Your post-Alston primer

I saw a lot of apprehension based on misconception in yesterday’s comment thread about the SCOTUS’ Alston decision, so I thought I’d devote a post to what the case means now and where it might lead to.

First, it’s important to note what the decision is exactly about.

The Supreme Court handed down a heavily caveated victory for elite college athletes on Monday. The immediate impact of the Court’s unanimous decision in National Collegiate Athletic Association v. Alston is that many elite student-athletes will receive additional education-related compensations, such as additional scholarship money.

To make it even more limited, that amount was capped by the trial judge at $5900 per athlete, per year.  To give you some perspective on the impact of that amount, try this.

Now, before you cry out “but what about the schools that can’t afford to pay that?”, keep in mind that this isn’t a mandate.  The relief sought by the plaintiffs was simply to prevent the NCAA from imposing limits on education-related benefits athletes can receive for playing college sports (and, as you can see, there is still a financial limit in play).  To put it in other words,

It’s a free market, competitive adjustment.  And it’s specifically tailored to education benefits.  That’s what Alston means in the immediate sense.

That being said, it’s also true there’s a bigger impact from it than just those particular benefits.  The NCAA got smacked in the face, hard, about its belief that it was immune from antitrust law.  As Gorsuch put it in the court’s unanimous ruling,

… to the extent that the NCAA “means to propose a sort of judicially ordained immunity from the terms of (antitrust law) for its restraints of trade—that we should overlook its restrictions because they happen to fall at the intersection of higher education, sports, and money—we cannot agree.”

In other words, the SCOTUS told the NCAA that if it and the schools want antitrust immunity, seek it from Congress, not the courts.  The NCAA’s problem is that right now, it’s naked.

Now, a lot of attention is being paid to Kavanaugh’s stinging concurrence.

In a concurring opinion, Justice Brett M. Kavanaugh wrote: ” … there are serious questions whether the NCAA’s remaining compensation rules can pass muster under ordinary” antitrust legal analysis. Kavanaugh added that the NCAA “must supply a legally valid” justification that “its remaining compensation rules” have sufficient value to promoting competitive balance and that the benefits outweigh the harm being done to the athletes.

“As I see it, however, the NCAA may lack such a justification,” Kavanaugh wrote.

The NCAA and its attorneys have tried yawning past that.

It’s like force of habit for them.  And, sure, it’s not like they have much else they could say, but while Kavanaugh’s opinion doesn’t have the weight of a full court ruling behind it, it’s certainly a warning about the road the NCAA takes from here.

The lower courts struck down the NCAA’s limits on education-related compensation for athletes, but left in place other limits on compensation — and the Supreme Court upheld this baby-splitting result in Alston.

But, as Gorsuch notes in his opinion, a major reason why the Supreme Court did not go further is that the plaintiffs did not ask them to do so. As he writes, “the student athletes [did] not renew their across-the-board challenge to the NCAA’s compensation restrictions” when their case reached the Supreme Court.

Although the full Court did not weigh in on whether elite student-athletes should be entitled to more compensation than the Alston opinion requires, Justice Brett Kavanaugh wrote a separate concurring opinion where he argues that “the NCAA’s remaining compensation rules also raise serious questions under the antitrust laws.”

As Kavanaugh writes, “the NCAA’s business model would be flatly illegal in almost any other industry in America.” Among other things, the NCAA “controls the market for college athletes;” it “concedes that its compensation rules set the price of student athlete labor at a below-market rate”; and it “recognizes that student athletes currently have no meaningful ability to negotiate with the NCAA over the compensation rules.”

That’s exactly the sort of iron grip over pricing that antitrust laws are supposed to prevent.

It remains to be seen whether Kavanaugh’s opinion will someday become the law, but it will likely signal to student-athletes that they should consider filing a new lawsuit challenging the NCAA’s remaining restrictions on compensation.

Given the NCAA’s track record in such litigation…

… you’d think that would freak the membership out.  It also presents an opportunity for them to get their heads out of their collective ass.  (History defying as that may be, I know.)

Will they take it?  College athletes’ NIL compensation presents an immediate test.  Early results are muddy.

… A group of six conference commissioners, three from the Power 5, are encouraging the DI Council to scrap its long-readied NIL proposal and instead adopt an alternative plan. Under the plan, the NCAA would exempt itself from NIL completely. Schools in states with an NIL law may follow that law without penalty, and schools located in states without a statute are granted permission to each create and administer their own NIL policy, as long as they use two guiding principles: no pay for play or recruiting inducements.

The latest revelation has further delayed the long-awaited NIL vote and hurtled high-level administrators into a space of disagreement during the 11th hour of a process that began two years ago.

“In hindsight, I’m saying ‘S—, why didn’t we act on this in January?’” says one NCAA decision-maker. “We’ve done it to ourselves. Everybody has their own agenda. If we come out of this without doing anything, we are dysfunctional.”

“What a mess,” says another, both granted anonymity to speak with SI. “That’s exactly the right term. It’s a mess. If it doesn’t pass, you’ve got chaos.”

