Let’s Recap SCOTUS Hearing The Alston Case

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Let’s look back on Wednesday’s oral arguments in the NCAA v. Alston case.

SCOTUS justices “expressed significant questions” about compensation limits to NCAA attorneys during today’s oral arguments, according to USA Today’s Steve Berkowtiz, who notes that while NCAA attorney Seth Waxman faced “pointed inquiry from nearly all of the justices,” Justice Brett Kavanaugh asserted 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.” Meanwhile, Chief Justice John Roberts questioned plaintiffs’ attorney Jeffrey Kessler about the decisions by lower courts, which could further erode any limits on athlete compensation. 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 and another and another. And all of a sudden the whole thing comes crashing down. So what’s your answer to that way of looking at it?” In response, Kessler noted the issue is only about education-related benefits. Justices Elena Kagan and Sonya Sotomayor posed similar questions with Kagan characterizing it as the “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.” Kagan, however, did seem unmoved by the NCAA’s assertion that it maintains the right to set compensation limits due to the 1984 Board of Regents case. Kagan remarked that the NCAA’s narrative about its tradition of amateurism “sounds awfully high minded,” but noted “a great deal has changed even since Board of Regents … So I guess it doesn’t move me all that much that there’s a history to this if what is going on now is that competitors as to labor are combining to fix prices.” (link)

More from Berkowitz who reports the Alston case has cost the NCAA and its 11 conference co-defendants a combined total of “well over $250M in settlements to athletes and legal fees — and that’s without counting at least $34M in plaintiffs’ legal fees that the defendants will owe if the lower-court rulings stand.” Berkowitz adds that insurance has covered some of the costs while a lawsuit “against a group of insurers over other coverage ended earlier this month — after more than five years — with a loss in the Indiana Supreme Court.” (link)

NCAA President Mark Emmert on today’s SCOTUS oral arguments: “The case is about an antitrust issue that really focuses on who has the authority and ability to make decisions around college sports in general. This question, regardless of what the Supreme Court does or doesn’t decide, won’t resolve whether or not student-athletes should be ‘paid.’ My opinion, and more importantly the opinions of the 1,100 schools that participate in college sports, is that student-athletes need to be students, not employees of the universities. That the relationship between a university and a college athlete needs to be one of university and student, not of employer and employee.” (link)

NCAA Chief Legal Officer Donald Remy: “We are grateful to the Court for the opportunity to present our case. Today, we believe we demonstrated why, under antitrust laws, the NCAA should have ample latitude to ensure college sports are played by student-athletes and not paid professionals. As we argued, the lower court decision encourages judicial micromanagement, invites never-ending litigation as the NCAA seeks to improve the college athletic experience, and threatens the critical distinction between professional and college sports. We look forward to the Court’s decision.” (link)

Here’s the full transcript of the oral arguments. (link)

Sportico’s Michael McCann unpacks yesterday’s oral arguments in the Alston case, noting that in addition to questioning the plaintiffs about the potential for runaway compensation figures, Chief Justice John Roberts asked NCAA attorney Seth Waxman how his description of college sports’ “unique history” and “distinct character” of fielding games played by amateurs comports with schools paying up to $50,000 for $10M insurance policies to protect college athletes’ future earnings. Roberts: “That sounds like pay for play.” Meanwhile, Justice Clarence Thomas questioned Waxman on the topic of amateurism only applying to student-athletes and wondered if there was a “similar focus” that coaches’ salaries have “ballooned.” Justice Samuel Alito, McCann notes, posed one of the most pointed questions, asking Waxman how he felt about “powerhouse” programs generating massive revenue from student-athletes, who are effectively denied the opportunity to pursue certain majors due to the “constant pressure to put sports above study. … They are recruited, used up and cast aside.” Regarding the probing questions posed to plaintiffs, McCann explains that Justice Brett Kavanaugh asked a notable question when he inquired about attorney Jeffrey Kessler and the plaintiff’s “endgame” with its litigation. Specifically, Kavanaugh wondered if college athletes will pursue collective bargaining. McCann: “Although drawing conclusions from the justices’ questions in oral argument is an exercise in speculation, Alston seems poised to win. Seven of the justices expressed serious doubts about the NCAA’s legal arguments while Justices Breyer and Sotomayor appeared more supportive.” Lots more analysis. (link); More from McCann: “On Friday, the justices will meet to discuss NCAA v. Alston, decide who won and if a split vote, decide who writes the majority and dissenting opinions (and any concurrences). Just a guess: Justice Kavanaugh will write the opinion against the NCAA. We’ll find out in June or July.” (link)