Southpaw 40: All's Well With Alston
The Supreme Court handed college athletes a huge victory—but the fight for fair wages is just getting started.
Dear readers,
First things first . . . WE TOLD YOU SO!!
In last week’s newsletter, anticipating the imminent release of the Supreme Court’s decision in National Collegiate Athletic Association v. Alston, we wrote, “Knowing our luck, the Court will probably release its opinion on Monday, and we’ll have to sit idly through multiple cycles of punditry before delivering our take. C’est la vie.”
Well, guess what? It happened! On Monday, the Court released its decision, and the floodgates opened wide, releasing a torrent of takes as we sat helplessly, trying to drink from the proverbial fire hose.
The only saving grace, of course, was that the Court got it right. As you may have expected, the Alston decision will be the subject of our newsletter this week.
Better late than never, right?
-Calder and Ian
College athletes won big at the Supreme Court. But in the fight to win fair wages, they’re still in the first quarter.
If you haven’t been following NCAA v. Alston, allow us to give you a quick primer. In a narrow sense, the case concerned the NCAA’s rule preventing colleges and universities from providing their athletes with “non-cash, education-related” benefits not directly related to their academic scholarship. In the NCAA’s formulation, these “education-related benefits” include things like paid post-graduate internships, scholarships for graduate degrees, free laptops, travel benefits, and free musical instruments—in other words, perks that are regularly available to typical, non-athlete students.
Alston’s lawyers argued that the NCAA’s league-wide ban on these benefits constituted a collusive, anti-competitive practice in violation of federal antitrust law. Meanwhile, the NCAA argued that the normal legal standard that courts use to evaluate antitrust cases—called the “rule of reason”—shouldn’t apply to them, because the association, its member schools, and the athletes all have to work together in a “joint venture” to provide a viable and entertaining product to consumers. In fairness, the NCAA had some justification for this argument, but not much—namely a single sentence in the 1984 case NCAA v. Board of Regents of the University of Oklahoma, in which the Court said that the league should be given “ample latitude” under antitrust law.
But on Monday, in a 9-0 decision written by Associate Justice Neil Gorsuch, the Court resoundingly rejected the NCAA’s narrow argument in this case and took direct aim at its broader argument that the league somehow deserves special treatment under the law. (For a detailed analysis of the Court’s legal reasoning, check out this article in the National Law Review.)
It was, to use a tired sports metaphor, a knock-out punch—but in the short term, Alston probably won’t change much. Although the decision does prevent the NCAA as a league from preventing schools from awarding athletes education-related benefits, it still gives conferences broad authority to define the parameters of those benefits, and it allows individual schools to adopt their own restrictions on those benefits—meaning most athletes are unlikely to reap the rewards of these benefits anytime soon.
But forcing schools to give their football players free trombones was never really the purpose of Alston. In legal parlance, the case was what is called a “test case”—a narrow case that a party brings in order to achieve a specific outcome that, down the road, can be used as the legal basis for broader challenges. (Many of the Supreme Court’s most famous decisions, including Brown v. Board, come out of test cases.) So although Alston was nominally about the NCAA’s limit on “education-related benefits,” the broader argument that the Court affirmed—that the NCAA’s anti-competitive business practices should be subject to normal scrutiny under federal antitrust law—opens the door to future challenges to the NCAA’s entire business model, which is premised on multiple entities working with each other to deny workers fair compensation for their labor.
The significance of this broader ruling was not lost on the justices. In a concurring opinion, Associate Justice Brett Kavanaugh left the door wide, wide open for a case that would challenge the NCAA’s ban on athlete compensation. Here are some particularly juicy quotes from everyone’s favorite beer-drinking-justice:
“All of the restaurants in a region cannot come together to cut cooks’ wages on the theory that 'customers prefer to eat food from low-paid cooks. Law firms cannot conspire to cabin lawyers’ salaries in the name of providing legal services out of a 'love of the law.' Hospitals cannot agree to cap nurses’ income in order to create a 'purer’ form of helping the sick. News organizations cannot join forces to curtail pay to reporters to preserve a 'tradition' of public-minded journalism. Movie studios cannot collude to slash benefits to camera crews to kindle a 'spirit of amateurism.’”
“Nowhere else in America can businesses get away with agreeing not to pay their workers a fair market rate on the theory that their product is defined by not paying their workers a fair market rate, and under ordinary principles of antitrust law, it is not evident why college sports should be any different.”
“The NCAA is not above the law,” Kavanaugh concluded.
If you were following this saga online as the two of us were, you may have been privy to some memes on this topic, mostly related to a favorite old ClickHole essay entitled, “Heartbreaking: The Worst Person You Know Just Made A Great Point.”
