NCAA v. Alston: A Long Time Coming, Both for its Antitrust Implications and Beyond

In Supreme Court by Sam EhrlichLeave a Comment

On March 31, 2021, the Supreme Court will hear arguments in National Collegiate Athletic Association (NCAA) v. Alston, an antitrust case focused on the alleged anticompetitive effects of the NCAA’s rules and practices restricting compensation for college athletes.  Much has and will be written about the implications about this case within the broader scheme of college athletics, and what it means for amateur sports moving forward.

The Court’s grant of certiorari in Alston has been a long time coming.  A focal point of Alston will be in interpretation of the only other college sports antitrust case that the Court has taken to date: NCAA v. Board of Regents, a decision from way back in 1984.

Board of Regents was not about NCAA rules concerning the amateur status of college athletes, however, and in fact majority opinion author Justice John Paul Stevens only tangentially mentioned these rules in passing.  In doing so, Justice Stevens wrote that courts must give the NCAA “ample latitude” to play its “critical role in the maintenance of a revered tradition of amateurism in college sports.”

Since 1984, lower courts have largely struggled with interpretation of exactly when and how that “ample latitude” should be provided within the antitrust laws.  Such struggles have led to a circuit split, as highlighted extensively by the NCAA in their petition for certiorari (and by myself in a certiorari-stage amicus curiae brief that I filed in Alston).  This need for clarification by the Court has only increased in the past few decades, as antitrust challenges to NCAA amateurism rules have markedly increased in each decade since Board of Regents.  In fact, when looking at citations to Board of Regents in court decisions deciding antitrust challenges to NCAA rules the 2010s saw something of a spike:

But this rising trend in Board of Regents’s effect on NCAA amateurism rules is evident even beyond antitrust law.  Indeed, citations to Board of Regents also spiked in the 2010s in cases involving discussions of NCAA amateurism in non-antitrust cases after a sharp decline in the 2000s, showing Board of Regents’s renewed impact in the past decade in other legal issues as well:

Non-antitrust but NCAA-related cases citing Board of Regents in the past decade included, for example, discussions of college athlete employment status (Berger v. NCAA and Dawson v. NCAA) and whether athletes have a financial interest in their athletic scholarship agreements (Marcantonio v. Dudzinski). 

Such cases used Board of Regents’s “preservation of amateurism” language in a variety of different creative ways.  For instance, the U.S. District Court for the Western District of Virginia held that college athlete scholarships “are not cognizable property interests,” and thus cannot be used to show that a swimmer forced off of his team by rampant hazing by teammates could not recover under Virginia’s business conspiracy statute.  In a footnote, that court wrote that “amateurism—as opposed to a participant’s pecuniary business interest—[has been] at the heart of college athletics since the Supreme Court ruled in [Board of Regents].”  Based on this case and others, it is clear that Board of Regents’s view of amateurism as being essential to college sports has salable impact even beyond antitrust.

A critical decision that the Court must make in deciding Alston is determining whether Justice Stevens’s call for courts to give “ample latitude” to the NCAA’s preservation of amateurism is still appropriate for modern times, and to what extent that “ample latitude” should shield the NCAA from liability under the Sherman Antitrust Act.  As shown, however, such a decision will have wide ripple effects throughout the law even beyond the fairly limited antitrust question before the Court.

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