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Mar 31, 2021
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As March Madness heads into its final days, college athletes are playing on a different kind of court - the Supreme Court. Their case tests whether the NCAA's limits on compensation for student athletes violate the nation's antitrust laws. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG, BYLINE: The players contend that the NCAA is operating a system that's a classic restraint of competition in violation of the nation's antitrust laws. And there's little doubt that big-time college sports is a big business. To cite just one example, the NCAA is paid $1.1 billion each year for the March Madness TV rights. But the NCAA maintains that the antitrust laws allow it to impose certain limits on athlete compensation in order to preserve what the NCAA contends is the essence of college sports and their popularity - namely, amateurism.

Today's case stems from an appeals court ruling that ordered the NCAA to broaden the education-related benefits available to college athletes. The NCAA objected and appealed to the Supreme Court, contending it should be left alone to decide on athlete compensation. Chief Justice Roberts noted that, under its rules, the NCAA schools can pay $50,000 for a $10 million insurance policy to protect the student athlete's future earnings.


JOHN ROBERTS: That sounds very much like pay for play. Doesn't that undermine the amateur status theory you have?

TOTENBERG: Justice Thomas, a big football fan, interjected with this.


CLARENCE THOMAS: You've put a lot of weight on amateurism, but is there a similar focus on the compensation to coaches?

TOTENBERG: And Justice Breyer put this question to the NCAA's lawyer, Seth Waxman.


STEPHEN BREYER: What is it precisely that you are complaining about in this court?

SETH WAXMAN: The court now says that we cannot restrain schools from awarding to every Division I athlete, just for being on the team, $5,980 per year, God help us. That is nothing but pay for play.

TOTENBERG: That number is the amount in rings, trophies and cash that's currently awarded to athletes for performance in high-level competition like the championship bowls. Justice Alito didn't seem to buy the NCAA's argument.


SAMUEL ALITO: The briefs that are submitted in support of the respondents paint a pretty stark picture, and they argue that colleges with powerhouse football and basketball programs are really exploiting the students that they recruit.

TOTENBERG: While the athlete's work is bringing in billions of dollars, they have a pretty hard life, said Alito. Training requirements leave little time for study, there's pressure to drop out of hard majors and the graduation rates are shockingly low.


ALITO: So the argument is they are recruited, they're used up and then they're cast aside without even a college degree. So they say, how can this be defended in the name of amateurism?

TOTENBERG: Justice Kagan, too, seemed doubtful about the NCAA's argument that it's protecting not just its business, but the athletes.


ELENA KAGAN: The way you talk about amateurism, it sounds awfully high-minded. But schools that are naturally competitors have all gotten together in an organization, and they use that power to fix athletic salaries at extremely low levels.

TOTENBERG: Justice Gorsuch.


NEIL GORSUCH: The trick comes, for me at least, sort of where Justice Kagan was alluding to, which is, here, the agreement that's really at the center of the case is an agreement among competitors to fix price with the labor market.

TOTENBERG: Justice Kavanaugh seemed to agree.


BRETT KAVANAUGH: It does seem that the schools are conspiring with competitors, agreeing with competitors to pay no salaries to the workers who are making the schools billions of dollars.

TOTENBERG: And Justice Barrett, a former professor at sports powerhouse Notre Dame, had this to say.


AMY CONEY BARRETT: Why does the NCAA get to define what pay is?

TOTENBERG: But when it came time for the athletes' lawyers to make their argument, they faced just as much skepticism. Chief Justice Roberts suggested the lower court may have overstepped by seeking to micromanage the NCAA's business.


ROBERTS: And it's like a game of Jenga. You've got this nice solid block that protects the sort of product the schools want to provide, and you pull out one log and then another and everything's fine, then another and another. And all of a sudden, the whole thing comes crashing down.

TOTENBERG: And Justice Breyer had this to say.


BREYER: This is not an ordinary product. This is an effort to bring into the world something that's brought joy and all kinds of things to millions and millions of people. And it's only partly economic, OK? So I worry a lot about judges getting into the business of deciding how amateur sport should be run.

TOTENBERG: Justice Barrett interjected.


CONEY BARRETT: This is a delicate area. On the one hand, there's concern about blowing up the NCAA and something that people have - as Justice Breyer put it - gotten so much joy out of, but then, you know, messing up general antitrust law.

TOTENBERG: Justice Sotomayor was more direct.


SONIA SOTOMAYOR: How do we know that we're not just destroying the game as it exists?

TOTENBERG: And Justice Kagan, apparently spooked by the NCAA's argument that it might have to pay every athlete $5,980, asked this question.


KAGAN: Would I be wrong to think that this $5,980 was essentially taken out of thin air, that the one it came up with was essentially arbitrary?

TOTENBERG: Acting Solicitor General Elizabeth Prelogar pushed back, contending there's nothing in the lower court order that prevents the NCAA from setting up actual benchmarks to guarantee that these are not sham payments. At the end of the day, it was anyone's guess how the court would rule.

Nina Totenberg, NPR News, Washington.

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