Sports

Supreme Court Brief In Alston Case Should Make The NCAA Very Concerned

The 62-page brief argues that the NCAA's compensation restraints should not be exempt from Section 1 of the Sherman Act.

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(Photo by Streeter Lecka/Getty Images)

The U.S. Supreme Court will be hearing oral arguments this month in the case of NCAA v. Alston and ultimately decide whether the U.S. Court of Appeals for the Ninth Circuit wrongfully decided that the NCAA’s eligibility rules concerning compensation of college athletes violate federal antitrust law. The parties defending the Ninth Circuit’s decision have filed their brief, which is 62 pages long, arguing that the NCAA’s compensation restraints should not be exempt from Section 1 of the Sherman Act.

Here are the highlights from the brief:

  1. Great effort is taken to distinguish the NCAA’s actual position from its stated position. The NCAA has asked for a “quick look” (traditionally used to condemn restraints as opposed to upholding them) or “abbreviated deferential review,” but in reality, the NCAA is looking for an exemption from antitrust laws, because it is asking the Supreme Court to find a restraint lawful even after a trial based on facts and economics demonstrated that it is not. This is also referred to in the brief as a “no look” at all approach.
  2. It is not for the courts to decide whether an antitrust exemption is proper. Instead, that should be left to Congress, which has not granted such an exemption to the NCAA. The outlier to that general rule is the antitrust exemption enjoyed by Major League Baseball, which has been recognized as an exception and which the Supreme Court refused to extend to the National Football League in the past. The brief notes that the NCAA has attempted to persuade Congress to provide an antitrust exemption through Sen. Marco Rubio’s Fairness in Collegiate Athletics Act without success.
  3. The NCAA has misconstrued the ruling in NCAA v. Board of Regents, 468 U.S. 85 (1984) (a case concerning rules on how many college football games could be televised), claiming that the decision created an irrebuttable presumption of lawfulness for NCAA rules that are reasonably related to the principle of amateurism. Instead, the decision highlighted that the appropriate standard should be the rule of reason as opposed to classifying restraints as unlawful per se. The rule of reason requires a fact-based analysis to determine whether rules can be justified based on their actual effect on competition in today’s market.
  4. Furthermore, to the extent that the NCAA seeks to rely on the Board of Regents case, it needs to be recognized as a decision from another era. As the brief states, “In the decades since Board of Regents, billions of dollars have flowed into top-tier college football and basketball, and these sports have evolved into commercial enterprises the magnitude of which the Court in the 1980s could not have fathomed. And FBS football bears no resemblance to the college football of the 1930s, when the author of the Board of Regents dissent — which Petitioners cite extensively — was the runner-up for the Heisman Trophy.”
  5. A key component of the underlying case was the NCAA trying (unsuccessfully) to prove that all of their rules on amateurism preserved consumer demand. However, the NCAA was caught in a trap because it sometimes allows compensation unrelated to the principle of amateurism and at other times says such compensation is impermissible. An example is that college athletes are allowed to receive tens of thousands of dollars above cost-of-attendance scholarships, which does not impair consumer demand for college sports. Another example is that Michigan State University spent $50,000 to buy a $10 million insurance policy for a basketball player to protect his future earnings. Instead, demand for college sports is driven by the fact that the college athletes are students, irrespective of what they may earn in compensation. However, instead of allowing all forms of compensation, it was found that some rules have some pro-competitive effect, but only if they prohibit unlimited payments unrelated to education, akin to salaries seen in professional sports leagues.
  6. The brief highlights some irony in a separate amicus brief submitted to the Supreme Court by eight states. It points out that those states express a concern about the cost of providing additional education-related benefits to college athletes. Meanwhile, the highest-paid public employee in six of those states is either a college football or basketball coach. It really discredits their stated position.
  7. Another salient argument in the brief shows that college athletes today are not truly amateurs by demonstrating that, while students were told to not attend class and instead appear virtually, college athletes were asked to put their health at risk to participate in events and generate revenue for their universities. “Such commercial exploitation of these student-athletes is hardly indicative of ‘a societally important non-commercial objective: higher education,’” states the brief.
  8. The brief also attempts to quash any argument that the compensation caps are related to sustaining consumer demand and references the NCAA’s own witnesses who testified that the caps are not based on such demand but instead on considerations of cost.

Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at heitner@gmail.com and follow him on Twitter at @DarrenHeitner.

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