Analyzing the Alston Oral Arguments through a Citations-Focused Perspective (Part 1)

In Sports Law by Sam EhrlichLeave a Comment

Last week, the Supreme Court held their long-awaited oral arguments in NCAA v. Alston, the long-running antitrust litigation by college athletes against the National Collegiate Athletic Association (NCAA) over allegedly price-fixed compensation.

Much has been written about this case and last week’s oral arguments.  To summarize these arguments (and provide something of a preview for the now-pending decision), I wanted to take something of a different approach by analyzing last week’s event through the lens of citations, i.e. the cases that the parties, the Department of Justice arguing as amicus curiae, and the justices themselves cited during testimony and questioning.

In sum, eighteen (18) different cases were cited during the oral arguments a total of forty-four (44) times.  Notably, a strong majority of this case citation—26 citations total—took place during the Seth Waxman’s testimony on behalf of the petitioners (the NCAA), either by Waxman himself or by the justices in questioning Waxman on the NCAA’s petition.

Somewhat surprisingly, the justices did not cite any cases during their questioning of Jeffrey Kessler (on behalf of the athlete-plaintiffs) nor during their questioning of Acting Solicitor General Elizabeth Prelogar.

Prior to last Wednesday’s arguments, I had thought that the justices’ focus in the case may end up being based much more around broader mechanics of antitrust law rather than functioning as a more specific referendum on the NCAA and of college athlete amateurism.  This rationale was based in large part around the NCAA’s briefing as petitioners, where they attempted to move the focus away from the perception raised by the respondents (and by many amicus briefs in support of the respondents) that what they were seeking from the Court was particular immunity under the antitrust laws.  Instead, the NCAA framed their arguments in large part around how joint ventures have more commonly been treated under the Sherman Act and how their setup and product meets those specifications.

Adding to this perception was the amicus brief filed by the Department of Justice, which—like the NCAA—framed the issues of the case around broader mechanical issues surrounding when, where, and how to apply deeper Rule of Reason analysis to joint venture setups.  When the Supreme Court granted the Department of Justice’s request for oral argument time, I took it as something of a sign that the Supreme Court was interested in this framing of the issues and perhaps could see this case as less of an NCAA-specific case and more of a way to resolve a broader issue in antitrust law.

Of course, this perception ended up being completely wrong, as the justices (with the notable exception of Justice Gorsuch) in their questioning largely focused on the NCAA, its perception of amateurism, and how that perception fits into the anti-price fixing provisions of the Sherman Act.  This focus is reflected in the cases cited, as the majority of the citations were to more NCAA-specific cases rather than non-NCAA antitrust cases.[1]

Interestingly, much of the citation to NCAA-specific cases ended up being during Waxman’s testimony, despite the strongly focus by Waxman and the NCAA on antitrust mechanics in their brief.  This was in large part due to the questioning by the justices.  While Waxman tried to advance antitrust mechanics early, citing Cal Dental v. FTC, American Needle v. NFL, Brooke Group v. Brown and Williamson Tobacco, and Verizon Communications v. Trinko in his opening statement and in his responses to Chief Justice Roberts, the other justices extensively asked about NCAA-specific questions about amateurism.

This shift in focus started with Justice Thomas, who began his questioning by asking about why college athletes’ compensation is able to be fixed by the NCAA while college coaches’ compensation could not be fixed in the same way.  Waxman responded by pointing to Law v. NCAA, a 1998 antitrust case where the Tenth Circuit affirmed the district court injunction of an NCAA rule capping the salary of certain Division I basketball coaches at $16,000.  The NCAA’s procompetitive rationales for the restricted-earnings coach rule—that the rule allowed for unique opportunities for entry-level coaches, allowed for schools to reduce the cost of college sports, and allowed for the maintenance of competitive balance—were each thoroughly dismantled by the Tenth Circuit, which found that these rationales were either not tied closely enough to the rule or were simply unrealistic given the actual effects of the rule.

The comparison of this case to Law would end up being a major focus of the oral arguments, becoming the third-most cited case of the day.  Justice Barrett would later pick up Justice Thomas’s thread, citing Law directly in her questioning of Waxman and the NCAA.  Kessler would then himself cite Law in his opening arguments alongside Board of Regents and O’Bannon as examples of cases where the NCAA “argued that economic competition among its member schools would destroy consumer demand for college sports” but reality did not meet those expectations.  Whether the inclusion of Law in that statement was planned or not is unknown, but it certainly did much to further highlight a significant point of contention of the NCAA’s argument for at least two justices.


[1] NCAA v. Board of Regents has had significant on the broader realm of antitrust law, and thus could be coded in this analysis in either category.  I ended up coding it as an NCAA-Specific case due to the specific manner by which it was cited during oral arguments, which was mainly focused around how the NCAA specifically is to be treated under the antitrust laws.

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