Description
Capstone 3 Instructions:
For this capstone assignment, I ask you to submit a one-to-two-page reflective paper related to NIL
You may include the following in your one- to two-page reflective paper::
What new things have you learned?
Is there anything we have discussed that you find particularly interesting?
How has this module impacted your understanding of NIL?
How have your learnings changed your preconceptions and misconceptions about NIL?
The purpose of writing this paper is to encourage you to discover what is meaningful to you and thus add value to your learning process. Please do not simply outline or summarize the course content we have covered (e.g., readings and Zoom meeting). I would like to know what you learned means to you.
Please follow APA format for the entire assignment (title page, header, page numbers, double spaced, Times New Roman 12pt font, proper in-text citations, and reference list formatting). The length (not including the title page or references) should be 2 double-spaced pages.
I will attach the assigned readings for this chapter.
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Please note: citations are provided as a general guideline. Users should consult their preferred
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Bluebook 21st ed.
Matthew J. Robinson, Amateurs or Professionals? NCAA v. Alston and the Future of
Intercollegiate Athletics, 41 DEL. LAW. 18 (2023).
ALWD 7th ed.
Matthew J. Robinson, Amateurs or Professionals? NCAA v. Alston and the Future of
Intercollegiate Athletics, 41 Del. Law. 18 (2023).
APA 7th ed.
Robinson, M. J. (2023). Amateurs or professionals? ncaa v. alston and the future of
intercollegiate athletics. Delaware Lawyer, 41(1), 18-21.
Chicago 17th ed.
Matthew J. Robinson, “Amateurs or Professionals? NCAA v. Alston and the Future of
Intercollegiate Athletics,” Delaware Lawyer 41, no. 1 (Winter 2023): 18-21
McGill Guide 9th ed.
Matthew J. Robinson, “Amateurs or Professionals? NCAA v. Alston and the Future of
Intercollegiate Athletics” (2023) 41:1 Del Law 18.
AGLC 4th ed.
Matthew J. Robinson, ‘Amateurs or Professionals? NCAA v. Alston and the Future of
Intercollegiate Athletics’ (2023) 41(1) Delaware Lawyer 18
MLA 9th ed.
Robinson, Matthew J. “Amateurs or Professionals? NCAA v. Alston and the Future of
Intercollegiate Athletics.” Delaware Lawyer, vol. 41, no. 1, Winter 2023, pp. 18-21.
HeinOnline.
OSCOLA 4th ed.
Matthew J. Robinson, ‘Amateurs or Professionals? NCAA v. Alston and the Future of
Intercollegiate Athletics’ (2023) 41 Del Law 18
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Copyright Information
Sherman Act — Antitrust Law —
College Athletics — NCAA v. Alston
In January of 2021, as the coronavirus pandemic reached its peak in
the United States, Alabama Crimson Tide football coach Nick Saban
won his seventh national collegiate championship.1 For his efforts over
the season, Saban was awarded a salary of $9.3 million,2 itself a fraction
of the more than $4 billion in revenue that college football generates
each year.3 Saban’s players, meanwhile, were eligible to receive the cost
of attendance at the University of Alabama as compensation, which included “tuition and fees, room and board, books and other expenses related to attendance . . . .”4 Last Term, in NCAA v. Alston, 5 the Supreme
Court upheld a district court ruling that the National Collegiate Athletic
Association (NCAA) rules limiting education-related compensation violated section 1 of the Sherman Act.6 Shortly after the Court’s decision,
the NCAA voted of its own accord to allow a student athlete to receive
compensation in exchange for use of their name, image, and likeness
(NIL).7 Even after this series of changes, the NCAA still restricts the
compensation that schools can provide directly to their athletes unrelated to education.8 Although the student athletes did not challenge the
remaining rules in the Supreme Court, the Alston decision, combined
with background principles of antitrust law that the Court did not consider, lays the groundwork for a successful future challenge to the
NCAA’s restrictions on compensation unrelated to education.
Although the NCAA generates roughly $1 billion in revenues each
year, NCAA rules restrict student-athlete compensation.9 Prior to
Alston, the rules limited compensation to the cost of attendance,10
meaning they served to restrict not only benefits unrelated to education,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
1 Alex Scarborough, Alabama Crimson Tide’s Nick Saban Claims Record Seventh
National
Championship,
ESPN
(Jan.
