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SCOTUS strikes down NCAA limits on educational benefits

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Kavanaugh questions legality of compensation rules in concurring opinion.

Marshall v West Virginia
Former West Virginia football player Shawne Alston (pictured) was one of the litigants in NCAA v. Alson. On June 21, 2021, the Supreme Court ruled in the case that the NCAA’s restrictions on education-related benefits to student athletes violated the Sherman Antitrust Act.
Photo by Justin K. Aller/Getty Images

Today the Supreme Court handed down its decision in NCAA v. Alston, upholding a district court ruling (and Ninth Circuit affirmation) that the NCAA’s current restrictions on education-related benefits to student athletes violate the Sherman Antitrust Act. Associate Justice Neil Gorsuch authored the unanimous opinion, and Associate Justice Brett Kavanaugh authored the only concurring opinion. You can read the decision and Kavanaugh’s concurring opinion here.

In very short summary of the SCOTUS decision: the NCAA is fully subject to antitrust law and can’t shield itself by repeating “Amateurism” while clicking its heels three times; the NCAA’s restrictions on education-related benefits are, as the district court wrote, “patently and inexplicably stricter than necessary,” to the point of being unlawful; and that the NCAA can retain consumer demand for college sports while using substantially less restrictive alternatives.

Alston – named for one of the plaintiffs, former West Virginia football player Shawne Alston – notably leaves the NCAA’s limits on compensation for athletic performance intact, as SCOTUS wasn’t asked to rule on those limits.

Kavanaugh’s concurring opinion is much shorter, much more strongly worded, and much more interesting than the unanimous opinion. Kavanaugh specifically says limits on athletic compensation raise serious questions under antitrust law, even though they were not part of the case by the time it reached SCOTUS. Kavanaugh makes three major points:

First, that Alston doesn’t address those compensation rules that were upheld by the district court.

Second, that Alston establishes how other compensation rules should be analyzed in the future – that is, by the same “rule of reason” standard.

Third, that there are serious questions about whether those rules can pass the rule of reason standard. Kavanaugh even says the NCAA may lack a necessary justification.

Kavanaugh criticizes the NCAA’s justification – that compensation can be restricted to preserve amateurism, and amateurism requires uncompensated athletes – as circular reasoning. “Businesses like the NCAA cannot avoid the consequences of price-fixing labor by incorporating price-fixed labor into the definition of the product,” Kavanaugh writes.

“The bottom line 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. Those enormous sums of money flow to seemingly everyone except the student athletes. 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.”

Kavanaugh acknowledges that striking down the NCAA’s rules on compensation would create important new questions, including how non-revenue sports would be affected, and how compensation would comply with Title IX. But legislation or collective bargaining could answer those questions, he says.

He further acknowledges college sports’ place in America, before closing with his sharpest rebuke of the NCAA’s model.

“To be sure, the NCAA and its member colleges maintain important traditions that have become part of the fabric of America—game days in Tuscaloosa and South Bend; the packed gyms in Storrs and Durham; the women’s and men’s lacrosse championships on Memorial Day weekend; track and field meets in Eugene; the spring softball and baseball World Series in Oklahoma City and Omaha; the list goes on. But those traditions alone cannot justify the NCAA’s decision to build a massive money-raising enterprise on the backs of student athletes who are not fairly compensated. Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate. And under ordinary principles of antitrust law, it is not evident why college sports should be any different. The NCAA is not above the law.”

While Kavanaugh’s concurrence doesn’t carry the weight of case law, it is the strongest signal yet that the NCAA’s amateurism standard could be at risk in the not-too-distant future.

What do you think, readers? Does today’s decision go too far? Not far enough? How will this affect K-State’s competitiveness?