled to take place this past January. The DOJ is expected to remain a significant player as the landscape of student-athlete rights continues to evolve.
