Justices Voice Sympathy for Student-Athletes in Historic Compensation Case

The NCAA insists that its cash limits protect the integrity of amateur college athletics, but the Supreme Court was leery of the outfit making billions on the backs of low-cost labor.

Gonzaga forward Drew Timme (2) celebrates with Gonzaga guard Martynas Arlauskas (5) after an Elite 8 game Tuesday at Lucas Oil Stadium in Indianapolis. Gonzaga defeated Southern California in the NCAA men’s college basketball tournament 85-66. (AP Photo/Michael Conroy)

WASHINGTON (CN) — The NCAA appeared to strike out Wednesday at the Supreme Court in its push to limit the amount of cash that colleges and universities can pay student-athletes.

“For more than 100 years, the distinct character of college sports has been that it is played by students who are amateurs, which is to say that they are not paid for their play,” WilmerHale attorney Seth Waxman said this morning in oral arguments. “Maintaining that distinct character is both pro-competitive because it differentiates the NCAA’s product from professional sports and can be achieved only through agreement.” 

Defending the NCAA’s compensation rules, Waxman argued that the lower courts defined a “much narrower conception of amateurism” to say that the students would still not rank as professionals so long as the funds they are paid are related solely to education.  

“That manifestly preserves neither the NCAA’s demarcation between college or professional sports nor even the lower courts’, because whatever their labels, these new allowances are akin to professional salaries,” he said.

Justice Clarence Thomas pointed out that Waxman put a lot of emphasis on amateurism in his argument. “But is there a similar focus on the compensation to coaches,” he asked, “to maintain that distinction between coaches in the amateur ranks as opposed to coaches in the pro ranks?” 

The NCAA did have a rule that limited the amount of compensation coaches could receive, but it was defeated in a separate challenge that went before the 10th Circuit. “They are professionals,” Waxman explained, “just like professors and presidents.” 

Justice Samuel Alito brought up complaints that student-athletes have had to drop out of hard majors and hard classes to keep up with the athletics program, and many don’t go on to graduate. To this, Waxman explained that the NCAA’s position is also in the interest of their welfare. “Our own view is that if you allow them to be paid,” he said, “they will be spending even more time on their athletics and devoting even less attention to academics.” 

Justice Brett Kavanaugh noted meanwhile that the case has been marked from its outset by “the idea that the antitrust laws should not be a cover for exploitation of the student-athletes.”

Jeffrey Kessler of Winston & Strawn represents the former Division I athletes who rallied against the NCAA’s compensation caps: Shawne Alston, a former running back for the University of West Virginia, and Justine Hartman, a former basketball player for the University of California at Berkeley. 

Saying the NCAA has already “lost on the facts,” Kessler denounced the case as “the latest iteration of the repeatedly debunked claim that competition will destroy consumer demand for college sports.” 

Five years before the Ninth Circuit ruled in favor of Alston, it found in a case brought by former UCLA basketball star Ed O’Bannon that the NCAA’s compensation rules violate antitrust law.

After the O’Bannon case, the roughly 1,100 schools that make up the NCAA could only pay student-athletes the full cost of attendance — including tuition, room, board and books — plus a few thousand dollars for education-related expenses, say, traveling home on winter break or buying a laptop for class.

For student-athletes, however, a strict training schedule can make part-time work to cover any other expenses impossible. 

Kessler reminded the court Wednesday that O’Bannon precedent did little harm to the pro-competitive aspect of amateur sports. “Demand for college sports has continued to flourish,” he said. 

Acting U.S. Solicitor General Elizabeth Prelogar agreed with Kessler’s skepticism. She argued that the petitioners are trying to challenge well-established jurisprudence that the lower courts affirmed with their rulings. 

“Usually a per se rule would prevent competitors from arguing that their horizontal agreements not to pay their workforce are procompetitive,” she said. “But the lower courts here, following Board of Regents, correctly gave the NCAA the opportunity to show that its compensation rules fuel consumer interest in college sports as a distinct product.” 

The Supreme Court is due to make a decision by June. 

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