Supreme Court Needs to Rethink NCAA 'Amateurism'

LOS ANGELES & SAN FRANCISCO

www.dailyjournal.com

TUESDAY, JANUARY 5, 2021

PERSPECTIVE Supreme Court needs to rethink NCAA ‘amateurism’

By Maurice M. Suh, then-existing rules regarding names, images and likeness. make clear that amateurism is Daniel L. Weiss and the sale of television rights vi- After being subjected to a rule- not “pay for play,” even then the Zathrina Z. Perez olated antitrust laws. Although of-reason analysis on a well-de- NCAA argued that “pay” con- the NCAA’s regulation of stu- veloped record following a tri- stituted anything that was not s the college football dent-athletes was not before al, the NCAA regulations were permitted by its then-existing bowl season con- the court, Justice John Paul found to violate the antitrust rules. cludes and all eyes Stevens in his majority decision laws. As a result, the NCAA The 9th Circuit accepted the Alook toward March Madness, commented that college sports was enjoined from preventing fundamental premise that col- the debate concerning how have “a revered tradition of am- its member conferences and in- lege sports are different from student-athletes should be ateurism” and that amateurism stitutions from offering schol- professional sports due to cer- compensated for their close to tain features associated with 80 hours a week of training, Although the NCAA’s regulation of student- “amateurism.” It, however, did practicing, performing and athletes was not before the court, Justice not accept that this meant that studying continues in living John Paul Stevens in his majority decision the NCAA’s rules are not sub- rooms, bars, and sports talk commented that college sports have ‘a revered ject to a rule-of-reason analy- radio, and even in many state sis based on a full record. The legislatures. On Dec. 16, the tradition of amateurism’ and that amateurism 9th Circuit also rejected the U.S. Supreme Court joined is necessary for college sports to compete with NCAA’s argument that ama- the fray by granting review in professional sports in terms of popularity. teurism requires student-ath- In re NCAA Grant-In-Aid Cap letes not be paid and noted all Antitrust Litigation (Alston). In is necessary for college sports arships that were capped at the the ways that the NCAA’s own Alston, the Supreme Court will to compete with professional cost of attendance, which is the rules are already riddled with consider the 9th U.S. Circuit sports in terms of popularity. maximum the NCAA allowed exceptions allowing differ- Court of Appeals finding that He observed that the NCAA at that time. ent types of payments to stu- the National Collegiate Athlet- should have “ample latitude” In Alston, the plaintiffs chal- dent-athletes, none of which ic Association’s rules restricting in preserving amateurism in lenged the NCAA’s timeworn have decreased consumer de- its member conferences and college sports and that this lati- model of promoting college mand for college sports. schools from offering players tude included the NCAA’s rules sports through which the The 9th Circuit adopted the compensation beyond athletic that “athletes must not be paid, NCAA generates massive reve- district court’s view that con- scholarships at cost of atten- must be required to attend nue hauls (exceeding $1 billion sumer demand for college dance unlawfully restrain trade class, and the like.” for the NCAA and more than sports could be maintained by by preventing conferences and For decades, the NCAA $18 billion for NCAA-related drawing the line at student-ath- schools from competing with evaded any meaningful an- athletic departments) while letes receiving “unlimited pay- each other for the student-ath- titrust review of its compen- enacting strict and draconian ments unrelated to education, lete’s athletic services (and sation rules by claiming that restrictions on student-ath- akin to salaries seen in pro- thereby violate Section 1 of the those rules protect “amateur- letes receiving compensation. fessional sports leagues.” The Sherman Act). ism,” which the NCAA argued As it has done for decades, 9th Circuit therefore affirmed More than 36 years ago, the Justice Stevens in Board of Re- the NCAA relied on Board of the district court’s split order, Supreme Court issued NCAA gents already found to be pro- Regents to argue that the chal- which prohibited the NCAA v. Board of Regents of Univer- competitive. This was true until lenged rules are procompet- from restricting its confer- sity of Oklahoma, 468 U.S. 85 the O’Bannon v. NCAA case, itive because the popularity ences and schools from offer- (1984), which helped shape