To summarize,

“This decision not only puts at risk any new legislation that might be put forward on NIL, but it puts at risk all restrictions the NCAA has on athlete compensation,” says Gabe Feldman, a Tulane law professor and expert on NIL matters.

The NCAA’s long-constructed NIL legislative proposal is rife with athlete restrictions. Most notably, the proposal prohibits athletes from using school marks and logos in endorsements, outlaws them from using school facilities for NIL activities and bans them from using university-provided content in NIL ventures.

“I don’t know how you can read the Supreme Court decision and not be concerned about being overly restrictive,” says one member of the DI Council. “It should cause everybody to take a deep breath. The proposal establishes restrictions.”

Or, if you prefer the tl;dr version:

“It feels like the NCAA is between three rocks and four hard places,” Feldman says. “There are so many forces closing in on them.”

It’s a mess of their own making.  Alston took seven years to resolve!  Mark Emmert’s had plenty of time to settle for something the schools could have lived with and it likely would have been less than it’s going to take to settle now.  Congress may not be populated with a bunch of rocket scientists, but one thing you can say about most politicians is that they know how to leverage a favorable situation.

Sen. Maria Cantwell, as the chair of the Commerce Committee, the most powerful lawmaker in the NIL debate, says the court’s decision “gives new urgency” to negotiations. Sen. Richard Blumenthal, at the center of negotiations, told SI that the ruling is “a gigantic kick in the butt” for congressional talks and that it’s possible an agreement can be reached by the time lawmakers break for August recess.

“It clears away the myth of amateurism,” he says. “Unanimous Supreme Court decisions are rare, particularly for this court. There will be additional force as a result of this one. ‘Force’ meaning not only legal persuasiveness, but also practical support for athletes rights.”

The NCAA is going to have to sue for terms.  They’re likely to get some form of an antitrust exemption, but they’re going to have to give up quite a bit to get it.  What they’d best hope is that they’re not playing the role of Germany in the Versailles Treaty.

Needless to say, this still has a long way to go from here.


Filed under Political Wankery, See You In Court, The NCAA

34 responses to “Your post-Alston primer

  1. I get the role of precedent in all of this (I’m not a lawyer but I did stay at a Holiday Inn Express last night). Doesn’t this case open the door for all of the NCAA’s rules to be challenged in court? Even Gorsuch wrote it himself that this ruling only goes as far as the plaintiff requested, so he (and his 8 colleagues) have pretty much gone on record to say, “Keep suing, student-athletes, because you’ll keep winning until we think you’ve gone far enough.” This point of view puts the onus on the NCAA to prove why a particular rule (transfers, eligibility, compensation, etc.) is necessary. I come back to eligibility. If an athlete doesn’t get drafted, he currently has no recourse. Can he sue to get the ability to return to school assuming he hasn’t signed as an undrafted free agent (it may not be at his former school)? The 5 years to play 4 is an arbitrary rule – why can’t a student-athlete play as long as he can remain in school, play and meet the school’s general academic requirements? The one-time free transfer is a restriction on the athlete’s ability to move. Why can’t a player transfer every year given the current scholarship agreement is only a 1-year agreement?

    If I were the members of the NCAA (in particular, the Power 5 + 13-15), I would be considering my options to leave and form a more perfect union with schools I have something in common with.

    Liked by 1 person

    • Harold Miller

      Perhaps this will give some impetus to 2,3 or 4 year scholarships. If nothing else to provide a less nightmarish situation in roster management in all sports.


      • I totally agree with that … definitely, one of the eventual positive unintended consequences of all of this.


        • junkyardawg41

          To continue our conversation from yesterday, if you believe that an organization like the NCAA can’t limit your ability to make money based on an arbitrary rule (4 years of income potential) — then it really isn’t a hard stretch to say that compelling someone to go to school to remain employed is a similar arbitrary rule.


          • As I said yesterday, a decision that college athletes don’t have to be actual college students would be surprising to me. If the University of Georgia adopted an idiotic stance like that, I’ll be finding other things to do with my weekends in the fall.


    • Tony BarnFart

      As a lawyer who doesn’t read as much case law as many of my colleagues do these days, I’d say your observations and frustrations are on point. The guiding principle for any honest court is to ONLY take up “cases and controversies” lest they begin to tread in the legislative arena (or even the private rulemaking of an association–i.e. rewriting a contract, effectively– that is not directly in question). Even when they can see the shitshow staring them in the face.

      So yes, the hope then is that tackling this by piecemeal lawsuits of “what abouts” brought to the judiciary will be seen to be the colossal headache it is. Now the NCAA basically has its hands tied, IMO. And West Opelika smiled.

      Liked by 2 people

      • It definitely sounds like the courts did the right thing in this case. They took the facts and applied the law as written to the plaintiff’s arguments. They didn’t go looking to force a solution for a problem broader than the complaint in front of them. They also made it clear between Gorsuch’s brief and Kavanaugh’s concurrence that they have serious problems with the NCAA’s rules in light of the Sherman Act.