O.K., we agree.
Even with Kavanaugh and Gorsuch’s support, the decision is a major win for college athletes—but it’s important to understand the decision in the context of advocates’ broader strategy. From what we’ve learned from some of our reporting on this issue, it’s clear that the activists working on behalf of college athletes are basically running a two-pronged strategy. On the one hand, they’re hoping to challenge the most egregious elements of the NCAA’s business practices in the courts and win limited protections for the athletes. As an element of this part of the strategy, the Court’s decision in Alston is a massive victory.
But that’s only half the ballgame. Advocates know that achieving the necessary reforms to the NCAA’s model through legal action alone would be difficult, costly, and extremely slow. Instead, what challenges like Alston are ultimately designed to do—in conjunction with legislative action at the state and local level—is put pressure on the NCAA and its allies in Congress to come to the negotiating table and pass federal laws to protect athletes’ economic rights.
So far, they’ve had some limited success in the legislative arena. Facing the imminent enactment of various state laws governing athletes' ability to profit from their name, image, and likeness, the NCAA has asked Congress to pass a unified, federal standard that would allow athletes to enter into endorsement deals. But even with the NCAA at the table, advocates are facing an uphill climb. Just last week, negotiations on a potential legislative deal fell apart on Capitol Hill, and the NCAA has basically thrown its hands up ahead of July 1, when the first of the state name, image, and likeness laws will go into effect.
And herein lies the great irony of the Alston decision: namely, that the conservative-dominated Supreme Court, the most reactionary and least democratic institution in the nation, is out in front of Congress on a civil rights issue that enjoys broad bipartisan support both in Congress and among voters. As the 9-0 decision and Kavanaugh’s fiery concurrence make clear, there is real bipartisan animus toward the NCAA and—albeit for different reasons. The left hates the NCAA because it brazenly exploits a largely Black labor force while writing million-dollar bonus checks to its executives. The conservative right hates the NCAA because its business model violates the sanctity of the free market. (For what it’s worth, the Trumpian right also hates the NCAA, but for reasons that don’t fit neatly into this broad-strokes schema.) All things considered, shitting on the NCAA is becoming America’s one truly bipartisan pastime. In the liberal Slate, Mark Joseph Stern wrote a piece on the decision titled “The NCAA Is Running an Illegal Cartel, and the Supreme Court Knows It.” In the conservative National Review, Dan McLaughlin argued that Kavanaugh’s opinion is a “warning the NCAA would be wise to heed.”
Nevertheless, legislative progress on the Hill is being blocked by a handful of Republicans—led by Senator Roger Wicker of Mississippi—who, so far, has only supported legislation that the NCAA basically drafted themselves. While Senate and House Democrats—and even some more populist Republicans—are eager to provide support for college athletes, a core of their Republican colleagues remain essentially intractable, due to some combination of their coziness with the NCAA and a reflexive opposition toward anything they see as a Democratic policy priority. (Then again, maybe congressional Republicans just see a bit of themselves in an organization that exists to consign productive members of society to poverty while lining their own pockets.)
This is all to say that Alston is an important victory, but it’s only an opening salvo in a much broader fight. Until Republicans in Congress can be cornered into passing laws that actually guarantee college athletes fair wages and broad labor protections, the fight will have to continue.
The decision does, however, give us hope that, sooner or later, college athletes will win the rights and protection that every worker deserves. Of course, victory is not an inevitability, but as with every labor fight (and sporting match), momentum matters, and right now, it’s on the side of the athletes.
RODNEY’S ROUNDUP
Do you want to read about . . .
. . . the first active NFL player to come out as gay, and another out player who paved the way for him? “Dave Kopay’s Long Wait,” by David Kamp in Slate (June 23, 2021.
. . . the politics of Barstool sports (and a take that might be familiar to Southpaw readers…)? “How Republicans Became the Barstool Party,” by Derek Robertson in POLITICO Magazine (June 20, 2021).
. . . Ohio’s latest push to ban transgender athletes from competing in women’s sports? “Ohio House passes bill to ban transgender athletes from participating in girls and women’s sports,” by Jessie Balmert in the Columbus Dispatch (June 24, 2021).
. . . the Olympics’ first openly transgender athlete? “Weightlifter Laurel Hubbard will be first trans athlete to compete at Olympics,” by Sean Ingle in The Guardian (June 20, 2021).
. . . the (very weird) first week of MLB’s anti-sticky-stuff crusade? “Joe Girardi’s Corncobbing Highlighted A Delightful Night For Sticky-Stuff Enforcement,” by Chris Thompson