12,
2021),
https://www.espn.com/collegefootball/story/_/id/30696121/alabama-crimson-tide-nick-saban-claims-record-seventh-nationalchampionship [https://perma.cc/M89F-ZX55].
2 Steve Berkowitz et al., NCAA Salaries, USA TODAY (Nov. 17, 2020), https://sports.
usatoday.com/ncaa/salaries [https://perma.cc/R39N-HN4M].
3 See Rey Mashayekhi, The Financial Fallout of a Canceled College Football Season, FORTUNE
(Aug. 10, 2020, 9:49 PM), https://fortune.com/2020/08/10/college-football-cancelled-2020-ncaafinancial-impact-revenue-schools-big-ten-sec-acc-big-12-pac-12 [https://perma.cc/N82N-M68S].
4 NCAA,
DIVISION
I
MANUAL
209
(2021),
https://web3.ncaa.org/lsdbi/
reports/getReport/90008 [https://perma.cc/X3PS-K2JQ]; see id. at 206–07.
5 141 S. Ct. 2141 (2021).
6 See id. at 2151–52, 2166.
7 The Alston holding did not compel the NCAA’s NIL decision because the ruling left the
NCAA’s rules limiting compensation unrelated to education undisturbed. See id. at 2165.
8 Id.
9 See O’Bannon v. NCAA, 802 F.3d 1049, 1052 (9th Cir. 2015).
10 See In re NCAA Athletic Grant-in-Aid Cap Antitrust Litig., 375 F. Supp. 3d 1058, 1071 (N.D.
Cal. 2019).
471
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HARVARD LAW REVIEW
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but also benefits tied to education, such as postgraduate scholarships,
vocational school scholarships, expenses related to study abroad, and
posteligibility internships.11 These rules had largely escaped direct legal
challenge since 1984, when the Supreme Court stated in NCAA v. Board
of Regents of the University of Oklahoma12:
[T]he NCAA seeks to market a particular brand of football — college football. The identification of this “product” with an academic tradition differentiates college football from and makes it more popular than professional
sports to which it might otherwise be comparable, such as, for example,
minor league baseball. In order to preserve the character and quality of the
“product,” athletes must not be paid, must be required to attend class, and
the like.13
In that case, several colleges challenged NCAA rules limiting the total number of football games that could be televised nationally, as well
as the number of televised games that any single team could participate
in14 — restraints that applied to the consumer-side output market rather
than the labor-side input market. The Court made the statement while
explaining why these horizontal restraints on trade, which would ordinarily be held per se unlawful under the Sherman Act, are instead subject to the “rule of reason” test, in which courts conduct fact-specific
analyses of the relevant market to determine whether there has been an
antitrust violation.15 In the decades after its decision, a circuit split
emerged over whether the Court’s statement was binding precedent on
the labor-side input market16 or mere dicta.17 This paved the way for
Alston, which began in 2014 and 2015 when current and former Division
I football and basketball players filed new challenges to the rules imposed by the NCAA and eleven of its conferences limiting the compensation that athletes may receive for their services.18
The United States District Court for the Northern District of
California held that limitations on education-related student-athlete
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
11 Id. at 1088.
12 468 U.S. 85 (1984).
13 Id. at 101–02 (emphasis added).
14 See id. at 94–96.
15 See id. at 101–03.
16 See McCormack v. NCAA, 845 F.2d 1338, 1345 (5th Cir. 1988) (holding that because the
NCAA’s compensation rules did not violate antitrust laws, enforcement actions undertaken to uphold the rules were not an illegal group boycott). The Fifth Circuit relied on the Board of Regents
decision to determine that the compensation rules were valid. Id. at 1344.
17 See O’Bannon v. NCAA, 802 F.3d 1049, 1075 (9th Cir. 2015) (holding that the NCAA’s rules
limiting compensation below the full cost of attendance were more restrictive than necessary to
serve the procompetitive goal of maintaining amateurism). The Ninth Circuit concluded that the
Board of Regents discussion of amateurism was dicta. Id. at 1063.
18 See In re NCAA Athletic Grant-in-Aid Cap Antitrust Litig., 375 F. Supp. 3d 1058, 1061–62
(N.D. Cal. 2019). Cases brought by several plaintiffs were consolidated into a single case during
pretrial proceedings. Id. at 1065 n.5.
