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.