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Supreme Court to Weigh Reviving NCAA’s Athletic Scholarship Caps

Dec. 16, 2020, 2:38 PM

The U.S. Supreme Court agreed Wednesday to consider reinstating NCAA athletic scholarship caps struck down by a federal judge in California last year in a landmark ruling that was later affirmed on appeal.

The justices said they’ll review a decision by the U.S. Court of Appeals for the Ninth Circuit, which in May upheld the ruling invalidating limitations on education-related compensation for college athletes while preserving the NCAA’s ban on outright pay.

The injunction took effect in mid-August, after Justice Elena Kagan denied the association’s 11th-hour bid for an emergency reprieve. The Ninth Circuit rejected a similar request a week earlier.

The court decisions reflected a middle ground between the athletes’ bid for a free labor market and the NCAA’s insistence that the restrictions are the only way to preserve the “amateurism” that differentiates collegiate from professional sports.

The case reached the country’s top court at a time when the NCAA’s decision to play a football season during the Covid-19 pandemic—even as the coronavirus has spread through teams and infected leading coaches—has amplified criticism about the lack of pay for college athletes.

The association is also facing renewed litigation over the right of athletes to receive compensation for its use of their names, images, likenesses, and social media brands.

In an October petition asking the Supreme Court to review and reverse the earlier rulings, the NCAA argued they would upend the settled consensus that its amateurism standards are barely a matter of antitrust concern, let alone a violation.

Although the Ninth Circuit accepted the premise that amateurism is a key feature of college sports, it “invented out of thin air” a new definition that turns on whether athlete compensation is “related to education,” the petition said.

That “fictional distinction” will lead to gamesmanship by colleges and endless litigation by athletes over “disguised” pay-for-play, the NCAA argued. It invoked a hypothetical $500,000-a-semester “internship” with Nike that would be “the antithesis of amateurism.” The NCAA’s top conferences also filed a parallel petition.

The current and former college athletes leading the proposed class action defended the rulings in a court brief last month, blasting the NCAA’s “sky-is-falling rhetoric” and referring to the injunction as “modest.”

“To be sure, some NCAA rules may be necessary to protect consumer demand for college sports as a distinct ‘product,’” according to their brief. But “the restraints in this case” are “cost-cutting measures, plain and simple,” the athletes said.

The NCAA is represented by Wilmer Cutler Pickering Hale & Dorr LLP; Skadden, Arps, Slate, Meagher & Flom LLP; and Wilkinson Walsh LLP.

The athletic conferences are represented by Mayer Brown LLP; Polsinelli PC; Robinson, Bradshaw & Hinson PA; Seifert Law Firm; Proskauer Rose LLP; Covington & Burling LLP; Jones Walker LLP; Fox Rothschild LLP; Walter Haverfield LLP; Bryan Cave Leighton Paisner LLP; and Bradley Devitt Haas & Watkins PC.

The plaintiffs are represented by Winston & Strawn LLP; Hagens Berman Sobol Shapiro LLP; Pearson, Simon & Warshaw LLP; and Pritzker Levine LLP.

The cases are Nat’l Collegiate Athletic Ass’n v. Alston, U.S., No. 20-512, cert. granted 12/16/20 and Am. Athletic Conf. v. Alston, U.S., No. 20-520, cert. granted 12/16/20.

To contact the reporter on this story: Mike Leonard in Washington at

To contact the editors responsible for this story: Rob Tricchinelli at; Nicholas Datlowe at

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