Alston goes to the Supremes.

If the NCAA felt good about its chances of having the Ninth Circuit’s ruling in Alston overturned — after all, it’s not a stretch to assume the SCOTUS wasn’t taking the appeal simply to pat the 9C on the back for a good job — it probably doesn’t feel that way after the line of hostile questioning its side took yesterday.

In many respects, the justices hammered the NCAA. They pried into the organization’s amateurism policy, criticizing a model that allows coaches, administrators and executives to make millions while “the workers,” says one justice, go unpaid. Several justices questioned the merits of the NCAA’s grievances, referring to them merely as “complaints” that shouldn’t be before the court in the first place. After all, asked Justice Brett Kavanaugh, what’s an extra $5,800 per athlete when executives make billions from television revenue?

“Schools are conspiring, agreeing with competitors, to pay no salaries to workers,” Kavanaugh said. “It seems somewhat disturbing.”

In one of the most significant and maybe stunning moments, Clarence Thomas, another conservative justice who experts say rarely speaks up during cases, prodded Waxman over million-dollar coaching salaries.

“It strikes me as odd,” he said, “that coaches’ salaries have ballooned and they are in the amateur ranks, as are the players.”

Later on, Thomas showed his affinity for the college game, citing the “transfer portal” during one question.

The justices seemed to agree that the NCAA provided no evidence in its filings to suggest that fans would be less interested in college sports if athletes receive greater benefits, striking at the heart of the organization’s case.

On the other hand, several of the justices seemed uneasy about the consequences of siding with the plaintiffs.

Addressing acting solicitor general Elizabeth Prelogar, who joined the arguments for the plaintiff because the Justice Department has taken a position on the case in their favor, Justice Sonia Sotomayor said: “I’m not sure that you have given me comfort on some of the questions that my colleague, the chief justice, asked, which is, ‘How do we know that we’re not just destroying the game as it exists, meaning we’re being told by Mr. Waxman that all of these educational-related payments can become extravagant and, as a result, be viewed by the public as pay for play?’ ”

Or, as Justice Elena Kagan called it during questioning of Kessler, “the kind of floodgates argument – like what’s next? (Athlete compensation) is just going to go up and up and up, and pretty soon it will just be a regular labor market.”

It’s a mug’s game to rely on oral arguments to predict the outcome of the case, so I won’t even try to go there.  Dellinger outlines the four most likely outcomes:

A decision is likely to come in one of four forms: (1) a narrow plaintiff ruling that upholds broader amateurism policies; (2) a more broad plaintiff ruling that destroys the amateurism defense and cracks the door for more legal challenges to the NCAA model; (3) a narrow ruling in favor of the NCAA that strikes down the lower courts’ decision; (4) a more broad NCAA ruling that upholds the amateurism model.

My feeling is that, intellectually, the Court knows the NCAA’s position is untenable.  However, emotionally, there is some sympathy for the abstract notion of amateur athletics that’s tugging at the justices.  Combined, that suggests to me whatever comes as a ruling (probably not until mid-summer) will likely be more narrow than not.

If anything surprised me about the questioning yesterday, it’s how well informed most of the justices appeared to be about the issues and, specifically, about how the NCAA and the schools manage college football.  We’ll find out in a few months where the SCOTUS is letting amateurism head.



Filed under See You In Court, The NCAA

25 responses to “Alston goes to the Supremes.

  1. I’m nit surprised these questions were asked but still surprised by who asked them.

    Liked by 1 person

  2. Hmmm, it seems there may be resistance across the justices’ philosophy spectrum to the NCAA’s arguments on behalf of amateurism. Maybe they are looking at the facts and following the law. If it acts like a price-fixing cartel, it’s a price-fixing cartel. Where that goes in the final ruling is anyone’s guess. I’m betting that your outcome #2 is where this is going. The states are going to pass laws similar to the original California and Florida laws (and the Georgia proposed legislation).

    It’s too bad the NCAA leadership didn’t suggest to its membership that adopting the Olympic model would have made this whole thing go away.

    Liked by 1 person

    • Bulldawg Bill

      eet, while I think athletes deserve some sort of compensation, the Olympic model would seem to open up corruption problems. What if say…Coca-Cola, says to Randy Recruit, “We’d like to sponsor your college career when you sign with Nebraska.”


  3. junkyardawg41

    I find the repeated use of the word worker versus student or student-athlete to be very interesting. It leads me to think that there will be some Justices that say the NCAA can define education related expenses as well as amateurism but can not be the arbiter over defining what is allowable work for athletic participants — meaning that the NCAA would have to allow more broad in what it allows — which would allow states to legislate things such as NIL.


