Kavanaugh to NCAA: Antitrust Laws Not ‘Cover’ for Exploiting Student-Athletes’

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Right in the middle of March Madness the NCAA is facing judgment on another court as the U.S. Supreme Court considers NCAA v. Alston, a class-action suit filed in 2014 by Division I football and basketball players against the collegiate sporting organization.

Under the NCAA’s rules, colleges and universities can pay for athletes’ educational expenses, including tuition and fees, room and board, and books, as well as small awards for athletic or academic achievements.

Though, if athletes are paid for playing sports, they become ineligible to play under NCAA, which directs sports at more than 1,000 member American colleges and universities.

USA Today reported that most of the justices seemed to pile on NCAA:

The NCAA’s lawyer, Seth Waxman, contended that legal precedents and the law itself should allow the NCAA to set the compensation rules because the public benefits from having a choice between pro and amateur sports, as the NCAA defines amateur sports.

However, he faced pointed inquiry from nearly all of the justices, with Justice Brett M. Kavanaugh asserting that “the antitrust laws should not be a cover for exploitation of the student-athletes.”

Kavanaugh added: “It does seem … schools are conspiring with competitors — agreeing with competitors, let’s say that — to pay no salaries for the workers who are making the school billions of dollars on the theory that consumers want the schools to pay their workers nothing. And that just seems entirely circular and even somewhat disturbing.”

Justice Stephen Breyer admitted he is struggling with the case.

“It’s a tough case for me,” Breyer said. “And the reason it’s so tough is for me is because this is not an ordinary product. This is an effort to bring into the world something that’s brought joy and all kinds of things to millions and millions of people. And it’s only partly economic, okay?

“So, I worry a lot about judges getting into the business of deciding how an amateur sport should be run, and I can think of ways around that, you could just say it’s a different kind of product,” Breyer said.

ESPN also reported on the oral arguments:

Waxman and the NCAA claim that the unpaid status of college athletes is a key part of their appeal to consumers. Waxman says that because amateurism is the characteristic that sets the NCAA apart from others in the marketplace of sports entertainment, the organization should get to decide how to define the line between amateurs and professionals. He said that the ruling in district court amounted to a judge micromanaging the NCAA’s business.

Plaintiff’s attorney Jeff Kessler and several of the justices pushed back on the idea that providing athletes with money would cause the public to lose interest in college sports.

Justice Samuel Alito pointed out that athletes already receive some payment in the form of scholarships, stipends and other benefits and that those allowances have not caused a downturn in TV ratings or ticket sales.

“Fourteen different briefs were filed in support of the athletes, including one from the Biden administration,” Amy Howe wrote about the case on SCOTUS blog. “In a brief signed by Elizabeth Prelogar, who will make her first oral argument appearance as acting solicitor general on Wednesday, the Department of Justice acknowledges that, for purposes of antitrust law, the ‘product that the NCAA and its member schools provide is unusual.’

“There must be some agreement among the schools to generate athletic competition, and the NCAA and the schools “have long marketed student-athletes’ amateur status as an essential attribute of intercollegiate sports,’” Howe wrote. “But despite those unusual features, the DOJ concludes, the NCAA’s eligibility rules nonetheless should be subject to the more stringent standard of review.”

A decision is expected from the High Court this summer.

The case is National Collegiate Athletic Association v. Alston No. 20-512 in United States Supreme Court.

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