Supreme Court Will Finally Tackle NCAA Compensation for Student-Athletes

The Big Ten logo is seen on the field before an NCAA college football game between Iowa and Miami of Ohio last year in Iowa City. (AP Photo/Charlie Neibergall)

WASHINGTON (CN) — Four years after it declined to hear a watershed case on compensating college athletes, the U.S. Supreme Court agreed Wednesday to look at an injunction that lets players rake in unlimited funds, so long as they relate to their studies.

The justices took up the appeal this morning without comment, as is their custom, consolidating separate cases led by former West Virginia running back Shawne Alston.

In its petition for certiorari, the National Collegiate Athletic Association accused the Ninth Circuit of taking Alston’s side based on a presumption it drew “out of thin air:” that the major difference between college and professional athletes is that professionals receive unlimited payments unrelated to education.

“Applying that invented notion, the Ninth Circuit also held that many NCAA rules are not needed to preserve the procompetitive distinction between college and professional athletes because student-athletes would not be professionals even if they were paid unlimited amounts of money to play, as long as the payments could somehow regarded as ‘related to education,’” Wilmer Cutler attorney Seth Waxman wrote for the NCAA (emphasis in original).

Alston’s opposition brief is signed by Jeffrey Kessler with Winston & Strawn. He argues that the agreement among NCAA schools to limit what student athletes receive is “a classic horizontal restraint of trade.”

“The NCAA and its member conferences and schools receive billions of dollars every year through the hard work, sweat, and sometimes broken bodies of student-athletes,” the brief states.

Kessler agrees that some restraints may be necessary to protect consumer demand, but “the trial record shows that the challenged restraints are cost-cutting measures, plain and simple, and not reasonably necessary to maintain consumer demand for college sports.”

In an interview about the case going to Washington, Kessler said he and his client are hopeful the high court can “bring to an end what has been an incredibly exploitative system in the NCAA for what are, multibillion dollar businesses.” 

Kessler is confident the justices will affirm.

“I absolutely do and clarifying this issue once and for all will hopefully lead to a new era of getting these athletes the same rights that everyone else has when they’re employed in industries like this where they generate so much revenue,” he said.

The Ninth Circuit has ruled on NCAA compensation rules before, in a case the Supreme Court declined to hear back in 2016. In the previous case with former UCLA basketball star Ed O’Bannon, a panel agreed that the NCAA had violated antitrust law but limited relief to tuition coverage, keeping cash off the table.

In the parallel case, Andrew Pincus with Mayer Brown represents 11 of the conferences for college athletics, the Big Ten and Pac-12 to name a few.

His petition for certiorari says the Ninth Circuit’s ruling gives “a single judge ongoing, czar-like authority over college sports nationwide.”

“The manner in which the courts below overreached is especially apparent in the current environment, where Congress and many individual states — as well as the NCAA and the affected schools themselves — are now deeply engage in determining whether (and if so, how) college athletes should receive compensation. Resolution of that question is properly addressed through the political process, not through distorted application of the antitrust laws.” 

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