Supreme Court tips off a legal fight over NCAA amateurism restrictions
Barstool Sports founder Dave Portnoy weighs in on the case before the Supreme Court about how colleges can reward athletes who play Division I basketball and football.
It’s the legal and financial version of "March Madness."
With sports fans focused on the college women’s and men’s basketball tournament, the U.S. Supreme Court served as referee Wednesday in a high-stakes competition over the future of amateur athletics.
The justices heard 95 minutes of oral arguments over whether the NCAA – intercollegiate sports' main governing body – is using its anti-trust protections to illegally cap non-cash "education-based benefits" for student-athletes.
It is the first time the high court is considering the NCAA's business model in nearly four decades. The very future of college sports – and the big money for many schools that come with it – could be at stake.
The case comes amid growing calls for greater student compensation, especially in those profitable sports like Division I basketball and football. Current rules do not allow students to be paid to play, and scholarship money and other benefits are strictly capped.
But a high court ruling for the players could allow schools to offer additional, wide-ranging "education-related" benefits – like post-graduate scholarships, paid internships and computers.
A majority of the court appeared ready to side, at least in part, with the players, several offering skepticism at the NCAA's position.
Justice Samuel Alito: "The argument is they are recruited, they're used up, and then they're cast aside without even a college degree. So they [critics] say, how can this be defended in the name of amateurism?"
Justice Elena Kagan: "Why shouldn't we think of it in just that kind of way, that these are competitors, all getting together with total market power, fixing prices?"
Justice Brett Kavanaugh: "The antitrust laws should not be a cover for exploitation of the student-athletes, so that is a concern, an overarching concern here... Schools are conspiring with competitors, to pay no salaries to the workers who are making the schools billions of dollars."
Justices Clarence Thomas and Amy Coney Barrett also expressed concerns at the NCAA's position.
The NCAA says a century-plus of regulations have preserved integrity and fairness in the unique atmosphere of amateur sports. It worries that loosening the rules too far could – for example – permit big schools to provide Corvette cars to highly-recruited student-athletes for their daily transportation needs.
But many of those athletes say the organization, schools and sports conferences unfairly make billions off their performances.
The NCAA says it is making reforms, and is in the process of allowing student-athletes to profit in part from their names, images or likenesses. For the higher-profile talents, that could mean money from sponsorship deals and personal appearances.
Several justices expressed some concern over whether loosening the rules would create a free-for-all, disguised pay-for-play scenario.
"Chief Justice John Roberts said: "It's like a game of Jenga. (Photo by Bill O'Leary/The Washington Post via Getty Images)
Chief Justice John Roberts: "It's like a game of Jenga. You've got this nice solid block that protects the sort of product the schools want to provide, and you pull out one log and then another and everything's fine, then another and another and all of a sudden the whole thing's come – comes crashing down."
Justice Stephen Breyer: "This is not an ordinary product... I worry a lot about judges getting into the business of deciding how amateur sports should be run."
Justice Sonia Sotomayor: "How do we know we are not destroying the game as it exists?... Any fix would come after the fact, after amateurism has been destroyed in college sports. How do we ensure that doesn't happen?"
The financial stakes are enormous. Reigning college football champion University of Alabama said its athletic program had $189.3 million in revenue last year. Football head coach Nick Saban reportedly makes about $9.3 million a year.
Some current college athletes in the ongoing basketball championship tournament have been protesting this week on social media on the hashtag #NotNCAAProperty.
"The argument is simple. We deserve an opportunity to create money from our name, image and likeness," tweeted Rutgers University guard Geo Baker. "If you don’t agree with that statement, then you are saying that you believe that I, a human being, should be owned by something else."
The former athletes who first brought suit in 2014 have won at every stage of the litigation, with courts finding the NCAA rules anti-competitive. Those athletes have the support of the Biden administration and player associations in such professional sports groups as the NFL, WNBA and the NBA.
Shawne Alston, a former running back at the University of West Virginia, was among the original plaintiffs.
Longtime sports broadcaster and Fox News contributor Jim Gray says the NCAA has long resisted change. "The whole system, the whole structure of all of this needs to be revamped and reformed, " he said. "These institutions are making billions of dollars off of television. Everybody gets to touch it. Everybody's taking it home. The sneaker companies are profiteering. The coaches are profiteering. Everybody except for those who are providing the service and putting on the product. The players they need to be paid. It's long overdue."
The NCAA – with the support of major college sports conferences – says it continues to make reforms, but that its efforts have been stalled by continuing anti-trust lawsuits. The organization's president, Mark Emmert, has urged Congress to get involved.
"Without Congress' help, I fear that imbalances in recruiting, booster activities and potentially direct compensation to student-athletes will professionalize college sports, turn college athletes into employees, and erode the college sports' fundamental character," he said in a recent Senate hearing.
In a lighthearted moment early in the telephone argument, attorney Seth Waxman, representing the NCAA, mistakenly referred to Thomas as "chief justice."
"Thank you for the promotion," said Thomas, laughing.
"There is no opening," deadpanned the seat's current occupant, Roberts.
The consolidated cases are National Collegiate Athletic Association v. Alston (20-512) and American Athletic Conference v. Alston (20-520).