In their list of demands, the basketball players who staged this month’s #NotNCAAProperty movement made a plea to the Supreme Court.

“[Do] not give the NCAA any power to deny us equal freedoms.”

Depending on the outcome in NCAA v. Alston, the high court could do just that. The ultimate ruling, which will come this summer, could give the NCAA permanent legal grounds to never pay players. 

The case reviews a circuit court ruling saying the NCAA violated antitrust law by limiting the amount of “non-cash education-related benefits” that schools can offer FBS football and basketball players.

Oral arguments were heard today — a few days before unpaid athletes continue basketball tournaments that make the NCAA billions.

The History

For decades, the NCAA has poured millions in legal fees into defending amateurism — paid for by the revenue basketball players generate.

The last time the Supreme Court heard an NCAA antitrust case was the infamous 1984 Board of Regents. The court’s opinion included the following pro-amateurism language that the NCAA still touts today.

“In order to preserve the character and quality of the ‘product,’ athletes must not be paid, must be required to attend class, and the like.”

About twenty years later, former UCLA basketball player Ed O’Bannon sued the NCAA for not paying him for the use of his name, image, and likeness. 

In 2015, the Ninth Circuit heard an appeal. Its decision forced the NCAA to provide educational benefits up to the cost of attendance. The Supreme Court then refused to hear the case.

The O’Bannon decision came shortly after West Virginia football player Shawne Alston first filed his case — the one the Supreme Court is hearing today. 

O’Bannon gave Alston a narrow path to further challenge the NCAA’s limits on educational benefits.

The Stakeholders

It’s not just college athletes, the NCAA, and schools who care about the decision. Third-party companies prepping for name, image, and likeness legislation are also watching intently.

Today, even the acting solicitor general argued on the athletes’ side.

“It’s not something that happens every day,” Jaime Miettinen, athlete advocate and founder of Miettinen Law, told FOS of the executive branch’s intervention.

The high court typically agrees to hear a case for one of three reasons, Boise State professor Sam Ehrlich, who filed two supporting briefs in the case, told FOS. 

First, if the case is important for the “national zeitgeist.” Second, if the case is the type that interests the justices personally. And third, if hearing the case could resolve conflicting circuit court decisions on a particular issue. 

NCAA v. Alston falls into that third category. The crux of each argument was whether the Ninth Circuit properly applied antitrust law.

Alston lawyers effectively said the NCAA’s ceiling on educational benefits violates antitrust. But the NCAA says amateurism is legal because it’s necessary to their business.

But there’s more than just antitrust implications at stake.

If NCAA Wins

If the high court rules in favor of the NCAA, any future athlete challenges of amateurism would be stifled, legal experts told FOS.

The governing body could use the Supreme Court’s opinion to dismiss any future lawsuits questioning restrictions on athlete compensation. This means the NCAA could write any NIL rules it wanted without facing litigation — though it still might have to answer to Congress.

This would be a dream come true for the governing body, whose ultimate goal is to prevent athletes from sharing in the billions generated by the sports they play. 

It even has the added benefit of stopping the “never-ending litigation” the NCAA previously complained about in a statement.

If Athletes Win

If the court upholds the Ninth Circuit ruling (the same one that heard O’Bannon), athletes won’t just win extra educational benefits.

They could retain an opportunity to challenge the NCAA’s restrictions on athlete compensation in future lawsuits. That means anything from NIL rules to revenue-sharing agreements could be up for discussion.

Mit Winter, sports attorney at Kennyhertz Perry, described this possibility as a “new wave” of lawsuits that would continue to chip away at amateurism. 

The Caveat

These two options represent the way a clear-cut opinion would affect college sports. 

But the justices could technically write a more open-ended opinion — we just won’t know until they publish it this summer.

There were three significant questions posed by the justices to the NCAA: 

What exactly is its definition of amateurism? Do consumers really watch NCAA sports over pro leagues because they’re not paid? Why is “price fixing” the cost of athlete labor not subject to strict antitrust scrutiny?

After they finished with the NCAA, the justices asked Alston’s lawyer: Would a favorable ruling “open the floodgates” to tear down NCAA sports as we know them?

Here are the arguments from the briefs that originally sparked these questions.

NCAA’s Side 

In its argument, the NCAA exploits its dual nature as both a business venture and an educational institution.

On the one hand, it says players have to be amateurs in order to make a unique, and therefore competitive, product. 

But on the other, since amateurism is used for primarily “educational” purposes — it’s alleged main objective — it shouldn’t be subject to strict antitrust scrutiny.

How does the NCAA prove it’s an “educational venture”? By qualifying that some of it’s sports, like women’s, don’t actually make money. 

“The argument never really made sense,” University of Baltimore law professor Dionne Koller told FOS. “It never made legal sense, and it doesn’t make logical sense.” 

“We know that gender equity and the free market can coexist.”

Alston’s Side

According to Alston plaintiffs, the NCAA can’t even come up with a clear definition of amateurism, given that scholarship rules have changed so much over time. They ask how amateurism could be essential if the NCAA can’t even define it.

And in order to prove the NCAA is, in fact, subject to antitrust law, Alston lawyers emphasize that the governing body acts more like a corporation than an educational charity.

One example the brief mentions: While normal students were asked to take classes remotely, football and basketball players have competed during the pandemic in order to satisfy lucrative TV contracts.

They also accuse the NCAA of asking for the equivalent of an exemption from antitrust law altogether, something a court can’t provide.

The NCAA, of course, denies this is true. Though experts told FOS that’s basically what they’re asking for.