It is never advisable to be too sure of how the Supreme Court will rule on a case after listening to oral arguments, but it surely seemed that at least a majority of the Justices lean toward ruling against the NCAA, which is hopeful that the highest court will find its rules restricting education-related compensation are not in violation of antitrust law.
Justice Kavanaugh was clearly the largest advocate for the athletes seeking to maintain lower courts’ opinions that the NCAA’s gross restrictions should not be maintained. He first argued with the NCAA’s lawyer, Seth Waxman of WilmerHale, that the NCAA is worried about college athletes receiving $6,000 per year when television contracts are worth billions of dollars, and that $6,000 is not a great sum of money when you consider the fact that athletes are often injured and unable to major in what they want. He added that the NCAA talks about $6,000 as an exorbitant amount of money when it truly is not.
However, the most important line from the entire hearing may have been when Justice Kavanaugh said that antitrust law should not be a cover for the exploitation of college athletes. He then acknowledged that Waxman highlighted tradition from other cases and responded that those cases were from different eras. This was supported by Justice Kagan who told Waxman that the NCAA can only ride on the history of amateurism for so long and that a lot has changed in the way that athletes have been treated over time.
Justice Gorsuch seemed to be just behind Justice Kavanaugh in terms of his display of angst toward the NCAA. He highlighted that the NCAA has monopsony control over labor price and that college athletics is not like professional leagues where the teams collectively negotiate with a players’ association. Near the end of the hearing, Justice Gorsuch said that the NCAA possesses complete market power over college athletes at the highest level and thus restrictions on athlete compensation are likely to have significant anticompetitive effects.
A common thread throughout the oral arguments revolved around the pay received by college coaches. Justice Thomas said that it was odd to him that coach salaries have ballooned while amateurism has purportedly remained a constant. Justice Alito made it seem like his position is that college athletes are used up by powerhouse schools who are largely responsible for generating revenue that then goes to coaches’ salaries. He also noted that very few of the athletes will ever make money at the professional level.
The most NCAA-friendly Justice appeared to be Justice Breyer, who mentioned that he is worried about judges getting into the business of how an amateur sport should be run. Justice Sotomayor, who at first asked Waxman why the NCAA does not simply let the conferences make rules surrounding restrictions on athlete compensation, later told Solicitor General Prelogar, who represented the Department of Justice at the oral arguments, that she is not completely comfortable that a ruling in favor of Alston would not destroy the college game as it currently exists.
There were also quite a few comments throughout the oral arguments expressing concern about the NCAA constantly being involved in litigation if the Court ruled in favor of Alston. If that is one of the main concerns of the Justices, then that could bode well for Alston.
It appears that Justices Kavanaugh, Gorsuch, Thomas, and Alito are squarely on Alston’s side. Justice Breyer seems to be siding with the NCAA. The remaining Justices are wildcards, but Justice Barrett also seemingly swayed toward Alston. Ultimately, no one knows how the Court will rule, but the NCAA cannot be feeling great after oral arguments.
Darren Heitner is the founder of Heitner Legal. He is the author of How to Play the Game: What Every Sports Attorney Needs to Know, published by the American Bar Association, and is an adjunct professor at the University of Florida Levin College of Law. You can reach him by email at [email protected] and follow him on Twitter at @DarrenHeitner.