2021]
THE SUPREME COURT — LEADING CASES
473
benefits constituted unlawful restraints on trade under section 1 of the
Sherman Act.19 Because the court determined that “‘a certain degree of
cooperation’ is necessary to market athletics competition,”20 it applied
the rule of reason balancing test to determine whether the rules violated
the Sherman Act.21 The rule of reason test contains three steps: first,
the plaintiff must prove that the challenged restraint has a substantial
anticompetitive effect; then, if the plaintiff succeeds, the burden shifts
to the defendant to demonstrate the restraint results in procompetitive
effects; finally, if the court finds procompetitive effects, the plaintiff
must show the procompetitive benefit could be achieved through less
restrictive means.22
Although the court concluded that the rules limiting compensation
do have the procompetitive effect of distinguishing collegiate athletics
from professional athletics, it found that the NCAA could accomplish
this effect through less restrictive means.23 In particular, the district
court concluded that education-related benefits, unlike benefits unrelated to education, are easily distinguishable from compensation paid to
professional athletes.24 Accordingly, the court left restrictions on payments unrelated to education undisturbed, while striking down limitations on education-related benefits.25 At the same time, the decision left
in place several limits on the newly permissible benefits, including that
individual conferences can restrict education-related benefits even if the
NCAA cannot.26 Both parties appealed the decision.27
The Ninth Circuit affirmed.28 The NCAA limited its challenge to a
narrow set of issues, including the district court’s application of the rule
of reason’s second step.29 The NCAA argued that the compensation
restrictions were necessary to maintain the distinction between college
and professional sports, thereby increasing consumer choice and enhancing competition.30 The Ninth Circuit agreed with the district court,
however, that only some of the restrictions — those on payments unrelated to education — served to enhance the distinction between college
and professional athletics.31 The NCAA also challenged the district
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
19 15 U.S.C. § 1; In re NCAA, 375 F. Supp. 3d at 1110.
20 In re NCAA, 375 F. Supp. 3d at 1066 (quoting O’Bannon, 802 F.3d. at 1069).
21 Id.
22 O’Bannon, 802 F.3d at 1070.
23 In re NCAA, 375 F. Supp. 3d at 1082–83.
24 Id. at 1083.
25 See id. at 1087–88.
26 Id. at 1090.
27 See In re NCAA Athletic Grant-in-Aid Cap Antitrust Litig., 958 F.3d 1239, 1243 (9th Cir.
2020).
28 Id. at 1244.
29 Id. at 1257.
30 Id.
31 Id.
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[Vol. 135:471
court’s injunction as impermissibly vague, arguing that the relief would
“usurp[] the association’s role as the ‘superintend[ent]’ of college
sports.”32 The Ninth Circuit again agreed with the district court, concluding that the district court “struck the right balance in crafting a
remedy that both prevents anticompetitive harm to Student-Athletes
while serving the procompetitive purpose of preserving the popularity
of college sports.”33 While the NCAA again appealed, the athletes did
not appeal the court’s decision to leave non-education-related compensation limits intact.34
The Supreme Court affirmed.35 Writing for a unanimous Court,36
Justice Gorsuch first concluded that the district court properly applied
the rule of reason test rather than performing the quick review sometimes given to joint ventures.37 Next, Justice Gorsuch agreed with the
district court, and therefore the Ninth Circuit in O’Bannon v. NCAA,38
that the Supreme Court’s opinion in Board of Regents did not create a
binding precedent “reflexively” supporting the compensation rules.39 As
a final step in confirming that the rule of reason test applied, Justice
Gorsuch agreed with the district court that the NCAA and its member
schools are commercial enterprises subject to the Sherman Act.40 Justice
Gorsuch then reviewed the district court’s application of the rule of reason test.41 Despite “agree[ing] with the NCAA’s premise that antitrust
law does not require businesses to use anything like the least restrictive
means of achieving legitimate business purposes,”42 Justice Gorsuch ultimately viewed the district court’s analysis as in harmony with antitrust
law, finding that “the district court nowhere — expressly or effectively — required the NCAA to show that its rules constituted the least
restrictive means of preserving consumer demand.”43 Justice Gorsuch
also rejected the NCAA’s arguments regarding step three of the test,
holding that the district court found permissible alternative rules that
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
32 Id. at 1263 (quoting O’Bannon v. NCAA, 802 F.3d 1049, 1074 (9th Cir. 2015)).
33 Id.
34 See Alston, 141 S. Ct. at 2154.
35 Id. at 2166.
36 Id. at 2147.
37 See id. at 2155. The Court assumed for the sake of its analysis that the NCAA correctly
identified itself as a “joint venture.” Id. When the Court determines that the procompetitive effects
flowing from restraints imposed by joint ventures are either nonexistent or necessary, or as the
Court put it, “at opposite ends of the competitive spectrum,” the Court can determine the validity
of the rules in the “twinkling of an eye.” Id. at 2155 (quoting NCAA v. Bd. of Regents of the Univ.
of Okla., 468 U.S. 85, 109 n.39 (1984)); see id. at 2155–56.
