Division I student athletes appeared poised for victory in their Supreme Court battle against the National Collegiate Athletic Association over whether the organization could impose restrictions on education-related pay.
During 90 minutes of argument over the phone on Wednesday, judges appeared skeptical of the NCAA’s claim that student payments for things like musical instruments and internships will sour fans who are drawn to the amateur quality of its competitions.
The case is the latest legal challenge to NCAA compensation policies and comes amid a high profile and related push from student-athletes seeking to take advantage of their own names, images and likenesses. The NCAA March Madness Basketball Tournament will hold its championships for both women and men on Sunday and Monday.
The Republican and Democratic-appointed judges seemed persuaded by arguments made by student athlete lawyer Jeffrey Kessler that the NCAA was violating federal antitrust law with its restrictions on education-related payments.
A federal district court overturned those restrictions and the 9th U.S. Court of Appeals upheld the ruling. The case was brought by Shawne Alston, who was a running back for the West Virginia mountaineers, and other student athletes.
“These are competitors who all come together to set prices for total market power,” Justice Elena Kagan told Seth Waxman, the NCAA attorney and former United States solicitor general.
Elizabeth Prelogar, the Acting Solicitor General, made a case for student-athletes.
Waxman centered his arguments on the claim that NCAA sports had always been defined by their amateur status, which he said meant student-athletes were not paid to play. He said the benefits of education, “whatever their labels,” are in fact professional salaries.
The last time the Supreme Court made a statement on compensation for amateur athletes, in NCAA v. Board of Regents at the University of Oklahoma in 1984, she said amateurism excluded payments for athletic performance, Waxman said.
Kessler, on the other hand, called Waxman’s arguments “just the latest iteration of the repeatedly debunked claims that compensation destroys demand for college sports.” Kessler said the definition of amateurism should be narrower: that games are played by students.
Several of the court’s conservatives have expressed concerns that the NCAA’s arguments were hypocritical or exploitative.
Judge Brett Kavanaugh said his “primary concern” was that the sports organization was using antitrust coverage to exploit students.
Kavanaugh said it appeared the schools “were conspiring with competitors not to pay wages to workers who make schools billions of dollars on the theory that consumers want schools to pay their workers nothing.”
This, said former President Donald Trump appointed, was “somewhat disturbing.”
Kavanaugh added that he believed the Board of Regents case Waxman relied on was “truly from another era” and unconvincing.
Judges Samuel Alito, Clarence Thomas, and Amy Coney Barrett also appeared disturbed by some of the NCAA’s arguments.
Thomas noted that NCAA coaches make millions of dollars, for example, one of the main arguments made by those who oppose the NCAA’s limitations on player compensation.
“It seems strange to me that the salaries of the coaches have increased,” he said.
Barrett asked Waxman if this was really his argument that “consumers like to watch unpaid people play sports.”
“Yes, that’s our line,” Waxman said.
While the judges appeared to favor the arguments made by the student athletes, they were concerned about the prospect of new lawsuits for each restriction on compensation.
Chief Justice John Roberts, perhaps the most sympathetic to the NCAA, compared the situation to a Jenga game, where every block was one of the restrictions.
“You pull out one log and another and it’s fine,” Roberts said. But he suggested that if the courts overruled NCAA policies enough, competitions would no longer be truly amateurish.
“All of a sudden it all comes crashing down,” Roberts said.
Thomas asked Kessler if he would be back in court if “a consumer survey suggests tomorrow that consumers think it’s okay for amateur athletes to earn $ 20,000 a year.”
The case is Shawne Alston v. NCAA, # 20-512.
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