NCAA V ALSTON: THE BLURRED LINE BETWEEN AMATEURISM AND PROFESSIONALISM
Updated: Jul 2, 2021
This post has been authored by Mr Namit Anurag Halakhandi.
Namit is currently enrolled in Masters in International sports law at ISDE Madrid, and hold a law degree from JGU back in India. He has a keen interest in exploring football law and the linkage of anti-trust law with sport.
This blog piece is featured as a part of our new 'Editor's Picks' series and our humble intention is to invoke a healthy debate on this topical issue. Any Comments/Ideas to the Editor can be addressed at firstname.lastname@example.org
The National Collegiate Athletic Association ("NCAA") is an organization that regulates and governs college athletes and amateur sports from the United States of America and Canada and helps in the organization of competitions among the college circuit. The central question in NCAA v Alston[i] is the legality of colleges not compensating amateur athletes through NCAA.
The crux of the arguments made by Alston (former running back for West Virginia) is that the cap on payments/grants given to the student athletes is anti-competitive. According to the NCAA regulations the athletes cannot be paid more than a “grant-in-aid”.[ii] Thus, the NCAA rules take away the ability of athletes to negotiate a salary with the college. Further, the absence of such a restriction when compensating a coach, worker, or any other stakeholder shows that the athletes are being restricted from earning what they deserve while coaches may earn millions. In any other industry, this will be a cartel and would prima facie violate the ethos of the Sherman Act.[iii] For example, all the Production Houses such as Fox, Disney, etc. cannot form a cartel and decide to restrict the amount of compensation of an actor to a certain amount.
Although the issue seems very clear, it is not. There is a lot of existing jurisprudence in the United States that recognizes and exempts the application of certain anti-trust laws to sporting bodies or leagues which are integral to the sport to exist. One of the easiest examples of this is sporting leagues. For a league to function there must be some sort of collusion between all the teams agreeing on certain rules and regulations. Therefore, what the Supreme Court of the United States will decide is whether the non-compensation of athletes under the NCAA regulations is essential for the sport or the competition to exist as it does.
The SCOTUS in the Board of Regents [iv] case where the broadcasting of amateur games was in contention ruled that the NCAA has no authority to limit the number of games that could be telecasted and held that regulation to be anti-competitive. Although in the same judgement, Justice John Paul Stevens said that:
“The NCAA plays a critical role in the maintenance of a revered tradition of amateurism in college sports. There can be no question but that it needs ample latitude to play that role, or that the preservation of the student-athlete in higher education adds richness and diversity to intercollegiate athletics and is entirely consistent with the goals of the Sherman Act. But consistent with the Sherman Act, the role of the NCAA must be to preserve a tradition that might otherwise die; rules that restrict output are hardly consistent with this role.” [v]
In essence, the SCOTUS held that the NCAA must be given some leeway from anti-trust laws, but that leeway should be analysed by the necessity of it. The NCAA is arguing based on what Justice Stephens said in the Board of Regents case that the one part of amateurism in college sport is not being paid. The NCAA is relying on the principle of rule of reason. Rule of reason in essence allows certain anti-competitive restrictions to be legal in scenarios where it is not causing an unreasonable restrain on trade or is having a pro-competitive effect.
According to this, the NCAA is arguing that the regulations that are in place with relations to amateurism are what differentiates between amateur and professional players and if college athletes are paid then there will be no difference between professional and amateur sport and amateur sport will cease to exist in its current form. Therefore, these regulations are needed to protect the market of amateur sports in the USA.
The Ninth Circuit Courts’ remedy last year was limited to the NCAA rules that restrict how schools reimburse or pay athletes for academic-related expenses while making it clear that NCAA can limit how colleges compensate the athletes.[vi] This decision was appealed to SCOTUS with oral arguments being completed on 31st March 2021. Some interesting remarks by judges in the oral arguments are questions that seek to know the real difference between amateurism and professional athletes. Comparisons being drawn with coaches who have no such restrictions. Further, it was also opined by Justice Kavanaugh that the reasoning of Justice Stephens in the Board of Regents Case is mere dicta and has no precedential value.[vii] Lastly, another interesting takeaway is that Alston has not asked for athletic-related compensation but just an order to uphold the decision of the lower court.
Although according to the author the restriction on compensation to the student athletes makes sense till there are some restrictions that would avoid the situation that happened after Law v NCAA, where the caps on coaches’ salaries was removed. This led to an exorbitant rise in the salaries of the coaches.[viii] Having few caps and restrictions after the modification that is suggested by the lower court seems the right way to strike a balance between protecting amateurism and the student athletes. Further, the payment of compensation to the student athletes could lead to more financial problems for colleges whose athletic programs are not profitable. In 2014 a study revealed only 18% of the FBS colleges make profits. [ix] Thus, the introduction of college athletes being paid without any restriction could have a very dangerous impact on the smaller teams/colleges and the competitive balance of the sport since only the rich teams will be able to attract the best athletes. Further, a decision to compensate the student athletes could raise potential Title IX issues in colleges deciding the amount of compensation different sports and different gendered athletes get.
The author also suggests that ending amateurism completely can lead to a shift in incentives for the student athletes who would start focussing on the chance to get a ticket to pro-sport (which is less than 2%) than focusing on getting a college education which has the ability to provide certain life-long benefits. To conclude the author suggests that the current cap on the compensation of the athlete is anti-competitive but the solution for the same is not removing all the restrictions but finding a middle ground with a certain restriction still being in place to protect amateurism.
The SCOTUS in the oral arguments seems to lean in the direction of Alston with one of the recurring themes being no caps on the compensation of coaches. In any case, if not from this suit, then from the Name, Image, & Likeness issues, the amateur sports landscape should expect some drastic and historical changes in the coming future when the decision is rendered by the bench.
The author can be reached for comments on his email at email@example.com
Cite as: Namit A. Halakhandi, NCAA v. Alston: The Blurred Line between Amateurism and Professionalism, Extra-Cover: The Sports Law Blog of India (27th June 2021), Accessed at https://www.extra-cover.org/post/ncaa-v-alston-the-blurred-line-between-amateurism-and-professionalism [Date of Access].
End-Notes: [i] Docket no (20-512), Supreme Court of United States. [ii] A mixture of scholarships consisting of tuition and fees, room, board, and required course related books. [iii] The Sherman Antitrust Act, 1890. [iv] NCAA v Board of Regents, <https://caselaw.findlaw.com/us-supreme-court/468/85.html>. [v] NCAA v Board of Regents, <https://caselaw.findlaw.com/us-supreme-court/468/85.html>. [vi] NCAA v Alston, Ninth 9th Circuit, 375 F. Supp. 3d 1058 <https://cdn.ca9.uscourts.gov/datastore/opinions/2020/05/18/19-15566.pdf>. [vii] Michael McCann, “SCOTUS Justices Challenge NCAA Amateurism in Historic Oral Argument” Sportico, March 31, 2021 <https://www.sportico.com/law/analysis/2021/ncaa-v-alston-supreme-court 1234626223/amp/?__twitter_impression=true>. [viii] Ibid. [ix] Harrison Marcus, “Economic Analysis: NCAA Athletes Should Not Be Paid” Last Word on Sports, 2017, https://lastwordonsports.com/basketball/2017/11/30/ncaa-athletes-not-paid-economic-analysis/.