The United States Supreme Court has issued a narrow ruling that raises the possibility that student-athletes may be paid someday—but only after larger legal challenges are brought forth by athletes and their lawyers to take aim at NCAA rules prohibiting monetary compensation, says Dan Urman, who teaches constitutional law and the modern U.S. Supreme Court at Northeastern.
The court ruled unanimously that college athletes may receive benefits related to their education—including laptops and paid internships—that had been prohibited by NCAA rules.
An ominous concurring opinion written by Justice Brett Kavanaugh referred to the “illegal” nature and “price-fixing labor” practices of the NCAA’s long-held approach to amateurism that bars players from receiving their share of the billions of dollars that are created by college football and basketball—rules that “raise serious questions under the antitrust laws,” according to Kavanaugh.
Urman views Kavanaugh’s opinion as an invitation for student-athletes who hope to be paid.
“This case clears the way for future direct challenges,” says Urman. “Kavanaugh is basically sending a message to athletes, former athletes, and lawyers. He’s saying, ‘Bring that next case.’”
But Kavanaugh may not necessarily be speaking for the other justices, notes Urman.
Why did Kavanaugh offer this opinion?
Sometimes, the majority opinion will contain language that reflects a compromise—and avoidance of a concurring opinion. For example, according to former Justice John Paul Stevens, Justice Anthony Kennedy convinced Justice Antonin Scalia to include language that limited the impact of the majority opinion in DC v. Heller, a major gun rights case from 2008. If a majority opinion writer refuses to budge or incorporate suggested edits, justices will sometimes speak for themselves in a concurrence.
Concurrences are common, and they happen for many reasons. Sometimes, a justice disagrees with the reasoning, but not the result. Other times, like here, a justice has a unique perspective and wants to go further than the opinion went. Another reason for a concurrence is to send a signal to future litigants. Kavanaugh’s concurrence basically put the NCAA on notice—and it told the lawyers and the athletes that they had Kavanaugh’s vote.
Interestingly, Kavanaugh was only speaking for himself. The challenge going forward is determining how deeply held is Kavanagh’s position at the Court? Look for lots of lawsuits quoting language from Kavanaugh’s opinion, especially this line: “The NCAA is not above the law.”
Steve Berman, an attorney for college athletes, told ESPN that Kavanaugh’s opinion has encouraged him to consider bringing a larger lawsuit that demands money for college athletes. If athletes are to be paid, how quickly might it happen?
Congress could pass a bill, or the NCAA could come up with new policies. But it is not going to happen tomorrow.
Small steps over time can lead to tremendous change. That’s how the common law is supposed to operate. After litigation in lower federal courts, or a solution by Congress and/or the NCAA, I would imagine that athletes could be paid within the next five to 10 years.
Justice Neil Gorsuch’s opinion distinguished a 1984 ruling that had immunized the NCAA from paying players based on its commitment to amateurism. How important is this reversal?
That ruling had been the card the NCAA could play to argue that amateurism is protected from anti-competitive challenges. However, Justice Gorsuch characterized this language as “stray comments.” He also mentioned that “market realities” are much different in 2021 than they were in 1984.
It is a perfect illustration that law is malleable, it is often indeterminate, and it reflects larger cultural, social, and political trends. In other words, the justices in 2021 have seen the size of the NCAA’s TV deals, and important journalistic work like Taylor Branch’s The Shame of College Sports.
It’s also an illustration of the court reflecting dominant elite attitudes. And those elite attitudes are, I think, increasingly skeptical of the NCAA rules and their effect on the student-athletes.
Were you surprised by the unanimous 9-0 ruling by a Supreme Court that is supposed to be divided politically? In the past week the justices have largely been in agreement on a number of cases.
I do think the court is trying very hard to avoid 5-4 opinions and rule in a narrow way to demonstrate that they can function in our polarized era. This matters a tremendous amount to Chief Justice John Roberts. He and his colleagues appear to be working hard to show that even though America is divided, there are ways they can avoid politicized rulings.
Part of that is because of the current external pressure on the court. Joe Biden recently launched a Supreme Court Reform Commission. The easiest way to avoid “packing” or court reform is for the court to demonstrate that there’s nothing about it needing to be fixed. The more that the Court can play against type and act in a bipartisan, non-polarizing way, the more that the pressure comes off. It sends a signal that there’s not a Democratic team and a Republican team of justices.
Is this ruling a signal that the Supreme Court is favoring workers’ rights?
I want to note the irony that in several other cases, this same Supreme Court has consistently ruled on behalf of corporations and against workers and unions. The justices are writing [in the NCAA case] in a way that sounds supportive of workers’ rights—especially Justice Kavanaugh’s concurring opinion. But if you look at their record on unions, mandatory arbitration, and class actions, it’s not so pure. So I guess I’m suggesting that the Justices, like all of us, contain contradictions.