The ruling itself was narrow, and it did not concern the question of paying students for their athletic prowess. But Justice Brett M. Kavanaugh, in a separate opinion, anticipated that as a next step, and warned that the “NCAA’s business model would be flatly illegal in almost any other industry in America.”
The “bottom line,” he wrote, “is that the NCAA and its member colleges are suppressing the pay of student athletes who collectively generate billions of dollars in revenues for colleges every year.”
The biggest takeaway from the court’s action, experts said, might be that the court is no longer accepting of the NCAA’s argument that it has a unique role to play in protecting the amateur status of college sports, and deserves special dispensation from antitrust laws.
“The notion of NCAA exceptionalism is dead, or at least, on significant life support,” said Dionne Koller, a law professor and the director of the Center for Sport and the Law at the University of Baltimore.
The ruling comes amid a sea change in the world of college sports that has shifted the tide rapidly against the NCAA when it comes to athletes’ rights.
The NCAA has been left scrambling to deal with laws in dozens of states that will allow athletes the right to make money off their own name, image and likeness — the first of which takes effect July 1. Congress and state lawmakers have started a push to give college athletes even broader rights, such as the ability to unionize or demand a share of their sport’s revenue.
And the college sports behemoth is also fighting a battle on issues of gender equity after an onslaught of criticism over its treatment of women athletes.
The NCAA has asked Congress to pass name, image and likeness legislation that would go into effect nationally. But it wants a limited exemption to antitrust laws as part of that legislation — a demand that is likely to face even more-serious opposition in the wake of the Supreme Court’s ruling.
The NCAA was contesting a lower-court ruling that allowed colleges to offer greater academic-related enticements to Division I football and men’s and women’s basketball players — benefits such as scholarships for graduate degrees, paid postgraduate internships, and provision of free computers, musical instruments and other types of equipment related to education.
The NCAA generally limits benefits to scholarships and the cost of attending college. It warned that providing more leeway to promise greater benefits could lead to internships with boosters and athletic companies that offered extravagant salaries as a “thinly disguised vehicle” for paying professional-level salaries.
Protecting the amateur nature of college athletics is paramount in protecting its brand, the NCAA argued, and what separates it from professional sports.
The decision came in a long-running antitrust lawsuit filed by former West Virginia running back Shawne Alston and former University of California center Justine Hartman, representing a class of former men’s and women’s college athletes.
U.S. District Judge Claudia Wilken agreed with the NCAA about direct compensation. But she said enhanced education benefits were fair game, even though the NCAA said it would set up a bidding war between universities and athletic conferences for top athletes.
Justice Neil M. Gorsuch, writing for the court, said Wilken had carefully examined the NCAA’s case and found it did not make a compelling argument for why the organization should be spared from the normal rigor of antitrust litigation.
The lower-court decision “stands on firm ground — an exhaustive factual record, a thoughtful legal analysis consistent with established antitrust principles, and a healthy dose of judicial humility,” Gorsuch wrote.
Gorsuch acknowledged that the court in a 1984 case called NCAA v. Board of Regents said the NCAA played a unique role that courts should consider when assessing whether its actions violate the antitrust Sherman Act. But that goes only so far, he wrote.
“Given the sensitivity of antitrust analysis to market realities — and how much has changed in this market — we think it would be particularly unwise to treat an aside in Board of Regents as more than that,” he wrote.
The NCAA’s lawyer told the Supreme Court during oral arguments that the decision, upheld by the U.S. Court of Appeals for the 9th Circuit, approves “a regime that permits athletes to be paid thousands of dollars each year just for playing on a team and unlimited cash for post-eligibility internships.”
In a statement after the ruling, the organization emphasized the power the opinion said it retains.
“While today’s decision preserves the lower court ruling, it also reaffirms the NCAA’s authority to adopt reasonable rules and repeatedly notes that the NCAA remains free to articulate what are and are not truly educational benefits, consistent with the NCAA’s mission to support student-athletes,” the statement said.
“Even though the decision does not directly address name, image and likeness, the NCAA remains committed to supporting NIL benefits for student-athletes,” said NCAA President Mark Emmert. “Additionally, we remain committed to working with Congress to chart a path forward, which is a point the Supreme Court expressly stated in its ruling.”
But the reaction elsewhere was that the opinion marked a definitive change.
“The NCAA is now fighting with one hand behind their backs,” said Michael Carrier, a professor at Rutgers University who filed an amicus brief in the case in favor of college athletes.
“The amateurism defense, on which the NCAA has relied for decades, is now riddled with holes,” Carrier said. “For any litigation down the road in which student-athletes seek more than they did in this case, the NCAA is going to have a very difficult time.”
The Biden administration sided with the players, saying the lower-court decision was carefully crafted to allow only payments related to education.
Both Gorsuch and Kavanaugh mentioned the billions of dollars at stake, which they said benefited the NCAA, the universities and the coaches, but not the student-athletes.
“Those who run this enterprise profit in a different way than the student-athletes whose activities they oversee,” Gorsuch wrote. “The president of the NCAA earns nearly $4 million per year . . . and annual salaries for top Division I college football coaches approach $11 million.”
Gorsuch said that it was puzzling that the NCAA had appealed the lower-court ruling, and that it was “unclear exactly what the NCAA seeks.” If it is that the court should overlook restrictions on a monopoly “because they happen to fall at the intersection of higher education, sports, and money — we cannot agree.”
He added that the lower-court decision gave the organization power to regulate the benefits colleges offer. “The NCAA is free to forbid in-kind benefits unrelated to a student’s actual education; nothing stops it from enforcing a ‘no Lamborghini’ rule,” Gorsuch wrote.
Kavanaugh’s concurring opinion was scorching: “College presidents, athletic directors, coaches, conference commissioners, and NCAA executives take in six- and seven-figure salaries. Colleges build lavish new facilities. But the student athletes who generate the revenues, many of whom are African American and from lower-income backgrounds, end up with little or nothing.”
That said, Kavanaugh acknowledged the difficulty of compensating athletes in sports other than revenue-generators such as football and basketball. He noted there are about 180,000 Division I student-athletes.
“What is a financially sustainable way of fairly compensating some or all of those student athletes?” he asked.
The case is NCAA v. Alston.