Supreme Court appears to favor college athletes in NCAA compensation case

Division I student athletes appeared poised for victory in their Supreme Court battle against the National Collegiate Athletic Association over whether the organization could impose restrictions on education-related pay.

During 90 minutes of argument over the phone on Wednesday, judges appeared skeptical of the NCAA’s claim that student payments for things like musical instruments and internships will sour fans who are drawn to the amateur quality of its competitions.

The case is the latest legal challenge to NCAA compensation policies and comes amid a high profile and related push from student-athletes seeking to capitalize on their own names, images and likenesses. The NCAA March Madness Basketball Tournament will hold its championships for both women and men on Sunday and Monday.

The Republican and Democratic-appointed judges seemed persuaded by arguments made by student-athlete attorney Jeffrey Kessler that the NCAA was violating federal antitrust law with its restrictions on education-related payments.

A federal district court overturned those restrictions and the 9th U.S. Court of Appeals upheld the ruling.

“These are competitors who all come together to set prices for total market power,” Justice Elena Kagan told Seth Waxman, the NCAA attorney and former United States solicitor general.

Elizabeth Prelogar, the Acting Solicitor General, has advocated for student athletes.

Waxman centered his arguments on the claim that NCAA sports had always been defined by their amateur status, which he said meant student-athletes were not paid to play. He said the benefits of education, “whatever they are called”, are in fact professional salaries.

The last time the Supreme Court considered compensation for NCAA athletes, in NCAA v. Board of Regents at the University of Oklahoma in 1984, she said amateurism excluded payments for athletic performance, Waxman said.

Kessler, on the other hand, said those arguments were “just the latest iteration of the repeatedly debunked claims that compensation would destroy demand for college sports.” Kessler said the definition of amateurism should be narrower: that games are played by students.

Several of the court’s conservatives have expressed concerns that the NCAA’s arguments were hypocritical or exploitative.

Judge Brett Kavanaugh said his “primary concern” was that the sports organization was using antitrust cover to exploit students.

Kavanaugh said it appeared the schools “were conspiring with competitors not to pay wages to workers who make schools billions of dollars on the theory that consumers want schools to pay their workers nothing.”

This, said former President Donald Trump, was “somewhat disturbing.”

Kavanaugh added that he believed the Board of Regents case that Waxman relied on was “truly from another era” and was unconvincing.

Judges Samuel Alito, Clarence Thomas, and Amy Coney Barrett also appeared disturbed by some of the NCAA’s arguments.

Thomas noted that NCAA coaches make millions of dollars, for example, one of the main arguments made by those who oppose NCAA’s limitations on player compensation.

“It seems strange to me that the salaries of coaches have increased,” he said.

Barrett asked Waxman if this was really his argument that “consumers like to watch unpaid people play sports.”

“Yes, that’s our line,” Waxman said.

The case is Shawne Alston v. NCAA, # 20-512.

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