ACE, Other Associations Ask Supreme Court to Reverse Federal Ruling on College Athletics, Antitrust Laws
February 08, 2021

An amicus brief​ was submitted today by ACE and 10 other higher education associations supporting an appeal by the National Collegiate Athletic Association (NCAA) and 11 athletics conferences to the U.S. Supreme Court in NCAA v. Alston, a case which could inhibit colleges’ and universities’ ability to continue with the current model of intercollegiate athletics.

Nearly a half million student-athletes at roughly 1,100 NCAA member schools compete every year. Just a small proportion of them, at a relatively few schools, participate on teams with the potential to generate significant revenue. But, as the brief notes, a lower court decision regarding the application of federal antitrust law to the NCAA’s efforts to set and enforce rules regarding payments and benefits to student-athletes has potentially broad implications across the entire spectrum of intercollegiate athletics.

The brief says the Supreme Court should overturn a May 2020 Ninth Circuit Court of Appeals ruling that affirmed a decision by U.S. District Judge Claudia Ann Wilken. In that decision, Judge Wilken applied antitrust principles to enjoin the NCAA from enforcing some of its rules pertaining to student-athlete inducements and support, and directed the parties to seek guidance from the court before making certain future changes to NCAA rules.

“The NCAA sets the rules that define who is eligible to participate in those sports based on input from its members—within a context of attentiveness to the student-athlete educational experience, including academic success, opportunities to integrate into the campus community, and obtaining the ultimate aim of this college experience, graduation,” the brief states. “Amici are concerned that the Ninth Circuit’s decision threatens an unwarranted transformation of intercollegiate athletics that is unwanted by their member institutions, and shows insufficient regard for the overarching mission of our Nation’s colleges and universities: providing a high-quality education.”

The case revisits a 1984 Supreme Court ruling that recognized in NCAA v. Board of Regents of University of Oklahoma that “the preservation of the student-athlete in higher education … is entirely consistent with the goals of the Sherman (antitrust) Act.” It further explained that rules limiting eligibility to enrolled students who are not paid to play “are justifiable means of fostering competition among amateur athletic teams and therefore procompetitive” for purposes of antitrust challenges. Decades later, this premise remains the same. Colleges and universities are educational institutions first and foremost, and they have legitimate interests in distinguishing intercollegiate athletics from professional sports leagues.

The brief makes three key overarching points:

​First and foremost, universities are not commercial, profit-seeking entities. An analysis within an antitrust framework that views the NCAA’s (and the conferences’) decisions about financial constraints on student-athletes in purely economic terms is misplaced. Schools have additional interests at play for their athletic programs, such as keeping academics central, providing a diverse array of athletics opportunities, and compliance with gender equity obligations under Title IX. Educational institutions cannot properly function in a world where decisions about rules for intercollegiate sports get tested against standards that might apply to purely commercial endeavors.

Judicial micromanagement is unworkable and inconsistent with the educational mission that undergirds collegiate athletics. The Ninth Circuit has anointed a single judge in California as the arbiter of what counts as legitimate educational costs and payments, overriding the NCAA’s considerable knowledge of the context and input from its member schools and conferences. The NCAA’s goal has been to permit colleges and universities to support an athlete’s full participation as a student in the academic community while also making judgments about circumstances where monies may be improperly funneled to players as a disguised financial reward akin to a professional athlete’s salary.

The vast majority of intercollegiate athletic programs aspire, first and foremost, to provide education through athletics, and higher education institutions are better positioned than the courts to inform decision-making in that regard. The NCAA is member-governed. Its Board of Governors is composed of presidents and chancellors from each division, and volunteers from member schools populate legislative bodies for each division, as well as committees that set association-wide policy. This NCAA self-governance aligns with principles of institutional self-governance that have long-permeated American higher education.     

The Supreme Court will hear oral arguments in the case March 31. A decision is expected by July.​