Alston Supreme Court Brief Refines Players’ Key Arguments

Michael McCann
·4 min read

Attorneys for a class, led by former West Virginia running back Shawne Alston, filed a 62-page brief to the U.S. Supreme Court on Wednesday. The lengthy brief covers well-travelled ground, though it adds new descriptions designed to persuade the nine justices.

The case centers on the U.S. Court of Appeals for the Ninth Circuit’s ruling that the NCAA and its roughly 1,200 member schools illegally conspired under federal antitrust law. They did so by capping grants-in-aid to tuition, fees, room, board, books and other expenses up to the value of the full cost of attendance. While a profound holding—NCAA amateurism rules, historically immune from scrutinizing antitrust analysis, were deemed unlawful—the Ninth Circuit’s remedy proved more restrained. The court held that while colleges can’t collectively decide to not reimburse expenses “related to education” (such as for computers, study abroad, musical instruments or academic achievement incentive awards no greater than what the NCAA already permits for athletic achievement), they could continue to jointly limit compensation related to athletics. Still, if upheld, the ruling could open the door for other player lawsuits that rely on Alston as precedent—potentially subjecting the NCAA to years of antitrust litigation and unraveling decades of university and conference practices.

In Wednesday’s brief, attorneys for Alston underscore a key theme: Because NCAA rules prevent colleges from directly paying the recruits they seek to enroll, colleges spend that money on other people, services and facilities they believe attract recruits. Recipients include the prominent coach, the extravagant stadium, the state-of-the-art training center and so on. Noting that eight states submitted an amicus brief in support of the NCAA, Alston pointedly observes that the highest-paid public employee in six of those states is a college football or basketball coach.

The brief also draws the justices’ attention to schools requiring their athletes to play during the coronavirus pandemic while classmates are told to Zoom into class. “FBS football players and Division basketball players,” the brief emphasizes, “[have] put their health at risk to continue generating huge revenues for their schools during a pandemic, while other students are told to attend school remotely and stay in their dorms.” This point is designed to counter an NCAA argument that amateurism advances higher educational goals.

The topic of academic perks for coaches also draws fire. While coaches can land lucrative bonuses when a high percentage of their students graduate, “schools cannot offer the same type of academic incentives, in any amount, to the student-athletes” who meet those benchmarks.

The NCAA’s resistance to schools’ gaining more autonomy is likewise highlighted. Alston attorneys question why the NCAA is worried about additional payments when “NCAA rules have increasingly allowed other kinds of compensation, without any negative impact on demand for college sports.” To that point, the brief maintains that college athletes “may receive tens of thousands of dollars in compensation above full cost-of-attendance scholarships” for factors “overtly connected to athletic performance.” To illustrate, the brief asks the justices to consider that Michigan State, “spent $50,000 to buy a $10 million insurance policy for a basketball player to protect his future earnings” and that “NCAA rules also allow schools to make payments for athletic achievements that can total almost $6,000 annually” through Visa gift cards.

Much of the brief delves into the particulars of antitrust law. The gist of Alston’s argument: Section 1 of the Sherman Act forbids competing businesses—including universities that compete for students, faculty, staff, grants, fundraising and media attention—from conspiring in ways that unduly harm a relevant market. Alston attorneys assert that the labor market for college athletes is damaged when schools can’t compete for athletes as they would without joint restraints. The NCAA has rejected this argument, insisting that a relatively deferential standard of review be applied. To that point, the NCAA stresses “stare decisis”—the principle that the Court should follow precedent—and highlights the Court’s 1984 ruling in NCAA v. Board of Regents. In Board of Regents, Justice John Paul Stevens endorsed “ample latitude” for the NCAA in “the revered tradition of amateurism in college sports.”

Much remains in NCAA v. Alston, which has attracted amicus briefs (including a pro-NCAA brief on behalf of 18 former college athletes, some of whom appeared confused by what they signed). The NCAA’s reply brief is due on March 19 and the Court will hold oral argument on March 31. Sometime this summer the Court will issue a ruling, which might contain concurring and dissenting opinions.

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