Justice Elena Kagan denied the association’s 11th hour bid for an emergency stay preventing the court order from taking effect as scheduled Tuesday. The U.S. Court of Appeals for the Ninth Circuit, which upheld the injunction in May, rejected a similar request a week earlier.
The Ninth Circuit’s May 18 ruling upheld a California federal judge’s decision preserving the ban on outright pay for athletes but invalidating limits on education-related compensation.
The NCAA had argued that the injunction would irreparably harm college sports if it takes effect immediately because its impact will be difficult, costly, or impossible to reverse.
The association and its 11 member conferences have said they’ll file their Supreme Court petition by the mid-October deadline, which was extended several months because of the Covid-19 pandemic.
Steve Berman, an attorney for the plaintiffs, welcomed the stay denial Tuesday.
“We look forward to the NCAA now complying with the court’s injunction and opening competition for students by offering more educational related benefits, an outcome the NCAA’s president has embraced as a good thing for athletes,” Berman told Bloomberg Law.
The association’s chief legal officer, Donald Remy, said in a statement Tuesday that it would “comply with the injunction as required,” starting with a meeting Wednesday “to put in place an immediate implementation plan.”
But the NCAA will press forward with its Supreme Court appeal, Remy said, citing “the adverse impact of the Ninth Circuit’s decision on college athletics, the legal reasoning of the lower courts’ decisions, and the conflict created with other federal circuits.”
The rulings reflect a middle ground between the athletes’ bid for a free labor market and the NCAA’s insistence that restrictions are the only way to preserve the “amateurism” that differentiates collegiate from professional sports.
In court papers seeking to delay the injunction, the NCAA unsuccessfully argued that uncertainty about what counts as an education-related expense “will “almost certainly engender perpetual litigation.”
The stay petition cited recent lawsuits against the association, including a proposed class action filed in June over athlete likenesses and social media brands.
The NCAA is represented by Wilmer Cutler Pickering Hale & Dorr LLP. The plaintiffs are represented by Hagens Berman Sobol Shapiro LLP, Winston & Strawn LLP, Pearson, Simon & Warshaw LLP, and Pritzker Levine LLP.
The case is Nat’l Collegiate Athletic Ass’n v. Alston, U.S., No. 20A24, 8/11/20.