What Happens Now That The Supreme Court Has Decided Alston v. NCAA?

Yesterday, the U.S. Supreme Court ruled 9-0 in Alston v. National Collegiate Athletic Association that NCAA member colleges violated antitrust law by collectively disallowing members from providing athletes with unlimited, in-kind educational benefits. This decision marked the Supreme Court’s second rebuke of NCAA practices in the past 37 years. However, many sports fans and commentators are curious about whether this decision will have any implications beyond just the narrow issue at hand. Here are seven things that probably will come next, following the ruling:

1. Elite colleges will begin to offer some athletes more educational benefits. For a collection of institutions that purport to care about students’ education, the NCAA’s collective limits on the educational benefits provided to college athletes were silly in the first instance. Thus, their fall will only lead to almost immediate, modest change. Once can now reasonably expect the University of Oklahoma will now pay for their quarterback Spencer Rattler to have a top-of-the-line computer for his course assignments, and the University of Iowa will offer Luke Garza free lifetime education should he wish to return to school later in life to earn an additional degree. These modest reforms will not change college sports in any meaningful way, other than to make the lives of certain athletes a tad bit easier. Indeed, the NCAA probably should not have even gone to the Supreme Court to argue over this.

2. Certain conferences might pass their own rules to still limit educational benefits. Nevertheless, yesterday’s ruling only found the NCAA’s restraint on educational benefits to violate antitrust law because the NCAA’s more than 1,200 member colleges collectively have “market power.” More likely than not, a similar agreement among a smaller number of colleges such as an eight-team conference would not entail market power and thus would not violate the Rule of Reason. Thus, certain athletic conferences that are not concerned about their ability to recruit athletes to their school may seek to continue limiting education-related benefits. One conference that might be able to do so without risk of losing athlete labor to other conferences is the Ivy League, which currently disallows any athletic-related scholarships whatsoever — a relic of a rule that the NCAA technically had on the books prior to 1951.

3. The Supreme Court decision wasn’t about name image and likeness, but NIL licensing is coming. When the State of California first considering passing a bill to ensure college athletes to could license their name, image and likeness to third parties for money, NCAA President Mark Emmert astoundingly raised the possibility of banning member colleges from the NCAA for allowing their athletes these rights. These threats were so scary to some California college athletic programs that I was called upon to testify to the California state legislature and explain why these threats were infeasible and banning such colleges would amount to a clear violation of antitrust law. Although the Alston decision says nothing whatsoever about name, image and likeness or third-party licensing rights, the writing is on the wall that if the NCAA tries to ban colleges from granting athletes these rights, doing so will similarly, likely violate antitrust law. Thus, if there is a bone of sanity left within NCAA leadership, the fight over name, image and likeness licensing dies on July 1 when a number of state bills affirmatively ensuring athletes these rights become law.

4. Plaintiffs-side class action lawyers will active challenge broader NCAA labor-side restraints. Back in 2013, I wrote that it was not just the outer fringes of the NCAA’s no-pay rules that violate antitrust law but it might be the whole shebang. While the majority opinion in Alston only addressed the facts before it, Justice Brett Kavanaugh, in his concurring opinion, came a lot closer to joining onto my “shebang” view. In addition, the majority decision, while not discussing any matters beyond the narrow facts before the court, did note that future challenges of NCAA conduct would continue to be analyzed under Rule of Reason scrutiny. These statements facilitate the path for future legal challenges to other NCAA labor-side restraints, including perhaps even the NCAA’s no-pay rules. While antitrust challenges of this nature are slow (remember Alston took nine years from the complaint stage to yesterday’s final adjudication before the Supreme Court), both sports fans and antitrust advocates should keep their eyes on the legal pipeline.

5. The NCAA’s public relations team will probably keep gaslighting us on the state of the law. After the National Collegiate Athletic Association lost its seminal antitrust case Board of Regents v. NCAA, before the U.S. Supreme Court in 1984, their public relations team spun a “White Man Can’t Jump” tale of about how “sometimes when you lose, you really win.” Rather than focus of the holding of the case — that being the NCAA is subject to antitrust laws — the NCAA instead ran with the story that the U.S. Supreme Court granted them with an antitrust exemption for everything they do not directly disallowed in the case. It worked for a long time, until the Supreme Court fully rejected this position in Alston. But, as recently as yesterday, the NCAA is back at it again — claiming once again that the Supreme Court affirmed their “authority to adopt reasonable rules [and[ to articulate what are and are not truly educational benefits.” In law, however, judicial silence does not mean approval — no matter how much the NCAA spins this tale.

6. Sooner of later, Congress might act. Presumably, the NCAA recognizes, at least behind closed doors, that challenges are forthcoming to many of their other restraints including those that directly prevent pay-for-play, and that the NCAA might lose future challenges over these issues. Thus, within a few days, one could expect the NCAA to double down on their efforts to obtain from Congress some form of an antitrust exemption. College presidents and boards of trustees are accustomed to asking Congress for special antitrust exemptions, even where they are arguably not warranted. Indeed, medical colleges were able to convince Congress to pass a bill that President George W. Bush signed into law to exempt aspects of the medical student match program from antitrust scrutiny. I think it is all but certain college lobbyists will be back out again in full force!

7. Some progressives may find newfound promise in the Chicago School of antitrust law. Finally, in the early days of antitrust law, many courts’ antitrust decisions involved judges simply drawing public policy conclusions about whether particular restraints are good or bad for society. But, in the 1970s, Judge Robert Bork, through his book Antitrust Paradox, ushered in a new era of antitrust law based exclusively on economic effects. Historically, this more limited view of antitrust scrutiny was praised by conservative justices and criticized by certain progressives for perhaps curtailing potential plaintiffs’ arguments of socially-based antitrust harm. But, in Alston, this traditionally conservative, economics-only view of antitrust law is probably a big part of what doomed the NCAA’s argument from the very beginning. Indeed, the NCAA tried repeatedly to claim that amateurism has some broad public policy virtues. And, yet, that very argument never even needed to happen — not withstanding the merits (or lack thereof) of those particular NCAA claims.

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Marc Edelman (Marc@MarcEdelman.com) is a Professor of Law at Baruch College’s Zicklin School of Business, Sports Ethics Director of the Robert Zicklin Center on Corporate Integrity, and the founder of Edelman Law. He is the author of “A Short Treatise on Amateurism and Antitrust Law” and “The NCAA, Fair Pay to Play, Antitrust Scrutiny and the Need for Institutional Reform.”