38 802 F.3d 1049, 1063 (9th Cir. 2015).
39 Alston, 141 S. Ct. at 2158.
40 Id. at 2158–59.
41 Id. at 2160.
42 Id. at 2161.
43 Id. at 2162; see id. at 2161–62.
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THE SUPREME COURT — LEADING CASES
475
could deliver the same procompetitive effects without such burdensome
restraints.44 After agreeing with the district court’s application of the
rule of reason test, Justice Gorsuch held that the district court’s injunction did not invite future courts to “micromanage” the NCAA,45 but rather constituted a permissible antitrust remedy.46
Justice Kavanaugh concurred to note that the NCAA’s remaining
rules restricting non-education-related compensation, challenged in the
district court but not appealed in the Supreme Court, raised serious antitrust questions as well.47 Justice Kavanaugh emphasized three points:
that the Supreme Court’s decision did not consider the legality of the
non-education-related compensation rules, that the Court’s decision established that these rules would be analyzed under the rule of reason
test, and that the Court’s decision raised serious questions about the
legality of the remaining restraints under the rule of reason test.48 In
challenging the NCAA’s argument that maintaining compensation restrictions is necessary to distinguish college athletics from professional
athletics, Justice Kavanaugh stated: “Businesses like the NCAA cannot
avoid the consequences of price-fixing labor by incorporating price-fixed
labor into the definition of the product.”49 Although Justice Kavanaugh
did suggest that the NCAA could protect itself from future judicial scrutiny by engaging in collective bargaining with student athletes,50 he also
flatly concluded that “[n]owhere 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. . . . The NCAA is not above the law.”51
Although the Supreme Court did not have occasion to review the
NCAA’s rules regarding compensation unrelated to education, its decision laid the groundwork for the dismantling of those rules in future
proceedings. Prior to Alston, the Supreme Court had not definitively
stated whether the NCAA’s compensation rules were subject to the rule
of reason test under the Sherman Act;52 now that the Court has clarified
that they are, the remaining restrictions on compensation cannot pass
scrutiny. Justice Kavanaugh’s concurrence already raised serious concerns about the legality of the remaining rules by arguing that the
NCAA cannot justify restricting compensation “by calling it product
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
44 See id. at 2164.
45 Id. at 2163 (quoting Brief for Petitioner at 50, Alston, 141 S. Ct. 2141 (No. 20-512)).
46 See id. at 2166.
47 See id. at 2166–67 (Kavanaugh, J., concurring).
48 See id. at 2166–68.
49 Id. at 2168.
50 Id.
51 Id. at 2169.
52 See id. at 2167.
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definition.”53 But neither Justice Kavanaugh’s concurrence nor the majority opinion analyzed a separate doctrinal hurdle for the NCAA:
multimarket balancing. The NCAA’s justification for its remaining
rules — that they enhance collegiate athletics by distinguishing them
from professional sports — impermissibly balances harm in the laborside market against benefits in the consumer-side market, benefits that
do not accrue to the parties harmed by the challenged restraints (the
student athletes). The NCAA’s sole justification for its remaining rules
is therefore not a valid procompetitive justification and accordingly does
not satisfy the second prong of the rule of reason test. Alston’s subjecting the NCAA’s compensation rules to the rule of reason test, combined
with the established impermissibility of multimarket balancing, therefore opens the door to further changes in the future of United States
amateur athletics.