which challenged the NCAA’s of college sports depends on ing noncash education-related college sports as we know them rules prohibiting student-ath- maintaining amateurism. But benefits to student-athletes but today. In Board of Regents, the letes from receiving any com- the NCAA never defined ama- kept in place other compensa- court held that the NCAA’s pensation for the use of their teurism. While the NCAA did tion restrictions that had the potential to balloon into pro- materially changed since 2016 no longer exist. Board of Re- for them providing the NCAA fessional-like salaries, includ- with the addition of Justices gents was issued in 1984. Since with their athletic services. True ing payments untethered to Neil Gorsuch, Brett Kavanaugh then, the commercialization amateurism in college sports, education. and Amy Coney Barrett. While of college sports has exploded, however, is an artifact of a by- While the 9th Circuit pro- it is concerning that the court with the NCAA and its con- gone era that the NCAA aban- vided plaintiffs with partial, may reverse what was achieved ferences entering into highly doned long ago. The NCAA’s though significant, relief, it in Alston, it is time for the court lucrative broadcasting and me- and its member conferences denied plaintiffs the systemic to clarify the application of fed- dia rights deals, at the expense and institutions’ view of ama- changes to the NCAA com- eral antitrust law to the NCAA. of student-athletes. At the same teurism now is so tortured and pensation restrictions that they For too long has the NCAA cit- time, the financial burden on self-serving that it is not a us- were seeking. ed statements made by Justice student-athletes has increased, able construct through which a Yet the plaintiffs did not file Stevens in Board of Regents as as tuition, textbooks, housing, court should evaluate whether a writ of certiorari; only the “precedent” for insulating the cost of living, and other ex- the NCAA’s compensation re- NCAA sought the court’s re- NCAA’s amateurism rules from penses have skyrocketed. The strictions violate the antitrust view. In its writ, the NCAA federal antitrust oversight. Al- demands and expectations on laws. The court’s evaluation in objects to applying a rule-of- though the 9th Circuit noted in student-athletes have likewise Alston of the NCAA’s opposi- reason analysis on a full record prior decisions that Justice Ste- greatly increased as the pop- tion to student-athletes receiv- to what it claims to be its “am- vens’ statements were mere dic- ularity of college sports has ing noncash education-related ateurism rules.” The NCAA ta, it appears to have shaped its grown: The institutions, the benefits purportedly in the instead seeks a broad legal ruling in Alston within the con- coaches and the viewing public name of “amateurism” — what- pronouncement that its rules struct of amateurism that was now expect that student-ath- ever that may mean — pro- are valid as a matter of law if, created by those comments. letes will act and perform in a vides the court with the ideal on their face, they are “clear- In reviewing Alston, the Su- professional-like manner. avenue to revisit (and clarify) ly meant to help maintain ... preme Court should make The NCAA has long used its Board of Regents and untether amateurism in college sports” clear that Justice Stevens’ state- amateurism theory to defend antitrust review of the NCAA’s — and that amateurism means ments in Board of Regents are its exploitive model against rules from the amorphous con- whatever the NCAA says it not precedent. The court also lawsuits and regulation, which cept for amateurism. The court means. Under the NCAA’s should find that, while they has allowed the NCAA to ob- should leave discussions of am- position, any challenge to its may have had persuasive value tain massive revenue while de- ateurism to those still waxing amateurism rules should be in the past, the underpinnings pressing what the student-ath- nostalgic about the days of Kn- dismissed at the motion to dis- for Justice Stevens’ statements letes may receive in exchange ute Rockne and Red Grange.  miss stage if it could make such a showing. In other words, the Maurice M. Suh, Daniel L. Weiss and Zathrina Z. Perez are attorneys at Gibson Dunn & NCAA is seeking for the Court Crutcher LLP. to provide it special treatment under the antitrust laws. It is difficult to predict how the Supreme Court may rule or why it granted review in Alston instead of O’Bannon a few years earlier when both the NCAA and the plaintiffs sought the court’s review — other than noting that the composition of the court has