Wednesday, March 31, 2021

Alston v. NCAA


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1. Alston v. NCAA

by Michael McCann, Sportico

Today at 10 a.m. ET, the U.S. Supreme Court will hear oral arguments in one of the most important cases to involve the sports industry. Two petitioners, the NCAA and the Big Ten Conference, will argue their consolidated side in the class action led by former West Virginia running back Shawne Alston over how schools compensate athletes. The Justice Department will also participate on behalf of Alston. The hearing will occur by telephone conference in light of pandemic safety measures.

1) In a nutshell, what is NCAA v. Alston about?

This is an antitrust case about the legality of colleges, through the NCAA, agreeing to limit compensation to student-athletes. Federal antitrust law prohibits competing businesses from unreasonably restraining how they compete. The basic rationale is that when competitors work together, some element of the economy might experience higher prices, fewer choices or less innovation.

2) If Alston wins, would that mark the end of amateurism?

No. “Amateurism” is a label used to define a set of NCAA rules that govern college sports and that, by prohibiting certain types of commercial opportunities, attempt to distinguish college athletes from professional ones. These rules have changed over the years—including through reforms sparked by Ed O’Bannon’s litigation—and will continue to evolve, regardless of the Court’s forthcoming ruling. 

3) What kinds of changes could we expect if Alston wins?

If the Supreme Court affirms the Ninth Circuit and upholds the prescribed remedy, the NCAA must then rewrite rules to allow schools to offer reimbursements for expenses pertaining to computers, science equipment, musical instruments and other tangible, academic-related items not included in the cost of attendance calculation. In addition, the NCAA could no longer limit internships for college athletes after their eligibility expires, though could cap cash graduation and academic awards to $5,600 (a dollar figure that would change by academic year).

4) Some have conflated the Alston case with name, image and likeness reform. Are they the same?

No. The Alston case, as explained above, is a federal antitrust dispute. NIL falls under a different area of law, intellectual property, and to date only under state law (Congress is considering federal NIL bills but none has advanced past committee).

The Alston case is also about how schools compensate their student-athletes. NIL reform, in contrast, concerns how college athletes can earn money from third parties—be they apparel companies, sneaker manufacturers, summer camps, video game publishers and businesses that leverage social media influencing—not the schools themselves.

5) How long will Wednesday’s hearing last, who will go first and who will be arguing?

The hearing, like all Supreme Court oral arguments, will last about an hour. As the petitioner, the NCAA (and Big Ten) will have 30 minutes to present. Alston’s side will then have 20 minutes to respond to the petitioner’s presentation. The last 10 minutes will be awarded to Acting Solicitor General Elizabeth Prelogar, a former clerk to Justice Elena Kagan, the late Justice Ruth Bader Ginsburg and U.S. Attorney General Merrick Garland while he was an appellate court judge.

6) Will I be able to watch or listen to the arguments?

Sorry, you won’t be able to watch. The Supreme Court Building is closed to the public due to the pandemic and the telephone conference isn’t televised. The Court has never televised proceedings, though has made audio recordings and transcripts of oral arguments available. But you can listen. C-SPAN has streamed oral arguments.

7) When will the justices vote?

The nine justices usually meet to discuss a Wednesday oral argument on Friday. They’ll vote and determine which justice will write the opinion, or in the case of divided vote, which justices will write the majority and dissenting opinions (and concurring opinions if a justice agrees with the ultimate outcome but rejects the reasoning).

8) When will we find out who won?

Most likely in June or July.

9) What are the potential outcomes?

The Court could reverse the Ninth Circuit’s ruling (good news for NCAA), affirm it (bad news for NCAA), vacate the ruling whereby the Ninth Circuit’s ruling is rendered void and the case is remanded to Judge Claudia Wilken with new instructions, or issue some combination or variation therein (e.g., affirm and reverse in part, possibly with a remand).

>> Learn More About the Day
>> Go Deeper (Sports Business Journal)
>> Even Deeper (Wall Street Journal)



2.  Whispers of an Exodus

by Pete Thamel, Yahoo!Sports

"NCAA president Mark Emmert has long passed the point where the failures of his tenure register as shocking news. Emmert has been so ineffective and so unpopular for so long that leaders within college athletics have long given up hope that he could evolve into a functional leader.

So when Emmert became the face of the equity issues between the men’s and women’s NCAA tournaments last week, it only further entrenched opinions among leaders around college sports.

The fresh indignation came with the declaration of support for Emmert from Georgetown president Jack DeGioia, who is the chair of the NCAA Board of Governors.

How mad are the leaders around college athletics? There have been open conversations — nothing formal, just general — about the NCAA’s failure of leadership and president-run governance structure being a wedge that could contribute to major conferences eventually breaking away from the NCAA. “How does it not?” said a Power Five athletic director. “This is failed leadership.”

>> Situational Awareness: "No one is saying DeGioia’s comments will lead directly to major conferences breaking away from the NCAA. But if the major football school/leagues do break away, the inability of the NCAA to find effective leadership and a nimble governance structure, which this moment epitomizes, would be remembered as a pivot point."

>> By The Numbers: "Yahoo Sports spoke to multiple commissioners who estimated that there’s at least an 85% disapproval of the job Emmert is doing among college commissioners. Among Division I athletic directors, his support is about the same. And those estimates are considered conservative."

>> What They're Saying: “For the leadership of the NCAA to be the tipping point for a Power Five exodus, it would be such an epic failure on the part of the NCAA to not read the room or even listen to its membership on campus or in conferences whose frustration has been brewing for years,” a conference commissioner outside of the Power Five said.

>> Continue Reading



3.  Around the Diamond

Vondra running out a hit

This Week's NCBWA/ Poll

  1. Trinity, Texas (15), 13-1
  2. Washington, Mo. (9), 12-0
  3. Salisbury, 8-1
  4. Cal Lutheran, 0-0
  5. Aurora, 11-0
  6. Webster, 13-3
  7. Southern Maine, 7-1
  8. Babson, 2-0
  9. North Central, Ill., 9-3
  10. Marietta, 0-0
11-15: Chapman, Berry (1), Shenandoah, Randolph-Macon, NC Wesleyan
16-20: UW-Whitewater, Centenary (La.), Rowan, Wheaton (Mass.), W&J
21-25: Mass-Boston, Saint John's, Birmingham-Southern, Adrian, Kean.

>> Hello: Washington & Jefferson, Saint John's, Adrian
>> Goodbye: Johns Hopkins, Wooster, Denison

>> Games to Watch: #16 Whitewater vs La Crosse (Wed/Fri); #2 Washington U. vs #5 Aurora (Fri); #10 Marietta vs John Carroll (Fri/Sat); #22 Saint John's vs Gustavus Adolphus (Fri/Sat); #13 Shenandoah vs Roanoke (Sat); #18 Rowan vs #25 Kean (Sat)

>> Complete Poll
Try It: D3Playbook

4.  The Elite Eight

It's regional final day in DIII Fight Song Madness. Thanks for participating and we hope you'll spread the word and vote again today.

Region I (click on link to listen)
Heidelberg vs. Ohio Wesleyan

Region II
Washington and Lee vs. Manchester

Region III
Mount Union vs. UW-La Crosse

Region IV
Adrian vs. Virginia Wesleyan 


5.  Comings and Goings

6. Play of the Day

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