The second step of the rule of reason test requires the defendant to
show that a procompetitive rationale exists that justifies the challenged
restraint.54 Only one procompetitive justification offered by the NCAA
for its compensation rules survived the district court’s scrutiny55 and
was considered by the Supreme Court: that the rules preserve amateurism, which provides consumers a unique product distinct from paid professional sports.56 The district court relied on this justification to leave
in place the NCAA’s limitations on non-education-related benefits, stating that “[r]ules that prevent unlimited payments such as those observed
in professional sports leagues, therefore, are procompetitive when compared to having no such restrictions.”57 The district court erred, however, in allowing the NCAA to balance the potential procompetitive impact of the rules on the consumer-side output market against the
anticompetitive restraints on trade in the labor-side market.58
First, existing case law prohibits the district court’s decision to balance harms in the labor market against benefits in the consumer market.
Although not in the Sherman Act context, the Supreme Court held while
reviewing a merger in United States v. Philadelphia National Bank59
that weighing procompetitive effects in one market with anticompetitive
effects in another violates antitrust law.60 Justice Brennan reasoned that
“[i]f anticompetitive effects in one market could be justified by procompetitive consequences in another, the logical upshot would be that every
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
53 Id. at 2168.
54 See Ohio v. Am. Express Co., 138 S. Ct. 2274, 2284 (2018).
55 In re NCAA Athletic Grant-in-Aid Cap Antitrust Litig., 375 F. Supp. 3d 1058, 1062 (N.D.
Cal. 2019).
56 Alston, 141 S. Ct. at 2152.
57 In re NCAA, 375 F. Supp. 3d at 1083.
58 See Alston, 141 S. Ct. at 2152.
59 374 U.S. 321 (1963).
60 See id. at 370.
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THE SUPREME COURT — LEADING CASES
477
firm in an industry could, without violating § 7, embark on a series of
mergers that would make it in the end as large as the industry leader.”61
Not long after, the Court confirmed in United States v. Topco Associates,
Inc.62 that this principle also applies to antitrust challenges brought under the Sherman Act.63 In that case, Justice Marshall rejected the defendant’s attempt to justify its anticompetitive rules, stating that competition “cannot be foreclosed with respect to one sector of the economy
because certain private citizens or groups believe that such foreclosure
might promote greater competition in a more important sector of the
economy.”64 The Court has therefore made clear that its typical antitrust review does not allow for multimarket balancing.
Some scholars suggest, however, that the atypical nature of sports
requires atypical antitrust review, and that multimarket balancing is a
component of the necessary horizontal cooperation that the Supreme
Court has held valid in the context of sports.65 To be sure, in Board of
Regents and other cases, the Court has stated that sports leagues have
“a perfectly sensible justification for making a host of collective decisions,” including that otherwise competing teams have a collective “interest in making the entire league successful and profitable.”66 In particular, the Court held in Brown v. Pro Football, Inc.67 that professional
leagues may exert monopsonistic buying power in the labor context.68
Supreme Court cases analyzing the legality of professional sports
league rules governing the player market have, however, held that antitrust law does not even apply.69 In one of the first Court cases to approach this issue, Federal Baseball Club of Baltimore, Inc. v. National
League of Professional Baseball Clubs,70 the Court determined that professional baseball was exempt from antitrust scrutiny because “in order
to attain for these exhibitions the great popularity that they have
achieved, competitions must be arranged between clubs from different
cities and States.”71 Together, these decisions might have implied that,
because horizontal restraints on trade are necessary to operate sports
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
61 Id.
62 405 U.S. 596 (1972).
63 See id. at 610. The defendant attempted to justify anticompetitive rules it had imposed in
the buying market by pointing to its need to cooperate to compete in the consumer market. Id. at
598, 605.
64 Id. at 610.
65 See, e.g., Gregory J. Werden, Cross-Market Balancing of Competitive Effects: What Is the
Law, and What Should It Be?, 43 J. CORP. L. 119, 132 (2017).
66 Am. Needle, Inc. v. NFL, 560 U.S. 183, 202 (2010).
67 518 U.S. 231 (1996).
68 See id. at 231.
69 See, e.g., Fed. Baseball Club of Balt., Inc. v. Nat’l League of Pro. Baseball Clubs, 259 U.S.
200, 200 (1922) (holding that professional baseball is exempt from antitrust scrutiny).
70 259 U.S. 200.
71 Id. at 208.
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leagues, and because professional sports leagues may impose restraints
on trade in the labor market exempt from antitrust scrutiny, the NCAA
may impose horizontal restraints in the market for college-athlete labor.
