NCAA v. Alston: Supreme Court not impressed with old arguments, but how will it rule?

Attempting to predict a U.S. Supreme Court decision based on the tone and tenacity of the questions that justices ask attorneys during oral arguments has proven to be a fruitless exercise since, well, about 1789. It’s always best to assume nothing.

So who knows what the nine current justices will decide in NCAA v. Alston — a case that boils down to, in the most general of descriptions, whether college athletes can be paid above and beyond their currently allotted scholarship. A decision won’t be rendered for months, likely sometime in June.

That said, the morning couldn’t have been too pleasant for NCAA attorney Seth Waxman, who got waxed by a slew of justices during Wednesday’s 90-minute session.

Liberals, conservatives and everyone in between sounded extremely skeptical as they listened to the NCAA's defense of amateurism, which was full of time-honored and eye roll-inducing tropes from Waxman such as: “If you allow [athletes] to be paid, they will be spending even more time on their athletics and even less time on academics.”

Never mind the NCAA “bubbling” a combined 132 men’s and women’s basketball teams far from their campuses so they could fulfill lucrative television contracts. Nothing wrong with that — it’s what the players want as well — but let’s not pretend it was done in the interest of academics. This is business. Always.

The NCAA's essential argument is that fans of college sports like that the players aren’t paid and therefore allowing them to be paid would adversely impact the popularity and profitability of the enterprise. Basically, we should continue to do this because we’ve always done this and it’s worked well for us and some people like it.

The justices hated that.

“You can only ride on the history, Mr. Waxman, for so long,” Justice Elena Kagan said. “... I guess it doesn’t move me all that much that there’s a history to this, if what is going on now is that competitors, as to labor, are combining to fix prices.”

The Supreme Court didn't seem to like the NCAA's arguments in defense of its amateurism on Wednesday. (Maddie Meyer/Getty Images)
The Supreme Court didn't seem to like the NCAA's arguments in defense of its amateurism on Wednesday. (Maddie Meyer/Getty Images)

Added Justice Brett Kavanaugh: “It does seem … the schools are conspiring with competitors, agreeing with competitors, to pay no salaries to the workers who are making the schools billions of dollars on the theory that consumers want the schools to pay their workers nothing. And that just seems entirely circular and even somehwat disturbing.”

Kagan was nominated for the Supreme Court by President Obama. Kavanaugh by President Trump. When you’re getting hammered by both of them ...

Yet despite all of that, there are no guarantees. As bold as the justices were in systematically picking apart Waxman’s arguments, they also expressed a hesitancy to make a ruling that might blow college athletics into something unrecognizable.

Somewhat understandably, no one seems to want to look back and realize that their decision — even if it’s the right thing to do and rooted in law — somehow caused a ripple effect that killed off March Madness, or even a bunch of non-revenue sports somewhere.

“How do we know we aren’t destroying the game as it is?” Justice Sonia Sotomayor asked.

“This is a tough case for me … because it's a unique product and it brings joy to a lot of people,” Justice Stephen Breyer said. “I worry about judges getting into the business of how amateur sports should be run.”

Whether such thinking should even be a consideration is a question unto itself. Still, it’s worth acknowledging that as important as this issue is to some, by Supreme Court standards, it isn’t much.

Allowing players to make a little extra money off their Instagram feed or TikTok account (which is how the vast majority will be impacted) isn’t some clear and present danger. Conversely, innocent people are unlikely to perish if some college athletes are limited to tuition, room and board.

Even the most vocal proponent for player compensation has to acknowledge that it, as well as allowing players to profit off their name, image and likeness, will be messy and unpredictable. Gloriously messy to those who believe in free markets, but messy still.

“It’s like a game of Jenga,” Chief Justice John Roberts said. “You’ve got this nice solid block that protects the sort of product the schools want to provide, and you pull out one log and then another and everything’s fine, then another and another and all of a sudden the whole thing … comes crashing down.”

If nothing else, Wednesday morning showed how decades of ineffective leadership — both at the NCAA, in conference offices and on campus — have left college sports prone. Rather than evolve, compromise and change with the times, college sports has clung to the status quo via lawyers, lobbying and scare tactics. (Competitive balance! Academics!)

Now the future is in the hands of nine justices who are likely more focused on the “Rule of Reason” and the Sherman Antitrust Act than whether or not paying players will really impact recruiting. (Here’s a solid prediction: It’ll do the opposite of what the NCAA says and actually spread the talent out more, not less.)

At the same time, state houses, courtrooms and perhaps even the United States Congress are hashing through name, image and likeness issues.

Basically, the NCAA did nothing for so long, it's handed the steering wheel over to politicians, lobbyists and jurists. They just punted it all away. It’s a disastrous way to run a business. Yet here we are, their lawyer getting so scalded by Supreme Court justices that the NCAA’s chief hope for victory is that the court is too scared to act.

“Antitrust laws should not be a cover for exploitation of the student-athletes,” Kavanaugh said.

Sure. But will anyone do anything about it?

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