  4. classiccitycanine

    It’s concerning to me that the justices appear to hold some attachment to the romantic fantasy of amateurism. Emotions really shouldn’t be a factor in a court’s decision and I don’t see how they would otherwise justify ruling in favor of the NCAA.

    Liked by 3 people

    • Ozam

      Why concerning?… Many on this blog believe in the idea of amateur athletics.

      I know the lawsuit involves the NCAA but I guarantee you high school sports is next.


      • classiccitycanine

        Believe in amateurism all you want, but there’s no legal justification for it.

        The high school and college levels are set up so differently that there’s no way NIL issues will be relevant at the high school level. Besides, if the local high school 5-star wants to make money off his YouTube channel, what business of yours is it?

        Liked by 1 person

      • classiccitycanine

        If you’re worried about the commercialization of the college game, then that ship sailed a long time ago. If that’s your concern, you should be telling the schools to turn down the television contracts and corporate advertising, not telling Todd Gurley that he can’t make a dime from signing autographs.

        Liked by 2 people

    • Dylan Dreyer's Booty

      I think there is more there than wistful romanticism, especially considering that it was Kagan and Sotomayor asking. Maybe they are huge fans and really are concerned about the future of the game, but I think they are more concerned about the role of courts, especially The Supreme Court, causing a sea change in society. I don’t think it stops them from making a legally supported ruling, but it is appropriate to to stop and think a minute before doing it.

      Liked by 1 person

      • classiccitycanine

        A sea change in society? C’mon. The consequences of letting Jake Fromm make money off his Instagram are not going to bring down society.


        • Dylan Dreyer's Booty

          I didn’t it would bring down society, but it will be a big change, and one that will have certain segments wringing their hands and reminiscing about the good ol’ days.


          • classiccitycanine

            I really don’t think the ordinary fan is going to see much of a difference in their experience of the sport. Regardless, handwringing about the good old days is not a reason to maintain collusion.

            Liked by 2 people

  5. snoopdawgydawg

    Since anything court related is political these days, I’ll just comment that I am not all that surprised that these specific individuals follow college athletics closely. Thomas coming from Georgia and loves to tour the country in a camper, Kavanaugh of “boofing” fame seems peak college football fan material, and Kagan played(plays) in beer league softball, also prime college sports stomping grounds.

    The NCAA should be terrified about what is happening precisely because of how likely these people are to have such strong opinions about this stuff that really doesn’t have any political hue to it. a 9-0 decision wouldn’t surprise me.

    Also, I’d guess that it’s a very narrow ruling only because they tend to always give narrow rulings unless that case absolutely calls for something broad, like Obergefell, Citizen’s United, etc.


    • dawg100

      Totally agree, a 9-0 isn’t out of the question and any romanticism discussed earlier in this thread is probably true as well, and will make it a very narrow ruling, opening the door to the parties making more detailed deals between themselves under a collective bargaining type setup.

      The issues of football driving revenue for non-revenue sports, for instance, is huge. WHO gets paid, and why? And what about Title IX, when those very same “NON-revenue” sports want “equality?” etc. etc.

      The women’s national soccer team complaining about getting less while they agreed early on to a salary type format while the men agreed to riskier revenue sharing (of a MUCH larger pie) with 2 distinctly different entities is the type of thing we are going to see argued ad nauseum.

      Although, I think the Babylon Bee had it right when arguing that the U15 (i.e. aged 14 and under) boys who beat Team USA women 5-2 deserved to be paid more, is too funny!


    • Gaskilldawg

      I agree with your thinking about certain Justices having interest in sports. I also noted that the Justices’ law clerks give the Justices a lot of background information. I have no clue who the clerks are but I can see clerks, who would be recent graduates, that were college athletes or big college athletics fans, educating the Justices who may not follow sports.


  6. miltondawg

    As the Senator pointed out, trying to gauge which way the wind is blowing based on questioning is a fool’s game. I don’t think that it will be a broad decision either way. If I had to make a bet, I think that the Court eliminates the ambiguity in the Board of Regents opinion about the NCAA needing ample latitude in maintaining the amateur nature of college athletics (which the NCAA has used as a crutch for more than 35 years) while at the same time creating an avenue for athletes to receive extra benefits and education-related compensation. It was a helluva gamble by the NCAA to appeal this case to SCOTUS. The Court may well put a torpedo right through Board of Regents.


  7. Personally, questions about the results of a ruling bother me. I wish they would simply rule on the law and the constitution and let the consequences fall where they may. Legislatures and society can deal with those and should deal with them.