APRIL 2019 | AROUND THE ABA

Is it time to pay college athletes?

Duke basketball player Zion Williamson’s injury less than a minute into his team’s highly anticipated game against North Carolina in February revived the debate about amateurism in college sports. Should the expected No. 1 NBA draft pick risk his financial future by continuing to play, or sit out the rest of the season? 

Being forced to play at least one year of college after high school before turning professional or playing collegiate sports without financial compensation other than a scholarship are issues not only on the court but in the courtroom. The debate over amateurism in college athletics and whether the case violates antitrust laws was the subject of an ABA teleconference, "Alston v. NCAA: Will 'Amateurism' Survive".

The Alston v. NCAA court case was seen as one that could change the future of collegiate sports depending on the ruling, essentially turning college recruiting into a bidding war where conferences and colleges could make their own rules about how much scholarship money to award student-athletes.

In 2015, the Ninth Circuit overturned a 2014 ruling by U.S. District Court Chief Judge Claudia Wilken, in O’Bannon v. NCAA, which would have eroded the NCAA’s principle of “amateurism.”  Former UCLA basketball player Ed O’Bannon filed a lawsuit in 2009 claiming the NCAA was illegally using players’ images in video games without paying them. Wilken ruled the NCAA’s rules operate as an unreasonable restraint of trade, in violation of antitrust law. The Ninth Circuit agreed the NCAA rules were an unlawful restraint of trade, but two of the three judges also concluded that preserving amateurism was an important goal and that any compensation athletes might receive had to be related to education. Both sides appealed the ruling to the Supreme Court, which refused in October 2016 to hear the case.

Wilken was then faced with ruling on the question of whether the NCAA’s amateurism rules are unlawful in Alston v. NCAA, which was tried in September 2018 in Oakland, Calif. The plaintiffs — former West Virginia football player Shawne Alston and University of California basketball player Justine Hartman — contended the rules capping scholarships violate federal antitrust laws and want the caps removed. The NCAA countered that the caps are essential to protecting amateurism in college athletics.

In her ruling on March 8, Wilken opened the way for college football and basketball players to receive more compensation than they do now, but narrowly limited the benefits to expenses “related to education.’’ The ruling was a partial win for the athletes but fell well short of their goal of eliminating the NCAA’s cap on their compensation. The judge determined that amateurism rules barring payment beyond scholarships and certain related costs of education violate antitrust law. Schools, she said, can compensate athletes for education-related expenses such as postgraduate scholarships, tutoring, study abroad and computers and musical instruments. Individual conferences could cap these payments.  

Panelist Gabe Feldman, a law professor at Tulane Law School, had predicted before Wilken’s ruling that she would “rule in some way against the NCAA, but I think the case will wind up back in the Ninth Circuit and possibly the Supreme Court.”

Pepperdine Law School professor Maureen Weston said she, too, could see a repeat of the Ninth Circuit and possible Supreme Court involvement but added, “Something’s got to change. Win or lose, the pressure is mounting and the money is too big.”

The program was sponsored by the ABA Section of Antitrust Law. Other participants were moderator Bryan Bloom, New York assistant attorney general; Rutgers Law School professor Michael Carrier; and lawyer Sathya Gosselin, Hausfeld LLP.

"Alston v. NCAA:  Will 'Amateurism' Survive" was produced in January as an installment of the Section's Committee Programs educational teleconferences on timely antitrust topics held on a monthly basis. The series is a member benefit of the section. View available program audio here.

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