The Court’s opinion in NCAA v. Alston opens the door to a different
approach in the collegiate sports context.72 First, the Court’s opinion
establishes that, unlike in professional sports contexts, antitrust rules do
apply to labor market rules in collegiate athletics.73 The principal contribution of the Court’s decision was to make clear that the NCAA’s
compensation rules are subject to Sherman Act scrutiny.74 Once the
Court holds that the rule of reason test applies, the burden shifts to the
NCAA to offer a valid procompetitive justification for its rules.75 As a
result, the Court’s willingness to uphold horizontal restraints in professional sports contexts when it did not apply antitrust law does not require the Court to allow multimarket balancing once it has determined
that antitrust law applies in the collegiate sports context.
Additionally, the compensation rules at issue in the Alston case are
distinct from the horizontal cooperation upheld by the Court in other
sports contexts. In Brown v. Pro Football, Inc., professional football
players challenged National Football League (NFL) rules establishing a
“developmental squad” of substitute players with a fixed compensation
of $1,000 per week.76 Although the players alleged that this compensation cap violated the Sherman Act, the Supreme Court instead held that
because the NFL imposed the plan after a failed effort to bargain with
the players’ union, federal labor law shielded the NFL from antitrust
scrutiny.77 The NCAA, meanwhile, does not collectively bargain with
its players, and therefore cannot claim that any dispute should instead
be governed by labor law.78 The lack of collective bargaining in the
collegiate context is particularly important because it means that those
harmed by the anticompetitive rules cannot negotiate to receive a portion of the benefit purportedly secured in the consumer market.
To be sure, if the NCAA were to engage in collective bargaining with
its players, it might be able to receive more lenient treatment under
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
72 The Supreme Court has held that it will review different sports leagues in distinct manners. See
Radovich v. NFL, 352 U.S. 445, 451 (1957) (“The Court was careful to restrict [Toolson v. New York
Yankees, Inc., 346 U.S. 356 (1953)] to baseball . . . . ‘Toolson is not authority for exempting other businesses merely because of the circumstance that they are also based on the performance of local exhibitions.’” (quoting United States v. Int’l Boxing Club of N.Y., Inc., 348 U.S. 236, 242 (1955))).
73 Prior to the Court’s decision, “legal analysis of the NCAA’s monopsony power remain[ed]
underdeveloped due, in part, to [the] unfortunate dicta in Board of Regents.” Jeffrey L. Harrison &
Casey C. Harrison, The Law and Economics of the NCAA’s Claim to Monopsony Rights, 54
ANTITRUST BULL. 923, 923–24 (2009).
74 See Alston, 141 S. Ct. at 2145.
75 Id. at 2160 (quoting Ohio v. Am. Express Co., 138 S. Ct. 2274, 2284 (2018)).
76 Brown v. Pro Football, Inc., 518 U.S. 231, 231 (1996).
77 Id.
78 See Alston, 141 S. Ct. at 2168 (Kavanaugh, J., concurring); Brown, 518 U.S. at 237.
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THE SUPREME COURT — LEADING CASES
479
antitrust law because student athletes, like professional athletes, would
be able to negotiate for their fair share of the benefits coming from those
labor market restraints.79 For example, in some professional leagues,
star athletes clearly earn less than their market value because the players
have collectively agreed with the team owners that there should be a
salary cap to ensure competitive balance.80 But collective bargaining
creates an avenue through which players can share in the benefits associated with that competitive balance, such as enhanced ticket sales and
larger TV deals. If the NCAA similarly allowed student athletes to negotiate for their share of any procompetitive benefits, then the NCAA
would be able to point to a procompetitive benefit in the labor market.
However, absent such a change — one that might necessarily include
waiving some of the compensation restrictions unrelated to education
(since players would likely try to negotiate for such compensation as part
of their collective bargaining) — the NCAA’s proffered procompetitive
justification poses serious multimarket balancing problems.
Further supporting this objection’s seriousness, the Court did allude
to multimarket balancing as a potential concern but tabled that argument only because the plaintiffs waived it.81 Justice Gorsuch stated:
[T]he student-athletes do not question that the NCAA may permissibly seek
to justify its restraints in the labor market by pointing to procompetitive
effects they produce in the consumer market. Some amici argue that . . . review should instead be limited to the particular market in which antitrust
plaintiffs have asserted their injury. But the parties before us do not pursue
this line.82
Elsewhere in the opinion, Justice Gorsuch commented on multimarket balancing with language suggesting that the objection is serious.
