Supreme Court justices grilled the NCAA about why it keeps student athletes from making money

Supreme Court justices grilled the NCAA about why it keeps student athletes from making money
Legal experts expect any Biden Supreme Court nominee would face GOP resistance.Katherine Frey/The Washington Post via Getty Images
  • The Alston vs. The NCAA case was heard before the US Supreme Court on Wednesday.
  • The case argues that the NCAA's policies on college athletes earning money violates anti-trust laws.
  • NCAA attorney Seth Waxman argued that wageless athletes defines college sports as a product.

The Supreme Court began hearing arguments for the Alston vs. National Collegiate Athletic Association (NCAA) case on Wednesday, and the justices showed collective skepticism for the reasoning behind the NCAA's current policies that restrict compensation for athletes.

The case was docketed last May by former Division I men's and women's college athletes, led by former West Virginia running back Shawne Alston. It contends that the NCAA's restrictions on education-related compensation - such as rewards for reaching GPA thresholds - violates federal antitrust law. They also claim that the NCAA is operating in a monopolistic manner.

Last year, Northern California's Ninth Circuit Court decided educational benefits should be uncapped, so the NCAA decided to take it to the nation's highest court.
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Attorney Seth Waxman appeared on the NCAA's behalf. He argued that the NCAA should be exempt from anti-trust policies due to the principles of amateurism that define college sports as a product and that uncapping educational compensation would be a detriment to competitive balance.
Supreme Court justices grilled the NCAA about why it keeps student athletes from making money
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"This is the rare product that is defined by the restriction on compensation," Waxman said. "For more than 100 years, the distinct character of college sports is that it is played by students who are amateurs meaning not paid ... Our own view is if you allowed them to be paid, they would be spending even more time on their athletics and even less time on academics."

Meanwhile, the athletes were represented by Jeffrey Kessler. He is also the attorney for the USWNT in their Equal Pay lawsuit. Kessler argued that restrictions, not just on educational-related compensation, but all compensation for student-athletes, including name image and likeness (NIL) and shared athletic department revenue, violate anti-trust laws.

Despite a conservative majority, eight of the justices collectively showed skepticism for Waxman's arguments and appeared more in favor of those made by Kessler.
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Justice Brett Kavanaugh even went so far as to call Waxman's arguments 'circular and disturbing.'

"The antitrust laws should not be a cover for exploitation of the student-athletes," Kavanaugh said. "It does seem that schools are conspiring with competitors to pay no salaries to the workers who are making the schools billions of dollars on the theory that consumers want the schools to pay their workers nothing." Meanwhile, Justice Clarence Thomas pointed out that the athletes who help bring in billions in revenue for the NCAA and its schools are paid nothing. At the same time, coaching salaries have continued to grow at an annual rate in recent years, according to USA Today.
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"It strikes me as odd that the coaches' salaries have ballooned, and they are in the amateur ranks, as are the players," Thomas said.

Chief Justice John Roberts was the only one to side with one of Waxman's arguments, and it did not directly relate to the NCAA's current policies. Instead, it dealt with the consequences of what siding with the athletes could bring.

When Waxman pointed out that siding with the athletes could open the door for further lawsuits and put college sports in "perpetual litigation," Roberts validated those concerns and asked Kessler what the solution to preventing those lawsuits would be.
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"It's like a game of Jenga," Roberts said. "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."

Kessler responded by reiterating the fact that the current issue being debated only related to education-related benefits, and a decision on that issue wouldn't necessarily open the door for lawsuits related to compensation as a whole.

By the end of the hearing, Justices Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil M. Gorsuch, Amy Coney Barrett all expressed individual skepticism for the reasoning behind the NCAA's restrictions, indicating that a future ruling in favor of the athletes could be more likely when the case resumes. The next hearing is scheduled for Monday, April 19.
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The past year has seen a wave of support for reforms to restrictions on student-athlete compensation, including social media protests by college basketball players on the eve of March Madness and multiple bills proposed by federal legislatures.
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