‘The NCAA Is Not Above the Law’

The Supreme Court on Monday unanimously affirmed the 9th circuit’s decision in NCAA v. Alston. The Court found that the NCAA could not limit education-related benefits, meaning things like computers, graduate school and vocational school tuition, internships, and academic achievement awards.

While the Court affirmed that the NCAA could not limit education-related benefits, the NCAA still has full leeway and discretion on what can be defined as an education-related benefit and how to regulate these benefits. The NCAA was worried that opening the door to allow students to be given education-related benefits could lead to things like athletes being offered lucrative internships with boosters as a way to lure them to schools, or that schools would give athletes luxury cars because it was an “education-related benefit” to get to and from school. However, this point is moot as the NCAA and college conferences have significant discretion, as stated in the Court’s injunction. As the Court said, nothing stops the NCAA “from enforcing a ‘No Lamborghini’ rule.”

Another critical point about education-related benefits is that schools will have the discretion to pay for these only if they want to. Therefore, if a school does not want to pay for things like laptops or internships, they do not have to. However, there are, of course, consequences if a school decides not to pay for these things, as recruits may be more inclined to go to a school that they know will pay for these education-related benefits rather than one that does not.

The Court also refused to give what the Court interpreted as a “judicially ordained immunity from the terms of the Sherman Act for restraints of trade.” So if the NCAA wants that type of antitrust immunity, they’ll have to get it through Congress.

While the decision itself was centered on the very limited question regarding education-related benefits, it was not what was said in the opinion but what was said in Justice Kavanaugh’s concurrence that has many people talking.

“The NCAA is not above the law” is how Kavanaugh finished his concurrence. And from what he wrote, it was clear that he believes this. He stated that while the opinion only focused on education-related benefits, he wrote the concurrence to “underscore that the NCAA’s remaining compensation rules also raise serious questions under the antitrust laws.” Many interpret this as an open invite by Justice Kavanaugh for student-athletes to challenge other NCAA compensation rules.

The NCAA believes that little weight should be given to what Kavanaugh wrote as no other Justice signed on to his concurrence, and therefore it was just “his own view.” However, given the current climate in college athletics, particularly regarding Name, Image and Likeness (NIL), it is hard not to give weight to what he is saying as another indication that the NCAA’s traditional “amateurism” model is starting to falter.

So how exactly will this Court decision affect NIL legislation?

First of all, now that a court opinion has been released, there should be no further delay in the Division I Council’s vote on NIL legislation on June 22-23. The purpose of this vote is to ensure that regardless of whether or not a state has enacted NIL legislation, all players in the NCAA will be able to be compensated for their NIL. However, back in January, when the Council was initially supposed to vote on NIL rules, the Department of Justice sent a letter to the NCAA stating that they were “closely monitoring” their enaction of NIL rules in order “ensure their rules do not limit compensation,” and “impose only the narrowest form of competitive restriction that is necessary.” This monitoring is one of the many reasons why the NCAA sought help and legislation from Congress, to protect them from any potential antitrust violation once rules are enacted. Immunity that the Supreme Court has made clear they will not provide them.

Second, with the Court’s clear opinion stating that they would not give the NCAA antitrust immunity, the NCAA will have to seek this immunity from Congress. However, since the NCAA got Congress involved in the NIL debate to enact legislation to preempt state legislation, many members of Congress were very adamant that they would not endorse a bill that gave the NCAA antitrust immunity. The NCAA was willing to let that go a few weeks ago when they still had a pending Supreme Court decision, but now the NCAA is out of alternatives for antitrust immunity. Therefore, the NCAA may be more willing to work with Congress on a bill that will

be broader and include provisions like long-term health care for athletes (provisions many members of Congress feel are imperative) to get their desired antitrust immunity.

At the current moment, the case may not have a grand effect on college sports. But it’s potential to greatly change college sports in the future is vast.


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