Justice Gorsuch remarked that the asserted benefits of the rules
“[a]dmittedly” accrue only to “consumers in the NCAA’s seller-side consumer market rather than to student-athletes whose compensation the
NCAA fixes in its buyer-side labor market,” but that “the NCAA argued
[that] the district court needed to assess its restraints in the labor market
in light of their procompetitive benefits in the consumer market — and
the district court agreed to do so.”83 Finally, Justice Kavanaugh also
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
79 Alston, 141 S. Ct. at 2168 (Kavanaugh, J., concurring).
80 See, e.g., Brian Windhorst & Darren Rovell, How Much Would LeBron Make in an Open Market?
Look to Ronaldo, ESPN (July 11, 2018), https://www.espn.com/nba/story/_/id/24062252/how-muchlebron-james-make-open-market-look-cristiano-ronaldo-nba [https://perma.cc/YU8X-XJVE].
81 See Alston, 141 S. Ct. at 2155.
82 Id. (citation omitted). The Court cited an amicus brief that argued courts should not engage in
the policy-based exercise of “trad[ing]-off” competition in one market for competition in another. Brief
for American Antitrust Institute as Amicus Curiae in Support of Respondents at 3, 11–12, Alston, 141
S. Ct. 2141 (Nos. 20-512, 20-520). This argument is made even stronger by the Court’s holding that the
NCAA’s compensation rules are not exempt from antitrust scrutiny. Alston, 141 S. Ct. at 2145.
83 Alston, 141 S. Ct. at 2152.
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alluded to the fact that the purported competitive benefits of the rules
do not accrue to the student athletes, lamenting that the “enormous sums
of money” that collegiate athletics generate “flow to seemingly everyone
except the student athletes.”84 The Court’s references to the fact that
the NCAA’s multimarket balancing went unchallenged could suggest
that it has reservations about such balancing; at the very least, the references suggest that the Court would invite a line of argument regarding
the permissibility of multimarket balancing.
If student athletes do accept Justice Kavanaugh’s invitation to challenge the remaining rules, future courts need not worry that they must
either allow for multimarket balancing or risk destroying college athletics. There are Sherman Act–compliant NCAA rules that distinguish
collegiate athletes from their professional counterparts that do not rest
on the fact that collegiate athletes are unpaid — most notably the requirement that collegiate athletes remain enrolled while they compete.85
This rule better serves to distinguish collegiate athletes from professional athletes; while the casual observer may not be aware how much
collegiate or professional athletes are compensated for their efforts on
the field, college fans can, unlike professional fans, take pride in sitting
next to the star player in English 101. In fact, the district court found
that the NCAA did not “establish that the challenged compensation
rules . . . have any direct connection to consumer demand.”86
Justice Kavanaugh’s concurrence foreshadows that significant
changes may still come to the NCAA’s compensation rules. Even the
NCAA may agree; days after the Alston decision, the NCAA adopted its
policy allowing student athletes to benefit from NIL opportunities, such
as endorsement deals.87 In just the first month after the policy was
adopted, Coach Saban estimated that incoming star Alabama quarterback Bryce Young earned almost $1 million in endorsements.88 Still,
the NCAA seems intent on restricting non-education-related compensation, with Division II Presidents Council chair Sandra Jordan declaring:
“The new policy preserves the fact college sports are not pay-forplay . . . .”89 The Court’s decision in Alston, however, means that
pay-for-play is likely on the NCAA’s one-yard line.
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84 Id. at 2168 (Kavanaugh, J., concurring).
85 NCAA, supra note 4, at 165.
86 Alston, 141 S. Ct. at 2152.
87 Michelle Brutlag Hosick, NCAA Adopts Interim Name, Image and Likeness Policy, NCAA
(June 30, 2021), https://www.ncaa.org/about/resources/media-center/news/ncaa-adopts-interimname-image-and-likeness-policy [https://perma.cc/EMT3-3283].
88 Alex Scarborough, Alabama QB Bryce Young Approaching $1M in Endorsement Deals, Says
Coach Nick Saban, ESPN (July 21, 2021, 11:45 AM), https://www.espn.com/collegefootball/story/_/id/31849917/alabama-qb-bryce-young-approaching-1m-endorsement-deals-sayshead-coach-nick-saban [https://perma.cc/4688-R5QH].
89 Hosick, supra note 87.
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