Written by Nobel winning Irish poet Seamus Heaney authored these lines in his translation of Sophocles’ drama, The Cure at Troy:
“History says, Don’t hope
On the side of the grave,’
But then, once in a lifetime
The longed for tidal wave
Of justice can rise up
And hope and history rhyme.
So hope for a great sea- change”
On Wednesday, the United States Supreme Court hears oral argument in the case of National Collegiate Athletic Association v. Alston, an appeal from a Ninth Circuit Court of Appeals decision affirming a district court decision that carries with it the possibility of being a great sea- change, possibly opening the door to colleges and universities paying student-athletes for their play.
The district court permitted universities to compete for student-athletes by offering some unspecified level additional benefits tethered to education, thereby preserving but modifying the long-established notion that the medium of exchange between universities and their athletes was confined to a small menu of educational options- tuition, room, board, books, more recently, amounts constituting full costs of attendance- all strictly limited by NCAA rules.
Federal District Court Judge Claudia Wilken expressly rejected opening the door to paying college athletes for their play and thereby preserved some measure of the former NCAA amateur model. This decision survived appeal to the court of appeals and is now somewhat surprisingly before the Supreme Court.
The Supreme Court agreed to hear the case, in part because the Alston decision represents a split in the circuits- one of the commonly established reasons the Supreme Court agrees to hear the small number of cases it grants a writ of certiorari to consider annually. This split in the circuits involves other prior circuits giving greater deference to the NCAA’s rule making power under a judge-made antitrust analysis, called the rule of reason, which allows certain antitrust violations to continue to exist provided they are narrowly tailored. Other more cynical observers have opined that former Yale JV basketball player Brett Kavanaugh, now an associate justice of the Supreme Court, wanted to decide a sports case. At this point, no one is sure which direction the Court will go. In some respects, the NCAA while technically losing the Alston case, came away in a solid position as a result and some learned observers have questioned whether the NCAA may have more to lose than it does to win in appealing the decision.
Applying the rule of reason is a pretty esoteric and complex thing- even for experienced antitrust lawyers. But in this case you have both the student-athletes and their counsel and the NCAA and its lawyers hoping for a great sea-change that makes hope and history rhyme. The student-athletes in essence seeking the chance for a larger share of the estimated $15-18 billion dollar annual business that intercollegiate athletics in America has become. The NCAA hopeful that the Court will be able to make its history of amateurism rhyme with the present day.
What makes this particularly more interesting is the U.S. Department of Justice (DOJ), America’s law firm, has asked the Supreme Court to be included in oral argument and submitted an amicus curia (friend of the Court) brief supporting the Wilken and Ninth Circuit opinions. Which is why this Heaney quote is relevant here. It is a favorite of President Joseph Biden, whose administration is aligning with the middle ground position that tethers benefits to education.
So while many are hoping for a great sea-change culminating a long process of redefining the relationship between student-athletes and universities ultimately leading toward a greater professionalizing of college sports- which taken as a whole represent the highest earning and spending sports entity in the nation, perhaps just nudging out the NFL by a small margin.
Still others are hopeful that history will carry the day, maintaining the largest source of college educational support, but for the GI Bill, largely intact and preserving college sports as mostly an amateur endeavor from the perspective of paying athletes to play, notwithstanding new benefits emerging and name, image, & likeness possibilities. The Biden DOJ instead seeks a middle ground. But the future of collegiate athletics will soon be in the hands of nine justices not bound to uphold any position. Hold steady until late May or June for the decision.