Courts

The NCAA Is Not Above The Law

Supreme Court hands NCAA a loss in Alston case.

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(Photo by Streeter Lecka/Getty Images)

“The NCAA is not above the law,” is the last line of the concurring opinion issued by Justice Kavanaugh in the Supreme Court decision of NCAA v. Alston. The decision, with a majority opinion drafted by Justice Gorsuch, is technically limited to a question of whether the NCAA can restrict certain types of education-related benefits for college athletes. In conclusion, the Supreme Court ruled that the NCAA cannot. However, the impact of today’s ruling may have many further-reaching effects on the NCAA, which is meeting this week on whether to approve rule changes that will allow college athletes to benefit from their names, images, and likenesses (NIL).

While amateurism, in theory, is dead, the Supreme Court decision in Alston v. NCAA will not kill the key constructs that support the crumbling archetype. College athletes will not suddenly be entitled to share in the revenue of their athletic departments and they are not at any point soon going to be classified as employees with the right to unionize or collectively bargain.

Yet, Justice Kavanaugh, regarded as a conservative individual, went as far as to suggest that college athletes could, in the future, collectively bargain for additional rights beyond those contemplated in the majority opinion regarding caps on education-related benefits. He mentioned that, if the NCAA’s remaining compensation rules other than the education-related benefits issue examined by the Supreme Court violate antitrust laws, then there could be some difficult policy and practical questions such as how paying greater compensation to college athletes would affect non-revenue-raising sports and how a compensation plan would comply with Title IX.

“Of course, those difficult questions could be resolved in ways other than litigation. Legislation would be one option,” wrote Justice Kavanaugh in his concurring opinion. “Or colleges and student athletes could potentially engage in collective bargaining (or seek some other negotiated agreement) to provide student athletes a fairer share of the revenues that they generate for their colleges, akin to how professional football and basketball players have negotiated for a share of league revenues.”

The majority opinion highlights that the NCAA relies on “amateur” (Justice Gorsuch put the term in quotes) college athletes who compete under horizontal restraints, issued and enforced by the NCAA, that restrict how schools may compensate them for their performances and that those rules depress compensation for at least some athletes below what a competitive market would allow. The athletes (under Alston as a lead plaintiff) argued that the NCAA’s rules violated the Sherman Act, which prohibits contracts, combinations, or conspiracies in restraint of trade or commerce. The district court limited the discussion to education-related benefits and the athletes did not, in front of the Supreme Court, renew their across-the-board challenge to other restrictions on compensation.

The holding was that the district court’s injunction on the NCAA’s cap of education-related benefits was consistent with established antitrust principles. The Supreme Court deemed that the NCAA’s restraints were subject to the ordinary rule of reason’s fact-specific assessment of their effect on competition. It also clarified a prior decision in the case of National Collegiate Athletic Assn. v. Board of Regents of Univ. of Okla., 468 U. S. 85, 104, n. 27 (1984), which the NCAA has long held on to as support for its policies, indicating that a comment about the NCAA’s critical role in maintaining amateurism being “entirely consistent with the goals of the Sherman Act” was a passing comment and not binding nor dispositive in the Alston case.

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It does not come as a total surprise that the Supreme Court decided against the NCAA, but very few anticipated a unanimous decision. That said, in March I offered that Justice Kavanaugh was clearly the largest advocate for the athletes, followed by Justice Gorsuch. The latter ended up writing the majority opinion with the former issuing a very strongly worded concurring opinion.

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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