U.S. Supreme Court unlikely to fully opine on NIL in NCAA v. Alston

$5,980: The maximum amount a college athlete is allowed to receive under current NCAA regulations.

The U.S. Supreme Court heard oral arguments last week challenging this limit in the NCAA's appeal of the 9th Circuit's ruling of Alston v. NCAA. The NCAA had to regret this appeal when all justices save for Justice Breyer critical of its arguments.

The plaintiffs in Alston argue that the NCAA's restriction on academic compensation violates federal antritrust law. The NCAA does not have an antitrust exemption. Instead, the organization claims the current system does not violate antitrust law due to "amateurism." Previously, the U.S. Supreme Court has given deference to the NCAA's moving definition of amateurism, however, Justice Kavanaugh squarely stated his opinion that was dicta rather than binding precedent.

Several justices recognized the obvious inequities noting the $5,980 education-related award potential is dwarfed by both coaches' salaries and television contracts. The NCAA also faced well-founded questions about its price fixing in a market with no labor competition. Justice Kavanaugh highlighted that salaries and coaches' contracts are only funded by an unpaid labor force.Although the justices asked Alston's lawyer Jeffrey Kessler about this case's potential impact on collective bargaining and further litigation, the only issue before the Court relates to $5,980 in education-related expenses.

The vast majority of NIL legislation addresses endorsements for athletic performance. Thus, although the Supreme Court's decision and its timing of opinion release will be interesting to watch (with Florida's NIL statute going into effect July 1, 2021), it is not likely to substantially impact legislation for college athletes' right of publicity given the limited scope of the issue presented in this case. Kessler did not seek to expand his request to athletic-related compensation from the education-related compensation at issue when questioned by multiple justices on the scope of his remedy request.