On Wednesday, the Supreme Court finishes its current set of hearings with a close look at how the law governs college sports – specifically, whether it is illegal to deny compensation of almost any kind to student athletes. The Court has combined two appeals for one hour of hearing; the Chief Justice has the authority to extend the time for the hearing, if the Justices wish to keep asking questions. The audio portion of the hearing will be broadcast on c-span.org/supreme court

Hearing starts at 10 a.m.:

National Collegiate Athletic Association v. Alston,

and American Athletic Conference v. Alston

Background: For most of its 115-year history, the National Collegiate Athletic Association (it had a different name in it first four years) has been promoting a story line that, over time, has drawn increasing legal challenges in the face of the modern phenomenon of big-time and very lucrative college sports. In the modern era, in which the nation’s highest paid college football coach, the University of Alabama’s Nick Saban, is paid more than $9 million a year, it is getting difficult to accept the NCAA’s refrain that this is amateur sports.

And yet, the NCAA continues to spend millions and millions in legal fees and a great deal of intellectual energy perpetuating two ideas: that student athletes must be kept amateur to ensure that they are integrated with their classmates to better their educational experience, and that the public will give up on watching college sports – in the stadiums and arenas as well as on TV — if the players are seen as paid professionals.

Today, if one were invited into the facilities of a major college football program, for example, one would see a separate world in which every need of the athletes is met – from tutoring to diet to managed exercise to medical care. And, in that world, an athlete’s highest aspiration may not be to get a degree, but eventually to get recruited into a professional career after college days are over.

Today, when sports TV networks bid into the billions for the right to broadcast college sports, especially football and basketball, there appears to be no risk that the audience would wither away if the athletes were paid something beyond athletic scholarships, which the NCAA allows. Before the pandemic, for example, the University of Nebraska’s football stadium had been sold out for 375 consecutive games – an NCAA record; on Saturday afternoons, the stadium crowd by itself becomes the state’s third largest “city.”

The NCAA has always treated its rules as governing eligibility to play, but they go far beyond requiring athletes to go to class and keep up their grades, governing many aspects of a sports participant’s campus life to ensure that they are viewed as students first, athletes second.

Many of the student athletes, themselves, do not accept the NCAA’s story line. They have lined up, several times, to sue the NCAA to challenge its “amateurism” rules, especially its strict limits on compensation beyond athletic scholarships. In the two appeals that the Court will hear on Wednesday, a group of 28 former student athletes – led by Shawne Alston, who played football for West Virginia University – sued the NCAA and eleven of the regional college sports conferences.

Their basic claim was that the NCAA and the conferences jointly make policies to reinforce the “amateurism” theme, and these combined actions violate the Sherman Act – the nation’s most powerful antitrust law that treats combined activity among economic competitors as “restraints of trade.”

The Supreme Court ruled in 1984 that the NCAA violated that Act by controlling how and when college football games could be televised, an approach designed in part to assure that TV broadcasts did not interfere with fans’ actual attendance at the games. In the course of that ruling, however, the Court made broad comments about the importance of amateurism to college sports, and said bluntly that this meant that student athletes should not be paid – period.

That protection of NCAA’s amateurism rules prevailed for some 30 years, until student athletes in 2015 found a sympathetic federal judge in California, Senior U.S. District Judge Claudia Ann Wilken in Oakland. Judge Wilken, and later a sympathetic U.S. Court of Appeals for the Ninth Circuit, ruled that the students could sue if producers of video games used their names and their likenesses – but could collect only up to the total cost of their attendance as their college or university. The Supreme Court denied review of that decision in 2016.

In the meantime, Alston and his suing companions filed a new lawsuit in Judge Wilken’s court, making a sweeping claim that all of the NCAA’s amateurism rules were illegal under the Sherman Act. Again, they won in her court and the Ninth Circuit Court upheld her decision.

Those courts nullified nearly all of the NCAA rules, concluding that student athletes are entitled to significant compensation, so long as a college or university may somehow tie them to the costs or the experience of education – including some kind of athletic performance bonus.

Those courts insisted that they were not destroying competition among college sports teams, and asserted that the curbs they imposed on the NCAA did maintain a difference between college and pro-level sports because pro athletes could get unlimited pay for their performances.

The NCAA and 11 college conferences took the dispute to the Supreme Court. It accepted review of both appeals in December. The NCAA’s filings aggressively challenged Judge Wilken, contending that a single federal judge should not be in a position to dictate the legality of everything that the NCAA does to preserve the value of its product – amateur college sports. Judge Wilken has pointedly kept jurisdiction over challenges to the NCAA, and has set up a regime under which changes in the student athlete rules must be cleared with her before going into effect.

The questions before the Court: Is it illegal, under the Sherman Antitrust Act, for the NCAA and college sports conferences to limit the compensation of student athletes if they deem that necessary to preserve their product – college sports played by amateurs? Did the trial judge and the appeals court wrongly require the NCAA and its partners in the sports conferences to justify the legality of the amateurism rules? An implied question: should future developments in this controversy be assigned to a different judge?

Significance: While the outcome of this case may provide significant new guidance on antitrust laws as it applies generally to so-called “joint ventures” (collective action by economic entities that otherwise would compete with each other), the most visible effect is likely to be on the law governing college sports competition.

The broad rulings against the NCAA by the lower courts in these cases provide a significant test of whether the Court still believes, as it apparently did in 1984, that keeping college sports as an activity in which only amateurs play contributes positively to competition in a highly visible field of commerce.

In fact, one thing that is helpful to the NCAA and the conferences is that the Ninth Circuit Court has twice dismissed as unnecessary rhetoric what the Justices said in that 1984 decision. The Justices’ comments on the needs of amateurism, the lower court suggested, were mere “dicta” – that is, added comments unnecessary to the ruling. Because the Supreme Court from time to time has problems with the occasional boldness of the Ninth Circuit Court, it might react again on this occasion.

What may work against the NCAA and its partners, however, is the fact that the NCAA has always pressed to the extreme its demands for unchecked authority to decide what amateurism is, and what is necessary to preserve it. That approach does not leave much room for compromise, and a court as divided as the Supreme Court is these days may be able to work only toward a compromise.

While there are those who, to this day, romanticize college football and basketball, as joyous gatherings of loyal alumni and devoted student fans, the scale on which money changes hands – especially over TV revenues – makes it increasingly difficult to think of it other than as Big Business that may well be exploiting the talents of athletes, many of whom come from poor or broken homes but have enough talent to become the financial salvation of their families – at least after they escape the restrictions of amateurism and become real pros.

After Wednesday’s hearing, the Court will resume its remote-by-telephone hearings on April 19, for a two-week sitting. It will be busier in that sitting than at any time in the current term, with 12 cases scheduled.