September 23, 2023

Shawne Alston # 20 of the West Virginia Mountaineers rushes for a 4-yard touchdown in the first quarter against the Clemson Tigers during the Discover Orange Bowl at Sun Life Stadium on January 4, 2012 in Miami Gardens, Florida.

J. Meric | Getty Images

Division I student athletes were on the verge of victory in their Supreme Court battle against the National Collegiate Athletic Association over whether the organization could restrict education-related compensation.

During Wednesday’s 90-minute phone battle, judges were skeptical of the NCAA’s claim that paying students for things like musical instruments and internships would annoy fans drawn to the amateur quality of their competitions.

The case, the most recent legal challenge related to the NCAA’s compensation policy, takes place amid a high-profile and related push by athletes looking to capitalize on their own names, images, and likenesses. The NCAA March Madness basketball tournament will host its championships for women and men on Sunday and Monday.

Both Republican and Democratic judges appeared to be convinced by the arguments made by attorney for the student athletes, Jeffrey Kessler, that the NCAA’s restrictions on education-related payments were against federal antitrust law.

A federal district court lifted these restrictions and the US 9th Court of Appeals upheld the decision.

“These are competitors that all come together with the overall prices for establishing market power,” Judge Elena Kagan told Seth Waxman, NCAA attorney and former US attorney general.

Elizabeth Prelogar, the acting attorney general, spoke out in favor of the student athletes.

Waxman centered his arguments on the claim that NCAA sports have always been defined by their amateur quality, which meant that student athletes weren’t paid to play. He said that education-related benefits, “regardless of their titles,” are effectively professional salaries.

The last time the Supreme Court considered compensation for NCAA athletes, it said in the 1984 NCAA v. Board of Regents, University of Oklahoma case that amateurism precluded payments for athletic performance, Waxman said.

In contrast, Kessler said these arguments were “just the final iteration of the repeatedly debunked claims that compensation will destroy demand for college sports”. Kessler said the definition of amateurism should be narrower: that games are played by students.

The case is Shawne Alston v NCAA, No. 20-512.

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