        Essentially, they have said to the NCAA either reform yourself within the context of the Sherman Act, go to Congress to get a legislative solution, or deal with burning the whole thing to the ground one fire at a time. They have said to the student-athletes that we agree with your stance that the NCAA’s rules constitute a restraint of trade on your labor, but we aren’t going to burn the system to the ground because you didn’t ask the trial judge to burn the system to the ground.

        Liked by 4 people

  2. GruvenDawg

    I admit I got pretty worked up after the implications posed by Kavanaugh’s opinion. Senator, what do you see college athletics looking like in 10-15 years if this keeps going down the current road?


    • I think you’ll see a combination of what some of the Senators are asking for in terms of player health benefits and some form of a players’ organization, combined with a limited antitrust exemption so that the schools will have some control over expenses and players will have some control of their… jobs.

      Liked by 1 person

  3. SlobberKnocker

    Thanks Senator and I have a question. How do the new “educationally related benefits” fit with the current stipend? I’m sure it’s in addition but, isn’t the stipend already an educationally related benefit? I’ve tried to find a clear opinion but, have been unsuccessful.


  4. Hogbody Spradlin

    Computers huh? Let us shed a tear for Cam Newton.

    Liked by 1 person


    Lots of typical attorney speak here….there is a reason the current GAR contract gets bigger every year….


  6. sniffer

    So, we’re looking for a soon to be filed lawsuit that will take seven years to settle to end this?


    • GruvenDawg

      I doubt it’s going to take 7 years now. The NCAA has been extremely defensive before this, but a 9-0 opinion with one of the justices saying essentially “get your shit together” probably makes the NCAA rethink defending this. They need congressional help.


      • One thing Alston probably takes off the table in the short run is that I doubt you’ll see the NCAA/schools sue the states where NIL legislation comes on line next month.

        It’s Congress or bust, pretty much.


        • miltondawg

          I don’t think that you would have seen schools in states with NIL legislation sue since it is a benefit to those schools from a recruiting standpoint. But I agree that I don’t think the NCAA is going to be eager to tread back into court over NIL. As I posted yesterday afternoon, I would be interested in the number of Supremes that feel the same way as Kavanaugh seems to feel about the NCAA’s prohibitions. I’d be surprised if the NCAA at this point wants to find out for sure. What I am waiting to see is if the NCAA attempts to declare athletes ineligible if a particular state law allows more than the upcoming NCAA regulations for NIL. I’m sure that there are attorneys in every state with NIL waiting to take that case to the nearest District Court.


          • I don’t think that you would have seen schools in states with NIL legislation sue since it is a benefit to those schools from a recruiting standpoint.

            I thought it was questionable, not because of recruiting, but because they don’t want to bite the hand that feeds them.


            • 69Dawg

              Yes Senator it would end up a State School would be a party to suing the State. Suicide maybe be painless but cutting off your nose to spite your face is not. I’m old and use to many adages.


            • miltondawg

              True enough, as well.


          • I imagine the plaintiff’s bar in the Clarke County Superior Court stands at the ready to sue the NCAA in state court for a remedy if the NCAA tried to declare a Georgia athlete ineligible while that athlete was in compliance with state law. I guess the same in federal court if said athlete were needed to go across state lines.


  7. sundiatagaines

    I don’t understand the $5,900 cap. Isn’t the whole point of this that it shouldn’t exist?

    Seems like just a matter of time before someone files that the school should be able to set their own educational expenses cap, and then we’re off and running.


    • You realize the SCOTUS just upheld the cap? Exactly where would you see such a case being filed?


      • sundiatagaines

        I’m not a lawyer. I just didn’t realize the cap was a part of this.

        So basically, now the total compensation package for the next Trevor Lawrence is all the full-boat scholarship stuff, COA of about max $6k, max academic rewards of $5,900, plus whatever he can make from his NIL. Do I have that right? If so, I just see somebody fighting to break down the next wall pretty quickly.


    • 69Dawg

      Unfortunately the District court set this amount and the Plaintiffs’ agreed to it. Had they not agreed and appealed the amount they would have gotten more on remand. If they want more future different Plaintiffs’ can sue again.
      This seems like the Anti-trust lawyers relief act of 2021. Millions to be made if Congress doesn’t act.

      Liked by 1 person

    • miltondawg

      Nothing about the District Court’s ruling, the 9th Circuit’s affirming the decision, or the Supreme Court’s affirming the decision was about turning college athletics into the Wild West. The case was about the NCAA not being able to outright prohibit education-related expenses. What the District Court, if I read it correctly, essentially said was that an outright prohibition on education-related expenses by the NCAA violated anti-trust laws but that the NCAA could impose reasonable limits on education-related expenses. There will be another round of litigation, in my opinion, about what constitutes reasonable limits on education-related expenses.

      Liked by 1 person

  8. Just with respect to this case, the SA’s get a few more education dollars and Mr. Kessler (et al) got $33M.’s all been about the children. 🙄